1
TRIAL
An action culminates in a trial before a judicial officer who after hearing the
evidence delivers a judgment.
At the trial the allegations in the plaintiff’s particulars of claim and the defendant’s
responses to these allegations by the defendant in his plea, are supported by
evidence (oral evidence, documents and real evidence) presented on behalf of both
parties.
The pleadings determine what evidence should be adduced and no evidence may be
adduced in relation to issues that were not raised in the pleadings.
The trial is a classic adversarial hearing: the parties determine what and how to
present their cases; the judicial officers fulfills a passive role like an umpire ensuring
fair play according to the settled rules of procedure.
The onus of proof is lighter than in a criminal case and is on a balance of
probabilities.
Trial in the High COURT
HCRule 39 sets out the procedures to be followed during the trial of an action in the
HC.
Despite these procedures the court has a discretion to vary any procedure in terms
of rule 39(20).
This power is despite the fact that the court also has inherent jurisdiction as was
discussed to vary procedures in the interest of justice.
1. PARTIES NOT PRESENT
Failure to be present may lead to default judgment.
A defendant who has been barred and absent the barring having been lifted may not
without special permission of the court appear at the trial to defend the matter.
(39(2))
2. OPEN COURT
Section 32 of the Superior Courts Act, proceedings must be carried out in an open
court.
This means the press and the public may be present, although it does not necessarily
mean that the trial may be televised.
It reflects the principle that justice must be seen to be done.
In special cases, they may be heard in camera with the public and the press
excluded.
What is a special case depends on the circumstances.
The overriding criterion is the proper administration of justice.
, 2
3. RECALCITRANT WITNESSES:
Section 36 of the Superior Courts Act covers the way in which witnesses may be dealt
with if they refuse to give evidence or produce documents.
If a witness
a. refuses to take the oath or make an affirmation; or
b. Having taken an oath or affirmation, refuses to answer questions as are put to
her;
c. Refuses or fails to produce any documents or thing which she is required to
produce, without any just excuse for refusal or failure, the court may adjourn the
matter for up to 8 days and commit the recalcitrant witness to prison for the
period.
The court may keep on adjourning the matter for up to 8 days, recommitting
recalcitrant witnesses to prison for periods of the adjournment until she agrees to do
what is required of her.
4. DUTY TO BEGIN
At the start of the trial the parties may request the court to hear argument and make
an order to which of the parties is under the obligation to adduce evidence first.
In terms of rule 39(11),
EITHER PARTY MAY APPLY AT THE OPENING OF THETRIAL FOR A RULING BY THE
COURT UPON THE ONUS OF ADDUSCING EVIDENCE, AND THE COURT AFTER
HEARING ARGUMENT MAY GIVE A RULING AS TO THE PARTY UPON WHOM SUCH
ONUS LIES; Provided that such ruling may thereafter be altered to prevent injustice.
5. OPENING ADDRESS
The party upon whom the burden of proof rests starts and may briefly outline the
facts he intends to prove.
It is a summary for the benefit of the judge and includes the issues which will be
addressed.
It includes the aspects that need to be proven and the issues and facts which are
common cause between the parties.
6. PLAINTIFF’S CASE
The party with the duty to begin –usually the plaintiff, will lead the witnesses who
are able to give evidence in support of his case. Rule 39(8) says:
EACH WITNESS SHALL, WHERE A PARTY IS REPRESENTED, BE EXAMINED, CROSS-
EXAMINED OR RE-EXAMINED AS THE CASE MAY BE BY ONLY ONE (THOUGH NOT
NECESSARILY THE SAME) ADVOCATE FOR SUCH PARTY.
If the court wishes to call a witness, both parties must consent to that witness being
called.
TRIAL
An action culminates in a trial before a judicial officer who after hearing the
evidence delivers a judgment.
At the trial the allegations in the plaintiff’s particulars of claim and the defendant’s
responses to these allegations by the defendant in his plea, are supported by
evidence (oral evidence, documents and real evidence) presented on behalf of both
parties.
The pleadings determine what evidence should be adduced and no evidence may be
adduced in relation to issues that were not raised in the pleadings.
The trial is a classic adversarial hearing: the parties determine what and how to
present their cases; the judicial officers fulfills a passive role like an umpire ensuring
fair play according to the settled rules of procedure.
The onus of proof is lighter than in a criminal case and is on a balance of
probabilities.
Trial in the High COURT
HCRule 39 sets out the procedures to be followed during the trial of an action in the
HC.
Despite these procedures the court has a discretion to vary any procedure in terms
of rule 39(20).
This power is despite the fact that the court also has inherent jurisdiction as was
discussed to vary procedures in the interest of justice.
1. PARTIES NOT PRESENT
Failure to be present may lead to default judgment.
A defendant who has been barred and absent the barring having been lifted may not
without special permission of the court appear at the trial to defend the matter.
(39(2))
2. OPEN COURT
Section 32 of the Superior Courts Act, proceedings must be carried out in an open
court.
This means the press and the public may be present, although it does not necessarily
mean that the trial may be televised.
It reflects the principle that justice must be seen to be done.
In special cases, they may be heard in camera with the public and the press
excluded.
What is a special case depends on the circumstances.
The overriding criterion is the proper administration of justice.
, 2
3. RECALCITRANT WITNESSES:
Section 36 of the Superior Courts Act covers the way in which witnesses may be dealt
with if they refuse to give evidence or produce documents.
If a witness
a. refuses to take the oath or make an affirmation; or
b. Having taken an oath or affirmation, refuses to answer questions as are put to
her;
c. Refuses or fails to produce any documents or thing which she is required to
produce, without any just excuse for refusal or failure, the court may adjourn the
matter for up to 8 days and commit the recalcitrant witness to prison for the
period.
The court may keep on adjourning the matter for up to 8 days, recommitting
recalcitrant witnesses to prison for periods of the adjournment until she agrees to do
what is required of her.
4. DUTY TO BEGIN
At the start of the trial the parties may request the court to hear argument and make
an order to which of the parties is under the obligation to adduce evidence first.
In terms of rule 39(11),
EITHER PARTY MAY APPLY AT THE OPENING OF THETRIAL FOR A RULING BY THE
COURT UPON THE ONUS OF ADDUSCING EVIDENCE, AND THE COURT AFTER
HEARING ARGUMENT MAY GIVE A RULING AS TO THE PARTY UPON WHOM SUCH
ONUS LIES; Provided that such ruling may thereafter be altered to prevent injustice.
5. OPENING ADDRESS
The party upon whom the burden of proof rests starts and may briefly outline the
facts he intends to prove.
It is a summary for the benefit of the judge and includes the issues which will be
addressed.
It includes the aspects that need to be proven and the issues and facts which are
common cause between the parties.
6. PLAINTIFF’S CASE
The party with the duty to begin –usually the plaintiff, will lead the witnesses who
are able to give evidence in support of his case. Rule 39(8) says:
EACH WITNESS SHALL, WHERE A PARTY IS REPRESENTED, BE EXAMINED, CROSS-
EXAMINED OR RE-EXAMINED AS THE CASE MAY BE BY ONLY ONE (THOUGH NOT
NECESSARILY THE SAME) ADVOCATE FOR SUCH PARTY.
If the court wishes to call a witness, both parties must consent to that witness being
called.
