Legal Questions & Answers

Many people do not understand the processes and procedures in law, most see law as a field shrouded in obscurities and most others have multiple questions regarding the field of law.

Below is an exposition of a few random questions and the answers thereto related to the field of law.

 

What is the difference between a lawyer, an Attorney and an Advocate?

Attorneys and Advocates both qualify at university level with the same degree; be it an LLB, BA Law (LLB) or BCom Law (LLB). Thereafter Attorneys will complete a 2 year articles program with a law firm and Advocates will complete a 1 year pupillage program with an admitted Advocate.

Attorneys are “client-facing”, in that an attorney will consult with a client and take instructions.

An Advocate will take their instructions from an Attorney on a matter and not directly from a client.

Attorney and Advocates can both appear in Magistrate’s as well as High Courts, however Advocates dedicate their time to drafting and litigation in court, whereas Attorneys dedicate their time to consulting with clients and drafting documents as well as less complex matters in Magistrate’s courts.

The term “lawyer” is reserved for both Advocates and Attorneys.

What are the procedures to follow when litigating?

When litigating, there are 2 different procedures which can be followed depending on the nature of the type of civil litigation.

There are namely application and action proceedings.

In Application proceedings, the Applicant will draft a notice of motion along with a document called the founding affidavit attached in support of the application. This will then have to be served on the Respondent by a Sheriff of the Courts or on the Respondent’s Attorney if he/she has mandated one.

The Respondent or their Attorneys then have a prescribed time period to defend the application by submitting a notice to defend to the Applicant’s Attorney. The prescribed time period varies depending if the matter is in the Magistrates Court or the High Court.

The Respondent then has a further opportunity to submit an answering affidavit to answer to the Applicant’s founding affidavit within the prescribed time. The prescribed time period varies depending if the matter is in the Magistrates Court or the High Court.

The Applicant will then have a final opportunity to submit a replying affidavit to the Respondent’s answering affidavit also within a prescribed time limit dependent on the Court in which the matter is.

Once the various affidavits have been exchanged, the matter may be set down for hearing before a Judge or Magistrate, depending on which court the matter is in.

 

In Action proceedings, the Plaintiff will prepare a summons to be served personally on the Defendant in the matter by the Sheriff of the Court.

The Defendant or their Attorneys then have a prescribed time period to defend the application by submitting a notice to defend to the Applicant’s Attorney. The prescribed time period varies depending if the matter is in the Magistrates Court or the High Court.

The Defendant then has a further opportunity to submit a plea to answer to the Plaintiff’s summons within the prescribed time as well as the opportunity to bring a counterclaim along with the plea. The prescribed time period varies depending if the matter is in the Magistrates Court or the High Court.

The Plaintiff will then have a final opportunity to submit a plea to the Defendant’s counterclaim should there be one; also within a prescribed time limit dependent on the Court in which the matter is.

Once the various pleadings have been exchanged, the matter may be set down for hearing before a Judge or Magistrate, depending on which court the matter is in.

If I have a monetary claim against someone, which court do I approach?

If the claim is under R15 000, then you should approach the small claims court or magistrates court.

If the claim is under R200 000, then you should approach the district magistrates court.

If the claim is more than R200 000, but less than R400 000, then you should approach the regional magistrates court.

If the claim is more than R400 000, then you should approach the High Court.

When someone says something is “unconstitutional” what does this actually mean?

Usually when you hear someone use the word “unconstitutional” it is usually being used in the wrong context.

Most people will refer to something as being unconstitutional if it goes against the values as contained in the Constitution of the Republic of South Africa, however in actual fact, they mean to say that something is only “potentially unconstitutional”.

The Constitutional Court is the only Court in the country which may declare something to be unconstitutional in law. All other courts may only refer such matters to the Constitutional Court.

Although something may seem inherently unconstitutional it in actual fact is only “potentially unconstitutional” till the Constitutional Court declares it to be so.