CIVIL PROCEDURE INTRODUCTION

Civil Procedure Introduction

General Introduction

  • Civil Procedure: Part of the legal system concerning the practical steps to enforce legal rights within civil law.

  • Importance: Knowing the theoretical legal rights is insufficient without knowledge of enforcement mechanisms in practice.

  • System Used: South Africa employs an adversarial system where opposing parties present their cases, and the court acts as an impartial referee.

Understanding Civil Law vs. Criminal Law

  1. Parties Involved:

    • Criminal Cases: State vs. Accused (public nature).

    • Civil Cases: Plaintiff vs. Defendant (or Applicant vs. Respondent in applications).

  2. Nature of Matters:

    • Criminal cases are initiated by the state, which pursues apprehension and punishment.

    • Civil cases are private; parties must initiate actions as the state does not intervene unless prompted by the parties involved.

    • The party initiating is referred to as dominus litis (master of the litigation).

  3. Purpose of Litigation:

    • Criminal cases aim to determine guilt beyond a reasonable doubt.

    • Civil cases focus on determining liability on a balance of probabilities.

  4. Consequences:

    • Criminal cases lead to punishment (fines, imprisonment).

    • Civil cases typically result in monetary damages or specific performance orders such as enforcing contract obligations.

  5. Types of Claims:

    • Most civil judgments involve financial compensation for damages (e.g., car accidents).

    • Not all civil cases seek monetary compensation (e.g., prohibitory interdicts, specific performance).

The Role of Knowledge in Civil Procedure

  • A sound knowledge of substantive law is crucial for understanding civil procedure, as the latter is the means to enforce legal claims.

  • Civil Procedure is fundamental for attorneys and advocates; mastery is expected for professional examinations.

Evidence and Procedure

  • Civil and criminal procedure are influenced by the law of evidence; both aim to present evidence in court effectively.

  • Key Terminology Shift:

    • Replace terms related to criminal law (crime, guilt, punishment, accused) with civil law terms (claim, liability, damages, respondent, defendant).

Definition of Procedure

  • Civil Procedure: Concerns the practical steps to enforce rights in civil law, distinguishing it from substantive law areas (like delict and contract).

  • Complexity: Civil procedure is broader and often more complex compared to criminal procedure due to the wider scope of civil law.