Chapter 3 - Consultation, Legal Representation, Demand and Prescription Flashcards
(30 cards)
What is the nature of the client-attorney relationship ?
It is based on agency, where the attorney acts on behalf of the client.
Is a power of attorney always required ?
No, but it is obligatory when commencing an appeal.
What is a power of attorney ?
A document authorizing an attorney to act in specific legal proceedings on behalf of a client.
Can a natural person represent themselves in the High Court ?
Yes, if they have locus standi, but they can also be represented by an attorney (with or without an advocate).
Can a company be represented by an employee ?
No, a board resolution is required to authorize legal representation.
Can someone else sign the power of attorney for the client ?
Yes, if the client is unable, a third party can sign, but proof must be submitted to the registrar.
What is High Court Rule 16 ?
An attorney’s office must be within 25km of the court, and this address will be used for serving documents.
What happens if a client doesn’t pay their attorney ?
- The attorney can withdraw from the case.
- The attorney can keep the client’s file (lien) until payment is made.
Who must an attorney notify before withdrawing ?
- The client.
- The opposing party.
- The registrar.
What is High Court Rule 15 ?
Where a party to any proceedings dies or becomes
incapacitated, it is possible to substitute such a party with an executor, curator, trustee or similar legal representative.
Who can represent a party in the Magistrates’ Courts ?
- The party themselves or a legal practitioner.
- A company can act through a nominated officer.
- A partnership or group can act through a nominated member.
How long does an opposing party have to challenge representation in the Magistrates’ Court ?
Within 10 days of becoming aware or at any time before judgment (if permitted by the court).
What is the difference in terminology between Action and Application ?
- Action: Plaintiff vs. Defendant.
- Application: Applicant vs. Respondent.
Jeppe Street Mansions case.
What type of factual disputes are involved in Action and Application ?
- Action: Real and material factual dispute (requires oral evidence).
- Application: Factual dispute is easily resolved (decided on affidavits).
Jeppe Street Mansions case.
How does an Action and an Application start ?
- Action: Plaintiff issues summons, defendant may defend.
- Application: Applicant issues notice of motion, respondent may oppose.
Jeppe Street Mansions case.
What are the pleadings/affidavits in Action proceedings ?
- Defendant’s plea and counterclaim.
- Plaintiff’s replication to plea.
- Plaintiff’s plea to counterclaim.
Jeppe Street Mansions case.
What are the pleadings/affidavits in Application proceedings ?
- Opposing affidavit (by respondent).
- Replying affidavit (if applicable, except in ex parte motions).
Jeppe Street Mansions case.
What are the steps for preparation and trial in Action proceedings ?
- Pre-trial steps like discovery, expert notices, medical exams, and pre-trial conferences.
- Ends in trial court, where oral evidence is presented by the parties and witnesses.
Jeppe Street Mansions case.
What are the steps for preparation and trial in Application proceedings ?
- No formal pre-trial preparation.
- Ends in motion court, where the case is decided based on written arguments, with no oral evidence.
Jeppe Street Mansions case.
What is the purpose of a letter of demand ?
The purpose of a letter of demand is to request payment or performance of a legal obligation and to persuade the recipient to settle the dispute without the need for expensive and time-consuming litigation.
When is a letter of demand legally necessary ?
A letter of demand is legally necessary in terms of certain statutes, such as when dealing with contractual clauses, breach of contract, creditor cancellation, mora interest claims, and specific statutory requirements.
What are the key requirements when drafting a letter of demand ?
- Clear reference that the attorney is acting on behalf of the client.
- Explanation of the reason for the demand, based on the client’s version of the facts (including relevant dates and amounts).
- Indication of what action is expected from the recipient (e.g., payment or delivery of goods).
- Time period (if applicable) within which to comply with the demand.
- Explanation of the consequences of failing to comply (including any cost implications).
Which statutes require a letter of demand or statutory notice before initiating legal action ?
- Section 29 of the Small Claims Court Act requires a letter of demand before legal action.
- Section 96 of the Customs and Excise Act requires a written notice of intent to sue one month before action.
- Legal Proceedings against Certain Organs of State Act requires a notice of intended legal proceedings within 6 months.
- National Credit Act requires notice before litigation for debt enforcement.
- Prevention of Illegal Eviction from and Unlawful Occupation of Land Act requires a written notice at least 14 days before eviction proceedings.
What are the important facets of prescription ?
- Prescription is a special plea and the court will not raise it automatically.
- Payment of a prescribed debt by mistake cannot be reclaimed.
- Prescription begins when the debt becomes due.
