1.5.1.1.3 The procedure after judgement: Costs and execution
Costs
The biggest shock most people get when they start litigating is how much it costs. That and the fact that those who give legal advice are so vague about what the eventual cost will be. There is a lot to be said about how expensive legal services are, but the reason why it is so difficult to predict how much a specific case will cost is simple: it’s impossible to predict how a court case will progress. For example, you issue a summons, the defendant does not defend the matter and you obtain judgement without a shot being fired. In that case, your account won’t be more than R5 000. However, if your case ends up in court, you should be grateful if your bill is less than R150 000.
Is the defendant going to defend the case? Who knows? Litigation can be so expensive that any amount you hope to receive from the opposing party is greatly diminished by the costs, which the losing party will have to pay. Many cases have ended up in the Supreme Court of Appeal because neither party could afford to lose, and I know of companies that have been bankrupted by the costs of litigating in a single case. Even if you are the successful party, you will receive only about 50 per cent of your costs from the opposing party. Furthermore, if you are unsuccessful, you are going to pay all of your own costs plus half the costs of the opposing side, and you won’t even have a court order in your favour to show for it.
Let me throw another spanner in the works, something that I have often seen. You sue for R250 000 in the high court. Your case is heard by a weak or sleepy judge who gives an incorrect judgement. Your legal costs are already through the roof. You could appeal with the aim of getting a correct judgement, but that is going to set you back a further R100 000, of which you will get back only about R50 000. What do you do now? Don’t ask me, I’m only an advocate … What would I advise? That you weigh up your chances of success as coldly and clinically as possible, and then decide calmly and rationally whether to litigate further, keeping a calculator by your side at all times. Then you must see if the bank is prepared to grant you a further bond. All of this must be done before you decide to litigate.
The execution procedure
This is the practical implementation of the court order. If the order is for someone to be evicted from a house, the execution process will involve a warrant being issued authorising the sheriff to remove the person from the property. The sheriff will go to the property, inform the person that he must leave the property and if the person refuses, he is removed (forcibly, if necessary) from the house. If he causes enough difficulty, the sheriff will call in the police to assist.
However, in most cases the execution process means that the person against whom a civil judgement for the payment of money has been granted (the execution debtor) is given a period of time in which to pay the money or to make arrangements with the person in whose favour the judgement was granted (the execution creditor – the one claiming the judgement debt). If the money is not paid or if satisfactory arrangements are not made for payment, the sheriff can seize any assets of the execution debtor (called an attachment in execution) and ultimately sell the goods at auction (called a sale in execution).
This is more or less what you need to know about the procedural side of an action.
1.5.1.2 Applications
1.5.1.2.1 The procedural course of an application
The procedure for an application is completely different from that of an action, and in the judgement other terms are used for what happens. Instead of a summons, there is a so-called notice of motion. Like a summons, this sets out what order you are asking the court to make. For example, supposing that you want information from a government department about a tender process in which you participated. You want the information urgently because you want to appeal against the decision to award the tender to one of your competitors. You do not have much time to do so, but the government department refuses to give you the information you want. What do you do? It won’t help to have a summons issued and wait months or even years for a court date. By that time the competitor who was awarded the tender would have already finished the work and been paid for it. Therefore, you launch an application and have it served in the same manner as a summons.
However, there is an important difference between an action and an application. In an application, evidence is given in the form of an affidavit (or affidavits) which is called the founding affidavit, and not orally at a court appearance, as is done in an action. It is customary with an application for no “trial” to take place. Instead the applicant sets out all his evidence in his founding affidavit. In our example, you will litigate against the government department and the other tenderer or tenderers. You (the one bringing the application) are called the applicant; the people against whom you bring the application are called the respondents.
If either of the respondents wants to oppose your application, they have a notice of opposition served. (“Served” means exactly as explained when dealing with actions above.) Instead of a pleading or a plea, they will also file a sworn affidavit (or affidavits), in which their evidence is set out in full. In these affidavits, which are called the answering affidavits or opposing affidavits, the respondent will respond to every statement that you have made in your founding affidavit, paragraph by paragraph, and state whether he agrees with it, if he has knowledge of it at all and whether he perhaps disagrees completely with what you have said. If so, he will say why he disagrees with you and will set out his version of events.
The applicant then has the opportunity to answer to this and he does so by way of a replying affidavit. The replying affidavit looks very much like an answering affidavit and works in exactly the same way. It is also limited to answers to allegations made in the answering affidavit.
With that, the evidence is (usually) complete. Unlike an action, the hearing of an application is relatively straightforward and consists only of arguments by both sides, although such arguments can be extremely complicated.
Before the date of the hearing, the applicant and the respondent exchange heads of argument, consisting of a written summary of the arguments that will be delivered in court. This is why judges often have a good idea of what they are going to decide before the hearing, as all the evidence and legal arguments are already on paper and known to them.
The hearing of an application
When an application is heard, the applicant argues first, followed by the respondent and then finally the applicant answers. The way in which evidence is weighed up in an application is different to that in an action, because in the case of an application the judge has not had the advantage of seeing the witnesses “in action” and has not heard the cross-examination testing the different versions given by the witnesses. The principle is that the evidence on which the applicant and the respondent agree is examined. This evidence is said to be common cause (also the case in actions). Where the evidence of the applicant differs from that of the respondent, the evidence of the respondent is accepted, unless it is so unlikely that it has to be rejected outright. The evidence that is common cause is looked at together with the evidence of the respondent (unless of course it has been rejected, in which case the applicant’s evidence is accepted). Using this evidence, the judge considers whether the applicant has proved his case.
If the applicant has proved his case on a balance of probabilities, the application is granted. If he has not done so, the application is dismissed.
1.5.2 More about actions and applications