Both businesses and Individuals often find themselves involved in a legal dispute with another party.
These disputes, if unresolved at an informal level, typically result in litigation which entails the referral to courts or arbitration for adjudication.
The party instituting the litigation is the Plaintiff, and the general objective of the Plaintiff is to right a wrong, recover money, uphold an agreement, or to obtain compensation for an injury. The party defending the litigation is the Defendant, and the general objective of the Defendant is to aggressively protect their rights in opposing the Plaintiffs claim.
Whether you are a Plaintiff or Defendant, the appointment of an experienced litigation attorney is crucial in achieving a successful outcome in your case. At Brookes Attorneys we have a wealth of experience in representing both Plaintiffs and Defendants, including individuals, partnerships, trusts, companies and shareholders, in various areas of litigation, including:
We work closely with clients to evaluate their potential claims or defenses related to their commercial, professional and personal disputes. We represent clients at regulatory hearings, alternative dispute resolution proceedings, such as mediation or arbitration, magistrate and high court trials, as well as at appeals. We help clients prepare their cases and advise on the steps and procedures involved. Central to the help we offer is the experience to leverage your negotiating position to reach a beneficial settlement. A negotiated settlement is often the most efficient and cost effective way to resolve many disputes.
However if a dispute cannot be resolved through negotiation, pursuing your case through the courts will inevitably be your only option. In these situations, we will collaborate with experts including advocates, investigators and other relevant professionals in order to achieve a successful outcome.
Don’t take the law into your own hands in recovering arrear rental by cutting off the electricity or changing the locks! Landlords have lawful remedies available.
Non-paying residential tenants?
Unlawful occupiers on your property?
What are your options?
There is only one legal route to evicting persons from residential properties – following the strict requirements of the Prevention of Evictions and Unlawful Act (PIE Act).
This requires bringing an application in the magistrates or high court, firstly for leave to send notice to the unlawful occupier and secondly for the eviction of the unlawful occupier.
Landlords, in frustration with stringent and dilatory processes of the PIE Act, often try evict tenants or occupiers through other means such as cutting off electricity or changing locks, but all these are considered unlawful acts and can result in the unlawful occupier having grounds for a spoliation application, to regain possession even if held unlawfully.
PIE Act was intended to protect vulnerable persons, who otherwise would be homeless, and provides time for the occupiers to find alternative accommodation or as a last resort for the Municipality to obtain alternative accommodation.
There is potentially a big loophole for persons who reside and are able to pay rent but simply refuse knowing the expensive and long legal process to be taken to evict someone. The law should be able to better assist Landlords in these circumstances!
Criminal litigation relates to charges being laid by the state prosecutor and the accused defending the charges. The state alternatively a private prosecutor is the plaintiff in all criminal matters.
Civil litigation relates to everything else – For examples enforcement and interpretation of rights and responsibilities, claiming monies, changes in status (e.g. divorce) etc.
Actions are initiated by Summons and culminate in a trial with leading of evidence and witnesses. There is usually a dispute of facts which requires the leading and assessment of evidence of witnesses.
Applications are initiated by Notice of Motion and Founding Affidavit and is heard in Motion court. There are generally no disputes of facts and the application is decided based upon the contents of Affidavits filed by the parties and legal arguments on points of law.
Small Claims Court (Non-juristic entities (i.e. individuals, not companies/ corporations) & maximum claim of R 20 000,00 & no legal representatives)
District Magistrates Court (Maximum Claim of R 200 000,00)
Regional Magistrates Court (Maximum Claim of R 400 000,00)
High Court (status changes, highest court in province, no claim limit)
Specialised High Court (e.g. Labour Court)
A Court is only entitled to hear and determine a matter if it has jurisdiction to hear it. There are different types of jurisdiction – geographic and monetary.
There is first geographic jurisdiction. Each court has a certain geographic area over which it has jurisdiction. The general rule is to go to go to the court where the defendant/respondent resides/ works or where the whole cause of action arose.
The second is monetary and / or type of matter. Certain matters can only be heard in High Court like interpreting Wills or changing status. Some matters are more convenient
A Commissioner in the Small Claims Court
A Magistrate in the Magistrates Court
A judge in the High Court and Supreme Court
A Justice in the Constitutional Court
Litigation is a process which follows strict yet laborious timelines and procedures stipulated in the various courts’ rules an regulations. Courts are also overburdened and rolls are months and even years
What is service and does one have to sign in order accept service or can one evade service by refusing to receive the documents?
Service by Sheriff (court messenger) is the official means of delivering court documents and the Sheriff provides proof of his or her service by completing a Return of Service which details how he or shee served the document and on whom he or she served.
The sheriff may ask you to sign but same is not necessary. If you refuse to accept the document the Sheriff is entitled to leave the document at your feet or on your desk or in your postbox or pinned to the gate.
You have a few options and it depends on whether you wish to defend the claim or admit the claim?
1) If you wish to defend the claim then you have only 10 days to respond so call an attorney in order to have your notice of intention to defend filed at court and served on the Plaintiff/Plaintiff’s attorney.
2) If wish you admit the claim then you can file a consent to judgment however this will result in a judgment against your name
3) Alternatively if you admit the claim and so it is preferable to contact the Plaintiff and arrange a settlement
4) If you do nothing, the Plaintiff will be entitled to apply for default judgment against you after the expiry of 10 court days from date of service on you.
What is discovery and why does one need to file a discovery affidavit?
Unlike television shows, our courts require all parties are given notice of all documents and evidence to be relied upon in a trial. Discovery is the process of giving notice of all documents and recordings that one intends to rely upon at trial and that are relevant and in ones possession. One does this in Affidavit under oath i.e. the discovery Affidavit.
Pleadings are the documents which set out the parties claims and defences and the general facts. The Plaintiff will file a Summons and have an opportunity to Reply after the Defendants Plea if any new facts are raised therein. The Defendant will file a plea. The Defendant may also file a counterclaim which the Plaintiff may defend by filing a plea.
Affidavits are statements under oath signed before a Commissioner of Oaths.
“HOW MUCH WILL TAKING A PARTICULAR COURSE OF LEGAL ACTION COST?” In litigious matters this question can sometimes be akin to asking “how long is a piece of string?” In this section we attempt to unpack and answer the most commonly asked questions and explain the ‘legalese’ relating to “legal costs”.
Attorneys charge fees according to a fee mandate i.e. an agreement with their client as to how fees will be charged. This usually includes an hourly rate which relates to the experience of the particular attorney and may depend on the nature and complexity of the work to be undertaken. These legal fees are due to by paid by the client to the attorney like any other professional service (doctor or accountant) regardless of the outcome of the particular matter.
Attorneys will often request a deposit to be paid by their clients. This would be paid into the attorney’s trust account and held in trust on behalf of the client and then drawn down to pay disbursements and fees as they arise. This is cover for the attorney especially where advocates or other disbursements will be incurred by the attorney on behalf of the client.
A Contingency Fee Agreement is a fee arrangement provided for in the Contingency Fee Act whereby legal fees are only payable in the event that the client is successful in his or her matter. Since the legal practitioner has taken the risk of litigating and bears the risk of losing the matter and not receiving any fees or compensation, the legal practitioner is entitled to charge legal fees which are either up to 25% of the settlement or award alternatively double the usual fees the attorney would have been able to charge in the usual course (i.e. their fee mandate), whichever is the lesser amount. This type of agreement is required to be written and signed by the client and legal practitioners. This type of agreement is generally used in Road Accident Fund matters or matters with a very high prospect of success. The Contingency Fee Act was introduced to create access to justice to those who cannot afford to engage private legal practitioners in the normal course.
Yes, a successful party can apply for a cost order against the unsuccessful party however this is not an automatic right and still requires a judicial officer (Judge/Magistrate) to make a cost order. In making a cost order, the judicial officer may hear arguments from both sides as to who should bear the costs and on what scale.
A cost order is a court order that one party must pay another party their legal costs. Cost orders usually follow the successful party. I.e. if the Plaintiff is successful then the court will usually award the Plaintiff a cost order which means the Defendant is liable for the Plaintiff’s legal costs.
A cost order can be granted at every appearance at court. There are various types of costs orders that can be ordered by a judicial officer.
The judicial officer may order that there is “no order as to costs” which means neither party can claim their costs from the other for that attendance or in respect of the action or application.
The judicial officer may order that the costs of an appearance be “costs in the cause” which means that costs of that appearance and all associated attendances will follow the successful party at the end of the matter. (i.e. if the Plaintiff is ultimately successful then the Plaintiff can claim the costs of this appearance and associated costs)
The judicial officer may order that the costs be “reserved” which means that the parties can at a later stage ‘unreserve’ and argue the costs. This is helpful where the parties believe that at a later date, after hearing the full facts, the Court would be in a better position to hear the arguments in relation to costs.
The judicial officer may also make an order that one party pays the wasted costs of the other party occasioned by the other party’ request for an adjournment or another indulgence.
In addition to the aforesaid types of cost orders the court will also make an order as to the scale of the costs.
No, unfortunately only one type of costs order being Costs on “Attorney and own Client” scale entitle the successful party to claim all legal fees. The default or general costs order is party and party scale which does not allow the successful party to claim all fees as charged by his or her attorney. Therefore the amount of legal costs that can be claimed depends on, amongst other things, the scale of that the costs award and the applicable tariff.
There are three scales of costs and each are explained in detail hereunder:
‘Party and Party’ scale is the default cost scale and means that the successful party is only able to claim costs for attendances which are necessary and reasonable. This excludes the cost of attendances / correspondence between client and his or her attorney. Furthermore, the costs are calculated according to the relevant court’s tariff and are not according to the attorney’s fee mandate. “Costs of suit” is another term for legal costs on party and party basis.
‘Attorney and Client’ is the scale of costs that allows the successful party to claim all reasonable and necessary costs including attendances between attorney and his or her attorney. Similarly, the costs are calculated according to the relevant court’s tariff and not according to the attorney’s fee mandate. This scale of costs is generally only awarded when it is specifically agreed to (i.e. contractually) or for the court to mark its displeasure with a litigant (i.e. punitive costs order).
‘Attorney and Own Client’ is a scale which is seldom awarded. This allows the successful party to claim his or her full costs according to the attorney and client’s fee mandate and not limited to the court tariff. This is generally only awarded for the court to mark its extreme displeasure with a litigant (i.e. punitive costs order).
Tariffs are schedules of legal costs recoverable on taxation. Tariffs are published in regulations by the Minister of Justice. Tariffs are updated periodically but despite this remain grossly below the legal practitioner’s market related fees. The Tariffs for both High Court and Magistrates Court were last updated in 2017.
Yes, there are separate rules and regulations relating to costs in the Magistrates Court and the High Court.
Rule 70 of the Uniform Rules of Court and the Regulation in terms thereof provide for the High Court tariff and rules relating to costs and taxation.
Rule 33 and Table A and B of Schedule 2 provide for the Magistrates Court rules relating to costs and the tariff. There are four scales (A – D) of tariffs in the Magistrates Court which apply according the monetary amount of the judgment claimed.
One of the biggest differences is that in Magistrates Court one cannot enforce or tax a bill of costs until the matter has been finalised and then all cost orders are consolidated and taxed together in one bill of costs (Rule 33(3)) whereas in High Court one can enforce and tax multiple bills of court as and when they arise in a matter.
Another difference is that in the High Court, Counsel fees are generally accepted whereas in the Magistrates Court one cannot claim Counsel’s fees unless expressly provided in the costs order or where the matter is particularly complicated. It is nevertheless always advisable to request that a cost order specifically include counsel and expert fees just in case.
Legal costs can be quantified in two ways by agreement or by taxation.
‘Agreement’ means the parties come to agreement on the amount of costs which the one party will pay the other party.
‘Taxation’ is a legal process whereby a court official called a “Taxing Master/Mistress” determines the amount of legal costs that one party is entitled to claim from another.
This involves the party in whose favour the order drawing a bill of their costs incurred according to the court tariff and serving same on the other party.
The other party then has an opportunity to consider the bill and determine whether there are any excessive amounts or incorrect amounts included in the bill and can submit an opposition to the bill of cost.
The parties will then appear before the Taxing Master/Mistress and argue the items in dispute. The Taxing Master can also of his or her own accord question items that the other party hasn’t raised issue with and will tax off any amounts which he or she deems unreasonable or excessive or non-compliant with the court order or Rules.
An allocator, which is a certificate which specifies the total legal costs due to the party in whose favour the order, is drawn up and signed by the Taxing Master. A warrant of execution can be issued in respect of the allocator to enforce the cost order.
Punitive cost orders are issued in order to punish a litigant or its representative. As mentioned above the court can award a higher scale such as attorney and client or attorney and own client as a punitive measure alternatively the court can award a costs de bonis propriis which means a person who is litigating in a representative capacity (including the legal practitioner) is ordered to pay the legal costs in her personal capacity.
Fees are the costs of professional services whereas disbursements are external or associated expenses incurred by the professional in providing the service. Examples of disbursements are costs of travel and counsel, sheriffs and tracing agent’s fees.
Where no specific interest rate is specified, the Prescribed Rate of Interest Act provides that the interest rate that can be charged is repo plus 3,5%. As of 1September 2019 the interest rate is 10%. The applicable rate is the rate at the time of demand or due date for payment.