Summary
Summary Chapter 19
- Course
- Law of civil procedure
- Institution
- University Of Johannesburg (UJ)
Detailed summary of chapter 19 from the fundamental principles of civil procedure textbook
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CHAPTER 19 – TRIAL &JUDGMENT
Trial Phase
GENERAL:
Adversarial trail system in SA is based on the principle
of 2 adversities:
Ie: the plaintiff and the defendant confronting each
other in a neutral court before an objective
adjudicator
WHAT:
Trial:
Forum in which the material facts in issue (facta
probanda) are placed before the court and are
proved by the admission of evidence (facta
probantia)
Normally trail takes place in an open court – certain
cases trial takes place in camera (ie: behind closed
doors)
Test = whether its in the administration of justice to
hear case behind closed doors
Quantum of evidence adduced by parties:
Standard of proof is assessed by an impartial judge
P.O will determine which party proved their case on
a balance of probabilities
PHASES OF TRAIL PROCESS:
Trial process is chronologically divided into a number of
phases:
Determining of the primary onus of proof and
Opening address
Plaintiff’s case
Calling and questioning of witnesses / adducing
evidence
Possible request for absolution from the instance
Defendant’s case
, Calling and questioning of witnesses / adducing
evidence
Closing argument
Judgment
Trial is heard by:
HC – a single judge then appeal goes to a full bench
MC – a magistrate
Trial process:
Is controlled by the adversarial parties and their
legal counsel
Parties decide which witnesses to call and what
evidence to adduce
P.O plays a passive role
Basically just needs to ensure that the evidentiary
and procedural rules of trial are not infringed
P.O may sometimes intervene in the process by
asking questions to clarify the issues
Most important function of the P.O is to assess the
evidence in order to reach a judgement
Trial procedure
Is regulated by HCR 39 and MCR 29 (rules are
aligned)
INSPECTION IN LOCO:
What:
= An inspection on sight for the evaluation of real
evidence
When:
A party may apply for an inspection in loco at any
time in trial before closing its case OR
Court can meru moto order an inspection in loco
Court has a discretion to grant or refuse the inspection
in loco
The court and the parties will visit the location and make
notes or observations of any physical and geographical
evidence
The notes are then read into the court record
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