Explainer: Navigating court processes

Navigating the legal system can often feel intimidating, especially when you are faced with terms and phrases that seem to belong to an entirely different language. Our court correspondent, Yeukai Karengezeka-Chisepo, sat down with attorney, Mr Moffat Makuvatsine of Machaya and Associates, who has years of experience handling legal cases. He takes us step by step through some of the most common court terms and their meanings.

1. Adjournment — ending for the day or temporarily ending a court session due to either end of the proceedings or to allow for something to happen, like a tea break, lunch break or any other reason. When a court is starting business, it convenes or reconvenes, and adjourning is the opposite of convening.
2. Appeal — when one is not satisfied with a decision that a court has made, he/she/it can go to a higher court to have re-look into the correctness of the decision re-examined.
3. Bail — the temporary release of an accused person who is awaiting trial. Sometimes it is without conditions, whilst sometimes a condition is that money is paid as a guarantee that he/she will attend court. Other conditions may accompany the bail, like surrendering the passport and reporting at the nearest police station.
4. Charge — the offence with which a person is being accused of.
5. Defendant — this is a term used in civil proceedings in the civil court and refers to a person against whom summons has been issued. The person who causes a summons to be issued is called a plaintiff. For example, if a person owes someone money and defaults on paying as agreed, the person who is owed the money can go to court to claim it. The one claiming his/her money through the use of summons is called the plaintiff and the one owing the money, against whom the claim is brought, is the defendant. If the claim is done through a court application as opposed to using summons, the defendant becomes the respondent and the plaintiff becomes the applicant.
6. Defendant’s plea — the plaintiff will cause summons to be issued and they will be accompanied by a declaration, which is a statement detailing the basis of the claim. The defendant will respond to the issues raised in the declaration and his/her response is what is referred to as the defendant’s plea.
7. Evidence — this is anything that tends to assist in proving or establishing anything that is being alleged. For example, if someone is being accused of assaulting another using a stone, a stone can be produced as the one which was used to hit the one alleging to have been assaulted.
8. Guilty plea — it is an answer to an allegation whereby the accused person is admitting to having committed the alleged offence or misconduct.
9. Not guilty plea — it is the opposite of a guilty plea in the sense that the person accused will be denying any wrongdoing.
10. Indictable offence — cases like murder and other serious offences are tried or heard in the High Court. For remand, the accused person appears in the Magistrates’ Court until the case is ready to be tried or heard at the High Court. The process of informing an accused person that his case is now ready for trial or hearing at the High Court is called the indictment process. An indictable offence is a case which will be heard or tried in the High Court and undergoes the indictment process.
11. Mitigation/Mitigating factors — when an accused person or a person charged with an offence or misconduct is found guilty, he/she is expected to give information that draws the leniency of the court when choosing the appropriate sentence. The information which seeks to weigh down the sentence is the one referred to as mitigation. The fact that a person is married, has two minor children dependent upon him, is part of mitigation. All the issues raised during the process of mitigation are called mitigating factors.
12. Offence — it is what the law prohibits and is punishable when one commits it.
13. Plea — it is a response given by either an accused person in criminal proceedings or a defendant in civil proceedings after being issued with a Summons.
14. Remand — it is a process where an accused person is made to appear in court whilst waiting to be tried. He/she can be remanded in custody, normally referred to as remand prison or out of custody on bail.
15. Sentence/Sentencing — it is a form of punishment given to a person who has been found guilty of violating the law. The process of passing a sentence is what is referred to as sentencing.
16. Summons — when a person wants to make a claim against another in the civil court and he or she anticipates the other person to dispute the claim in such a way that the matter cannot be resolved without the presentation of evidence in court, he/she has to make the claim through a summons. It is a document which outlines the basis upon which the claim is being made and the relief being sought.
17. Witness — this is a person, either in a criminal or civil case, who is there to give evidence or information of what he/she saw happening or came to him through the scope of his work, like an auditor who conducted an audit after an offence or claim was made.
18. Warrant — this is a document authorising the arrest of a person who has defaulted court order or is wanted in connection with an offence. It can be for the search for information or evidence by law enforcers. It is given by either a Magistrate or a Judge upon application by either the prosecutor (warrant of arrest) or a police officer (warrant of search and seizure).
19. Judgment — this is an analysis of the facts and the law after a trial or the hearing of evidence in respect of the prosecution’s case and the accused’s case, or in civil proceedings after hearing the evidence of both the Plaintiff and the defendant. It is done in order to find if the complaint or claim is valid or not. It is through a judgment that a person can be found guilty or not guilty in criminal cases. In civil cases, a Defendant or Respondent can be found liable or not liable.
20. Defence case — it is the accused person’s story in defending himself. After the prosecution has finished calling its witnesses, it closes its case. The accused person is then asked to present his/her side of the story and it is that story which is referred to as the defence case.
21. Discharge at the close of the State case — when the prosecution has finished calling its witnesses and the case is about to go to the defence case, the accused can apply to have the case against him dismissed at that stage. The basis of so doing is in terms of the law, which says that he who alleges must prove his/her case. If the prosecution’s case does not show the guilt of the accused on its own or does not establish the alleged conduct, an accused is entitled to be left to go by the court without presenting his own side of the story and that is what is referred to as a discharge at the close of the state’s case.

SUPERIOR COURTS

22. Appellant — the person who is requesting a superior court to have a re-look into the decision of a court that made a decision which he/she is of the view that it is improper/not fair to him.
23. Bench — the court is the one referred to as the bench, whether it is a Magistrate or a judge. This comes from the fact that where the court sits inside the courtroom is referred to as the bench and where the Prosecutor and lawyers sit is referred to as the bar.
24. Costs — this is money that is claimed by a party in civil proceedings arising from all expenses that he/she will use to claim what he/she feels is entitled to, or in the case of the defendant/respondent, in defending the claim. The money is meant to prevent loss to the person who has succeeded in either making the claim or defending the claim. So, for example, if a person causes a summons to be issued after engaging lawyers and wins the claim, all the money that he/she incurred in pursuing the matter, including legal fees paid to the lawyers, is what is referred to as costs.
25. Dismissal/Strike out — it is a term used in civil proceedings whereby a party to those proceedings applies to the court, or the court on its own can order that a case be removed without having been heard or tried because it has no merit. Sometimes the removal from the court can be permanent or temporary and it all depends if the reason for the removal can be rectified.
26. Interim relief/Interim order — this is a temporary order given in civil cases whilst waiting for the final order. This is done in cases where waiting for the final order can result in irreparable harm to the person making the claim. For example, a person who is claiming that people have invaded his land whilst also claiming ownership of the same land and are disturbing his productivity can apply for and be granted an interim relief. The interim relief will be ordering the people off the land pending the hearing of the matter on the merits, when a final order will then be dealt with.
27. Leave to appeal/Permission to appeal — when an aggrieved party wants to appeal from the High Court to the Supreme Court, there are cases which require permission to first be granted to do the appeal. The permission is applied for in the High Court at first and then, if it is refused, it is applied for in the Supreme Court. It is a move meant to ensure deserving cases find their way to the Supreme Court. The option is not available when applying from the Magistrate’s Court to the High Court.
28. Notice of appeal/ Appeal Notice — this is a document which notifies the court and the other party to the proceedings about an appeal being made and the basis upon which the appeal is being made.
29. Oral argument — this is when parties make submissions in court by way of addressing the court without presenting them in writing. Sometimes arguments can be in writing, but sometimes the court can allow parties to appear before it and present issues in support or against the claim before the court.
30. Written submissions — when there are issues that need to be presented to the court by a party or parties to the proceedings, they can be presented in written form and it is those submissions which will have been presented in written form which are referred to as written submissions.
31. Order — it is the result which is given in civil cases after a claim has been made. It can be interim or final. An order can be for the person who made the claim, meaning to say he/she will have won the case, or it can be against him, meaning to say he/she will have lost the case. Sometimes it will not be in favour of both of them, as it will simply leave things as they were before the claim.
32. Pre-trial review/Case management conference — it is done mainly in the civil courts and in the High Court; it encompasses criminal trials as well. The process is whereby parties are invited to appear in the chambers of either a magistrate or judge and deliberate on the issues that are common cause or admitted by everyone and those that are being disputed. The disputed issues will then be referred to trial and the undisputed issues will be taken as such. For example, parties to a divorce can agree on divorcing, custody of children, access rights and maintenance, but dispute on the sharing of property during pre-trial review/conference. So the issue of the sharing of property is what will be referred to trial. It serves time and resources in the sense that it focuses on the contentious issues.
33. Prejudice — loss that occurs to a person. It can either be actual prejudice or potential prejudice, like in cases of fraud. If a person’s cow is stolen, the owner suffers prejudice in the form of the loss of the cow, which has a monetary value.
34. Quash/Set aside — the two words answer each other. If, for example, a person is convicted of an offence, or in a civil proceeding the order is granted against him, if either of them appeals against the decision of the court which convicted or made the order and succeeds, the Appeal Court quashes and/or sets aside the conviction or decision of the lower court.
35. Record/Transcript – it is a written form of the proceedings conducted in a courtroom or before a tribunal. The typed form of the record or any part of it is what is referred to as a transcript. A court record can also be in recording form, as is the case in the regional court or superior courts.
36. Relief — it is what the aggrieved party will be asking the court to do for him. It is a remedy for a wrong that the person will be claiming.
37. Respondent’s notice — when an application is made to the court by an Applicant, the response to the application by a respondent is what is referred to as a Respondent’s notice. Normally, it is completed to say Respondent’s notice of opposition.
38. Stay of proceedings — when a matter is being heard or tried in court, whether civil or criminal, it is referred to as court proceedings. If a party, for any reason, feels that the proceedings must be halted or stopped, he or she may apply for the stay of proceedings. The stay can be temporary or permanent and it all depends on the reason for doing so.
39. Subpoena/Witness summons — it is a legal document which is used to notify a witness that he/she is wanted at court, either criminal or civil. Failure to obey it after a witness has been duly served with it by the police or any authorised person results in the issuing of a warrant of arrest against the witness.