loader image


STAY HOME AND STAY SAFE. For more information and support on COVID-19 please visit www.sacoronavirus.co.za

What happens when a party to civil proceedings passes away?

What happens when a party to civil proceedings passes away?


Have you ever wondered what would happen if a party to your dispute passed away? Does the case fall away, or how would it be affected?  The court rules provide for this situation.


The rules provide that proceedings shall not be terminated solely due to death, marriage or any other change in status between parties, unless the cause of action is extinguished.  In that case, how would proceedings continue?


A deceased party will be substituted either by a simple notice of substitution (the estate stepping into the deceased’s proverbial shoes).  In more complex situations an application may have to be made to the court for substitution.  The proceedings will then continue as if the substituted party were part of the proceedings from the beginning thereof.


While the substitution takes place, the proceedings are put on hold if the matter is being heard in the Magistrates’ Court. If the matter is being heard in a higher court, the proceedings are not necessarily put on hold, but the court does not allow further steps to be taken until such substitution has been made.


So, if a party to a matter passes away it does not mean that the matter simply falls away.  To ensure proper administration of justice the court allows these matters to proceed and enables the estate to recover the compensation to which the deceased would have been entitled during his lifetime.


Although there are some items of the claim that may fall away, an obvious example being future medical expenses and loss of income, past losses will remain recoverable.