Slide 13- Trial

Question 1

What are the Pre-Trial steps?

Answer 1

1. Set down
   2.. Discovery
2. Medical examinations and Technical Inspections
3. Request for further particulars for trial
4. Subpoena of witnesses
5. Special evidence
6. Pre-trial conference and judicial case management
7. Final preparation for trial
8. Certification

Question 2

How does litis contestatio take place?

Answer 2

1. If either party has joined issue without alleging new matters and adding further pleadings
2. if the las day for filing replication or other pleading has elapsed
3. Parties agree in writing that the pleadings are closed
4. Court determines it to be closed

Question 2

How is a matter set down in court?

Answer 2

There is no set procedure, usually it is done by way of notice to the Registrar of the court, asking to be placed on the awaiting trial roll, this is before litis contestatio.
After litis contestatio, the plaintiff will request the registrar to allocate a trial date.

Question 3

What is the Discovery process? And what is the purpose thereof?

Answer 3

It is a process that allows each party knowledge of and eventual access to documents, tape recordings in the possession of the opposing party that might be relevant to the trial.

This is to eliminate dispute about issues where the evidence is incontrovertible and it secures fair trial of action in accordance with the due process of the court. it saves time and money wastage at trial

Question 3

Which legislation governs the process of requesting discovery?

Answer 3

Rule 35 of the High Court Rules and Rule 23 of the Magistrate Court Rules.

Question 4

How can one bring about a discovery?

Answer 4

Discovery is prompted by a notice to discover served on a party by the opposing party. The rule requires that discovery be done on oath and therefore, the lists or schedules of a document a party discovers are annexed to a discovery affidavit.

Question 5

What is the significance of Rule 37(1)

Answer 5

It provides for automatic discovery. this means that if a party fails to call for discovery at the time he receives notice of trial date, the other party must deliver his discovery within 15 court days

Question 6

What must be discovered?

Answer 6

1. All documents and tape recordings which relate to the matter in question
2. which is in possession or control of the other party when the notice is delivered or which they had at anytime in the past
3. which is relevant and may be used by any party to prove or disprove a case.

Question 7

Which documents are excluded from discovery?

Answer 7

Privileged documents nay be discovered (listed), however, the opposing party cannot access them

Question 8

How is a discovery affidavit structured?

Answer 8

It consists of 2 schedules
a)The first– lists those documents and tape recordings which are in possession of the deposing party at the time the discovery affidavit is deposed to.
The first schedule is further divided into two parts:
aa) The documents/recordings contained here are those that the deposing party has no objection to their inspection by opposing party.

bb) Contains documents/tapes which deposing party objects to their inspection by the opposing party

The second schedule consists of all documents/recordings that the deposing party was in possession of at one time, but not currently

Question 9

Examples of privileged documents that may not be inspected?

Answer 9

1.Self-incriminating documents
2.documents protected by spousal privilege
3.written offers made without prejudice with the intention of settling a matter
4.documents protected by attorney & client privilege

Question 9

What are the remedies for failure to discover?

Answer 9

1. Written notice to inspect-this must be delivered to the opposing party in which they are required to to either:
   a) make the undisclosed documents available for inspection
   b) to state under oath within 10 days that such documents are not in their possession and state their whereabouts, if known to them.
2. Rule 35(4) of HC, states that the undisclosed documents may not be used by the litigant that failed to discover them. However, the opposing party is entitled to use them
3. Rule 35(7) states that the opposing party can make an application to the court to compel discovery. If failure continues, another application to strike out or dismiss a claim can be applied for

Question 10

How can a witness who is not part of the proceedings present documents?

Answer 10

An expert witness who is not part of the proceedings may present documents to the court under a subpoena duces tecum.

Question 10

How can the party requesting medical examinations obtain them?

Answer 10

Any party requiring the other party to submit to such examination shall deliver a notice specifying:
1. the nature of the examination
2. the person who should undergo such examination
3. the date and place (not less than 15 days from date of such notice)
4. the time when the examination report will be desired.
5. the notice may also state that the party may use their own medical practitioner, however an attorney should be present.

Question 11

Name the grounds for objecting to the medical examination? And the period of time they can object?

Answer 11

1. The nature of the proposed examination
2. The person by whom the examination should be conducted.
3. The place/time/date of the examination (in this case, they can suggest an alternative suitable date)
4. the amount of expenses tendered to him (he must then give details why he is entitled to more money)

the objection should be within 5 days, should he fail to comply with the time, he is deemed to have agreed to the examination on the terms set out on the notice.

Question 11

What must the report of the examination contain?

Answer 11

The party calling out for the examination must ensure that a full written report is compiled by the person who carried out such an examination. It must detail the following
1. results of the examination
2. opinions formed by the person who conducted the examination
3. a full copy of the report must also be made available to any other party involved in the matter.

Question 12

Reasons why one would object to technical inspection of objects?

Answer 12

If inspection will affect the object and cause material prejudice to the party being asked to submit it, then that party may refuse to submit it.

If the inspection would reduce it’s value or cause harm to the party in possession of it, such a party may refuse. Both parties may apply to the court and court will use discretion whether to allow such inspection or not.

Question 12

What is the process for technical inspection on an object?

Answer 12

The party requiring inspection must give a written notice to the other party in possession of the object, requesting to make the object available for inspection for a period of 10 days from the day notice was received.

During the inspection, the object remains in possession, under the control of the party to whom

Question 13

What is the purpose of obtaining further particulars?

Answer 13

1. To prevent any surprises at trial
2. to inform a party, with greater precision what the opposing party is going to prove in order to enable them to prepare for trial.

Question 14

What is the procedure for requesting further particulars ?

Answer 14

Any party to an action may, after the closing of pleadings and not less than 20 days before trial, deliver a notice requesting further particulars. In HC, both attorney and advocate must sign the notice. in MC- only one of them.

The party who has been asked to furnish the particulars for trial, must do so within 10 days after receipt of notice. Failure= the other party may make application to court to compel

Question 15

What is a subpoena?

Answer 15

A notice in the form of a court order telling the witness that he is required to provide evidence in court under the threat of penalty

Question 16

Explain a subpoena duces tecum

Answer 16

It is a subpoena that contains a direction to witness to bring a specified object in their possession to court.
The object is to be handed over within 10 days of receipt. if the object is privileged, witness must still comply with subpoena and satisfy registrar that the claim for privilege is legally justified.
Failure to comply: 3 months imprisonment or R300 fine

Question 17

What points should an attorney keep in mind when drafting subpoena?

Answer 17

1. The subpoena must be properly served by the sheriff
2. It must not be served too close to the trial date, the witness is entitled to a reasonable time
3. The witness fees due to the witness must be stated in the subpoena
4. In case of a duces tecum subpoena, the object or document required must be sufficiently particularised.

Question 18

What does “special evidence” include?

Answer 18

1. Expert evidence
2. evidence in the form of a photograph,plan,model and diagram
3. Evidence on commission
4. Evidence by way of interrogatories
5. Evidence on affidavit.

Question 19

What two things should a party intending to call expert witnesses supposed to do?

Answer 19

1. Not less than 30 (HC) & 15 (MC) court days AFTER CLOSING OF PLEADINGS, PLAINTIFF must deliver a “notice of intention” to call an expert; and defendant must provide notice not more than 60 days after closing of pleadings
2. Not less than 90 court days before hearing, PLAINTIFF must deliver a summary of the expert’s opinions and his reasons for such opinions. Defendant has not more than 120 days

Question 20

What can parties do to save money and time when calling upon expert witness?

Answer 20

They can appoint a single joint witness on any one of the issues in a case and file a joint minute of experts relating to the same expertise within 20 days of the date of the last filing of such expert report.

Question 21

What can a party do if they want to use evidence of photographs, plans, models and diagrams?

Answer 21

Rule 36(10) states that no person can save with the leave of consent of the court, be entitled to use such evidence, unless he shall not more than 60 days after close of pleadings has given notice of intention to do so, offering inspection thereof and requiring receiving party to admit evidence, 10 days after receipt of notice.

Question 22

How can evidence be presented by witnesses who have difficulties attending court?

Answer 22

1. Evidence on commission
2. Evidence by means of interrogatories
3. Evidence by way of affidavit.

Question 23

How is evidence presented by way of commission?

Answer 23

A commissioner is appointed, who will then go and take evidence of that witness in a form of deposition, the deposition will then be handed in as evidence of the trial.

The applicant of commission should attach an affidavit supporting his application and should include why it is necessary to obtain evidence this way and have bona fide grounds for legitimate case, the nature of the evidence to be given and it’s relevance, names of the witnesses whose evidence on commission is required.

Question 24

Explain evidence by means of interrogatories

Answer 24

Interrogatories are set of questions drawn up by the parties and submitted to the court for approval, then sent to the commissioner who puts them to the witness; there is no cross-examination done and no representation by parties.
Commissioner will send the answers back to the registrar of court.

Question 25

How is evidence by way of interrogatories different in Magistrate’s Court?

Answer 25

The processes are the same, however, interrogatories under section 52 are only permitted in respect of witnesses who reside or are in another district other than where the case is being held. It excludes witnesses who cannot attend trial for any other reasons.

Question 26

What factors will be considered when deciding if evidence should be given by way of affidavit?

Answer 26

1. Lack of means
2. the expense of bringing the witness from a foreign country
3. the illness of the witness.

Question 27

Explain evidence by way of affidavit.

Answer 27

This is suited for those situations in which strictly formal evidence is required from a witness, which will not be contested by the other side.

Should the other side contest the evidence, then such evidence should be presented in court viva voce so that it can be cross examined.

Question 28

Explain the procedure of the Rule 37 conference?

Answer 28

Plaintiff should, within 10 days of receiving notice of the trial date, he should deliver a notice to the defendant which specifies the date, time, place of the conference. Both parties should then deliver notice to each other that specifying agenda points such as:
1. Admissions required from opposing party
2.Enquiries not yet addressed at the opposing party
3. any matter intends to be raised at the conference.

Question 28

What is the “Sjambok” rule?

Answer 28

Rule 37(9) directs the court, at the hearing of the matter to consider whether or not, it is appropriate to make a special cost order against a party or an attorney if;
1. they did not attend the pre-conference/
2. Failed to a material degree to promote effective disposal of the litigation

Question 28

What is the purpose of judicial case management?

Answer 28

It’s intention is to ensure that judicial officers take control of the management of the cases as early as possible, to limit delays and de-congest court roles.

Judge President will determine which defended cases are subject of case management; and non-compliance will stop the case from proceeding to trial unless the case has been certified trial ready by case management judge.

Question 28

What does the final step of pre-trial include?

Answer 28

This is the final pre-trial preparation stage, where the attorney seeks advice on evidence from an advocate on all relevant aspects of the case to make sure that the client’s case will be put as persuasively as possible.

The points discussed are:
1. Form of pleadings(whether pleadings have been closed properly or if any amendments are needed)
2. Discovery process (whether the process has been completed fully by both sides)
3. Onus of proof
4. Evidence available (categorizing evidence and how it will be adduced)
5. General observations

Thereafter, there should be preparation of trial bundles (gathering all original documents into one bundle and arranging them in chronological order)

The final task is indexing and paginating the court file

Question 28

What is the purpose of the Rule 37 Conference?

Answer 28

A pre-trial conference must be held between the parties no less than 6 weeks before the date of the trial. The purpose is to curtail the proceedings as much as possible. This is done by parties defining the points in issue between them, reach agreement on as many issues as they can, and decide upon the most effective way of conducting the trial.