Litigation is the process of taking a legal dispute to court. Civil litigation is ordinarily between two or more parties and is conducted in a public forum. This process is formal and highly regulated. The entire matter is of public record for anyone, including the press, having access to the documents that are filed as part of each party’s case. However, the courts have the discretion to order that proceedings be confidential.

The court where the action or application is instituted must have jurdistriction over the matter to hear it. Jurdistriction is established when the cause of action arose in the area where the Defendant resides or domiciled within the area of that court
There is a hierarchy of courts in South Africa:
1. The Constitutional Court
2. The Supreme Court of Appeal
3. The High Court
4. The Magistrates’ Court
Proceedings usually begin with a letter of demand setting out the claimant’s claim and providing a date by which the other party is to adhere to such claim.
If the other party does not comply with this demand, the claimant can start civil proceedings either
by:

This procedure is used in matters involving a factual dispute. It involves both the Plaintiff and the Defendant making submissions to court, producing evidence (by exchanging relevant documents and involving witnesses giving oral evidence) and culminates in a trial. The action is begun when a summons with particulars of claim has been issued out of the court and served on the Defendant.

This procedure is generally quicker but can only be used where there is no factual dispute. All the documentary evidence on which a party wants to rely must be attached to the affidavit submitted to court. This process is started once the following documents have been issued out of the court and served on the Respondent:
• a notice of motion setting out the relief that the applicant seeks; and
• an accompanying witness statement in the form of an affidavit.

In conclusion, there are various factors to consider when taking the first step in the litigation process. As a paralegal practice, Legalwerx Legal Firm also specialises in property law, civil litigation, and debt collection.

For skilled and timely civil litigation and debt recovery CONTACT US.

The COVID-19 pandemic and the resulting nationwide lockdown has tested every facet of the South African economy, its legal system and the ability of its entrepreneurs and innovators to withstand immense turmoil.
With the South African legal system coming to an almost standstill earlier this year, contracting parties affected by breach, inability to perform and a number of contract/agreement related disputes were forced to seek alternative avenues for relief in each instance.

Section 34 of the South African Constitution provides that ‘’Everyone has the right to have any dispute which can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and independent tribunal or forum.
Section 34 appears to solidify the availability of alternative avenues of relief.

What is alternative dispute resolution?

Alternative dispute resolution refers to any other form of dispute resolution mechanism which does not involve a court of law. However, in most instances when we refer to alternative dispute resolution, we are referring to the mechanisms of mediation and arbitration.

Common purposes for seeking alternative dispute resolution include the following;
• Providing relief to congested or overloaded courts;
• Facilitating access to justice
• Prevent access cost and undue delay; and
• Providing more effective dispute resolution
• Pros and cons of concluding an alternative dispute resolution clause in your contract.

What is Arbitration?

Arbitration is a form of dispute resolution; a technique for the resolution of disputes outside the courts. Litigation is often associated with an oversupply of disputes and an undersupply of resources to cope with the volume of such disputes.

Main characteristics of Arbitration?

1. Arbitration is consensual
As already stated, arbitration can only take place if both parties have agreed to it. Parties can agree to arbitration when the dispute arise or the parties can insert an arbitration clause in the relevant contract for any future disputes. In contrast to mediation, a party cannot unilaterally withdraw from arbitration.

2. Arbitration is a confidential procedure
The Rules specifically protect the confidentiality of the existence of the arbitration, any disclosures made during that procedure and the award.
However, should the arbitration be made an order of the court, as is the case with many commercial arbitrations, the order becomes public record.

3. The decision of the arbitrator is final
The arbitration award can also be made an order of the court, in order to enforce compliance with the award made during arbitration. This award will then have equal standing in law as a court order.

What is Mediation?

Another method of ADR is the mediation process which involves the appointment of a qualified third party, known as a mediator, to facilitate discussion before assisting parties to come to a mutual agreement or solution.

The mediator assists with the following during the discussion:
• Identifying issues, both obvious and underlying
• Exploring areas of possible compromise
• Clarifying priorities
• Generating various options to resolve the dispute.

Negotiation

Perhaps the most common and straightforward form of ADR, negotiation is a process whereby the parties and their legal advisors seek to resolve the dispute by reaching an agreement through written correspondence or a meeting between all parties concerned. Negotiations can take place on a ‘’without prejudice’’ basis. This means that any statements made by either side seeking to settle the dispute cannot later be submitted to court so as to be used against another party in determining the dispute. Negotiation and settlement tends to be more cost effective than court proceedings or a protracted dispute.

Our multilingual team of paralegals provide mediation, arbitration, and negotiation support during alternative dispute resolution procedures.

We advise which method is best suited to the type of dispute before offering our expertise in finding practical solutions to resolve them.

For more information about ADR in South Africa and how our team of qualified mediators can assist you with this, please CONTACT US.

The South African law of succession prescribe the rules which determine the devolution of a person’s estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased’s estate, and to the extent of the benefits they receive, and determines the different rights and duties that persons (for example, beneficiaries and creditors) may in a deceased’s estate. It forms part of private law.

The manner in which assets are distributed depends on whether the deceased has left a valid will or other valid documents containing testamentary provisions, such as an antenuptial contract. If the deceased has not left a valid will or valid document containing testamentary provisions, the deceased dies intestate; similarly, if the deceased leaves a valid will which does not dispose of all property, there is an intestacy as to the portion not disposed of. In the event of intestacy, the assets are distributed in a definite order of preference among the heirs, as stipulated by the Intestate Succession Act, 1987. Until recently, the Act (and its common-law precursor) existed side by side with a statutorily-regulated customary-law regime of intestate succession, applied on a racial basis, but this was brought to an end when the Constitutional Court, in Bhe vs Magistrate Khayelitsha, made the intestate Succession Act applicable to all.

Where the deceased dies leaving a valid will, the rules of testate succession apply. These are derived from common law and the Wills Act, 1953. Testate succession is governed by the general premise that the assets of the deceased are distributed in accordance with the provisions of the will. If specified property is left to a person, the disposition is termed ‘’legacy’. Legacies are distributed first; any residue in the estate is given to the person, if any, who is appointed as heir. If the will appoints more than one heir, the residue is divided among them.

Efficient and Compassionate Estate Administration

Winding up the Estate of a loved one can be an emotional, time-consuming, and burdensome process. It is time fraught with legal, financial, and procedural hurdles. Legalwerx Estate Administration team takes care of the entire process from beginning to end, removing this pressure and burden from your family. CONTACT US.