Category Archives: Court matters

Bail in South Africa

a3bIn any court case when a person is arrested, the accused person remains to be presumed not guilty until the court finds such person guilty.  In our law no one may be detained without trial. If an accused is arrested, he or she is normally kept in prison or the police cells till the trial is finalised to ensure the presence of the accused at court.

If the person wishes not to be imprisoned pending the finalisation of the trial, he or she may apply to the court to be released on warning or on warning with some conditions attached or on bail (with or without conditions).  Bail is the sum of money paid to the court or to the police. Bail is granted more readily when the accused is not a flight risk and can easily be found by law enforcement agencies. There is usually bail conditions set by the presiding officer that the accused must comply with.

What information should be obtained from the accused once s/he has been arrested?

  • When was the accused arrested?
  • What was the accused arrested for?
  • Where is the accused being detained?
  • What is the case number?
  • Who is the investigating officer?
  • What is the personal information of the accused, such as his/her name, surname, residential address, identity number, place of work, marital status, number of children, and next of kin?

Where can a person apply for bail?

The accused or his/her legal representative can apply for bail at the police station before the accused’s first court appearance, or at court.

What should a person do if bail is granted at the police station?

  • The amount set by the police official should be paid and the accused will be released from custody.
  • The police official will give a receipt and notice indicating the alleged criminal offence together with the date and time the accused should appear at court.

If the prosecution does not oppose the granting of bail, it does not automatically mean the court will grant bail. The court still has a duty to weigh up the personal interests of the accused against the interests of justice.

It is important to note that any person who has been released on bail and who does not, without good cause, appear at court on the due date, remain in attendance until the proceedings are complete, or who fails to comply with bail requirements, is guilty of an offence and will be liable to a fine or to a term of imprisonment not exceeding one year.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How and when to use the Small Claims Court?

The Small Claims Court (SCC) is for anyone who wants to institute a minor civil claim against someone else. You can also claim against companies and associations. However, the claims are limited to amounts that are less than R15 000. This excludes the State, meaning a person cannot make a claim against a local municipality, for example. Claims made in the SCC are done quickly and cheaply without having to use an attorney and anyone, except juristic persons, are allowed to use them.

Read more about the SCC on The Department of Justice and Constitutional Development’s website: justice.gov.za

Where do I start?

If you are going to institute a claim against someone else, be smart about it. Don’t make a claim against someone who you know has no money to pay you back, such as an unemployed person.

Before running to the court to make a claim, first contact the person you intend to claim from and ask them to fulfil your request. Let them know you are planning on going to the court to make a claim against them if they don’t comply.

Perhaps the person is not interested in your claim, then send them a written demand letter. The letter should set out the details of the claim, including the amount. Give them at least 14 days from the day of receiving your letter to settle your claim. Make sure they get an actual physical copy of the letter. This can be posted to them, or you can simply take it to them directly.

So 14 days has passed and they didn’t respond. Now you can go to the clerk of the court with documents to institute your claim. Firstly, you will need proof that you delivered the letter of demand. This can be a post office slip, for example. You will also need a contract or document that gives a bases for your claim. Your claims can’t just be based on thin air. Lastly, provide the court with all the details of the person you’re claiming from, such as name, address and phone number.

The summons

The clerk of the court will help you in drawing up the summons. Once the summons is complete a hearing will also be scheduled. You then have to serve the summons to the opposing party (defendant) in person and get them to sign it. Don’t be surprised if they are visibly upset. Remember to make copies of all the documents and keep them. Also give copies to the defendant. The original documents must be handed over to the clerk of the court before the day of the hearing. This information will be kept in the court file.

After they receive the summons, the defendant may deliver a plea (written statement) to the clerk of the court. They may also issue a counterclaim. Regardless of whether the defended institutes a plea or counterclaim, they still have to attend the hearing. On the other hand, the defendant may decide to fulfil your claim before the hearing, you should then issue a written receipt and let the clerk of the court know that you won’t be continuing with the case.

Going to the hearing

You and the defendant must appear in court in person, attorneys or lawyers are not necessary. Remember to bring along all the documents on which your claim is based, there’s no point in showing up empty-handed. If you have witnesses, make sure they also come with you to the hearing. The SCC proceedings are basic and straight-forward. As mentioned, no attorneys are involved. As the proceedings begin, answer any questions that the commissioner of the court asks you. If you want and the commissioner agrees, then you can direct questions to the defendant.

The final judgment

After the proceedings have been completed, the court will make a judgement, which is final. There may, however, be some grounds for review. If the judgement is against you, then you should settle any order for costs. Since the court judgement is final, you have to abide by it. You can’t change your mind afterwards.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Recent developments in the interpretation of agreements

A3_BOur Supreme Court of Appeal has recently given clarity and guidelines on the interpretation of contracts and legislation when it decided on the matter of Bothma-Batho Transport (Pty) Ltd v S Bothma & Seun Transport (Pty) Ltd. Without delving into the merits of the matter it would suffice to state that the parties entered into agreements, which resulted in arbitration proceedings and further litigation proceedings, both of which led to the concluding of settlement agreements. A dispute arose on the interpretation of the second agreement between the parties.

In delivering its judgement the Court cited the earlier approach adopted by our Courts and the application of the so-called “golden rule” of interpretation which is as follows:

The correct approach to be followed once the literal meaning of a word or phrase has been determined is to regard the following:

  1. The context in which such a word or phrase is used, having considered the contract as a whole, including the nature and the purpose of such an agreement.
  2. The background circumstances that existed when entering into the agreement (such as what the parties had in mind when entering into the agreement).
  3. If the language, on the face of it, is ambiguous, the court would consider surrounding circumstances such as previous negotiations and correspondence, and conduct of parties that would be indicative of how they interpreted the agreement, save for direct evidence of their own intentions.

The Court found the above not to be consistent with the new approach to the interpretation now adopted in South Africa. It found that although the starting point to the interpretation of agreements remained the words or phrases used, the process of interpretation did not stop at a “perceived literal meaning” of the words or phrases. These words or phrases must be considered in light of the entire “admissible context”, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is “essentially one unitary process”.

It is suggested that practitioners also consider the matter of Natal Joint Municipal Fund v Endumeni Municipality 2012 (4) SA593 (SCA), which matter was referred to in the Bothma-Batho case. The Court found that the following should be taken into account in the interpretation of agreements:

  1. The language used, in light of the ordinary rules of grammar and syntax.
  2. The context in which the word or phrase is found.
  3. The purpose to which the provision is directed.
  4. The knowledge of the parties.
  5. Where more than one meaning is possible it must be considered against the background of the above factors.
  6. Whether the process of interpretation is an objective one.
  7. A sensible meaning is to be preferred to one that would lead to absurdity.

Lastly the Court warned that judges must guard against the temptation to substitute reasonable and sensible words for the words that are actually used.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.