amendment – a change, usually to a pleading. It can also mean a change in a law or a contract but in this book it is used only in the first sense.
answering affidavit(s) – the sworn affidavit(s) in an application in which a respondent answers an applicant’s founding affidavit(s) point by point and gives his own version of events.
appeal – the procedure when one of the parties in a case is of the opinion that the court’s judgement is wrong and therefore follows a process to have the judgement and court order, changed by a court with higher authority.
applicant(s) – the party(ies) who launch(es) an application. These may include people or legal persons (entities), for example companies, trusts and so on.
application – one of the two ways of bringing a matter to court (the other is an action). Applications are generally used in cases where there is not a substantial dispute between the parties with regard to the facts, but there is a dispute regarding the legal principles that must be applied to it. The hearing of an application consists only of arguments that are set out in the application documents, which are called application papers or “the papers”. Generally speaking, the papers consist of two parts: a notice of motion, in which the party bringing the application states what he is asking of the court; and sworn affidavits, in which the evidence stating why the party bringing the application is entitled to the relief he is asking from the court is set out on paper.
argument or submission – at the end of any case, the legal representatives of both parties present their arguments to try to convince the judge why their client should win. These are called arguments or submissions. Submissions are the building blocks of such an argument. In the case of a motor-vehicle accident, for example, I would submit that my client’s evidence should be believed rather than the evidence of the other party. I would then give reasons to support this submission and use these together with other submissions in support of the argument that my client should win the case.
bar – when the time for the delivery of a plea to an action has passed without the defendant having pleaded, the plaintiff can send a notice to the defendant compelling him to plead within a certain period after which he will be barred from pleading. If he does not do so, the plaintiff may apply for default judgement.
beyond reasonable doubt – the manner in which it is decided in a criminal case whether an accused is guilty or not and, at the same time, the hurdle the state must overcome in order to prove its case against an accused. If the judge has reasonable doubt as to whether the accused’s version is possibly true and/or if the accused is possibly not guilty, then his version is accepted and/or he is acquitted. If an accused is found guilty, he is, in other words, found guilty beyond reasonable doubt. Compare this with on a balance of probabilities, the standard used in civil cases.
burden of proof – see onus.
case – a dispute between two or more parties that goes through the formal court process.
civil case or matter or proceeding – any case that is not a criminal case. This definition may sound unhelpful, but civil cases can be conducted around a wider variety of topics than can be covered by a single definition.
clerk of the court – the official in the magistrates’ court who attends to the administrative side of court cases.
closure of pleadings – an important point in time in an action, when it is clear from the pleadings what the issues in dispute between the parties are. The Latin phrase is litis contestatio.
common cause/evidence – evidence about which the parties in a case are in agreement and which is therefore not part of the issues in dispute. The term is also used when the parties agree about which legal principle applies to a specific issue in the case.
constitutional law – legal rules and principles that concern, or flow from, the provisions of the Constitution.
convention – used when parties claim something from each other in an action and you therefore do not just have a plaintiff who is claiming something and a defendant who denies that the plaintiff is entitled to it. It is a situation where there are two plaintiffs and two defendants, which can be rather confusing. The initial plaintiff and defendant are called the plaintiff and defendant in convention. When referring to the defendant’s claim against the plaintiff, he becomes the plaintiff in reconvention and the plaintiff becomes the defendant in reconvention.
costs – the money that it costs to conduct a court case. This can also refer to the so-called cost order, which forms part of the court order that is ultimately made at the end of a case, and which states who must pay the costs of conducting the court case. If, for instance, the plaintiff loses the case, the court order would normally declare: “Plaintiff’s action is dismissed with costs.”
counter application – when a respondent in an application brings his own application, as part of the same application. For example, you bring an application against me to forbid me from entering your land. I then bring a counter application for a court order stating that I have a right of way over your land.
counterclaim – when a defendant institutes his own action against the plaintiff as part of the same action. For example, you bring an action against me for payment of the balance of the contract price for building work you did for me. I then bring a counterclaim against you because I have had to have your bungled workmanship put right, costing a lot more than the balance of the contract price. The dispute is usually about the same set of facts, but seen from different perspectives.
court – a word with several meanings. Firstly, the physical court building and secondly, the court as an institution in the general sense. The most important and most confusing meaning is that of a specific court, consisting of legal representatives and the judge or magistrate.
court order – an order made by a court.
credibility – a judgement about whether a witness’s evidence can be believed or not. This always runs alongside another judgement about the probability of evidence. The two are, however, not the same because to say that I shot a lion in the head from a distance of a thousand paces may be improbable and therefore not credible. If, however, I have three witnesses who confirm it, it remains improbable but becomes more credible. Evidence can even be probable but not credible, although this is seldom the case.
creditor – a person or entity to whom money is owed.
crime – an act forbidden and punishable by the state.
criminal case – the case between the state and a person charged with committing a crime.
criminal procedure – the formal rules in terms of which criminal cases are conducted and administered.
criminal sanction – when an act committed by a person is punishable by the state.
cross-examination – the second part of the oral evidence given by a witness in a trial. The witness is questioned by the opponent’s legal representative in an attempt to discredit the witness’s evidence or to elicit favourable evidence for the opposing party.
debtor – a person or entity owing money in a transaction.
declaratory order – when two parties are unsure of what their rights are, they can ask the court to give finality on whose interpretation of the legal position and their respective rights is correct.
default judgement or judgement by default – a judgement that is given in an action either because the defendant did not defend the action or because he has not delivered his plea timeously and has therefore been barred from doing so. With a default judgement, the judgement is given as if the plaintiff had proved his case without opposition or contradiction.
defence – the reason(s) why a defendant thinks that