study unit 12

Question 1

HIGH COURT RULE 39:

Answer 1

HCR 39 sets out the procedure to be followed during a trial of an action

Question 2

OPEN COURT:

Answer 2

in terms of s32 of the Superior Courts Act, all proceeding must be carried on in an open court, which means that the press and the public may be present.

Question 3

RECALCITRANT WITNESSES:

Answer 3

s36 of the Superior Courts Act covers the way in which witnesses may be dealt with if the refuse to give evidence or to produce a document.

Question 4

if a witness:

Answer 4

-refuses to take an oath,
-having taken an oath, refuses to answer such questions put to him,
-refuses or fails to produce any document
the court may adjourn the matter for up to 8 days and commit the recalcitrant witness to prison for this period.

Question 5

DUTY TO BEGIN:

Answer 5

HCR 39(11)

Question 6

OPENING ADDRESS:

Answer 6

the party upon whom the burden of proof rests, may briefly outline the facts the intends to prove.
-Counsel should take the court through the pleadings, explain what the case is about and list the averments that must be proven.

Question 7

PLAINTIFF’S CASE:

Answer 7

HCR 39(8)
-the court may, of it own volition or on the application of the other party, recall witnesses for further examination.

Question 8

APPLICATION FOR ABSOLUTION FROM INSTANCE

Answer 8

if the court grants absolution from instance, the case comes to an end

Question 9

TEST:

Answer 9

whether or not the plaintiff has succeeded in adducing sufficient evidence upon which a reasonable person might find in his favour.

Question 10

DEFENDANT’S CASE:

Answer 10

if the defendant’s application for absolution from the instance at the end of the plaintiff’s case is refused, he is obliged to open his case.

Question 11

CLOSING ADDRESS:

Answer 11

HCR 39(10)
-the counsel goes through the evidence led, discussions the performances of various witnesses, their credibility, reliability and the weight that he believes should be placed on the testimony o each witness.

Question 12

RE-OPENING A CASE:

Answer 12

The party who wishes to reopen a case must show that:
1. he used proper diligence procure his evidence in the trial
2. the evidence which is proposed to be led is material and likely to be weighty.