defendant’s case
The defendant’s case is presented in exactly the same way as the plaintiff’s. After the evidence for the defendant has been given, the defendant closes his case.
Trials in public
As a rule, all trials are open to the public. When minors are charged with committing a crime, their trials are always held in camera, which means that only the court officials and the accused are allowed in court. In civil trials, minors always have legal representatives, but civil trials are seldom held in camera.
Special witnesses and evidence
These are witnesses and evidence that can be called and heard at any stage of a trial and do not fit logically in either the plaintiff’s or the defendant’s case – this evidence can be called by either of the parties:
Expert witnesses giving opinion evidence. Opinions as evidence are normally not admissible, as usually the court itself can form an opinion about what a witness has said. However, experts may give their opinion because they are better qualified than the judge to express an opinion in their area of expertise.
Direct and circumstantial evidence. The distinction between these two forms of evidence is important. Direct evidence is something like, “I saw the defendant drive through a red traffic light.” Circumstantial evidence is evidence that has been deduced, for example skid marks on a road, from which the speed of the car before the driver braked can be determined.
Argument
Next the parties argue about the evidence in order to try to convince the court to find in favour of either the plaintiff or the defendant. The sequence of argument is plaintiff, defendant, plaintiff.
Judgement: The reasons
After argument the judge or magistrate must decide whether the plaintiff’s claim should be granted or dismissed. Interestingly enough, the court can also decide at this stage to order absolution of the instance regarding the plaintiff’s claim. In order to explain how a court decides in favour of a particular party, we need to understand what onus means.
Onus: This is the responsibility to prove your case and in most cases this lies with the plaintiff, although it ultimately depends on the law governing the subject matter of the case. In civil cases the party who bears the onus must prove his case on a balance of probabilities. (This differs from the onus in criminal matters, where the guilt of an accused must be proved beyond reasonable doubt.)
How is this done? The court must consider the evidence of both sides, and the procedure in civil cases is very much like placing weights on an old-fashioned scale. The winner is the party whose case weighs the most. “Weighs the most” means a combination of the evidence and the law as it must be applied to the facts in question. The court weighs up which of the versions presented by the witnesses is the most probable. It is not simply decided if someone was lying or not – a court seldom delivers such a judgement. If the court cannot decide which version is the most probable and the scale hangs in perfect balance, it is decided against the party bearing the onus.
How does the court evaluate a witness’s evidence? This is probably the most difficult part of a judge’s work for the layperson to understand, and extremely difficult to explain in simple terms. In the briefest and broadest terms possible, the court looks at the following three things:
(a) The credibility of the witness, in other words whether the witness has told the truth about a specific thing.
(b) The reliability of the witness – the opportunities that the witness had to experience or observe the event concerned, and the quality and independence of his recollection of it.
(c) The probability or improbability of each part of the witness’s evidence.
Judgement: The order
Unfortunately, the order of the court in both civil and criminal matters is called a verdict, and this often confuses the layperson. But the outcomes differ: the defendant who loses a civil trial must usually pay money to the plaintiff, or else he is ordered to do or prohibited from doing something; as opposed to a criminal trial, where the accused is given a prison sentence or sentenced to other punishment. If the defendant does not adhere to the order or the prohibition, he can be charged with contempt of court. However, if it is ordered that the defendant must pay a sum of money, there is nothing apart from collecting the money that the successful plaintiff can do. A defendant who does not have money cannot, for example, be put in jail. This is why experienced lawyers know that the first thing they must establish if a client wants to bring a claim against a person or entity, is whether such a person or entity has the money to pay the potential judgement debt, or assets that can be attached. A judgement against someone who does not have any money means nothing; it only costs money. This will be our next topic of discussion.
1.5.1.1.3 The procedure after judgement: Costs and execution
Costs
The biggest shock most people get when they start litigating is how much it costs. That and the fact that those who give legal advice are so vague about what the eventual cost will be. There is a lot to be said about how expensive legal services are, but the reason why it is so difficult to predict how much a specific case will cost is simple: it’s impossible to predict how a court case will progress. For example, you issue a summons, the defendant does not defend the matter and you obtain judgement without a shot being fired. In that case, your account won’t be more than R5 000. However, if your case ends up in court, you should be grateful if your bill is less than R150 000.
Is the defendant going to defend the case? Who knows? Litigation can be so expensive that any amount you hope to receive from the opposing party is greatly diminished by the costs, which the losing party will have to pay. Many cases have ended up in the Supreme Court of Appeal because neither party could afford to lose, and I know of companies that have been bankrupted by the costs of litigating in a single case. Even if you are the successful party, you will receive only about 50 per cent of your costs from the opposing party. Furthermore, if you are unsuccessful, you are going to pay all of your own costs plus half the costs of the opposing side, and you won’t even have a court order in your favour to show for it.
Let me throw another spanner in the works, something that I have often seen. You sue for R250 000 in the high court. Your case is heard by a weak or sleepy judge who gives an incorrect judgement. Your legal costs are already through the roof. You could appeal with the aim of getting a correct judgement, but that is going to set you back a further R100 000, of which you will get back only about R50 000. What do you do now? Don’t ask me, I’m only an advocate … What would I advise? That you weigh up your chances of success as coldly and clinically as possible, and then decide calmly and rationally whether to litigate further, keeping a calculator by your side at all times. Then you must see if the bank is prepared to grant you a further bond. All of this must be done before you decide to litigate.
The execution procedure
This is the practical implementation of the court order. If the order is for someone to be evicted from a house, the execution process will involve a warrant being issued authorising the sheriff to remove the person from the property. The sheriff will go to the property, inform the person that he must leave the property and if the person refuses, he is removed (forcibly, if necessary) from the house. If he causes enough difficulty, the sheriff will call in the police to assist.
However,
