Online Reporter
Godknows Hofisi
Business Law
In this article, I share with readers some hints about what to do when one has been served with court papers in a civil or non–criminal matter.
The reality is that court papers, of whatever nature, are unsettling to most people. I have seen different reactions from many people, some of them clients, relatives, or friends.
Some of the reactions are beyond imagination, for reasons I understand, as people are different and litigation is not everyday.
Court papers
Usually, court papers served by the suing party in the initial instance are in the form of a summons commencing action, a court application or an urgent chamber application.
Summons are usually for monetary claims, but can also be matters such as divorce.
There are many different types of applications an aggrieved person can make in court to assert or defend their rights.
Urgent chamber applications are made where a matter is deemed to be urgent but it has to meet certain legal requirements for it to be entertained on an urgent basis.
The party suing another through a summons matter is called the plaintiff and the one being sued by the plaintiff is known as the defendant.
In an application, the one suing the other is known as the applicant and the one being sued by the applicant is known as the respondent.
Recommended course of action when served with court papers:
Problems do not just disappear. I recommend the following to a person who would have received court papers from another person suing him or her.
Read the papers
Reading court papers wherein someone is suing you is not a pleasant thing at all. Most people cannot withstand it when their name appears on the papers as a defendant or respondent.
Some become so stressed and it’s normal. As the party being sued, it is advisable that, despite the unpleasant situation, you peruse the court papers.
Most people do not understand the technical issues or language that might be in the court papers, but try to understand the following:
Whether the papers served on you are summons, a court application, or an urgent chamber application.
The person who is suing you, his or her alleged facts, and what relief or remedy they are seeking against you.
Timelines set for the plaintiff or defendant to respond, known in legal terms as the dies induciae. I have seen some people approach lawyers well after expiry of the timelines set for a response, such as Notice of Appearance to Defend or the Notice of Opposition.
Consult a legal practitioner
It is advisable to immediately consult a legal practitioner over the matter. Carry your papers and ask the legal practitioner to read them.
Please note that a legal practitioner may specialise in, for example:
Investment laws
Mining laws
Corporate / company law
Labour laws
Family law
Taxation
Property law.
And many other areas of law.
At your legal practitioner of choice, discuss the following:
The nature of the legal action you are facing, applicable laws, the correctness of the alleged facts as you know them, and what needs to be done for you to defend yourself.
Inquire from your legal practitioner about the whole process so that you have an appreciation of the processes, the timelines, and possible legal costs.
Ask your legal practitioner what the worst case can be in the event of loss of the matter. Discuss your chances of success or failure.
Ask the legal practitioner for an estimate of the legal fees so that you can prepare, including any deposits that might be required.
Ask the lawyer what evidence will be required of you and how you can assist in that regard. Evidence usually comes from the litigant, not the legal practitioner.
Managing stress
This area is normally overlooked. Most litigants, whether suing or being sued, usually go through some measure of stress, though it’s worse for the one being sued.
Legal action is rarely taken by a stranger, but by someone known to the defendant or respondent. So it can be stressful when important relationships break down.
If stress is not managed properly, it can result in undesirable conduct or habits, or simply behaviour that is out of character.
A person being sued can become easily irritable, lose appetite, lose sleep, withdraw from family and friends, give up on many things, lose confidence, fail to focus, or even perform at work or business. It is therefore advisable to share your difficult situation or struggles with people you trust. Moral support is very important.
Keep your copies of court papers
It is advisable to keep your own set or copies of the court papers for reference from time to time. This may be useful in helping you plan how to defend yourself or evidence to gather as you prepare for the case.
Conclusion
Do not ignore court papers. Consult your lawyer.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the managing partner of Hofisi & Partners Commercial Attorneys, a chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit.
He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@ hofisilaw.com or gohofisi@ gmail.com. Visit www//:hofisilaw.com for more articles.
