CIVIL PROCEDURE INTRODUCTION

General Introduction

1. Civil Procedure and its Place Within the Legal System

• Definition: Procedural law is the practical side of the law that guides how to enforce legal rights.

• Adversarial System: South Africa employs an adversarial system involving opposing parties, where the court serves as an impartial referee and does not instruct the parties on managing their cases.

2. Understanding Civil Law vs. Criminal Law

• Civil Law: Focuses on the relationship between private parties.

  • Parties involved:

    • In civil actions: plaintiff vs. defendant

    • In civil applications: applicant vs. respondent

• Criminal Law: Public in nature with the state prosecuting the accused.

3. Characteristics of Civil and Criminal Cases

• Initiation:

  • Civil: Initiated by the parties (dominus litis).

  • Criminal: Initiated by the state after a crime is reported.

• Nature:

  • Civil: Private disputes.

  • Criminal: Public offenses against the state.

• Focus:

  • Civil: Determining liability of the defendant/respondent.

  • Criminal: Determining guilt of the accused.

• Burden of Proof:

  • Criminal: Guilt must be proven beyond a reasonable doubt.

  • Civil: Liability must be established on the balance of probabilities.

• Outcomes:

  • Criminal: Punishments such as fines, imprisonment.

  • Civil: Financial damages or specific performance orders.

4. Financial Implications in Civil Cases

• Common Outcomes: Most civil judgments involve monetary compensation (e.g., damages for vehicle repair in accidents).

• Other Claims: Includes requests for specific performance, where a party is ordered to fulfill contractual obligations.

  • Can be accompanied by monetary claims.

• Preventive Actions: Civil claims may seek prohibitory interdicts to prevent undesirable actions (e.g., preventing property damage).

5. Role of Civil Procedure in Legal Practices

• Importance of Civil Procedure: Fundamental in the daily practices of attorneys and advocates.

• Influence of Evidence Law: Both civil and criminal procedures are shaped by the law of evidence, with the objective of presenting evidence in court influencing procedural choices.

6. Distinguishing Features of Civil Procedure

• Terminology: Shift focus from criminal terms (crime, guilt) to civil terms (claim, liability).

• Civil Procedure Definition: The 'nuts and bolts' of civil law that provides the guidelines to enforce claims.

• Scope and Complexity: Wider and more complex than criminal procedure, encompassing various areas of civil law such as delict and contract.