Are you intending on taking someone to court? Have you been sued? Do you require some basic advice on litigation from an experienced advocate? If you answered yes once, this article is for you.

Picture outside the Western Cape High Court in Cape Town [caption id="attachment_8243" align="alignleft" width="412"]Advocate Muhammad Abduroaf Advocate Muhammad Abduroaf outside the Western Cape High Court[/caption] We asked Advocate Muhammad Abduroaf to provide our readers with some simple and basic information on how to conduct themselves in court litigation. He holds a decade and a half of litigation experience. Who better to ask than him? Learn more about Advocate Muhammad Abduroaf by reading the article, ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA. Advocate Muhammad Abduroaf: I appeared in court countless amount of times for clients I represented. Furthermore, I drafted thousands of legal documents for them. This I did for litigants as they obviously do not have the necessary skills and experience to do it themselves. Often when a client meets with me, he or she will say this is the first time they have been introduced or embroiled in a legal matter. They are initially a bit anxious and do not know what to expect. Luckily for them, they are legally represented. Litigants are advised on what to expect as their case unfolds. They are informed of the processes that need to be followed and what they have to do in order to provide evidence to the court. As you would see later, this could either be in the form of an affidavit, or orally in Court. Notwithstanding the above, it is always useful to follow some basic guidelines when dealing with a court matter. This is what this article intends to demonstrate. It would be especially useful for someone who is representing themselves in court. In other words, acting in person. Although we advise you to make use of legal representation (advocate or attorney) when engaging in litigation, this article is for those who wish to handle their case on their own.

Who are the parties in a court case?

In civil legal matters, there are usually two opposite sides. Often there will be a Plaintiff and a Defendant. This is called action proceedings. In other cases, you will find an Applicant and a Respondent. This is called Application proceedings. The difference is explained next.

Action Proceedings: Commences with a Summons and Particulars of Claim

Western Cape High Court - Cape Town In action proceedings, there is a Plaintiff and a Defendant. Ultimately the parties will appear in Court to give evidence. In other words, they will step into the witness box and give evidence and answer questions about the specific case. The witness will be examined by his or her attorney or advocate. This is called examination in chief. Then he or she would be examined by the lawyer for the other side. This is called cross-examination. Then there is re-examination. The Plaintiff is the one who institutes the action or starts the case against the Defendant. And of course, the Defendant is the one who is taken to court by the Plaintiff.

Application Proceedings: Commences with a Notice of Motion and Founding Affidavit

In Application Proceedings, the parties to the dispute do not give evidence in the witness box. They provide their evidence in the form of a sworn statement or affidavit. It would start with a Notice of Motion. Basically, in the Notice of Motion, you will state exactly what you want from the court. The Applicant would then outline his or her case in the Founding Affidavit, and the Respondent would do so in his or her answering or opposing affidavit. The Applicant would then get a chance to reply to the opposing affidavit if he or she so wishes. The dispute is therefore resolved on affidavits. There is, therefore, no examination of witnesses. The Applicant is the one who starts the legal process and the Respondent is the other party. This article does not go into detail as to when Application proceedings or action proceedings are appropriate. However, if there is a serious dispute of fact at the outset, then action proceedings would be warranted. Now that we have identified who the parties are, let us provide you with some insight as to what the parties should observe when litigating.

Point 1: Do you have a case?

Whether or not you are instituting legal proceedings or defending it, it is always important to first determine whether or not you have a case. This might sound obvious, but many people litigate solely on emotion and not on fact. This point applies to whether you are instituting proceedings or whether you are defending it. If you are instituting proceedings and you do not have a case, you would not only be wasting your time and money, you would also have to pay the other side’s legal bill if so ordered. The same principle applies when opposing a case.

Point 2: Try to settle the court case early

Even if you have a strong case, it is always wise to attempt to settle it earlier than later. This is before an enormous amount of time and money is used. Many times, sitting face to face with the opposing party can resolve a dispute which could have cost the parties dearly. If sitting face to face is not possible, then try to send a written settlement proposal. This would give the other side something to work with. If they send a counter settlement proposal you are happy with, then take it and move on with your life.

Point 3: Obtain professional legal advice

This point could have been mentioned earlier, however, it applies to every step of the case. Although you are handling your own case, it is important that at each step of the way, you are legally informed. What better advantage will you have if you receive advice from someone who has years of legal experience in the field of law you are dealing with? As your case unfolds or evolves, having an experienced person advise you on your next move would be invaluable. This can save you a lot of time and money in the long run.

Point4: Stick to timelines and court rules

The court has rules and timelines. Therefore, know them and follow them pedantically. The last thing you want is for default judgment to be granted against you. Even worse, have your matter struck from the Court roll and pay the other party’s legal costs. The court rules are there for a reason. Other than timelines, ensure that your court file is in order, indexed and paginated and presentable for the court. This applies to both action and application proceedings.

Point 5: Simplify your case

The adjudicator of your matter is a judge. Although he or she is very learned and wise, he or she does not know the ins and out of your business or issue. It is therefore important that you follow basic principles of simplicity and logic when presenting a case. This could either be when drafting your particulars of claim, or your Notice of Motion. When presenting your case in action proceedings, ask a simple and concise question which would help the court to follow where you are going to. Ask one question at a time. Often lawyers ask two or three questions in a single “question”. For example, the lawyer would ask a witness, “what time did you meet the defendant, and what colour was his jacket and did he sound angry?”. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws      

Are you intending on taking someone to court? Have you been sued? Do you require some basic advice on litigation from an experienced advocate? If you answered yes once, this article is for you.

Picture outside the Western Cape High Court in Cape Town

Advocate Muhammad Abduroaf
Advocate Muhammad Abduroaf outside the Western Cape High Court

We asked Advocate Muhammad Abduroaf to provide our readers with some simple and basic information on how to conduct themselves in court litigation. He holds a decade and a half of litigation experience. Who better to ask than him? Learn more about Advocate Muhammad Abduroaf by reading the article, ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA.

Advocate Muhammad Abduroaf:

I appeared in court countless amount of times for clients I represented. Furthermore, I drafted thousands of legal documents for them. This I did for litigants as they obviously do not have the necessary skills and experience to do it themselves. Often when a client meets with me, he or she will say this is the first time they have been introduced or embroiled in a legal matter. They are initially a bit anxious and do not know what to expect. Luckily for them, they are legally represented.

Litigants are advised on what to expect as their case unfolds. They are informed of the processes that need to be followed and what they have to do in order to provide evidence to the court. As you would see later, this could either be in the form of an affidavit, or orally in Court.

Notwithstanding the above, it is always useful to follow some basic guidelines when dealing with a court matter. This is what this article intends to demonstrate. It would be especially useful for someone who is representing themselves in court. In other words, acting in person. Although we advise you to make use of legal representation (advocate or attorney) when engaging in litigation, this article is for those who wish to handle their case on their own.

Who are the parties in a court case?

In civil legal matters, there are usually two opposite sides. Often there will be a Plaintiff and a Defendant. This is called action proceedings. In other cases, you will find an Applicant and a Respondent. This is called Application proceedings. The difference is explained next.

Action Proceedings: Commences with a Summons and Particulars of Claim

Western Cape High Court - Cape Town

In action proceedings, there is a Plaintiff and a Defendant. Ultimately the parties will appear in Court to give evidence. In other words, they will step into the witness box and give evidence and answer questions about the specific case. The witness will be examined by his or her attorney or advocate. This is called examination in chief.

Then he or she would be examined by the lawyer for the other side. This is called cross-examination. Then there is re-examination. The Plaintiff is the one who institutes the action or starts the case against the Defendant. And of course, the Defendant is the one who is taken to court by the Plaintiff.

Application Proceedings: Commences with a Notice of Motion and Founding Affidavit

In Application Proceedings, the parties to the dispute do not give evidence in the witness box. They provide their evidence in the form of a sworn statement or affidavit. It would start with a Notice of Motion. Basically, in the Notice of Motion, you will state exactly what you want from the court. The Applicant would then outline his or her case in the Founding Affidavit, and the Respondent would do so in his or her answering or opposing affidavit. The Applicant would then get a chance to reply to the opposing affidavit if he or she so wishes.

The dispute is therefore resolved on affidavits. There is, therefore, no examination of witnesses. The Applicant is the one who starts the legal process and the Respondent is the other party.

This article does not go into detail as to when Application proceedings or action proceedings are appropriate. However, if there is a serious dispute of fact at the outset, then action proceedings would be warranted. Now that we have identified who the parties are, let us provide you with some insight as to what the parties should observe when litigating.

Point 1: Do you have a case?

Whether or not you are instituting legal proceedings or defending it, it is always important to first determine whether or not you have a case. This might sound obvious, but many people litigate solely on emotion and not on fact. This point applies to whether you are instituting proceedings or whether you are defending it.

If you are instituting proceedings and you do not have a case, you would not only be wasting your time and money, you would also have to pay the other side’s legal bill if so ordered. The same principle applies when opposing a case.

Point 2: Try to settle the court case early

Even if you have a strong case, it is always wise to attempt to settle it earlier than later. This is before an enormous amount of time and money is used. Many times, sitting face to face with the opposing party can resolve a dispute which could have cost the parties dearly. If sitting face to face is not possible, then try to send a written settlement proposal. This would give the other side something to work with. If they send a counter settlement proposal you are happy with, then take it and move on with your life.

Point 3: Obtain professional legal advice

This point could have been mentioned earlier, however, it applies to every step of the case. Although you are handling your own case, it is important that at each step of the way, you are legally informed. What better advantage will you have if you receive advice from someone who has years of legal experience in the field of law you are dealing with? As your case unfolds or evolves, having an experienced person advise you on your next move would be invaluable. This can save you a lot of time and money in the long run.

Point4: Stick to timelines and court rules

The court has rules and timelines. Therefore, know them and follow them pedantically. The last thing you want is for default judgment to be granted against you. Even worse, have your matter struck from the Court roll and pay the other party’s legal costs. The court rules are there for a reason. Other than timelines, ensure that your court file is in order, indexed and paginated and presentable for the court. This applies to both action and application proceedings.

Point 5: Simplify your case

The adjudicator of your matter is a judge. Although he or she is very learned and wise, he or she does not know the ins and out of your business or issue. It is therefore important that you follow basic principles of simplicity and logic when presenting a case. This could either be when drafting your particulars of claim, or your Notice of Motion. When presenting your case in action proceedings, ask a simple and concise question which would help the court to follow where you are going to. Ask one question at a time. Often lawyers ask two or three questions in a single “question”. For example, the lawyer would ask a witness, “what time did you meet the defendant, and what colour was his jacket and did he sound angry?”.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

 

 

Related Post

Frequently asked questions on Divorce

[caption id="attachment_7079" align="alignleft" width="259"]Advocate Muhammad Abduroaf - Advocate High Court Cape Town Advocate Muhammad Abduroaf – Advocate High Court of South Africa[/caption] We proud ourselves on our knowledge on family law, and related matters relevant to South Africa. This includes issues and questions surrounding divorces, custody and child maintenance. Feel free to browse through the questions and answers below. Should you not find the answer to a divorce question you are looking for, scroll down to the bottom of this page and post your divorce-related question. Or you may click here to take you to the bottom of this post where the questions start. Want to know more about Rule 43 Applications in the High Court and Rule 58 Applications in the Magistrates’ Court? Click here.

How does it work to get a divorce/divorce process?

Only a court of law can divorce you. Therefore, a spouse should take the other spouse to court. You or your lawyer would have to approach the Divorce Court of the Family Court.

What is the procedure or process a for divorce?

One party needs to sue the other party for a divorce. This can be done in the High Court of the Family Courts. Once all the paperwork is done, the matter is set down for hearing or trial where a judge or magistrate would divorce you.

How long does it take for a divorce to be finalized?

If a divorce is undefended, it can take about 6 weeks. However, if the parties wish to litigate, it can take many months, up to 2 (two) years.

How long will it take for a divorce to be final?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months.

How long does it take for someone to be served with divorce papers?

  If the person’s home and work address are known and the person is usually there, it can take a day or two. This depends on when the Sheriff is available to serve the summons. However, if the person is not always at work or at home to be served, it can take some time.

How long does it take for a divorce to be finalized?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months.

How long does it take to get a divorce decree paper?

One the divorce is finalised, it should take about a week for the divorce decree or order to be typed out and available for collection.

How is a divorce finalized?

A divorce is finalised by a magistrate or judge granting a decree or order of divorce.

How long does it take to get an amicable divorce?

If the parties are on the same page and want to keep things friendly, it can take less than two months.

Why does it take so long to get a divorce?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months. The problem is that when the matter becomes defended. it can take many months to finalise.

How long does it take to get a divorce by mutual consent in Cape Town?

[video width="1920" height="1080" mp4="https://www.ourlawyer.co.za/wp-content/uploads/Child-Custody-Visitation-and-Contact.mp4"][/video] If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months.

Is adultery against the law in South Africa?

No, it is not a crime. However, it can be ground for a divorce.

What does in community of property means?

In community of property means that there is just one estate. At divorce, the estate has to be divided.

What can be contested in a divorce?

Anything the other spouse asks for can be contested. This includes maintenance, custody and the divorce itself.

How long does it take to get a divorce in South Africa?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months.

What is the meaning of uncontested divorce?

An uncontested divorce is a term used to describe a divorce where both spouses agree to the divorce and the terms thereof. They then both co-operate if the finalisation of the divorce.

What is the divorce?

A divorce is the dissolution of the marriage. In other words, you are no longer married after the divorce.

When do you get served divorce papers?

Once a spouse instituted divorce proceedings, you should then be served with divorce papers by the sheriff of the court.

How long does it take to file for a divorce?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months.

How long does it take to get a divorce in Cape Town if both parties agree?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months. What is the final decree of divorce? It is an order, where the Court dissolves your marriage.

How much does it cost to get a divorce?

The court does not charge for a divorce. However, your lawyer would charge a fee, as well as the sheriff of the court who serves the divorce documents.

How long does it take to get a divorce in Cape Town?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months.

How do I go about filing for divorce?

You should issue a summons at the Divorce Court.

Is a civil marriage in community of property?

Yes, unless you entered into an ante-nuptial contract beforehand stating otherwise.

What happens if your spouse refuses to sign divorce papers?

If your spouse refused to sign divorce papers, the divorce proceeds on a defended bases.

What happens when you file for a divorce?

The legal process follows. Ultimately, you want to have the matter heard before a magistrate or judge.

What is the meaning of notice of bar?

A notice of bar is a notice given to the Defendant, who filed a notice of intention to defend, but did nothing afterward. Therefore, you a notice of bar is issued, the Plaintiff may go ahead with finalising the case. [caption id="attachment_8258" align="alignleft" width="476"] Child Custody Visitation and Contact[/caption]

What is the meaning of a customary marriage?

A customary marriage is a marriage based on custom. An example is that of Xhosa or Zulu marriages.

How long does it take to get a divorce in South Africa?

If the parties agree and co-operate, it can take less than two months. If not, up to 2 (two) months. Therefore, it is in their best interest to try to resolve matters as soon as possible.

How does it work to get a divorce?

One party needs to summons the other party to Court. Therefore, a divorce cannot take place without a court process.

What is the procedure for divorce?

One party needs to summons the other party to Court.

How long does it take to get a divorce if both parties agree?

The quickest is for four weeks.

How much does it cost to file for a divorce in South Africa?

If you attend to your divorce, there are no costs, other than sheriff fees.

How do you file for divorce in South Africa?

A divorce has to start with a court process called a Summons. This document is issued at the divorce court and served on the spouse.

What is an uncontested divorce in South Africa?

An uncontested divorce in South Africa is where both parties agree on the terms of the divorce. In other words, there won’t be any opposition to the divorce. Only co-operation.

How long does it take to get a divorce in Cape Town, South Africa?

If all goes well and the divorce is uncontested, it would take approximately two (2) months to finalise.

How long does it take to get a fast divorce in Cape Town, South Africa?

Approximately two (2) months.

How long does it take to get a divorce in South Africa?

Each court is different. However approximately two (2) months.

When a divorce is final?

A divorce is final when you obtain a decree of divorce from the Judge or Magistrate. Therefore, a court process needs to take place.

How can I get a divorce without a lawyer?

You do not need a lawyer to attend to your divorce. You can do it on your own. The best option would be is to approach the Family Court in your area for assistance.

How long does it take to get a divorce in Cape Town, South Africa?

If the divorce is undefended, it can take about six (6) weeks.

How long does it take for someone to be served with divorce papers?

It can take a day or a few weeks. It all depends on when the sheriff is available to serve the divorce papers, as well as the ability to serve. In other words, sometimes the Sheriff takes a while to locate the party who must be served.

How long does it take for a divorce to be finalized?

It can take up to 6 weeks. Therefore, if you want to finalise a divorce quickly, agree as soon as possible.

How can I get a quick divorce in South Africa?

A divorce is very quick if you and your spouse agree on the terms of the divorce. You may then enter into a consent paper and have that made an order of the court. If you follow that route, with a divorce lawyer, you can be divorced within a few weeks. Purchase a Consultation with us from our Online Shop, by clicking here.

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Child custody legal advice and services

Child custody is a complex legal matter as it involves a number of factors to consider when handling a
child custody case. Judging from our years of experience, we found that the parents involved often lose track of the bigger picture while emotions override. At our law offices, our job is to help parties involved keep a level head form a legal perspective and guide them as to what will be the best way forward. Sometimes a matter has been blown out of proportion while the parties involved often expect us to perform miracles – this is not how it works in the world of law. We have found that executing our legal expertise can become a very complicated ordeal when there is little co-operation. It is however, essential to highlight that the main responsibility of the family legal expert is to advise and guide you with the best way forward from a legal standpoint.

The Children’s Act 38 of 2005 – child access to grandparents

In doing so, we have constructed a number of family legal articles containing free, expert legal advice. We have used the common issues potential clients come to us with, as a guide as to what address in these articles. For instance, we had a legal a matter in which the grandparents wanted to know what their chances are in gaining custody over their grandchild. The family legal expert then stated the following using the Children’s Act 38 of 2005:

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows: “2     Objects of Act   The objects of this Act are-   (a) to promote the preservation and strengthening of families;   (b) to give effect to the following constitutional rights of children, namely-            (i)     family care or parental care or appropriate alternative care when removed from the family environment;            (ii)     social services;            (iii)     protection from maltreatment, neglect, abuse or degradation; and            (iv)     that the best interests of a child are of paramount importance in every matter concerning the child;   (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic;   (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;   (e) to strengthen and develop community structures which can assist in providing care and protection for children;  (f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;  (g) to provide care and protection to children who are in need of care and protection;  (h) to recognise the special needs that children with disabilities may have; and  (i) generally, to promote the protection, development and well-being of children.”  As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child. For more information on this article, see Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say?   Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Grounds for full custody – child access, child maintenance and divorce

When it comes to child custody grounds, there are different variables at play. Most times, if the one parent happens to be unstable, the grounds for custody will lean more strongly towards the other parent, understandably so. Having said that, a child access matter will have issues of visitation rights, divorce, child maintenance and drafting of parenting plans. These all go hand in hand when dealing with child custody. Enjoy some of our free, expert legal advice articles below which could be of help for your when it comes to child custody legal matters. Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Legal advice articles – child custody, parenting plans and divorce

The articles below have been well crafted by the legal expert himself for your convenience:
  1. The Law Regarding Children – The Children’s Act 38 of 2005
  2. Child born out of wedlock: Mother will not consent to her surname change and to be registered as her biological father. What can I do?
  3. How do I get full custody over my child?
  4. Parental Child Abuse in Custody Cases
  5. Relocate with minor child. Parent Refusing Consent for a Passport
  6. Father being refused contact to his child! What are his rights as a Father?
  7. Father’s Parental Responsibilities and Rights to his Child
  8. Urgent Access to your Children without a Lawyer
  9. Parenting Plans and the Law
  10. What happens in a custody dispute where one parent is mentally ill?
  11. How to win your child custody and access court case – Tips and Tricks
Do feel free to visit our frequently asked questions page on child custody in which you can gain some clarity on the matter.   Connect with us today and have an appointment made online for you!

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