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INTRODUCTION
Chapter 1

1 Introduction

1.1 Questions that the law of civil procedure answers:

1. How do you (Bs attorney) know whether A will be willing to pay for the
damages or not?

[Letter of demand]

2. How do you cite [refer to] A, and must only A be held liable for the damages
suffered by B?

[Parties]

3. If A refuses to pay the damages which court must you approach for relief?

[Jurisdiction]

4. How do you get A to appear in court i.e. which procedures must I use?

[Summons, Application]

5. What must A, as defendant do once the summons has been served on him?

[Notice of intention to defend, pleadings etc]

6. How do you place the facts before the court?

[pleadings & witnesses or affidavits]

7. Trial or hearing?

[Depends on the procedure used]

8. How is the matter resolved?

[Judgment, settlement etc]

9. Who must pay for the legal costs incurred?

[Costs]
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10. What if a party is unhappy with the judgment?

[Appeal / review/rescission]

11. How are court orders enforced?

[Execution / debt collecting]

2 The place of Civil Procedure in the Legal System

Substantive / Material Law

o Creates competences

o Provides rights

o Creates obligations

Includes private & public law

Formal / Adjective law:

o supplies a means to enforce the material / substantive law.

Branches of formal law includes:

1. Civil Procedure

2. Criminal procedure

3. Law of evidence

4. Legal interpretation

3 Tables

Two Main Procedures

3.1 Summons or action procedure

1. Parties: plaintiff & defendant

2. Legal document that commences the procedure: summons

3. Evidence placed before the court via: witnesses

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4. When:

Legislation or rules prescribe the procedure

or

Complicated factual dispute & need witness (viva voce evidence)

5. Always: divorce; damages (in magistrates court)

3.2 Application or notice of motion procedure (commences / interlocutory)

1. Parties: applicant & respondent

2. Legal document that commences the procedure: notice of motion

3. Evidence placed before the court via: sworn affidavit

4. When:

Legislation or rules prescribe the procedure or

Simple factual dispute & sworn affidavits sufficient.

5. Always: sequestrations, rehabilitations, liquidations

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COURSE OF A DEFENDED CIVIL ACTION

SUMMONS

NOTICE OF INTENTION TO DEFEND

EXCHANGE OF PLEADINGS

SET-DOWN FOR TRIAL

PREPARATION FOR TRIAL

TRIAL

JUDGMENT
Judge/magistrate

EXECUTION

If no assets

DEBT COLLECTING PROCEDURES

If plaintiff or defendant dissatisfied with the outcome of the case

APPEAL OR REVIEW
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COURSE OF AN UNDEFENDED CIVIL ACTION

SUMMONS

If no response (no notice of intention to defend or no plea)

APPLICATION FOR DEFAULT JUDGMENT

DEFAULT JUDGMENT
Judge/magistrate or registrar/clerk of the court

EXECUTION

If no assets

DEBT COLLECTING PROCEDURES

If plaintiff or defendant dissatisfied with outcome of the case

APPEAL / REVIEW / RESCISSION

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COURSE OF AN UNOPPOSED OR EX PARTE APPLICATION

NOTICE OF MOTION WITH SUPPORTING AFFIDAVIT(S)

HEARING

JUDGMENT
rule nisi

FINAL JUDGMENT

EXECUTION
(if applicable)

if no assets
DEBT COLLECTING PROCEDURES
(if applicable)

if applicant or respondent dissatisfied with the outcome of the case

APPEAL OR REVIEW
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COURSE OF AN OPPOSED APPLICATION

NOTICE OF MOTION WITH SUPPORTING AFFIDAVITS

ANSWERING AFFIDAVITS

REPLYING AFFIDAVITS

HEARING

JUDGMENT
rule nisi

FINAL JUDGMENT

EXECUTION
(if applicable)

If no assets

DEBT COLLECTING PROCEDURES

(if applicable)

If applicant or respondent dissatisfied with the outcome of the case

APPEAL OR REVIEW
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4 Sources of the Law of Civil Procedure

4.1 Magistrates Court:

1. Constitution of 1996

2. Magistrates Court Act 32 of 1944

3. Rules to the Magistrates Court Act 32 of 1944

4. Common law

5. Case Law

creature of statute: No inherent jurisdiction

4.2 High Court

(Only one High Court with several provincial and local divisions)

1. Constitution of 1996

2. Supreme Court Act 59 of 1959

3. Rules to the Act

4. Other Legislation:

Vexations proceedings Act 3 of 1956

Admission of Advocates Act 74 of 1964
Attorneys Act 53 of 1979
Right of Appearance in Courts Act 62 of 1995

5. Common law

6. Case Law

7. Inherent jurisdiction
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5 Different Courts and Judicial Officers

COURTS

5.1. Superior Courts SCA and HC

5.1.1 High Court (Supreme Court)

1 1909: The Supreme Court of South Africa.

Appellate division: Bloemfontein

provincial divisions: covers the entire province. Concurrent jurisdiction with

local division. Six provincial divisions. The provincial division can also hear
appeals for the local divisions.

local divisions: covers only a portion of provincial division.

2 S 166 Constitution (Act 108 of 1996): High Court consisting of: Supreme Court
of Appeal, provincial and local divisions.

The present divisions of the High Court:

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Renaming of Courts Bill: Proposed names

Supreme Court of Appeal Bloemfontein

Bisho Eastern Cape High Court Bisho

Bloemfontein Free State High Court Bloemfontein

Cape Town Western Cape High Court Cape Town

Durban KwaZulu-Natal High Court Durban

(Local Division of Pietermaritzburg
KwaZulu-Natal High Court)

Grahamstown Eastern Cape High Court Grahamstown

Johannesburg South Gauteng High Court Johannesburg

(Local Division of Pretoria North Gauteng
High Court)

Kimberley Northern Cape High Court Kimberley

Mmabatho North West High Court Mmabatho

Mthatha Eastern Cape High Court Mthatha

Pietermaritzburg KwaZulu-Natal High Pietermaritzburg

Court

Port Elizabeth Eastern Cape High Court Port Elizabeth

(Local Division of Grahamstown Eastern
Cape High Court

Pretoria North Gauteng High Court Pretoria

Thohoyandou Limpopo High Court Thohoyandou

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Presiding Officers of the High Court

1. Each division: judge president

2. Presiding officers: judges

Quorum necessary to hear a matter

Ordinary High Court civil matter: = 1 judge

Quorum re appeals

Magistrates court high court: = 2 judges

1 judge High Court: = full bench/3 judges HC

5.1.2 Circuit Courts

S 7 of SCA: Judge President: circuit divisions.

1 judge

Traveling court

High Court to rural areas

local division status

5.1.3 Supreme Court of Appeal

Highest court of appeal in all matters except constitutional matters.

Situated in Bloemfontein

Presiding officers

President

Deputy President

Judges of appeal

Quorum

Normal = 5 judges.
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5.2 Lower Courts

5.2.1 Magistrates Court [District & Regional]

o Magistrates Court Act 32 of 1944.

o Presiding officers: magistrates.

o S2 The Magistrates Court 32 of 1944: 4 types of Magistrates Courts.

A District courts:

Entire district.

A sub-district excludes jurisdiction of a district court.

B Sub-district courts

Equal status with a district court.

Excludes the jurisdiction of the district court.

Can be a portion of a district or a portion of two adjoining districts.

C Periodical courts

portion of a district.

specific days.

shares jurisdiction with district court

D Regional courts

Until 9 August 2010 only jurisdiction in criminal matters.

Jurisdiction of Regional Courts Amendment Act 31 of 2008 came into operation

on 9 August 2010

Regional Courts now also jurisdiction in civil matters.

5.2.2 Small Claims Courts

Small Claims Court Act 61 of 1984.

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Presiding officers: commissioners.

6 Court Officials

6.1 Registrar [High Court & Regional Magistrates Court]

Each division of the HC.

Minister of Justice [s34(1) of the SCA 59 of 1959.]

Duties: issues court process, filing of documents allocates court dates, issues
court orders etc

Default judgment.***NB

Taxing master

6.2 Clerk of the Court [District Magistrates Court]

Clerk of the court.

Functions: same as registrar.

6.3 Sheriff

Appointment, duties and responsibilities regulated by the Sheriffs Act 19 of

1986.

HC & MC

Duties: Serves summons & court process, execute court orders

Report return of service

6.4 Practitioners

Any person may represent himself in court. [legal representative not necessary]

Appear on behalf of a person: qualified legal practitioner.

Exception: Juristic persons

It is a honourable profession, one to which it is a honour to belong.

-RPB Davies J-
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6.4.1 Attorneys

1. Attorneys briefed by the public directly. Clients can approach attorneys

directly for assistance, but the same does not apply to advocates. Client addresses
attorney who then approached advocate.

2. The Right of Appearance in Courts Act 62 of 1995 s 4(2): attorneys right of

appearance in High Court. Traditionally attorneys could only appear in lower
courts and not superior courts.

6.4.2 Advocates

1. Litigation specialists, can only practice individually.

2. referral profession.

3. Rsemann v General Council of the Bar [2003] 4 All SA 211 (SCA)

- Advocate took directions directly from client.
- Conduct was held to be unprofessional and thus advocate was struck
off the roll.

7 Some Basic Principles of the Law of Civil Procedure

The following are the precepts of the Law: to live honestly, not to injure
another, and to give to each other that which belongs to him.
-Justinian-

1 Impartiality

2 Audi et alterem partem

3 Party control1

4 Open court

5 Adhere to the law

6 Appeal and review

The law of civil procedure is founded on the above elements and therefore it is important
to ensure that these elements are present so to ensure fairness.

1Theophilopoulos et al p 3 uses this term to explain that the parties effectively decide on an
appropriate course of action and that the court effectively only performs a management function.
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8 Inaccessibility of the Courts and Alternative Dispute Resolutions

8.1 The Problem of Access

High costs;

Ignorance of public;
- Majority of the people in SA do not know what their rights are and
what the structures are so to enforce their rights, lack of knowledge of
rights.

Time

Complexity of procedure

8.2 Methods to overcome problem

Three separate routes to follow:

8.2.1 Steps within the system to overcome the problem

i. Pre-trial conferences R37 HCR s54 MCA to attempt to resolve dispute between
the parties before the parties go to trial. Reduces the workload of the courts and
is more efficient and effective. This is an optional facility that is available to
parties.

ii. Case management S 37A SCA; Cape of Good Hope Provincial Division of the
High Court

iii. Joining of disputes in one action has the tendency of shortening the
proceedings. If disputes arise from the same cause of action then it is
recommended to join proceedings.

iv. Joining of more than one plaintiff or defendant.

v. Financial assistance by State

o Legal Aid Board available for litigants who cannot afford costs of
appearance in court. Registration must be made to clerk of HC.

o Justice Centres

o Legal Aid Clinics

o Free Attorney or Advocate R40 HCR

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vi. Group Actions

8.2.2 The Establishment of Other Courts

8.2.2.1 The Small Claims Court:

1. Came into operation in 1985

2. R 7000 - 00

3. Clerk of the court

4. Procedure is simple. Letter of demand summons defendants reply.

5. No legal representation

6. Informal: Inquisitorial.

7. Juristic persons may not be plaintiffs in this court but they may be defendants.

8. No costs

9. No appeals.

8.2.2.2 Civil Jurisdiction for Regional Magistrates Court

8.2.3 Other Courses as Alternative To Court Action [ADR]

1 Negotiations:

o Informal

o No formal requirements.

2 Mediation

o Neutral third party: reconcile & suggest solutions

o Suggestions: not binding/enforceable

o Aim: settlement

o When: any time

o ***Contractual agreement.
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o Decision are not binding, they are only suggestions and the decision follow them
rests on the parties.

o Cheaper, efficient, quicker.

3 Arbitration

1 neutral third party: presiding officer

2 decision: binding

3 voluntary:

o Some legislation prescribes arbitration.

o Contractually agree

4 Parties to arbitration:

o Chooses arbitrator

o Stipulates the procedure

5 Arbitrator derives powers:

o Agreement between parties

o Arbitration Act 42 of 1965 (mostly directory) can only appeal decision if the
correct procedure was followed.

o Common law

6 Arbitrators award:

o Arbitrators award is binding.

o Must be in writing - But once parties agree on the decision of the third party then
that decision becomes binding on the two parties.

o Made an order of court

Appeal:

o Only if prior consent.