Practical Guide for Court Virgins

Let us look at a few arising questions from some issues discussed so far

I have been summoned to appear in court. What should I do?
First find out where the court is and what the matter is about. Read and understand all the papers and attachments thoroughly. Ensure that the court papers you have are indeed genuine court papers and have been properly issued by a court. Every court case has a number which will be inserted on the top right hand corner as well as have a date stamp. Also note whether the process is a court application or a summons. It will be either one and the difference is important as we shall examine in another piece. It is advisable to see a lawyer as soon as possible before the court date for advice.

You will need to respond and file your own papers so that they are also put on the court record. Whatever you do do not ignore any court process. It is not just going to go away and the other party is not going to miraculously forget it or forgive you. You must take action immediately but above all keep calm. Remember that while court matters are serious they are not a death sentence. It is a chance for you to present your side of the story so that the court can make an informed judgment after hearing and weighing all sides of the argument.

I don’t like courts can I settle out?
Indeed. If possible do. In fact it is the recommended thing. Depending on the nature of the dispute and relationship between the parties and if prudent, safe and possible then by all means contact the other party before the court date. Nothing pleases the court more than litigants who appear in court on the set down date and announce that they have agreed to settle or are at least making inroads to meet halfway. This saves time, money and resources for everyone. Even if you have agreed to settle you will still have to appear in court on the day even if it only is to confirm the settlement.

What happens if I don’t go to court?
It could result in a default judgment given against you or a warrant of arrest. If you are the applicant or Plaintiff your case will be dismissed or struck off the roll. More often than not you will be ordered to bear the costs so it is costly.

And if I can’t?
You should inform the court and the other party(ies) beforehand and seek a postponement clearly stating your reasons. Ensure everything is in writing and quotes the case number. You need to make enough copies to serve all parties and keep one for own records, Ensure they are all stamped and that one copy remains with the court. Every court has a clerk or registrar to refer to for all administrative matters.

Do I really need a lawyer?
Not necessarily for most civil and some criminal cases though it is advisable. You can be a self-actor meaning you can represent yourself. You will still need to be conversant with court procedure and rules and be confident enough to argue your case or defend yourself. You need to be very careful though. If your only motive is to save money on lawyers’ fees and you feel you can do it yourself or because your friend told you it’s a piece of cake you may actually defeat your own purpose. DIY may be costlier rather than you think. If for example you adopt the wrong procedure you may be slapped with an order to pay the other party’s wasted costs. So how clever is that then to have to pay your opponent and their lawyer’s fees? You also face the daunting prospect of embarrassment if the magistrate asks you if you have filed an exception or an interpleader and you don’t know the hell what that is. A blank stare and silly grin hoping for pity just isn’t going to cut it. It is not the court’s job to give you legal advice so you will only have to go back and start again costly, time consuming and emotionally taxing though it will be. Anyone who has had dealings with our courts will tell you that much. All this self-acting and fumbling around in the dark may not be so cheap after all. It is therefore best to engage a professional of your choice who knows their way with court rules ,procedure and the law.

But I can’t afford a lawyer!
Of course. This is a perfectly understandable concern. Lawyers do charge for their services but they are not as expensive as you may think. You need to weigh the value of what you need to protect such as your freedom or what you stand to lose against the cost of acquiring expert service for your own good. Too often people lose property worth hundreds of thousands of dollars or get incarcerated unnecessarily simply because they thought it was too expensive to part with $300 or whatever fee needed to ensure that that Agreement of Sale existed or was legally compliant. Or it may be just that one witness who was not properly cross examined as he should have been and the defence floundered.

Having said that you should not discount engaging a lawyer even if you feel you cannot afford it. Help is always at hand if you look for it and ask the right questions and open your eyes. There are organisations that help and you will need to make direct enquiries with them to see if you qualify for their assistance. Clerks of Court and the Registrar of the High Court also keep a register of indigent litigants who qualify for free legal representation. Registered lawyers are appointed to represent them for free on a rotational in forma pauperis or pro deo basis. In later instalments we will discuss this and also examine organisations that provide legal assistance as well as the legalities and practicalities of legal aid societies that have sprouted in recent years.

Note that there is no such thing as a simple legal matter. A seemingly trivial matter can get so complicated and convoluted in an unexpected way that it will require a panel of legal experts to unravel it. Be confident enough to approach a lawyer of your choice and negotiate payment terms. As a rule note that lawyers are not allowed to undercharge and under cut each other. The minimum charges are stipulated in the Law Society tariff and must be paid. Most lawyers genuinely want to help and are realistic and reasonable people and may be agreeable to negotiate payment terms. Talk to your lawyer, be truthful and pay your fees.
….So ignore those lawyers jokes as half of them are not funny and the other half are true stories.