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Summary Chapter 19

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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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Written in
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