Litigation is a term used to refer to the process of contesting and resolving disputes, within the legal system and refers to inter alia legal disputes, lawsuits or other legal proceedings in court.

Although filing a lawsuit refers to a specific stage in the litigation process, legal disputes are not necessarily limited to actions taken in court and can be linked to Arbitrations, Mediations and various other methods used to resolving disputes.

Civil litigation through Court proceedings are usually initiation through Motion / Application or Action proceedings (refer to the relevant links on this site). One must be careful to chose the correct method to bring a dispute to Court, since an adverse Legal Cost Order may be obtained against a party, even if they make honest mistakes.

In a way, litigation is the entire series of steps that a person will need to go through to resolve a dispute starting from the investigation of the cause of action all the way to filing appeals in the Supreme Court of Appeal or Constitutional Court.

Motion proceedings are also generally referred to as applications / application proceedings.

Application proceedings are usually initiated through a Notice of Motion, Founding Affidavit and Annexures that supports / evidences the allegations contained in the Founding Affidavit.

Applications can be urgent, “semi-urgent” or done in the normal course of proceedings, as determined by the time-lines contained in the Rules of the relevant Court.

When an application becomes opposed, the opponent(s) / Respondent(s) informs the Applicant that he wishes to oppose proceedings by serving a Notice on the Applicant and filing same at Court.

There can be more than one (1) applicant and / or Respondent involved in a dispute.

Thereafter, the Respondent delivers an Opposing / Answering Affidavit.

The Applicant may deliver a Replying Affidavit, to clarify existing issues that arose from the Respondent(s) affidavit.

The matter is then set down for hearing and argued by the parties’ legal representatives.

Judgement follows after the parties argued the matter.

The aforesaid is a simplified version of the main elements of an application and is not meant as an exhaustive and all-inclusive source of information about how applications are meant to be conducted.

Summary Judgment forms part of the action proceedings (initiated through Summons) and is a method to shorten the action proceedings under certain circumstances, as outlined below.

Summary Judgment is regulated by the Rules of Court and based on claims relating to a liquid document, liquidated demand, delivery of specified movables or ejectment.

Summary Judgment is requested after a Defendant delivered a Plea (during the pleading phase) and can be opposed through delivery of an affidavit or appearance in Court (if the Presiding Officer so permits).

The result of a successful request for Summary Judgment is a Judgment in favour of the person or entity initiating the procedure.

(Please refer to Opposed and Unopposed Motion links in this site)

Urgent applications are Applications / Motions brought to Court on an Urgent Basis.

This is a risky approach, since an additional hurdle / obstacle is created compared to proceedings proceeding during the normal course, meaning in accordance with the normal time-lines contained in the Rules of Court.

Urgent applications are normally allocated on Tuesdays and must be finally enrolled on a Thursday preceding the Tuesday on which the matter is set down for hearing.

At all times, an opponents right to a fair trial must be considered when initiating Urgent Application, since the penalty can be severe, being a hefty Order pertaining to the legal costs of your opponent, if you are the Applicant.

If you are the Respondent, properly opposing an Urgent Application is also vital, if you wish to avoid the dire consequences of such an Order.

Contractual disputes may arise from various forms of unresolved disputes pertaining to inter alia if an agreement actually exists between two (2) or more parties, whether or not the agreement was in writing, who the actual parties to an agreement are, what the terms and conditions, rights and obligations established by the agreement are, differences in interpretation of an agreement and even goes as far as considering the surrounding circumstances or reasonable / lawfulness of the agreement itself.

It is extremely important to take various precautions and mitigating risks prior to entering an agreement. A Legal practitioner should be appointed to draft an agreement and advise parties properly, as to avoid disputes.

However, no document is perfect and when the time arise to resolve a dispute, through various means including mediation (albeit formal or informal), arbitration or litigation, it is paramount to be advised properly regarding your rights and obligations established in terms of an agreement.

(Please refer the Delictual Disputes link)

Time and again parties are uninsured, is sued by insurance companies or wants to sue an uninsured party or insurance company, pertaining to matters where a party was involved in a motor vehicle accident.

This is a highly specialized, complex and intricate area of the South African legal system.

One of the complexities that arise is explaining the elements of a delict, that must be proven to be successful, to a client and more so the provisions relating to the Apportionment of Damages Act, 1956, where both parties involved in an accident can be considered wrongdoers and be held liable for each other’s damages to a certain degree. It is important to take cognizance of and be advised properly before spending a lot of money on costly litigation, which could have detrimental adverse consequences.