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Litigation involves the bringing or defending of a lawsuit.
Legal proceedings can be instituted either by way of application or action. In application proceedings the dispute is set out in a series of affidavits exchanged between the parties and the Court will then determine the dispute on the basis of the affidavits alone. No oral evidence is led. Certain requirements must accordingly be fulfilled in order for legal proceedings to be brought by way of application, the most important of which is that the dispute must be capable of being determined with reference only to the affidavits presented by the parties. If there is a dispute of fact between the parties which would require oral evidence in order to be resolved, then the matter is not capable of being determined on the affidavits and legal proceedings ought then to be brought by way of action.
In action proceedings the material allegations necessary to sustain a cause of action are set out in the summons and the defence to the summons is set out in a plea. The allegations made in the summons must then be proved on a balance of probabilities. This is done by way of oral evidence by and cross-examination of witnesses who can attest to the facts and witnesses who can dispute the facts at a trial hearing in Court.
For the majority of disputes, legal proceedings can be instituted either in the Magistrates Court or the High Court, depending on the nature of the dispute, the relief claimed and, if applicable, the monetary value of the claim. Decisions of the Magistrates Court are subject to appeal to the High Court and decisions of the High Court are subject to appeal to the Supreme Court of Appeal. There are also a number of specialised courts that deal with specialised areas of law, such as the Income Tax Courts and the Competition Tribunal and Competition Appeal Court, amongst others. The Constitutional Court is the highest Court in South Africa and decides constitutional matters and any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance that ought to be considered by that Court.
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