CHAPTER 7.docx - CHAPTER 7 \u2013 THE PARTIES Introduction GENERAL In common law jurisdictions like SA civil litigation = and ADVERSIAL process \u2219 there

CHAPTER 7.docx - CHAPTER 7 – THE PARTIES Introduction...

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CHAPTER 7 – THE PARTIES Introduction GENERAL: In common law jurisdictions, like SA, civil litigation = and ADVERSIAL process there are 2 opposing parties Ie: the party requesting relief AND the party opposing relief Action procedure: Party requesting relief = Plaintif Party opposing relief = Defendant Application procedure: Party requesting relief = Applicant Party opposing relief = Respondent Dominus litis: = Party who drives the litigation Ie: who is control of the proceedings = plaintif/ applicant Pre- litigation issues to be considered: Cause of action Which court had jurisdiction Locus standi of parties Joinder of parties Intervention Locus Standi WHAT: Locus standi in iudicio Means place to stand before a court Ie: refers to a person’s legal standing
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Analysis of a party’s locus standi involved the consideration of 2 discrete legal concepts: Involves an examination on whether the litigant has a sufficient interest in the right which is the subject matter of the litigation AND Involves an examination whether the litigants have the capacity to sue or be sued Sufficient Interest in the Right which is the Subject Matter of the Litigation COMMON LAW: Provides that: Party instituting proceedings and bringing a claim before the court Must have a DIRECT and SUBSTANTIAL interest In the RIGHT which forms the subject matter of the litigation Requirements of a direct and substantial interest: According to Jones and Buckle the plaintif/ applicant is required to have: - An adequate interest in the subject matter of the litigation, which is not a technical concept, but is a direct interest in the relief sought - An interest that is not too far removed - An actual interest , not abstract or academic one - A current interest, not a hypothetical one CONSTITUTION – S38 BILL OF RIGHTS: Common law definition of interest applies in majority of proceedings However, when litigation is based on a Bill of Rights issue it is governed by S38 Constitution
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S38 has significantly extended the definition of locus standi in the case of fundamental rights litigation (= much broader than the common law definition) S38 Provides that any of the following parties have the right to approach a competent court when alleging that a right in the Bill of Rights has been infringed: a) Anyone acting in their own interest b)Anyone acting on behalf of another person who cannot act in their own name c) Anyone acting as a member of, or in the interest of a group or class of persons (ie: class actions) d)Anyone acting in the public interest (ie: public interest actions) e) An association acting in the interests of its members CLASS ACTIONS vs PUBLIC INTEREST ACTIONS: Class Actions: Also known as a representative action Allows a single person to institute an action on behalf of and in the interest of a group or class of persons all having the same cause of action Action is of particular use where there is a large group of plaintifs who each have small claims
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  • Fall '15
  • CIVILSPROF
  • Legal person, Class action, ∙ Court

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