The aim in a civil claim is for the plaintiff to prove to the court that his or her case is better than the case of the defendant. In the court they say this must be proved on a ‘balance of probabilities’. This is different from the criminal case, where the state has to prove that the accused committed the crime ‘beyond all reasonable doubt’.

SUMMARY OF STEPS IN A CIVIL CLAIM

Letter of demand – The plaintiff’s lawyer writes a letter to the defendant. This letter says what the plaintiff wants, and gives the defendant a certain number of days to do it. It is a warning that you plan to take the other person to court, for example, the plaintiff requests R1000 that you owe him and he demands that you pay within 10 days. If the defendant fails to pay within the prescribed period as set out in the letter of demand, then the plaintiff will issue a summons.

Issuing a summons – If there is no reply to the letter of demand, the attorney draws up and issues a summons. The summons is a document stamped by the court, setting out the details of the plaintiff’s claim. It also tells the defendant to tell the court within 5 days whether the case will be defended. The defendant can answer the summons in one of these ways:

• Admit to owing the money and pay immediately, or
• Try to settle the case by reaching an agreement with the other side after discussing it with the plaintiff’s attorney, or
• Defend the claim in which case the form called a Notice of Intention to Defend which is at the back of the summons must be completed and returned to the court.

In all cases it is very important not to IGNORE the summons or to wait until after the return date has expired. If the defendant doesn’t tell the court that the case will be defended, in other words if the defendant does nothing about the summons, then judgment will be given in favour of the plaintiff. This type of judgment is called a default judgment.

DEFAULT JUDGMENT
If the court gives the default judgment, the plaintiff can claim against the defendant’s property with a Warrant of Execution. The Sheriff of the Court will take some of the defendant’s possessions and sell them to get money to pay the plaintiff.

THE DEFENCE
If the defendant wants to defend the case in court, then he or she must fill in a form called a Notice of Intention to Defend which is a form at the back of
the summons. It gives the reasons why the defendant does not want to pay what the plaintiff claims in the summons. The form must be stamped at the court.
Then a copy is given to the plaintiff’s attorney.

PLEADINGS
The legal documents in a civil claim are called pleadings. These pleadings are difficult to understand, so it is a good idea to get an attorney to defend a civil claim. The attorneys from both sides set out the legal facts in the pleadings. Pleadings are drafted according to the rules of the court. The attorneys send all the information to each other.

At any time during the pleadings (or even during the trial), the plaintiff and defendant can decide to settle the case. In other words, they can reach an agreement on their own, without the magistrate or judge having to decide the case. The aim of settling a case is usually to save both sides time and money. If the case is not settled this way, then it will go to court.

THE TRIAL
At the trial the plaintiff’s attorney and the defendant’s attorney each present their side of the case. This is done by giving evidence, and calling witnesses. As in criminal cases, witnesses can be cross-examined and re-examined. When the
attorneys decide they have led enough evidence, they close their client’s cases. Each attorney tries to persuade the court that his or her client should win.

JUDGMENT
The magistrate or judge decides which side is right and gives a judgment in favour of that side.

REVIEW OR APPEAL
The plaintiff or defendant can apply for an appeal or a review if they are not satisfied with the outcome of the case or with the way the proceedings were conducted. (See Trials, appeals and reviews)

COSTS
Usually the party that loses the case must pay his or her own legal costs, and most of the legal costs of the other side. It is up to the magistrate or judge to decide as part of the court’s judgment.

ENFORCING A CIVIL JUDGMENT
Enforcing a judgment means making sure that the party that lost the case pays up. It is usually necessary to use an attorney to enforce a judgment. There are different ways to enforce a judgment, including paying instalments and getting a warrant of execution.

PAYING IN INSTALMENTS
If the defendant cannot pay the sum of money all at once, they can offer to pay in instalments.

WARRANT OF EXECUTION
If the defendant still does not pay after the judgment has been given, the plaintiff can ask the court to issue a Warrant of Execution. This is a court order that says the Sheriff of the Court can go to the defendant’s home and list the items owned by him or her like a television set, fridge, radio, motor car and so on. This is called attaching the property. The Sheriff of the Court can also attach the whole house if necessary.

The court attaches the defendant’s property because this is the only way it can force the defendant to pay the judgment costs and any other amount the defendant owes, for example, the Sheriff of the Court’s fees and the plaintiff’s legal costs. The Sheriff of the Court then takes the attached property and sells it. The amount of the judgment plus legal costs is then paid to the plaintiff from what is made at the sale. If anything is left over, it will be paid back to the defendant.

If the defendant does not have enough property which can be sold to pay off the plaintiff’s claim, the plaintiff can ask the court to look into the defendant’s financial position. The court can then order the defendant to pay a certain amount each month, or have a certain amount taken off from his or her salary each month by the employer and sent to the plaintiff. This is called a garnishee order. If the defendant refuses to obey this court order, she or he can be arrested for contempt of court.

PROBLEMS WITH CIVIL CLAIMS
Time-limits – There is often a time-limit on when you can bring your claim. These time-limits are called prescription periods. If you bring your claim too late the court will not accept it. (See page 147 Prescription periods)

Long time to come to court – Civil claims often take a long time to get to court and to be settled.

Collecting good evidence – You need very good evidence to win a civil claim.

Cost of the civil claim – Civil claims cost a lot of money to bring. If you win your case, then the other side will usually have to pay your legal costs. If you lose your case, you will usually have to pay the other side’s costs.