LITIGATION
The institution or defence of a lawsuit.
No one wants to sue or be sued, but if negotiations fail, you must act to protect your rights.
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​Our Commercial Litigation Department is experienced in:
Companies:
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Shareholder and Director disputes
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Rescuing company hijackings
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Governance / procedural disputes
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Dereliction of fiduciary duties
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Delinquent director applications
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Holding directors personally liable
Contractual disputes:​
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Breach of contract
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Enforcing performance
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Cancelling contracts due to poor supplier performance or contractual unfairness
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Financial aspects:
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Debt collections
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Damages
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National Credit Act
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Sureties
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Intellectual Property, Public Relations and Reputation Matters:​
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Copyright and Trademark infringement
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Consumer complaints
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Defamation and damage to reputation by consumers and competitors
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Franchise-specific:
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Enforcing performance by franchisor or franchisee
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Lease disputes
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Property Litigation:
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Enforcing transfer of property where Purchaser of Seller has cancelled
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Evictions and arrears rental collections
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Disputes over rights, servitudes, development options, spoliations and related matters
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Lease disputes
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Construction Litigation:
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Interpretation and Litigation of JBCC Contracts
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Completion disputes
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Delay disputes
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Pay-when-paid disputes
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Unfair conduct by contractors
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Enforcing performance
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Cancelling contracts due to poor supplier performance or contractual unfairness
Labour Litigation:
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CCMA and Labour Court disputes
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Litigation against political parties interfering in company labour matters
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Breach of Restraint of Trade, Non-circumvention and Non-Solicitation agreements
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Strategic Insight:
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Applications and urgent interdicts
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Negotiating settlements
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Structuring your business, contracts and operations to avoid litigation
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COMMON QUESTIONS ABOUT LITIGATION
​​I need to sue someone. How does it work?
First, it is critical to gather your evidence and consult with us to determine the strength and urgency of your case. Thereafter, we will advise on the correct path to take - which usually follows the general sequence above. It is always advisable to explore mediation and settlement before litigation.
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​I have received a summons. What do I do now?
Never ignore a summons - if you do, your opponent may request default judgment without further notice to you. If you receive a summons or other legal document, contact us immediately for advice.
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​Should I take my case to court?
That is determined by the strength of your case and the expected recovery from your opponent. This is why it is important to implement proper legal documents and processes proactively. If you do not have the evidence to back up your claim, it might not be appropriate to litigate. We also have to conduct litigation due diligence, to estimate whether a successful judgment against your opponent will recover sufficient money to make it worthwhile.
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​​How long will it take?
The litigation process is a long and technical one. Some disputes take years to resolve, and the delays are not helped by the backlog with which most of our courts are burdened. The absolute best case scenario for resolving litigation (barring settlement) is about three months for a default judgment.
How much will it cost?
Litigation requires the application of great expertise and time by your attorney. We help our clients explore ways to avoid litigation expenses; however, sometimes litigation is inevitable to protect your rights. The simplest cases can sometimes be resolved for less than R10,000, but most cases will cost around R30,000, and longer trials can cost over R100,000. Please note that these prices are rough estimates and you should contact us for specific advice on your case.
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​Will I get all costs back if I win?
If you win, you will usually be awarded some, but not all costs, unless you (a) have specified as such in a contract, or (b) you are awarded costs on a punitive scale due to your opponent acting in bad faith. There are three scales of costs (in ascending order):
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Party and party costs;
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Attorney and client costs;
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Attorney and own client costs.
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If successful, you will usually be awarded costs on the party and party scale, resulting in a potential recovery of around 25% - 50% of your legal costs.
​If you are awarded costs on an attorney-and-own-client scale, your recovery percentage should be higher.​​
Table of Contents
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KINGMAKERS AND KING-BREAKERS.
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We specialise in Shareholder and Director disputes, company hijackings, oppressive Shareholder conduct and Section 165 Applications.​
HOW THE LITIGATION PROCESS WORKS
Litigation starts with a consultation with you to determine the facts of the case, and evidence you have to prove your case.
We pride ourselves on our pragmatic approach to litigation - in some instances, the evidence does not support a successful conclusion, and in such cases, we advise you to save money and forego litigation.
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Where litigation is a necessity, we employ our experience to guide clients to a successful resolution.
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The process is directed by the Rules of the Magistrates Courts and High Courts. It is designed to allow both sides time to retain legal representation and place their version of events before the court.
Litigation itself usually commences with either an Application or Summons. The party commencing the action/application is the Plaintiff/Applicant respectively. The first document, or process, must be served on the other party by the Sheriff.
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It is critical to consult with us to determine the strengths and weaknesses of your case before launching into litigation. Remember that in every case ever brought before court, there were two parties - both of whom were convinced they were right.
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The litigation process is complex, and can follow one of many paths depending on your opponent's response. However, a brief outline of the general process is as follows:
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Plaintiff issues and serves Summons
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Defendant gives Notice of Intention to Defend, and Plea
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Plaintiff responds with a Replication
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The parties exchange further pleadings if necessary
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The parties call for Discovery of evidence from each other
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A conference takes place before trial to narrow issues
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Trial commences
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Judgment and order
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Execution of the order
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Taxing of the successful litigant's costs
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At certain stages during the above process, there may be:
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negotiation and settlement
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default or summary judgment
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technical challenges to the opponent's process or documents.
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