You’ve reached breaking point and said four very famous words;
“I will sue you.”
Normally said in hopes of a speedy response from your counterpart to fix the problem at hand, but quite often said with serious intention of “taking the person to the cleaners”whilst speed dialling your Attorney.
To sue someone means to institute legal proceedings against a person or institution, typically for redress. So, suing people isn’t just about money, although that is the most common reason for suing someone.
Definitions aside; what is the process of following through on this famous threat?
Step 1: Consult your Attorney.
This is not a compulsory step; however, it is highly recommended. Why?
- It is your Right to have legal representation, in terms of our beloved Constitution.
- Representing yourself is not recommended due to the intricacies of legal processes and ever changing laws. Often representing yourself, can cause you more harm than good.
(There is a reason why Attorney’s study law before practicing it)
Step 2: Action Procedure or an Application (Motion) Procedure.
After consulting your, highly recommended, Attorney; they will decide whether to proceed by way of Action or Application Procedure. This will depend on the facts of your dispute.
An Action Procedure is:
- Based on a material factual dispute which cannot be easily dealt with on paper.
- Started by the service of a Summons upon the Defendant, then further pleadings are exchanged by the parties and ends in a trial.
An Application Procedure is:
- Based on a factual dispute of such a nature that it can be easily dealt with on paper by way of affidavits.
- Started by the service of a notice of motion upon the Respondent accompanied by the applicants founding affidavit, then further affidavits are exchanged. Application proceedings end in the Motion court and no further oral evidence is admitted.
Step 3: Attorneys do what they are trained to do: we deal with it.
“It” being the exchange of the above mentioned affidavits or pleadings.
Step 4: Grand Finalé
If the matter is not settled out of court then we proceed to trial if an Action Procedure or to the motion court if an Application Procedure. The Judge will then decide in terms of the law and the facts, who gets to take whom to the cleaners.
Step 5: Pay your Attorney… Please.
SOURCES:
Theophilopoulos, C; et al; Fundamental Principles of Civil Procedure Second Edition (2012) Chapter 3
