“Just DIY?”: The risks of representing yourself in court

Introduction  

The law in South Africa allows any person to represent themselves at legal proceedings, as is in keeping with each person’s constitutional right to a fair trial. Our legal system makes provision for arrested, detained, and accused persons in a criminal matter and any person in a civil matter to have access to legal representation, but it is nevertheless possible to waive this right and choose to represent yourself. As cost-effective as representing oneself can be, it certainly carries a substantial risk of misunderstanding and misrepresenting the law and subsequently sabotaging one’s matter, the consequences of which can be disastrous.

This article will focus on the risks and practicalities of representing oneself in civil legal proceedings.

South African courts: the adversarial system

South African courts follow the adversarial system of civil procedure, in terms of which litigants present their version of events to the court in the “arena,” and the presiding officer (such as a judge or magistrate) plays the role of an objective umpire.

Inherent in the adversarial system are certain principles that ensure access to justice for all litigants, including that all parties must have an opportunity to present their case to the court, the proceedings should (where appropriate) take place in public, and the court must consider the evidence on objective and rational grounds.

The adversarial system also seeks to ensure the impartiality of the judicial officer, who does not get involved in the leading of evidence or examining of witnesses, which in turn ensures the fairness of the trial.

However, where a party to civil or criminal litigation does not have legal representation, the judicial officer of the court is required to adopt a more active role in assisting the self-represented litigant. This is done by playing a more active role in the “arena” and ensuring the litigant is aware of their rights, effectively making litigation more accessible for non-attorneys.

Why do I need legal representation?

The drafting, issuing, and filing of court documents and the navigation of court processes can be challenging, even for seasoned legal professionals. There is, after all, a reason legal practitioners must obtain an LLB degree, complete two years of practical vocational training, and pass further attorneys’ admission exams before they are able to call themselves qualified legal professionals. Legal practitioners are trained in interpreting and applying the law and are highly skilled in litigation and negotiation. As such, it is the norm in civil proceedings that legal practitioners represent litigants in the magistrate’s courts and courts of higher stature, like the Supreme Court of Appeal and the Constitutional Court.

Of course, appearing in court is only a fraction of the work that goes into legal proceedings. Before attending court, one must institute proceedings or defend or oppose the action or applications which requires knowledge of court procedures, timelines prescribed by the relevant legislation and rules, governing court proceedings, including each specific court’s practice directives and evidence. and the serving and filing court papers (as well as knowing which form to use). If the matter before the court is brought on application, the parties make all submissions via affidavits and heads of argument – or more generally, the papers – and oral argument in court is generally not required, unless directed by the court or brought on application by one of the parties. Nevertheless, it is best to have the papers drafted by a legal practitioner, who will know which averments need to be made to increase your chances of success. Where a matter is brought before a court via action proceedings, it is still necessary to draft court papers, but the court will also require oral testimony, argument, and cross-examination of witnesses, granting you an opportunity to show the court why, on a balance of probabilities, your version of events is more probable than your opponent’s.

It is also entirely possible for an unknowing layperson (or non-legal practitioner) who chooses to represent themself to make detrimental or prejudicial statements or admissions, thus prejudicing its case and chance of success, without even realising it. Legal practitioners are skilled in knowing how to place all the evidence before the court so that it may benefit your case as much as possible.

What are the possible consequences of representing myself?

If you do opt to represent yourself in legal proceedings, it is important to be mindful of the ways in which your decision can adversely affect the outcome of the proceedings.

First, it is imperative to take note of the timeframes set out in the applicable legislation and rules, which govern what must be done and by when. There are time limits that dictate when one must submit certain pleadings and notices both in action and application proceedings, failing which the opposing party may obtain default judgment against you or request that the matter be struck from the roll. In default judgment proceedings, the court is requested to award an order against you for the relief sought without being required to hear your side of the story, whereas if a matter is struck off the roll, it is simply kicked out, and you will need to institute proceedings from the very beginning. One must also be aware of the practice directives of each specific court so as to meet these requirements in order for your matter to be heard.

Further, one must always be mindful of the Prescription Act 68 of 1969, particularly section 11 thereof, which states that debts owed prescribe three years from the date on which they fall due. As such, if you are owed a debt and wait four years to institute proceedings, you will certainly be hit with a special plea or challenge on the grounds that your claim has prescribed, and you will have to foot the costs of the other party. There are also other time limits in other acts that regulate the institution of proceedings against, for example, the Road Accident Fund and the State, which can trap the unwary.

In the event that a court finds against you because your papers were not properly drafted, the arguments presented were not convincing, or you simply did not have a valid claim (all of which your attorney would have attended to), in other words, where the court finds the other party’s version to be more probable than yours, the “winning side” is generally awarded costs. This means that you may have to pay not only for your own legal costs but also for your opponent’s legal costs.

Can a friend represent me?

It is possible to have someone you know, such as a friend or family member, represent you in court. However, it is a criminal offence in South Africa to represent someone in court without being an admitted candidate attorney, attorney, or advocate of the high court. Therefore, do ensure that whomever you elect to represent you in court is indeed an admitted attorney or advocate registered to practice in South Africa.

But lawyers are expensive…

It is an unfortunate reality that not everyone in South Africa can afford the costs of instructing and retaining legal representation, or even the costs of a consultation with an attorney. However, there are alternatives to representing yourself if you cannot afford an attorney.

Legal Aid South Africa is a non-profit organisation that was formed to provide people who are unable to afford legal services with legal advice and representation. The organisation benefits more than 300 000 people annually and is an invaluable resource for those who meet its means test.

Another alternative is entering into a contingency fee agreement with an attorney, which is regulated by the Contingency Fees Act 66 of 1997. In terms of such an agreement, the attorney is only paid if the case is successful, and the attorney is entitled to (up to) 25% of the amount awarded by the court or double the amount of their normal fees, whichever amount is lesser.

Conclusion

Although it is possible to represent yourself in legal proceedings, it is strongly recommended that you obtain legal representation or, at the very least, professional legal advice on the way forward. But be warned: opting to represent yourself in litigation when you are not wise to the many complexities of civil or criminal procedure may have severely detrimental effects for you.