that you know the origins of our law, it is time to look at a few distinctions in the law, because it is extremely important to know which part of the law you are talking about if you are discussing a problem.
1.4.1 Criminal law and civil law
Let’s start with the distinction most often misunderstood by the layperson: that between criminal and civil law. Criminal law has to do with acts that are forbidden by the state and therefore attract a punitive sanction. In other words, the state can sentence you to punishment if you are found guilty of a criminal act. When I was a state prosecutor, I often heard people say, “I instituted proceedings against him” when in fact they meant that they had laid a charge at the police station. In a criminal case, the dispute is between the state and the accused, because the purpose of criminal law is ultimately to keep order in society, not to remedy the grievance of the complainant. The complainant is no more than a witness. Criminal law is concerned with a list of crimes and follows its own set of procedural rules. The outcome may be a sentence, which is usually in the form of a fine or a prison sentence.
In civil law, on the other hand, although the state is sometimes a party and the matter may be about an act that is forbidden by the state, nobody goes to jail or receives a fine at the end of a civil case. The case is about a grievance or issue between the opposing parties. In most civil cases, the dispute is between two (or more) private individuals. Civil cases also follow a different set of procedural rules to criminal cases. Although the overwhelming majority of cases that come before the courts are civil cases, it is usually the criminal cases that make headlines.
1.4.2 Public law and private law
Another important distinction is that between public law and private law. Public law is that part of the law that concerns the composition of the state and other statutory or public bodies (hence public law), such as Telkom or Metrorail, the underlying legal relationships between the state and public bodies, and the relationship between the state and individuals. Private law, on the other hand, governs the relationship between individuals.
Public law consists of a number of branches, of which constitutional law is the most important these days. Constitutional law consists of all the rules contained in the Constitution (or which can be inferred from it) about all the issues dealt with in the Constitution. These issues are chiefly the composition, functions of and relationships between the different divisions of government, as well as the relationships between those parts of the government and the citizens of the country. An important part of constitutional law is human rights, as reflected in the all-important Bill of Rights.
Besides constitutional law (as a subsection of public law), there is administrative law, which deals with the actions of state officials and is chiefly governed by the Promotion of Administrative Justice Act. Other matters that fall under public law are criminal law, environmental law, aeronautical law, local authority law and international law. All of these mean what their names indicate, with the exception of international law, which deals with the law that applies in dealings between different countries.
1.5 LAW OF PROCEDURE: THE RULES OF THE GAME
The law of procedure encompasses the rules by which the game of litigation is played. Why would you as a layperson want to know the rules? Because the rules can sometimes be the decisive factor in the success or failure of your case, and for more or less the same reason you would not recruit Roger Federer as opening bowler for the Proteas – he may have a killer serve, but you do not play cricket on a tennis court. Besides this, the law of procedure places great importance on the legal jargon that makes the legal process so inaccessible to the layperson. If you understand the law of procedure, you will understand a fair amount of the legal jargon.
I will not make it too dry but I would like you to understand some basic concepts that in my experience will be helpful.
This section covers only civil procedure – those rules applicable to civil litigation. Criminal procedure (the rules applicable to criminal law) is discussed later under criminal law. Concerning the law of civil procedure, we will start with and stick to the most basic parts of the law, namely those relating to actions and applications.
1.5.1 Actions and applications
Actions and applications form the basis of the law of civil procedure.
1.5.1.1 Actions
An action begins with the issuing and serving of a summons. Here is an example: imagine that your Italian prince arrives, but he is ten years too late – you are already married to Ben Boring. You therefore want a divorce. The document with which you institute court proceedings is the summons. Part of the summons is the particulars of claim, setting out what you want: a divorce, half of the house and R15 000 a month in maintenance, and why you want it – because your marriage has broken down. A summons with such particulars of claim will not get you a divorce order if it is simply left in a drawer. It must become “official” and Ben must receive notification of it. It becomes official the day that it is issued at the courts, which means that it is recorded in a register, it is given a number (the so-called case number) and it is date-stamped. Serving takes place when the sheriff – the court’s messenger and bouncer – takes the summons to Ben and gets him to sign to acknowledge that he received it. Ben has then received notice of your action against him and the game can begin.
Ben will probably know that he cannot successfully contest the divorce itself after his first visit to his attorney. However, he may well have different ideas to you regarding the half share of the house and the R15 000 per month maintenance. If so, he must oppose your action. This he would do by filing a notice.
A while later he will plead or enter a plea, which, as stated above, is a formal answer to the allegations that you have made in your particulars of claim and this he does by means of a document called a plea. The plea, like all documents that are exchanged between the parties after summons has been served, is served by physically delivering it to the office of the opponent’s attorney, where someone signs to acknowledge receipt of it. It does not matter who delivers it; this is usually done by a messenger. After delivery, a copy of any documents that have been delivered (bearing the acknowledgement of delivery in them) is handed in at court so that a copy can be placed on the court file.
In an action, you (the person who initiated the action) are called the plaintiff and Ben, the person who defends the action, is called the defendant. How does the matter then proceed between the two of you? We will now set it out in more or less the order in which things normally happen in a civil case, with a warning that matters do not always go according to plan and that at every step outlined here, a number of exceptions to the usual procedure are possible. One must also bear in mind that there are a number of differences in procedure between the magistrates’ court and the higher courts, but these are not important for our purposes. What follows applies to both magistrates’ courts and higher courts.
1.5.1.1.1 The procedural course of an action
Counterclaim
If the defendant feels that he also has a claim against the plaintiff, he can institute a counterclaim. This is what usually happens in a divorce. For example, Ben may believe that he ought to get the entire house as well as your Maserati, and that it is you who should pay maintenance of R10 000 per month to him. He serves and files his counterclaim at the same time as he serves and files his plea. The plaintiff must in turn plead to the particulars of claim in respect of the counterclaim.
Replication
Sometimes a plaintiff wants or needs to answer a plea and he does this by serving a replication.
Exception
