Suing: How does it work and how do you go about it?
- It must firstly be pointed out that litigation is decided upon by the courts (unless via Arbitration etc, which is beyond the scope of this article). The courts have a set procedure and certain Rules that must be followed, in order to get your matter before a Court, for a Judgment to be made. It is unfortunately not as easy as simply writing a letter to the Court or giving the court a phone-call and telling them what’s happened. There’s a procedure set out by law, which must be followed.
- While the Rules and Procedures of the courts are often time-consuming, your matter cannot be set before a Judge or Magistrate without properly following every applicable Rule and Procedure.
- In the short summary below, we will mostly use the form “he”, but please note this may apply equally to women and men alike and is merely to set out the process, not to make any particular reference to any gender specifically.
So, how does it work and how do we get your matter to be heard by a court?
- The first step is usually to endeavour to send an attorneys Letter of Demand and see the response from the opposition (if any). Once a response has been received (or not received), we may proceed to approach the courts. Rest assured, we will discuss all your options at that time with you, as dependant on the opposing party’s Answer (if any) to our letter, other options may be available such as a round-table meeting etc.
- Should we elect (given the specific and unique circumstances of your case, which should be discussed at length with you during consultation) not to send a Letter of Demand (or we have received no answer to our Demand), the next step is to draft a Summons and Particulars of Claim, which shortly can be described as a document which sets out (as per the Court Rules and Formats) your reason for approaching the Court ie. what happened?
- The Sheriff must serve this on the opposition as per the Court Rules. Only in certain circumstances will this step not be followed such as Urgent Applications etc, which are beyond the scope of this Article. Should your matter fall within these special circumstances, it will be discussed with you, in detail, at consultation.
- Once the Sheriff has served the documents on the Defendant, then the Defendant can oppose the matter if he/she wants to. This is a right given to any Defendant. We are all familiar with the term “innocent until proven guilty”. This means that he has the right to tell court his version of what happened. To defend the matter and put his version before court is his right.
- Various other Procedures must be followed before a Court date is set, which your attorney should discuss with you as your matter progresses.
- Remember, the Court makes a decision on whose version is more or less likely depending on the evidence and witnesses etc and no-one else, not the Plaintiff nor the Defendant, nor their legal team makes this decision- the Court does.
We trust this has given you a basic, short, over-view of the procedure. Please note that this is not intended to be a crash-course law degree or supplement years of legal experience, but merely to give you a general and basic over-view of the procedure so that you are aware of what to generally expect. As your matter progresses, your attorney should be in contact periodically to give more detailed updates as to which point in the procedure your matter is etc.
Contact us today to set up your consultation at https://www.hamelattorneys.co.za/contact/ or on 012 754 3385. Our consultations may be done in person (after lock-down) or at any time, with set appointment online via Skype.