South African Civil and Criminal Court Practice and Personal Injury

Comprehensive practice flashcards defining foundational legal terms, procedures, and principles across High Court practice, Magistrate's Court practice, Criminal Court procedure, and Road Accident Fund personal injury claims.

Jurisdiction

The competence and legal power of a court to hear and determine a specific matter or issue between parties and to grant an order in relation to it.

Cause of Action

The entire set of legal facts giving rise to an obligation that results in legal liability, encompassing every material fact necessary to entitle the plaintiff to succeed in their claim.

Locus Standi

The legal capacity of a person to act as a litigant in court (the capacity to sue or be sued), or the requirement that a party possess a direct and substantial interest in the subject matter of the litigation.

Stare Decisis

The legal doctrine and principle in terms of which a lower court is strictly bound by the prior judicial decisions and legal precedents of a higher court.

Contingency Fee Agreement

An agreement between a legal practitioner and client where the practitioner charges no fee if the matter is unsuccessful, or charges a fee higher than normal (capped at $100\%$ above normal fee or $25\%$ of the awarded amount) if successful.

Interim Interdict

A temporary court order restraining or compelling action, requiring proof of a prima facie right, a well-grounded apprehension of irreparable harm, a balance of convenience favoring the applicant, and the absence of another adequate remedy.

Final Interdict

A permanent court order compelling or restraining a party, which requires the applicant to establish a clear right, an injury actually committed or reasonably apprehended, and the absence of any other satisfactory or alternative remedy.

Simple Summons

A form of summons used for liquidated demands (such as claims for payment of a fixed debt, delivery of specified movables, ejectment, transfer of fixed property, or contract cancellation) that sets out the nature of the claim without an attached declaration.

Combined Summons

A summons used for unliquidated claims (such as damages claims and divorce proceedings) that combines the summons with an attached statement containing the material facts relied upon by the plaintiff, known as the particulars of claim.

Provisional Sentence Summons

A special, summary procedure summons designed to obtain speedy, interlocutory judgment in favor of a creditor whose cause of action is founded upon a liquid document.

Liquid Document

A written legal instrument signed by the defendant or their agent evidencing an unconditional acknowledgment of indebtedness in a fixed, ascertained sum of money.

Non-Joinder

A procedural defect occurring when an essential party whose participation in the legal proceedings is compulsory has not been joined in the action.

Misjoinder

The improper joinder of a party to legal proceedings who has no direct, substantial, or legal interest in the subject matter of the dispute.

Substituted Service

An exceptional method of service authorized by court order when a defendant is believed to be within the Republic of South Africa, but their precise whereabouts cannot be ascertained.

Edictal Citation

A court-sanctioned method of serving legal process on a defendant or respondent who is residing or located outside the borders of the Republic of South Africa.

Court of First Instance

The court where legal proceedings are originally and normally initiated and adjudicated before any appellate procedure.

Notice of Bar

A formal notice served upon a defaulting litigant demanding the delivery of a missing pleading (such as a plea or declaration) within 5 days, failing which the party is barred from delivering it subsequently.

Dies Non

Specified calendar days during court recess (such as between 16 December and 1 January in the High Court, or 16 December and 15 January in the Magistrate's Court) that are legally excluded from the calculation of time for delivering pleadings.

Summary Judgment

An extraordinary pre-trial remedy permitting a plaintiff with a liquidated or liquid-document-based claim to obtain prompt judgment against a defendant who has entered appearance to defend purely for delay without a bona fide defence.

Declaration

A formal pleading setting out the material facts, cause of action, and relief claimed, which the plaintiff must deliver when a defendant gives notice of intention to defend a simple summons.

Absolution from the Instance

An order granted when a plaintiff fails to adduce sufficient evidence upon which a reasonable court could find in their favour, leaving the matter open without constituting res judicata, thereby allowing fresh proceedings to be instituted.

Exception

A formal objection directed against an opponent's pleading as a whole on the grounds that it is vague and embarrassing, or lacks averments necessary to disclose a cause of action or a valid defence.

Special Plea

A pleading that introduces extraneous facts not appearing on the face of the plaintiff's particulars of claim to raise an underlying legal defense (such as prescription, lack of jurisdiction, or lis pendens) that destroys or postpones the action without traversing the merits.

Res Judicata

A special plea and doctrine meaning 'a matter judged,' which prevents parties from relitigating the exact same cause of action that has already been heard and finally determined between them by a competent court.

Lis Pendens

A special plea raised on the grounds that another action based on the same cause of action and between the same parties is already pending before another competent court.

Discovery

A pre-trial procedure whereby a litigant compels their opponent to identify on oath, disclose, and make available for inspection all relevant non-privileged and privileged documents in their custody or control.

Security for Costs

Financial security or guarantee that a defendant may demand from certain plaintiffs (such as foreign peregrini or insolvents) to ensure the recovery of legal costs if the plaintiff's claim fails.

Appeal

A formal rehearing on the merits by a superior court, strictly confined to the record of evidence upon which the court a quo made its decision, to determine whether that decision was right or wrong.

Review

A legal process brought before a superior court challenging the procedural regularity, fairness, jurisdiction, bias, or conduct of proceedings in a lower court or administrative tribunal, rather than the correctness of the decision on the merits.

Rule Nisi

An interim court order granted in motion proceedings calling upon the respondent to appear and show cause on a specified return date why the provisional relief should not be made a final order.

Ex Parte Application

A motion court application brought without notice to any other party, utilized where no third-party rights are affected or where the giving of notice would frustrate the relief sought.

Interlocutory Application

An application incidental to pending litigation that seeks intermediate relief on procedural matters adjunct to the dispute, without determining the substantive merits of the main case.

Third Party Notice

A formal notice served under Rule 13 allowing an existing litigant to join an outside party to the action to claim a contribution, an indemnity, or the resolution of a substantially identical question or issue.

Audi Alteram Partem Principle

A fundamental tenet of natural justice meaning 'hear the other side,' ensuring that parties are properly notified of legal proceedings and granted a fair opportunity to present their respective cases.

Without Prejudice

A legal reservation applied to bona fide settlement negotiations and correspondence that protects them from disclosure or being tendered as evidence in court.

Interpleader

A proceeding whereby a neutral party (such as a sheriff) holding property or money subject to adverse claims by two or more third parties calls upon the claimants to litigate ownership between themselves before the court.

Rule 43 Application

A specialized High Court motion procedure allowing a spouse to claim interim relief pendente lite in a matrimonial action, including maintenance, contributions towards legal costs, and interim care or contact with minor children.

Claim in Reconvention

A counterclaim filed by a defendant against the plaintiff within the same action, conferring upon the defendant the status of a plaintiff in a separate counter-suit.

Points in Limine

Preliminary legal objections raised at the threshold or very beginning of a hearing regarding formal requirements, jurisdiction, or evidentiary admissibility before the merits of the matter are considered.

Mandament van Spolie

A possessory, common-law remedy aimed at summarily restoring the status quo ante by returning property to an applicant who was in peaceful, undisturbed possession and unlawfully dispossessed without consent or legal process.

Rescission of Judgment

A formal legal procedure by which a court cancels or sets aside an order or judgment (such as one entered erroneously or by default), thereby reopening the case for ordinary proceedings.

Plascon-Evans Rule

A rule governing factual disputes in motion proceedings dictating that a final order may only be granted if the facts stated by the respondent, together with the admitted facts in the applicant's affidavits, justify the granting of the order.

Anton Piller Order

An extraordinary, ex parte court order permitting the applicant to enter premises and search for and seize critical evidence without prior warning to prevent its destruction or concealment.

Garnishee Order

A court order that attaches a debt owed to a judgment debtor by a third party (other than the debtor's salary or wages) and directs that third party to pay the funds directly to the judgment creditor.

Emoluments Attachment Order

A judicial order instructing an employer of a judgment debtor to attach and pay over a regular, specified portion of the debtor's salary, remuneration, or wages directly to the creditor.

Creature of Statute

A body or court (such as the Magistrate's Court) whose powers and jurisdiction are derived exclusively from its constituent enabling Act, possessing no inherent jurisdiction beyond its statutory limits.

Trial within a Trial

A distinct, interlocutory proceeding conducted during a criminal trial to adjudicate a specific legal dispute, typically the admissibility of a confession, admission, or the competency of a witness.

Section 174 Application

An application made at the close of the prosecution's case for the discharge and acquittal of the accused on the basis that there is no evidence upon which a reasonable court acting carefully might convict.

Competent Verdict

A statutory verdict that allows a court to convict an accused of a lesser or related offence that is inherently encompassed within the crime charged, even if it was not explicitly drafted on the charge sheet.

Admission

A voluntary statement or conduct against a party's own interest acknowledging an adverse factual allegation or single element of a crime without conceding total liability.

Confession

An unequivocal, voluntary acknowledgement of guilt made freely by an accused while in their sober senses without undue influence, admitting all essential elements of the crime charged and excluding any possible defence.

Cautionary Rule

A rule of practice requiring trial courts to exercise special circumspection and seek corroboration when evaluating the evidence of inherently vulnerable or suspect categories of witnesses, such as single witnesses, young children, accomplices, and police traps.

Mitigating Factors

Circumstances presented after conviction that reduce the perceived gravity of an offence or lessen the offender's moral blameworthiness, justifying the imposition of a lighter sentence.

Aggravating Factors

Circumstances presented after conviction that increase the seriousness of an offence or demonstrate higher culpability (such as previous convictions or organized conduct), supporting harsher sentencing within the statutory range.

Section 105A Agreement

A formal, negotiated plea and sentence agreement entered into in writing between a legally represented accused and an authorized prosecutor prior to the accused entering a plea in court.

Motor Vehicle (Road Accident Fund Act)

Any vehicle designed or adapted for propulsion or haulage on a road by means of fuel, gas, or electricity, including a trailer, caravan, or agricultural implement designed to be drawn by such a vehicle.

General Damages

Non-patrimonial compensation awarded for non-monetary losses resulting from bodily injuries, including pain and suffering, emotional shock, disfigurement, disability, and loss of amenities of life.

Special Damages

Patrimonial compensation awarded to an injured claimant or dependant for actual, quantifiable monetary loss, such as past and future medical expenses, loss of income, and funeral expenses.

Whole Person Impairment (WPI)

A medical percentage calculation measuring the impact of an injury on a person's overall ability to carry out activities of daily living, which must be at least $30\%$ under the AMA guidelines to qualify as a serious injury.

Narrative Test

A secondary evaluation method under RAF Regulation 3 allowing an injury with less than $30\%$ WPI to be deemed serious if it causes severe long-term impairment, permanent serious disfigurement, severe psychiatric disturbance, or the loss of a foetus.

Apportionment of Damages

The statutory reduction of a claimant's recoverable damages by the court in accordance with the Apportionment of Damages Act 34 of 1956 to the extent that the claimant's own negligence contributed to the loss.