Summary Chapter 18

CHAPTER 18 – PREPARATION
FOR TRIAL

Introduction
GENERAL:

S34 deals with reasonable access to courts:
 Everyone has the right to have any dispute that can
be resolved by the application of law
 Decided in a fair public hearing before a court or,
where appropriate, another independent and
impartial tribunal or forum

PRE-TRIAL STAGE:

Begins after litis contestatio

Duty of the legal representative towards his client in
the pre-trial stage:
 To ensure that all the steps are properly taken and
both a procedural level and substantive level

A formal preparation for trial entails:
 Compliance with all the court rules
 Compliance with all the prescriptions of substantial
law

It also includes informal preparations such as planning
strategy and consultation with the witnesses

Cases are proven by means of facta probantia – thus
there are important rules for a number of pre-trial
processes for the purpose of securing sufficient fact
probantia – these pre-trial processes are:
 Discovery of documents
 Disclosure of expert witnesses, medical reports,
examination of objects

,  Inspection of plans, diagrams, models or
photographs
 Further particulars for the purpose of trial
 Witness subpoena



Preparation for Trial Steps
GENERAL:

Various pre-trial steps:
 Step 1 - Obtain a trial date
 Step 2 – Instruct counsel
 Step 3 – Discovery of documents
 Step 4 – Medical examinations
 Step 5 – Examination of object
 Step 6 – Ordinary witnesses
 Step 7 – Expert witnesses
 Step 8 - Plans, diagrams, models and photographs
 Step 9 – Further particulars
 Step 10 – Pre-trial conference
 Step 11 – Index and pagination

Step 1 - Obtain a Trial Date
GENERAL:

Must obtain a trial date – cannot chose own
 Done by way of enrolment and set-down

ENROLMENT vs SET-DOWN

After litis contestatio the matter must be enrolled and
set-down for trial
 This entails obtaining a trial date from the registrar
or clerk of the court and
 Giving the opposing party written notice of the date

Enrolment = request date from court
&
Set-down = give written notice of the trial date

ENROLMENT:

, Request for trial date:
 Is usually done by the plaintiff as dominis litis
 May also be requested by the defendant if the
plaintiff fails to do so within the prescribed time limit
(15 court days)
 Sometimes defendant can even approach the court
to have the case set aside


ENROLMENT & SET-DOWN IN THE HC:

Not provided for in the Uniform Rules of Court
 Each HC has their own rules and practice directions
dealing with enrolment and set-down of matters

South Gauteng HC procedure:
 Matter is enrolled by entering the required
particulars of a matter into the trial register, kept by
the registrar
 Matter must be enrolled within 6 weeks after litis
contestatio
 Party enrolling the matter must give the opposing
party notice of the enrolment
 Registrar will then notify each party of the date on
which the trial is set down for hearing

Notice of set-down from registrar:
 Must be sent to party by registered post to the
address given for service of proceedings
 Or if party has furnished a telefax number, notice
can be given by telefax, provided that the telefax
service the notice was sent from provides proof of
receipt

Party receiving notice of set-down of the trial date from
the registrar:
 Must give notice in writing, within 7 days of receipt
of hearing date, to all other parties in the matter

ENROLMENT & SET-DOWN IN THE MC:

Slightly different to HC

It is provided for in MCR 22 & 27(5)