CIVIL PROCEDURE INTRODUCTION

General Introduction to Civil Procedure

1. Overview of Civil Procedure

  • Civil procedure is a practical aspect of law, detailing how to implement theoretical legal knowledge in real-world situations.

  • Despite theoretical understanding of client rights, practical knowledge is essential for enforcement.

2. Adversarial System in South Africa

  • South Africa utilizes an adversarial system where two opposing parties present their cases, with the court acting as an impartial referee.

  • The court does not instruct parties on case management, as long as they adhere to court rules.

3. Understanding Civil Procedure

  • The term 'civil procedure' can be dissected into two parts: civil law and procedure.

  • Civil law pertains to non-criminal matters, contrasting with criminal law in several key aspects:

    • Parties Involved:

      • Criminal cases: State vs. Accused.

      • Civil cases: Plaintiff vs. Defendant (in a civil action) or Applicant vs. Respondent (in a civil application).

    • Nature of Matters:

      • Criminal matters are public; they initiate once a crime is reported.

      • Civil matters are private; initiation and pursuit depend on the parties involved.

    • Legal Standards:

      • Guilt in criminal cases must be proven beyond a reasonable doubt.

      • Liability in civil cases must only be established on a balance of probabilities.

    • Consequences:

      • Criminal cases lead to punishments (e.g., fines, imprisonment).

      • Civil cases typically involve monetary compensation to the plaintiff or specific performance of obligations.

4. Nature of Civil Liability

  • Civil judgments frequently require monetary payments, exemplified by damage claims (e.g., vehicle repair costs).

  • Some civil cases request specific performance (e.g., enforcing contractual obligations).

  • Other civil actions may seek to prevent specific actions, like prohibitory interdicts.

5. Role of Civil Procedure in Legal Practice

  • A comprehensive understanding of civil procedure is essential for attorneys and legal practitioners.

  • Civil procedure is influenced by the law of evidence, which governs how evidence is presented in court.

6. Distinction Between Civil and Criminal Law

  • It is crucial to differentiate between civil and criminal terminology. Focus on terms such as:

    • Civil: Claim, liability, damages, respondent, defendant.

    • Criminal: Crime, guilt, punishment, accused.

7. The Scope of Civil Procedure

  • Civil procedure encompasses the mechanisms through which legal claims are enforced.

  • While substantive laws (e.g., delict, contract) define valid claims, civil procedure dictates the enforcement process.

  • Civil procedure is generally more extensive and complex than criminal procedure, addressing a broader array of laws.