opposing party can object to the content of a pleading, usually by means of serving an exception, which is a document setting out what is wrong with a pleading. If, for instance, the defendant delivers a pleading that does not contain a legally valid defence or is unnecessarily vague and confusing, the plaintiff can note an exception against the plea. The exception is then argued in court and the judge will decide if the exception has merit or not. If the exception was warranted, it is upheld; if it was not, it is dismissed. If it is dismissed, it means that either the entire pleading or at least the objectionable part of it is scrapped.
Amendment of pleadings
Normally the pleading concerned is amended after a successful exception, which is legalese for changing. Pleadings can also be amended for other reasons, for example if new evidence becomes available. In order to do this, notices are delivered by each party to the other.
Summary judgement
When a case is defended and the plaintiff is of the opinion that the defendant does not have a valid defence, he can apply for summary judgement under certain circumstances. This is a procedure that brings to book defendants who try to postpone paying their debts when they do not actually have a defence. It comes down to the defendant having to set out his defence in a sworn affidavit (the opposing affidavit). The court then decides whether there really is a valid defence against the plaintiff’s action. If the court decides that there is no defence to a plaintiff’s action, summary judgement is granted and that is the end of the matter. If it appears from the defendant’s affidavit that there is indeed a defence, the case proceeds in the usual way.
Provisional sentence
A provisional sentence is a special procedure used in cases where the plaintiff is in possession of a document that indicates that the defendant owes the plaintiff a specific sum of money. A good example of such a document is a cheque. A plaintiff issues a special form of summons to which a copy of the document concerned is attached. Just as with summary judgement, a shortened process follows and unless the defendant has, broadly speaking, a special (usually very technical) reason why he does not owe the money, provisional sentence is granted and the defendant must pay into court the amount for which he is being sued if he wants to continue with the case.
Discovery
Discovery (we also speak of the discovery of documents or things) is the delivery of a notice of documents, photographs, plans, diagrams and video material that the party concerned intends using at the trial. If the opposing party feels that there are further documents that may be relevant to the case but which the party concerned has not discovered, he can deliver a notice requesting delivery of those specific documents that are sought. Naturally, copies of everything listed in the notice must be supplied to the opposing party.
Inspections and enquiries
Inspections and enquires can be mutually requested. If, for example, you are injured in a car accident and you claim damages for your injuries, you will without exception be expected to be medically examined. Based on this examination, an expert report (a medico-legal report) is drawn up that contains a summary of the expert’s opinion and the reasons for such opinion. Expert opinions and reports are not necessarily of a medical nature: they can be about tools, financial statements, computer programs, the courses of rivers, types of soil … whatever may be an issue in a court case.
Further particulars
Further particulars (sometimes called trial particulars) are mutually requested about matters that are not clear to the other party from the pleadings but that are needed to prepare for the trial. Say, for example, I slip and fall in a supermarket. The supermarket alleges that there was a notice clearly stating that the floor was wet. I am entitled to ask at this stage what this notice looked like, where it was displayed, and so on.
Pre-trial conference
Before all high court trials and often before magistrates’ court trials, a pre-trial conference is held between the parties. At this stage, the parties agree on exactly what is in dispute and various practical issues that have a bearing on the trial are discussed. For example, the parties can decide to argue an issue that is crucial to one party’s case before the rest of the case is heard. If, for instance, you and I are arguing about whether you caused me to suffer damages and what such damages amount to, we can decide to argue first about whether or not you caused me to suffer damages. If the court decides that you did not cause me to suffer damages, then we do not need to bother discussing the amount of such damages.
What is set out above is a very broad outline of what takes place before a civil case. There may be many other hurdles in the process, but these are the most important steps that you have to go through before you get to a trial.
1.5.1.1.2 The trial of an action
This brings us to the trial itself. The trial usually proceeds as discussed in the following sections.
The opening argument
At this point, the plaintiff’s legal representative explains to the judge what the case is about. One must remember that the whole story of everything about which the parties are fighting is not usually told in the documents and reports that the judge has in the file. This is why witnesses are needed to give evidence. In the opening argument, a short summary of the plaintiff’s case is given to put the judge in the picture and sometimes, it must be said, to influence the judge just a little in favour of the plaintiff.
The plaintiff’s case
The plaintiff now calls all the witnesses needed to prove her case, one after the other. When their turn comes, the witnesses can offer further evidence, such as documents, videos, photographs, weapons, and so on. For each type of evidence there are different requirements. All testimony (evidence given by witnesses) proceeds as follows:
Examination in chief – during which the witness’s story is told in answer to the questions that the legal representative asks him. These questions are usually “open” questions that enable the witness to give his version of events in a free and (reasonably) natural way.
Cross-examination – this follows examination in chief and is central to the way in which Western legal systems look for the truth. This is done by the opposing side’s legal representative and the questions are usually more “closed”, by which I mean they are aimed at eliciting a particular answer, often a “yes” or a “no”. The truth and probability of the witness’s version are tested in cross-examination.
Re-examination – this concludes the evidence, and the witness’s “own” legal representative (meaning the legal representative of the party who called the witness) is given the opportunity to ask questions about what has been asked in cross-examination. The purpose of re-examination is to correct a wrong impression caused by cross-examination or to clarify something that is not clear.
Questions in clarification – questions that the judge or magistrate can ask at any stage of the evidence to get clarity about the evidence.
Application for absolution from the instance
After the plaintiff’s case is closed, the defendant can apply for the plaintiff’s case to be dismissed because there is simply not enough evidence against the defendant. This is called absolution from the instance. If such an application is successful, the plaintiff can try to get hold of more evidence, but in my experience this does not usually happen.
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