delict – an act or omission whereby someone suffers damages and to which the law attributes fault, and which is not excusable in some or other way (put differently, it is said to be “unlawful”).
discovery – the process whereby copies of documents to be used in a case are given to the opposing party. Initially each party discloses its documents to the opponent in a sworn affidavit. The opponent may respond to this by asking for specific documents that have not been disclosed. Discovery is used to prevent your opponent from being taken by surprise by the use of documents at the trial.
dismissal – when the state has finished leading its evidence in a criminal case and there is insufficient evidence on which to find the accused guilty. Application for dismissal is then made and if the application is successful, the accused is released without having to give evidence. This application is not an ordinary application because oral evidence has already been led. An application is therefore not made in the usual way, but simply argued.
dismissed – a court order meaning that someone who brings an application or an action is unsuccessful. The difference between such an order and absolution from the instance is that once your application or action has been dismissed, you cannot try again. See also granted.
domicilium citandi et executandi – a phrase one often sees in contracts. Translated literally, it means “where the party may be cited and where attachment in execution can take place”. In plain language, it is the address where notices and court pleadings can be delivered. (Execution can take place anywhere a person against whom a court order has been obtained finds himself.)
ex parte – bringing an application against a person without giving notice to the person against whom the application is being brought. This is done if the application is very urgent, if giving notice would thwart the purpose of the application, or if it would make no sense, for example if the person is mentally incapacitated.
examination in chief – the first part of a witness’s oral evidence in a court. It consists of the legal representative of the party who called the witness asking a number of questions in order to extract evidence that is favourable to the party concerned.
exception – a technical objection against a plaintiff’s particulars of claim or against a defendant’s plea, either because it is without sufficient grounds or because it is vague and embarrassing.
execution – the process whereby a court order is carried out. If, for example, a court orders that money is to be paid, execution means that money is recovered from the person who owes it. This can be done either by collecting the money from the person or by selling the assets of that person. This is always done by the sheriff.
execution creditor – the party in whose favour a judgement is given and who can therefore demand payment of the judgement debt. See creditor.
execution debtor – the party against whom a judgement is given and who is therefore liable to pay the judgement debt to the execution creditor. See debtor.
expert evidence – evidence by a specialist containing opinions that can help the court to reach a finding about something of which it does not have expertise itself. Good examples are medical evidence about the consequences of bodily injuries and experts on speedometers at trials about speeding offences.
filing – handing in a document at the office of the registrar or clerk of the court. Filing gives official status to the document.
founding affidavit(s) – the first affidavit or set of affidavits in an application, in which the applicant and his witnesses set out his evidence.
further particulars – particulars which you request from an opposing party in an action to tell you more about his case so that you can prepare for the trial.
further party – a party such as a third party or intervening party who becomes party to an action or application.
granted – an application is granted if it is successful. See also dismissed.
heads of argument – a document summarising the submissions that will be used in argument. Heads of argument are given to the judge and to the opponent’s legal representative before final argument to give them a chance to weigh up and consider the submissions.
in camera – when a court is closed to the public, unlike normally, when it is open to the public. Only the legal representatives, necessary court officials, parties (or the accused in a criminal case) and the judge or magistrate are allowed in the court.
in forma pauperis – when a poor litigant is given free legal representation.
interdict – a type of court order that orders someone to do, or refrain from doing, something.
interim/interlocutory application – application in an action to bring about something that is relevant to conducting an action. If, for example, one of the parties refuses to discover, his opponent can bring an interim application to compel him to do so.
interim relief – a court order that is given pending the final outcome of a case.
intervening party – when an outside party who is not involved with one of the existing parties to an application, wants to be part of an application. The outside party does this because he thinks that the application also affects his rights. For example, A brings an application against B, a state hospital, for an order to perform an abortion on her. C, the father, can intervene because the child to be aborted is also his child and he is opposed to abortion.
issues in dispute – the issues about which the parties in a court case differ. If, for example, I allege that you were the sole cause of the accident and you deny this, this is an issue in dispute between us. Issues in dispute can be divided into disputes of fact when the parties’ versions of what happened differ from each other, and disputes of law when the parties disagree on which legal principles are applicable and how they must be applied.
judge – the official who presides in one of the higher courts, such as the high court or the Supreme Court of Appeal.
judgement – the reasons given by the judge or magistrate for the court order that is finally given. In civil cases, a judgement is the court order given by the court in favour of the successful party and against the unsuccessful party, which is not a punishment, as is the case with a sentence in a criminal case. A court order dismissing a plaintiff’s claim with costs is an example of a sanction in a civil case, which to some extent resembles a sentence in a criminal case.
lawful – a word that can be confusing because it can be a synonym for both statutory and just. It can therefore mean that something is “in accordance with a law” but can also have a wider meaning, namely that something is “in accordance with the provisions of the law in general”. One has to look at the context in which the words are used to know what is meant in a specific case. If something is lawful it is usually also just, but the reverse is not necessarily true.
lawfully – by law, rightfully or in accordance with the law, and a synonym for legally.
legal aid – as a general term, this means that a private person obtains legal representation. It also has a more specific meaning that is more commonly used, namely that a poor person obtains legal representation funded by the state. Legal aid is also available for government officials who are charged for acts committed in the course and scope of their employment. This is how we get the peculiar situation in which very rich politicians litigate at the taxpayer’s expense.
legal representative – someone with a legal qualification who represents a party in a court case.
litigant – synonym for party.
litigate – the verb derived from litigation.
litigation – the process of conducting a court case.
magistrate – the official who presides in a magistrates’ court. See also judge.
Master of the high court – more often referred to as “the Master”.