When a client instructs an attorney to institute legal proceedings, one of the first considerations is whether the case has reasonable prospects of success. Even where a client has a strong case on the merits, litigation is seldom straightforward. Opponents will often scrutinise every aspect of a matter in an attempt to identify procedural or technical defects that may delay proceedings or, in some cases, prevent a court from considering the merits altogether.
For this reason, careful preparation is essential. Attention to procedural requirements can be just as important as the strength of the underlying claim. Some of the key considerations include the following:
- Whether the litigant has the necessary authority to institute proceedings;
- Whether the available alternative dispute resolution mechanisms have been exhausted;
- Whether the claim has prescribed;
- Which Court has jurisdiction hear the matter and whether local attorneys within that Court’s jurisdiction need to be appointed;
- Whether the client’s affidavit has been properly signed and commissioned;
- Whether there has been compliance with the procedural time periods;
- Whether the relevant parties have been correctly cited and the documents are properly served in accordance with the applicable rules and procedures; and
- In urgent applications, particular care must be taken to demonstrate why a matter cannot be dealt with in the ordinary course and why urgent intervention is necessary.
While these are all considerations that arise in litigation, many areas of law are also governed by their own specialised procedures and statutory requirements. For that reason, it is not enough for a litigant simply to appoint the attorney they ordinarily use. The attorney must also be familiar with the particular field of law in which the dispute arises. An attorney who primarily practises in family law, for example, may not be familiar with the procedural requirements applicable to insolvency proceedings, just as an insolvency attorney may not routinely deal with the specialised procedures that arise in family matters. The nuances of a particular field can often determine whether a matter succeeds or fails before the merits are even considered.
By way of example, consider the following scenario:
A client discovers that they have invested money in what appears to be a fraudulent investment scheme operated by an individual called “the Wolf”. After investigating the matter, it becomes apparent that the Wolf’s only significant asset is his house.
The client is then informed that the sale of the house has been accelerated and that transfer to the purchaser is due to take place within two days. If the property is transferred and the proceeds disappear, there may be little left to recover for creditors. It therefore becomes necessary to bring an urgent sequestration application in order to, inter alia, protect the client’s position.
The client has a strong case and approaches their attorney, who primarily practises in family law, to launch the urgent application. However, sequestration proceedings are specialised and have unique procedural requirements. Among other things, the application papers must be served on the Master of the High Court, who must issue a certificate confirming that sufficient security has been furnished before the matter can be heard. Because the attorney does not regularly deal with insolvency matters, this requirement is overlooked and the application proceeds without the necessary certificate.
Counsel is briefed to appear at the hearing and preparations continue. On the evening before the matter is due to be heard, the Wolf’s attorneys file opposing papers raising a number of procedural objections. They take the points that the notice of motion does not contain a timetable regulating the exchange of further papers and that there are defects in the commissioning of the affidavit.
Although the attorney regards these points as mere technicalities and expects the court to focus on the merits of the dispute, matters take a different turn. The urgent court is crowded, the judge has limited time available, and upon consideration of the papers it becomes apparent that a fundamental requirement of the Insolvency Act has been overlooked: the Master has not issued a certificate of security. What may appear to be a minor procedural omission is, in fact, a prerequisite for the relief sought.
As a result, the court is unable to proceed with the application and directs that the matter stand down until the procedural defects have been remedied. Unfortunately, by the time the defects are corrected, the transfer of the Wolf’s property has already been registered. Even if the Wolf is eventually placed under provisional sequestration and a trustee is appointed, the trustee will not have had control over the sale of the house, which may have been sold under value. Further litigation will also be required to recover the proceeds of the sale.
This example illustrates an important point:
Even where a client has excellent prospects of success, seemingly minor procedural shortcomings can have serious practical consequences. It is, therefore, important to appoint an attorney who regularly practises in the area of law relevant to the dispute. Specialist knowledge of the applicable procedures can be every bit as important as the merits of the client’s case.
After all, when it comes to litigation, all the things count.
Need assistance, have any questions, please contact the Litigation Department at DKVG Attorneys
Written By: Stewart Grant
DKVG | Cape Town Office
Tel: 021 424 9200
