Litigation

• • Litigation is a form of dispute resolution which takes place in court, either the Magistates Court, High Court, or the respective appeal courts.
    A Magistrate or Judge presides over the hearing and delivers a judgment at the end.
    
    Generally, the first step in the legal process is a letter of demand, which is sent to the party against whom a legal dispute has arisen. The letter of
    demand will contain the cause of action on which the demand is based. Once the party has received the demand he/she then has a time period
    to reply or comply with the demand.
    
    Failure to comply with the demand can result in the matter being referred to court. If this route is taken there is a process that must be followed:
    
    • Firstly, jurisdiction must be determined. This refers to the authority or competence of a certain court to hear a matter and grant relief
    in respect thereof. It needs to be determined whether the High Court, Regional Court, District Court or small claims court has
    jurisdiction to hear the matter. The court’s jurisdiction will be dependent on the type of claim and the value of the claim.
    
    • Secondly, it must be determined whether to proceed by way of action or motion proceedings. When a material dispute of fact is
    anticipated then the matter should proceed with an action. If no material dispute of fact is anticipated then motion proceedings
    should be followed.
    
    Action procedure – an action is instituted by the issuing and serving of a summons. The summons must be served on the
    defendant by a sheriff of the relevant jurisdiction. The defendant then has 10 days to give the plaintiff a notice of intention to defend
    the action. After the plaintiff has received the notice, the defendant should deliver a plea (for combined summons only).
    
    Thereafter, before the matter can proceed to trial, the following procedures must take place: discovery, applying for a trial date, a
    pre-trial conference, and possible settlement discussions. Once these preparations are complete the matter may be heard in court.
    
    Motion procedure – the motion procedure is based on the exchange of affidavits. The applicant will issue a notice of motion
    which states the claim and relief sought. This notice is supported by a founding affidavit. The respondent will then have a chance to
    oppose the motion application and subsequently file its answering affidavit. The applicant then has the opportunity to respond in a replying affidavit.
    
    Once the matter is set down for hearing the argument in court will be limited to what is set out in the affidavits and no further
    evidence will be submitted to the court.
    ___________________________________________________________
    Hi, I’m Kailash Pillay, an attorney from the city of Johannesburg. My passion for the law
    stems from a desire to improve upon the lives of the vulnerable who fall prey to a
    corrupt system.
    I studied at the University of Johannesburg where I obtained my Bachelor of Laws
    degree, the starting point to the long journey of becoming a legal practitioner.
    This profession has taught me to persevere through the complexities of the law and to
    continually develop my skills as a legal professional.