Civil Procedure and Trial Advocacy Practicing Flashcards

This set of vocabulary flashcards covers essential terminology, legal principles, and procedural rules for South African civil procedure and trial advocacy based on the Gawie le Roux Institute of Law PVT School material.

Contract of mandate

The legal nexus created during initial client interaction where a legal practitioner is mandated to render professional services in return for remuneration.

Prescription

A legal principle governed by the Prescription Act $68$ of $1969$ that limits the time for instituting action; typically $3\,years$ for ordinary debts and $30\,years$ for judgments or tax claims.

Lex commissoria

A contractual clause that requires the innocent party to place the infringing party in mora before being entitled to rely on a breach of contract.

Urgency

A basis for approaching the court on application to obtain immediate relief, requiring an affidavit that explicitly addresses the grounds for departing from standard procedural timelines under the heading 'Ad Urgency'.

Contingency fee agreement

A written legal arrangement under Act $66$ of $1997$ where fees are contingent on success, capped at the lower of $25\%$ of the total award or double the practitioner's normal fee.

Rule 41A

A procedural requirement in the High Court for the plaintiff or applicant to file a notice indicating whether they agree to or oppose a referral of the dispute to mediation.

Facta probanda

The primary material factual allegations that a plaintiff must plead to establish a complete cause of action.

Facta probantia

The secondary evidentiary facts or pieces of evidence used to prove the primary factual allegations during the trial phase.

Simple summons

An initiating process used only for a debt or liquidated demand, initially providing a brief exposition of the claim before a full declaration is filed.

Combined summons

An initiating process used for illiquid claims, such as delictual damages, where the summons is annexed to the particulars of claim from the outset.

Liquid document

A document that contains a liquidated amount of money and an acknowledgment that the defendant is responsible for its payment, used in provisional sentence summons.

Special plea

A legal defense raised by a defendant that does not deal with the merits of the claim but instead seeks to destroy the cause of action or postpone its operation.

Declinatory plea

A type of special plea aimed at destroying the cause of action, such as prescription, res judicata, or lack of jurisdiction.

Dilatory plea

A type of special plea aimed at postponing the proceedings, such as non-joinder, misjoinder, or lis pendens.

Claim in reconvention

A counterclaim instituted by the defendant against the plaintiff based on an independent cause of action that may be unrelated to the original claim.

Notice of Bar

A procedure whereby a party in default of delivering a pleading is given $5\,days$ to do so before being ipso facto barred from further filing.

Exception

A procedure used to challenge a pleading as a whole if it is 'vague and embarrassing' or fails to disclose a valid cause of action or defense.

Litis contestatio

The stage of close of pleadings, following which trial preparation steps like discovery, pre-trial conferences, and set-down for trial may occur.

Discovery affidavit

A sworn statement listing relevant documents in two schedules: Schedule $1$ for documents available for inspection and Schedule $2$ for privileged documents.

Metadata

Data providing information about other data, such as creation dates or authorship, used to authenticate the integrity of electronic documents under ECTA.

Hearsay evidence

Oral or written evidence whose probative value depends on the credibility of a person other than the witness testifying; generally inadmissible under Act $45$ of $1998$.

Plascon-Evans rule

The rule used in application proceedings to resolve factual disputes by accepting the facts averred in the applicant's affidavit admitted by the respondent, together with the respondent's allegations.

Subpoena duces tecum

A legal summons to secure the attendance of a witness and require them to produce a specific deed, document, or object for inspection in court.

Practice note

A document filed before a High Court hearing (usually $10\,days$ for applicants or $5\,days$ for respondents) outlining the issues for argument, authorities, and time estimates.

Marital privilege

The rule under the Civil Proceedings Evidence Act stating that no husband or wife can be compelled to disclose communications made by their spouse during the marriage.