CHAPTER 1

~Not really relevant in the grand scheme of things, but some intro stuff should be mentioned.
NOTE: numbering in here is not always the same as in the textbook!

1.1 What is the law of civil procedure?

Civil procedure falls under ‘procedural law”, which indicates how rights, remedies and duties may be enforced.

1.2 Principles underlying the law of civil procedure (x8)

(a) All persons must have equal and effective access to an independent and impartial judiciary, with
reasonable costs to litigation.
(b) Throughout the proceedings both parties must be afforded an equal opportunity to present their respective
cases to the court (audi et alteram partem principle). This includes:
a. That the defendant must be notified of the proceedings.
b. That both parties must be informed of the nature of the opposing party’s case and the grounds on
which it is based.
(c) “Party control” – the decision to institute or defend an action and to determine the scope of the dispute
rests with the parties. The parties also decide on the evidentiary material to be presented as proof of their
respective cases.
(d) Provisions must be made for direct oral viva voce communication between the parties and the court during
presentation of their respective cases. This does not exclude written evidentiary material.
(e) The main proceeding (trial or argument of an application) must, in principle, take place in public.
(f) The court must consider the evidentiary material on objective and rational grounds.
(g) The court must give a reasoned and legally motivated judgement.
(h) The decision of the court is final and binding, but provisions exist for appeal or review.

1.3 Sources of the law of civil procedure

The most NB sources in SA are:

(1) The final Constitution of the Republic of South Africa of 1996.
(2) The Constitutional Court Complimentary Act 13 of 1995.
(3) The Rules of the Constitutional Court (CCR).
(4) The Supreme Court Act 59 of 1959.
(5) The Rules of the Supreme Court of Appeal.
(6) The Uniform Rules of Court applicable in all High Courts (HCR).
(7) The Magistrates’ Courts Act 32 of 1944.
(8) The Magistrates Court Rules (MCR).
(9) The Small Claims Court Act 61 of 1984.
(10)The common law underlying the rules of procedure and jurisdiction in the High Court.
(11)Other legislation and regulations relevant to specialised courts.
(12)Practice arrangements and directions applicable in the respective divisions of the High Court.
(13)Case law.

1.4 Mechanisms to solve civil disputes

- Disputes can be solved either throught the civil court structures or through alternative dispute resolution
(ADR) structures.
- A number of forms of ADR exist such as negotiation, mediation and arbitration.
o Negotiation involves a structured form of bargaining and debate.
o Mediation involves the assistance of an impartial third party.
o Arbitration involves an impartial third party adjudicating the dispute between the parties after taking
evidence and hearing the parties’ arguments. This may be agreed to in a contract (if written, the
Arbitration Act 42 of 1965 regulates the agreement). A formal national or international arbitration
body usually conducts arbitration.
- When taking instructions a legal representative must consider the various alternative modes available to
deal with the dispute at hand and select an appropriate method.
- Note that ADR is not suitable for all types of disputes.

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 CHAPTER 2
Structure of the Courts and Officers of the Courts

2.1 Introduction

The Constitution has had the following effect on the law of civil procedure:
(a) Locus standi
a. ITO common law, any party wishing to institute or defend legal proceedings must have a “direct
and substantial interest” in the right which forms the subject matter of the litigation.
(b) Litigation involving State organs
a. Notice requirements and prescriptive periods are now aligned with the Constitution.
(c) HCR 17(4)
a. ITO this rule every summons must state the names of the parties, their sex and marital status (if
female). Nedcor Bank v Hennop 2003 held that this was an infringement of s 9(1) and s 9(3) of the
equality clause of the Constitution.
(d) Section 65 Magistrates Court Act (debt collection procedure)
a. In Coetzee v Government of RSA 1995 it was held that the provision that a civil debtor could be
imprisoned for failure to pay a debt was unconstitutional.

2.2 Hierarchy of the South African Courts

Section 166 of the Constitution:

(a) The Constitutional Court.
(b) The Supreme Court of Appeal.
(c) The High Courts.
(d) The Magistrates’ Courts.
(e) Any other court established or recognised by an Act of Parliament.
a. Traditional Leaders Courts.
b. Small Claims Courts.

4.2 Specialised Courts:

- Labour Courts.
- Land Claims Court.
- Special Income Tax Court.
- Competition Appeal Court.
- Electoral Court.
- Special Consumer Court.
- Divorce Court.
- Children’s Court.
- Maintenance Court.
- Equality Court.

4.2 Officers of the Court

- Judges.
- Magistrates.
- Registrars of the High Court.
- Clerks of the Magistrates’Courts.
- The Sheriff.
- The Master of the HC.
- Legal practitioners.

~Now, NB stuff for exam!

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 CHAPTER 3
Consultation, Legal Representation, demand and Prescription

3.1 The initial consultation

In deciding whether to represent a prospective litigant, the attorney must consider a number of circumstances
including:
- Whether he or she may act on behalf of the client.
- Whether to proceed by action or application.
- Whether to appoint an advocate in the matter.
- The cost implications of the proceedings.

Apart from taking proper instructions during the initial consultation, the attorney will also have to make a number of
administrative arrangements.
- Firstly, a file must be opened on behalf of the client.
o The names of the parties must be clearly indicated on the outside of the file.
o Columns should be drawn on the inside and outside of the file to keep a chronological record of
pleadings and notices received, as well as those drafted and served and filed by the attorney.
o Also advisable to draw up a column to note telephone calls made and received (NB to draft a bill of
costs).
 Attorney should note the date and time of the call, to whom the call was made or from
whom it was received, and duration and main points of discussion.
o It is NB to indicate all relevant dates (prescription and trial dates) on the outside of the file, which
must be diarised promptly.
- An account number should be allocated to the client so that the client can be debited with fees and
disbursements in respect of services rendered.
o Attorney must discuss cost implications during first consultation.
 Also customary to obtain a deposit from the client to cover initial expenses.
- After consultation the attorney should address a letter to the client in which the attorney’s mandate is
clearly confirmed.
- It is essential to keep the client informed of any and all progress with regard to the matter.

If the attorney is unable to contact the client for lengthy period of time, thus making him unable to receive
instructions, he/she should withdraw as the attorney of record.
- But attorney remains responsible for the management of the case until the matter is finalised by means of a
settlement or a court order, or until his or her mandate is withdrawn.

3.2 The representation of parties

The right to legal representation is entrenched in s 35(2) and (3) of the Constitution.

The attorney-client relationship is one of representation by agency (ITO law of agency).

- A specific power of attorney (PoA) authorises an attorney to institute or defend a specific legal proceeding
on behalf of the client and to conduct any other function which is incidental to such a legal proceeding.

3.2.1 Representation in the HC

HCR 7 provides for legal representation without the need to file a PoA.
- If the attorney’s authority to represent a client is disputed, the attorney must satisfy the court of a mandate
to act on behalf of the client.
- BUT is appeal cases, the attorney needs a PoA to represent a client.
o HCR 7(3) and HCR 5: the PoA must be filed when the legal representative applies for an appeal
date.
o Each PoA must be signed by the client (or a third party on his behalf with proof) and comply with
specific legal requirements.

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HCR 16: an attorney acting on behalf of a party in any proceeding must notify the other party of his or her name
and address.
- The attorney is thus placed on “record” as the representative of the client.
- The address must be within 8kms of the court building and becomes the address for the service and
delivery of all pleadings, notices and processes.

A party may terminate the attorney’s mandate at any stage of the litigation process and appoint another attorney.
- A notice is delivered to the registrar and all interested parties are informed of the termination by notice.
- The newly instructed attorney is obliged to furnish a notice of entry as attorney of record to the opposing
party and registrar.

When a client does not pay for legal services or does not furnish proper instructions, the attorney may decide not to
continue to represent the client and withdraw as the attorney of record.
- The attorney will notify the client, the registrar and the opposing party of his withdrawal.
- When the notice is served by hand, an acknowledgement of receipt is sufficient proof of withdrawal. If
served by registered post, the registered slip will serve as notice of dispatch.
- Where client has failed to make payment, the attorney may withdraw and keep possession of a clients
court file ITO a lien. The file will only be returned to the former client upon payment of the outstanding fees
and extinction of the lien.

It is good practice to withdraw at an early stage of the litigation process. It is bad practice to withdraw as close as a
day before the trial (and then by informing the client by registered post, as he won’t receive it in time.

HCR 15: if a party to a proceeding dies or becomes incapacitated, he may be substituted with an executor, curator,
trustee or similar legal representative.

3.2.2 Representation in the MC

MCR 52(1): there are various kinds of party representation allowed in the MC
- A party may (personally or by means of a legal practitioner) institute or defend legal proceedings and carry
it to completion.
- A local authority, company or other incorporated body may act through an officer nominated by it for the
purpose.
- A partnership or group of persons associated for a common purpose may act through a member nominated
by it for the purpose.
- No person acting in the above terms, other than a legal practitioner, shall be entitled to recover any costs
other than necessary disbursements.

It is usual for an attorney to represent a partying the MC.

- An advocate is entitled to sign any MC pleading and must be briefed by an attorney before drafting
pleadings or appearing in court.

MCR 52(2): it is unnecessary for a party to file a PoA for the purposes of MC civil litigation.
- But the opposing party may challenge the authority of the person acting on behalf of the other party.
- If challenged, that person may not act further until the court is satisfied of his/her authority (the court may
even postpone the trial for this purpose).

MCR 52(2): the following category of persons need not file a PoA:
- The State Attorney.
- A Deputy State Attorney.
- A professional assistant to the State Attorney.
- Any attorney instructed in writing to act on behalf of the State Attorney or the Deputy State Attorney.

MCR 52(3) and (4): if a party dies or becomes incompetent to proceed, the action is suspended until an executor,
curator, guardian or other competent person has been appointed, or until such incompetence ceases to exist.

3.2.3 Representation of indigent persons

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An indigent person may approach the Legal Aid Board and various legal aid clinics at universities for assistance.
- HCR 40 in forma pauperis proceedings allow indigents to approach the HC.
- MCR 53 pro deo proceedings allow indigents to approach the MC.

3.3 The Action and Application Procedure

When taking instructions from a client and preparing litigation, an attorney must determine he correct type of
proceedings to be used and the correct court to be approached.
- The attorney decides whether to employ an action or application (motion) procedure.
- If the incorrect procedure is selected the client may be penalised by time wasted and a cost order.

The Action procedure:

- Characterised by prescribed time periods for the exchange of pleadings, followed by prescribed time
periods for the preparation for trial.
- The actual trial is a forum for the admission of oral viva voce evidence, which may be a time consuming
process, and a trial may therefore be postponed on good cause shown.
The Application Procedure:
- Is said to be more time effective and cheaper when compared with the action procedure.
- This procedure takes up less time because the evidence is presented on the papers (on affidavit) and not
through oral evidence.

The differences between the 2 are set out in Room Hire v Jeppe Street Mansions 1949.

Action Application
1 Parties are referred to as “plaintiff” and Parties are referred to as “applicant” and “respondent”.
“defendant”.
2 An action is based on a real and material An application is based on a factual dispute of such a
factual dispute. nature that it may be easily dealt with on affidavit or on
paper. An application may also be used for disputes of
law.
3 Commences with the issuing of a summons by Commences with the issuing of a notice of motion and
the plaintiff. supporting founding affidavit by the applicant.
4 Further pleadings are exchanged by the Further affidavits are exchanged, namely:
parties, namely: - The opposing affidavit;
- Defendant’s plea and counterclaim; - The replying affidavit (if applicable).
- Plaintiff’s reply to defendant’s plea;
- Plaintiff’s plea to defendant’s
counterclaim.
5 After the exchange of pleadings a stage called There is no written “preparation for trial” stage.
“preparation for trial” follows. Certain
preparatory steps are then taken, that is,
discovery, expert notices, medical
examinations, pre-trial conference, etc.
6 The action procedure ends in the trial court, The motion procedure ends in the motion court. In
where mainly oral evidence by the parties and principle, no oral evidence is presented and the parties do
their witnesses is presented. not testify.
The case is argued by legal representatives on the
papers before the court.

~See Chapter 8 for Applications and Chapter 9 for Actions.

3.4 Demand

When acting on behalf of a prospective plaintiff, the attorney’s first act is to send a letter of demand to a prospective
defendant before summons is issued.
- The purpose of such a demand is to:
o Request from the recipient payment or performance of a legal obligation, and
o To persuade the recipient to pay the amount claimed, or

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 o To settle the dispute without the necessity of expensive, time-consuming litigation and a trial.
- A demand may also be made directly by the prospective plaintiff or applicant.
- It is usually written, but may be oral. Sometimes the delivery of a notice of motion may constitute an
acceptable form of demand.

A proper demand should contain the following (x5):

- 1) A clear reference that they attorney is acting on behalf of the client.
- 2) A clear explanation of the reason for the demand (based on the client’s version of the alleged facts).
- 3) A clear indication of what action is expected from the person receiving the letter of demand.
- 4) An indication of the time period (if applicable) within which to comply with the demand.
- 5) An explanation of the consequences of a failure to comply with the demand (setting out any cost
implications).

Sometimes it is necessary to mail or deliver a letter of demand in order to complete a cause of action. Parties to a
written contract may agree that a demand is required in the following instances:
- 1) When a contract contains a clause stating that an amount is payable on demand, the failure to pay the
amount does not constitute a cause of action, so a demand is necessary.
- 2) When the cause of action is based on a breach of contract and the terms of the contract require a letter
of demand.
- 3) When a creditor intends to cancel an agreement, especially when the original agreement contains no
right to an automatic cancellation, a demand is necessary.
- 4) Where no date for performance has been agreed upon, a demand is necessary to place the debtor in
mora.
- 5) If a party wishes to claim mora interest, a demand is necessary to place the debtor in mora.

Section 56 MCA: a creditor will be able to recover the costs of a letter of demand only if it is sent by registered post.

3.5 Prescription and time-limitation statutes

It is of utmost importance for legal representatives to acquaint themselves with the various pieces of legislation
dealing with prescription and similar time limitations, since the non-adherence to these limitations may result in a
professional negligence claim against the legal representative.

3.5.1 The Prescription Act 68 of 1969

Section 11 of the Prescription Act provides for different extinctive time periods for debts (in calendar days):
- 30 years in respect of:
o Mortgage bonds.
o Judgement debts.
o Tex levied ITO statute.
o Debts owed to State regarding mineral prospects and mining.
- 15 years:
o Debts owing to State arising from loan of money and sale and lease of land.
- 6 years:
o Bills of exchange or other negotiable instrument.
o Notarial contracts.
- 3 years:
o For any other debt.

Prescription must be pleaded specially and the court will not take notice of prescription mero motu. I.e. a judgement
may still be granted even where a claim has prescribed if prescription is not formally raised by the defendant.
- Section 13(1) of the Prescription Act provides for suspension of prescription (e.g. under curatorship, minor,
etc).

3.5.2 Legal Proceedings Against Organs of State Act 40 of 2002

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An organ of State may be any national, provincial or local government department, any organ or institution
exercising a function as defined in the Constitution or any person for whose debt an organ of State is liable.

A creditor needs to issue a written notice of intention to institute legal proceedings to the organ of State, and needs
to receive a written consent to such institution of legal proceedings.

Section 1(2): the Act doesn’t apply to a debt against the State which has been extinguished by prescription before
the fixed date of 28 November 2002.

Section 3: written notice of intention to institute legal action must be issued within 6 months of the date on wich the
cause of action arose.
- The action must be instituted by issuing and serving summons as provided for in the Rules of Court.
- The notice must be served by hand delivery or by certified mail.
- The notice must contain a brief summary of the facts giving rise to the cause of action and such particulars
as are within the knowledge of the plaintiff.

3.5.3 Road Accident Fund Act 56 of 1996

Section 17: prescription ends after 3 years from the date upon which the cause of action arises.
Section 24(6): litigation cannot commence within 120 days after delivery of a claim to the fund.
Section 23(2): prescription does not run against minors, persons under curatorship or persons held under mental
health legislation.

3.5.4 Apportionment of Damages Act 34 of 1956

Prescription period regarding the collection of contribution payable ITO this Act is 12 months from the date of
judgement or final judgement on appeal.

3.6 Superannuation

There are certain provisions with respect to timing which may hamper a person’s ability to obtain relief.

3.6.1 Superannuation of judgements

HCR 66(1): no writ of execution may be issued after the expiration of 3 years from the judgement, unless the
debtor consents or the judgement is revived by a court order.

3.6.2 Superannuation of summons

MCR 10: a summons shall lapse if it is not served within 12 months of the date of issue or, having been served, the
plaintiff has not, within a 12 months period, taken any further steps in the prosecution of the action.
- This is subject to the proviso that the plaintiff or his or her attorney may file an affidavit with the clerk of the
court before the expiration of the 12 months period, stating that:
o An extension of time in which to pay the debt has been granted, or
o Judgement cannot be sought within a period of 12 months.

Once the summons lapses, ITO MCR 10 no further action may be taken (Claude Neon Lights v Bourbon-Leftley
1971).
- On a proper interpretation of MCR 60(5) an extension of the 12 month period is permitted ( Manyasha v
Minister of Law and Order 1992).

3.7 Time periods for the delivery of pleading

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In both the HC and the MC there are certain fixed time limits within which all legal processes must be served or
delivered.
- These are calculated ITO Section 4 of the Interpretation Act 33 of 1957.
- “First day out, last day in”  first day of the time period excluded and last day included.
- Uniform Rules of Court refer to court days.
o Court days are calculated by excluding not only the first day but also any Saturday, Sunday or
public holiday which falls within that time period.

3.8 National Credit Act 34 of 2005

This Act will regulate aspects of consumer credit regarding good to be purchased, leased or otherwise acquired,
services rendered or credit to be granted.

CHAPTER 4
Jurisdiction – The General Principles

Jurisdiction refers to the authority or the competence of a particular court to hear a matter which has been brought
before it and to grant relief in respect of that matter.
- If a court lacks jurisdiction it may refuse to adjudicate and dismiss that matter. The court may also order the
plaintiff to pay the wasted costs.

Jurisdiction entails a 2-stage enquiry to establish:

- Whether a lower court is competent to hear a matter or whether the matter lies within the exclusive
competence of a HC.
- Which provincial or local division of the HC, or alternatively which district of the MC, has jurisdiction.

4.1 General Principles

The term “grounds of jurisdiction” refers to the rules which have emerged either by way of binding precedent or by
way of statutory enactment.

4.1.1 The Principle of “actor sequitur forum rei”

This is the general rule regarding the institution of legal proceedings, and entails that the plaintiff/applicant must
follow the defendant/respondent to the defendant’s forum and institute proceedings there.
- This is an application of the rule that the court should exercise jurisdiction only in respect of matters in
which it can give effect to its judgement.
- Note: the question of “residence” is different to that of “domicile”.

4.1.2 The principle of effectiveness

In terms of this principle, the court should ordinarily assume jurisdiction only in those cases where it is able to give
effect to the order which it makes so as to make that order meaningful.

4.1.3 The principle of convenience

A court will often assume jurisdiction on the convenient basis that the “cause of action” arose within its area of
jurisdiction. The area in which the cause of action arose is the area where the facts upon which the plaintiff’s claim
is based occurred.

4.1.4 The principle of consent (submission or prorogation)

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A court which would not ordinarily be competent to adjudicate a matter (e.g. in the plaintiff’s area) may exercise
jurisdiction over a defendant if the defendant consents or submits to the court’s jurisdiction.
- Such consent may be expressly conferred, or the party’s submission may be tacitly inferred by his or her
conduct or failure to act.
- This depends on the facts and circumstances of the case.

4.2 Legal terminology

- Incola:
o An incola is a person domiciled or resident within the jurisdictional area of a specific court.
- Peregrinus:
o A peregrinus is a person domiciled or resident outside the jurisdictional area of a specific court.
- Local Peregrinus:
o A local peregrinus is a person domiciled or resident outside the jurisdictional area of a specific
court, but within the RSA as a whole.
- Foreign Peregrinus:
o Foreign peregrinus is a person domiciled or resident outide of the RSA as a whole, and therefore a
foreigner to SA courts.

4.3 The meaning of domicile and residence

This determination depends on the legal nature of the person. I.e. whether that person is:
- A natural person.
- A juristic person.
- A foreign juristic person.
- A partnership.
- The State.

4.3.1 Natural Persons

In order for a natural person to acquire a “domicile” he must have animus manendi or the intention to remain within
the area permanently or at least indefinitely.
- This is a specific requirement in order to obtain a domicile of choice ITO section 1(2) of the Domicile Act 3
of 1992.

“Residence” on the other hand requires at least physical presence. No animus manendi is required.
- Although it need not be continuous, physical presence cannot be transitory or momentary.
- It is possible for a person to have more than 1 residence (Mayne v Main 2001), and in these cases the
person will be sued in the court having jurisdiction at the place where that person was residing at the time
the summons was served.

4.3.2 Juristic Persons

A corporation is regarded as being resident in its “principal place of business” (TW Beckett v H Kroomer 1912).

From provisions of the Companies Act 61 of 1973 it can be inferred that the “registered office” of a company is its
legal home.

Where a company’s registered office and place of business are in different places, the courts of both areas will
have jurisdiction.

4.3.3 Foreign juristic persons

A foreign corporation will be regarded as resident in SA in 2 circumstances:

- 1) If it has its principal place of business in SA.

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 - 2) If the foreign corporation has a branch office in SA, within the court’s area of jurisdiction, from which it
carries on business, provided that the cause of action arose from the activities of that branch.
In both of these cases SA courts will have jurisdiction.

4.3.4 Partnerships

Although HCR 14 and MCR 54 make it possible to sue a partnership in its own name, this is merely a procedural
convenience and does not alter the fact that the action is, in reality, against the individual partners as co-
defendants, since the partnership itself has no separate legal personality.

4.3.5 The State

In the HC, residence is eliminated as a ground for jurisdiction in respect of matters against the State.
- I.e. A plaintiff can sue the State in any division of the HC.
- This also applies for the MC.

4.4 Inherent and prescribed jurisdiction

The HC had inherent jurisdiction and may hear any matter that is not excluded by statute.

The MC is a creature of statute and may this only hear matters permitted to it by statute.

4.5 General limitations on jurisdiction

The principles discussed above are not the only factors to be considered when dealing with the question of
jurisdiction because, as a general rule, the jurisdiction of an SA court may be limited in 3 respects:
- 1) The area or territory over which it has jurisdiction.
- 2) The value of a claim.
- 3) The type of a claim.

These will be discussed in detail further on!

4.6 Specific jurisdictional provisions

Sometimes other pieces of legislation purposely provide for jurisdiction in respect of specific matters.
- In such circumstances the specific jurisdictional provisions contained in these pieced of legislation will
enjoy preference over the general principles of the common law and the provisions contained in the
Supreme Court and Magistrates’ Courts Act, although it may still be necessary to consider the common law
principles where the jurisdictional provisions in such legislation are unclear.
- 3 such provisions are contained in the Insolvency Act 24 of 1936, the Companies Act 61 of 1973, and the
Close Corporations Act 69 of 1984.

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 CHAPTER 5
Jurisdiction of the High Courts

5.1 Introduction

The HC has inherent jurisdiction.

- This means that the HC possesses the discretion to make any order or to undertake any procedural step
as long as the law does not prohibit it. This means that the HC possesses the discretion to make any order
or to undertake any procedural step as long as the law does not prohibit it.
- I.e. the court has the power to:
o Regulate its own procedure.
o Adjudicate upon any unlawful interference with rights.

“Inherent” and “innate” jurisdiction.

- Inherent jurisdiction properly refers only to the power of the court to regulate its own procedure.
- Innate jurisdiction refers to an unfettered power to adjudicate almost any unlawful interference with rights.
- The courts inherent jurisdiction is therefore simply a sub-category of innate jurisdiction.

Power to regulate its own procedure:

- With regards to power to regulate its own procedure, a HC is not constrained by the Rules of Court.
- Therefore, if a matter is not prescribed by the HCR, the HC may, insofar as the rules are deficient, grant
orders which further the administration of justice.

Power to adjudicate non-procedural matters:

- In this regard, both the HC and the MC are limited in 3 respects:
o 1) The value of a claim.
o 2) The type of claim.
o 3) The area or territory over which it has jurisdiction.

5.2 Jurisdiction with regard to the VALUE of the claim

5.2.1 No limitation with regard to value

Jurisdiction of the HC is not limited with regard to the amount of the claim.

5.2.2 The discretion regarding costs

The HC has always discouraged plaintiff’s from bringing before it matters which are within the jurisdiction of the MC
by granting costs on only the MC scale to successful plaintiff’s who could just as easily have pursued their claims in
a civil MC.
- Since the HC costs are far greater than those of a MC, the plaintiff will be losing out.

5.2.3 Removal of a matter to the MC

HCR 39(22): Where an action has been instituted in a HC and it subsequently transpires that the amount claimed is
within the jurisdiction of the MC, the matter may be transferred to a MC by consent of the parties.

HCR 41(1): if the defendant refuses to consent to the transfer of the matter, the plaintiff may withdraw the action
and reinstitute it in a MC.

5.3 Jurisdiction with regard to the TYPE of claim

The HC may hear any type of matter unless its authority to do so has been curtailed by statute.

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 - E.g. if the jurisdiction of specialised courts such as the Land Claims Court, Labour Court, etc.
- However, legislative provisions which restrict the jurisdiction of the HC are interpreted restrictively.

5.4 Jurisdiction with regard to TERRITORY

5.4.1 Section 19(1)(a) of the Supreme Court Act

This section provides inter alia that a provincial or local division shall have jurisdiction over all persons residing or
being in and in relation to all causes arising and all offences triable within the area of its jurisdiction and all other
matters of which it may according to law take cognisance.
- The effect of s 19(1) is to limit the jurisdiction of a specific division of the HC territorially to its defined area.
It specifically mentions 2 alternative grounds of jurisdiction:
o A person “residing or being in” its area of jurisdiction.
o The fact that the “cause” arose within its area of jurisdiction.
- This section does not, in general terms, seek to introduce any other jurisdictional limitations.

5.4.2 The common law rule in general terms

The following 2 factors need to be considered in order to determine whether a particular court has jurisdiction:
- 1) Whether one or more rationes jurisdictionis apply to the circumstances of the matter.
- 2) Whether an order given by the courtwould be meaningful or effective.

5.4.2.1 The existence of a “link” or a “ratio jurisdictionis”

At common law, the general rule is that a court will assume jurisdiction only if there is a recognised link between it
and the matter before it.
- The link may relate to the locality of:
o The defendant (or respondent).
o The property which is the subject matter of the litigation.
o The cause of action.
- Therefore the existence of such a link or ratio jurisdictionis will depend on the nature of the action and/or
the subject matter of the action.
- This link must exist at the time of the institution of the action.
o Even if the link ceases to exist while the matter is in progress, the court will remain with jurisdiction
throughout the duration of the proceedings.

5.4.2.2 Considerations of effectiveness

The principle of effectiveness is an NB consideration in the determination of whether the court has jurisdiction to
adjudicate a matter.

5.4.3 The rule in more specific terms

The jurisdictional rules which the courts have developed depend largely on the nature of the particular claim
brought and, consequently, the relief sought. There are 3 major types of claim:
- 1) For divorce.
- 2) Relating to property.
- 3) Sounding in money.

5.4.4 Jurisdiction in divorce actions

Section 2(1) of the Divorce Act 70 of 1979 provides that a court shall have jurisdiction in a divorce action if the
parties to the action are, or if either party to the action is:
- Domiciled in the area of jurisdiction of the court on the date on which the action is instituted, or

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 - Ordinarily resident in the area of jurisdiction of the court on ate on which the action is instituted and have or
has been ordinarily resident in the Republic for one year immediately prior to that date.

The term “divorce action” is defined in s 1(1) of the Divorce Act as any action in which a divorce order or other relief
relating to divorce is requested.

HCR 43: applies when a spouse approaches the court for the following relief:
- Maintenance pendete lite.
- Contributions to the costs of a pending matrimonial suit.
- Interim custody of a child.
- Interim access to a child.

5.4.5 Proceedings relating to property

The general rule is that the court in the area in which the property is situated (forum rei sitae) will have jurisdiction
to determine matters which affect rights in property.
- The question is whether forum rei sitae has exclusive jurisdiction.

Immovable property:
- Forum rei sitae will have exclusive jurisdiction in respect of (x3):
o 1) Proceedings to determine title to property.
o 2) Proceedings aimed at obtaining a declaratory order to the effect that a real right is held in the
property or that the property is free of an alleged real right.
o 3) Claims for the handing over of occupation or possession of property.
- Forum rei sitae will not have exclusive jurisdiction, only jurisdiction, in the following types of claim (x4):
o 1) Claims for the transfer or partition of immovable property.
o 2) Claims for the rescission of a contract for the sale of immovable property.
o 3) Proceedings for a declaration that property is executable.
o 4) An application to sell or mortgage a minor’s immovable property is usually brought before the
court of a minor’s domicile.

Movable property:
- Forum rei sitae has jurisdiction in respect of claims relating to movable property.
- Still unclear whether exclusive or not.

Incorporeal property:
- Incorporeal property cannot have an actual locality, but the law attributes to it a fictional locality (situs), and
the court of the area of that situs will have jurisdiction to determine claims regarding such property.
- It seems that in almost all cases this is an exclusive jurisdiction.

5.4.6 Proceedings in which a money judgement is claimed

As was previously indicated, the doctrine of effectiveness is central to the determination of jurisdiction.
- In order to assist incola plaintiffs to litigate from SA courts, incola plaintiffs have been allowed to arrest
foreign peregrinus defendants or attach their property in order to create jurisdiction for our courts.
o NB: this attachment may occur only if the defendant or his/her property is present in the RSA at the
time that the application for arrest or attachment is made (i.e. within the borders of the Republic).
o Note: section 28(1) of the Supreme Court Act (ScA) prohibits attachment of a person or property
who is resident in the RSA.

Arrests or attachments made in order to confer jurisdiction of a court may be of the following nature:
o To found jurisdiction (ad fundandam jurisdictionem).
o To confirm jurisdiction (ad confirmandam jurisdictionem)
- These are simply descriptive terms used to explain the circumstances of an arrest or attachment.
- Where the attachment of property or arrest of the foreign peregrinus is made in the absence of nay other
ground of jurisdictio (ratio jurisdictionis), it is described as an attachment or arrest to found jurisdiction

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 since, as the name implies, the attachment is in reality the only ground upon which the court assumes
jurisdiction.
o In such a case the attachment actually establishes jurisdiction.

In each of the categories described below the emphasis is placed upon the defendant’s location. This is because of
the actor sequitur forum rei rule, which holds that the court of the area in which the defendant resides and/or carries
on business will have jurisdiction. However, when dealing with claims sounding in money, the plaintiff’s place of
residence and/or business is sometimes relevant for the purposes of jurisdiction. (see examples in TB p55
onwards).
- (a) The defendant is an incola while the plaintiff is either a foreign peregrinus, a local peregrinus or an incola.
o When the defendant is an incola of the courts area of jurisdiction, the court will always assume
jurisdiction in accordance with s 19(1)(a) ScA and in accordance with the common law principle of
actor sequitur forum rei.
o Not only is attachment of the defendant’s property unnecessary, but arrest or attachment is prohibited
ITO s 28(1) SCA.
- (b) The defendant is a local peregrinus while the plaintiff is either a foreifn peregrinus, a local peegrinus or an
incola.
o Where a plaintiff wishes to sue a defendant at a place where the defendant is not resident, then the
existence of a recognised ratio jurisdictionis is essential. This is in accordance with the provisions of s
19(1)(a) SCA as well as the common law.
o Because jurisdiction may be placed on wither the defendant’s location or the location of the cause of
action, the plaintiff (as dominus litis) has an election as to which court to sue out of.
 In such cases considerations of convenience will be determinative.
o Arrest or attachment of the defendant’s property is also prohibited ITO s 28(1) SCA.
- (c) The defendant is a foreign peregrinus while the plaintiff is an incola.
o Where the defendant is a foreign peregrinus, the arrest of the foreign peregrinus or the attachment of
the foreigner’s property is essential.
o Where the plaintiff is an incola of the court’s area of jurisdiction, the existence or absence of a ratio
jurisdictionis determines whether there must be an arrest or attachment to either found jurisdiction or
confirm jurisdiction.
o In an action against a foreign peregrinus an incola is afforded a favourable condition – i.e. the incola is
entitled to institute action against the foreigner in the incola’s court regardless of the presence or
absence of a ratio jurisdictionis (because SA courts should aid SA subjects).
o The attachment alone creates jurisdiction.
o The requirement is merely that the foreign peregrinus must be present within the borders of the
Republic (not necessarily the court) when the application for arrest is called for.
- (d) The defendant is a foreign peregrinus while the plaintiff is either a local or foreign peregrinus.
o A recognised ratio jurisdictionis as well as an arrest or attachment is essential.
o Since the arrest or attachment must occur where there is already a ratio jurisdictionis the arrest is said
to be an attachment to confirm jurisdiction.
 Since the plaintiff is not an incola of a SA court, it is not possible to arrest the person or
property of the defendant in order to found jurisdiction.
o Requirement is merely that the foreign peregrinus be present within the borders of the Republic (not
necessarily the court) at the stage of the arrest.

Note: where the defendant is domiciled or resident within the Republic arrest or attachment will never be permitted
due to the prohibition in s 28(1) SCA.
- However, where the defendant is domiciled or resident outside of the Republic arrest or attachment is
essential, subject to the doctrine of submission.

Miscellaneous issues:
- Principles relating to attachment for jurisdictional purposes are applicable only to claims sounding in
money!
- As a general rule, all corporeal property may be attached (and incorporeal property of the defendant as
well).
o The property or right which the applicant seeks to attach must belong to the respondent.
- There is no requirement that the value of property attached needs to be related to the amount of the claim
advanced in the proposed litigation.

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 o Note: it has been held that the property must have a value at the time when the attachment order is
granted and served, and the fact that it thereafter became valueless does not affect the court’s
jurisdiction, which was founded or confirmed by the attachment.
- Where movable property belonging to a respondent is sought to be attached, and the order has built into it
the requirement that the property to be attached must belong to the respondent, the prder may direct the
attachment of all movable property belonging to the respondent in his ir her or another’s possession at a
specific address.
o It is NB to note that the order may also take the form of an arrest of the foreign peregrinus (but the
arrest may be subject to constitutional challenge).
- A defendant who has been arrested or who has property attached will be released only if security is
provided to cover the claim plus costs.
o The defendant who cannot put up security will be held in jail pending the decision of the court, or
the defendant’s property will be held under attachment pending satisfaction of the judgement.

The doctrine of submission:

- Parties cannot by consent exclude the jurisdiction of a court which would otherwise have jurisdiction.
However, in certain circumstance (below), the parties can impliedly or expressly confer jurisdiction upon a
court, and such consent may render an arrest of a foreign peregrinus defendant or attachment of his
property unnecessary and/or impermissible.
- (a) The defendant is an incola while the plaintiff is either a foreign peregrinus, a local peregrinus or an
incola.
o Since the courts will always assume jurisdiction over an incola, the question of consent or
submission is irrelevant.
- (b) The defendant is a local peregrinus while the plaintiff is either a foreign peregrinus, a local peregrinus
or an incola.
o The existence of a ratio jurisdictionis is essential, therefore consent on its own cannot confer
jurisdiction upon a court. One or more of the traditional grounds of jurisdiction must be present.
- (c) The defendant is a foreign peregrinus while the plaintiff is an incola.
o In this scenario a SA court can exercise jurisdiction either ad fundandam or ad confirmandam as
explained above.
- (d) The defendant is a foreign peregrinus while the plaintiff is either a local or foreign peregrinus.
o A submission to jurisdiction in these circumstances is sufficient to give the court jurisdiction without
the necessity of an attachment to confirm jurisdiction.
o However, without the existence of a ratio jurisdictionis, submission alone will not suffice to create
jurisdiction.

Timing of submission:
- The time at which a party submits to the jurisdiction is an NB consideration.
- Where the contract giving rise to the cause of action contains a consent to the jurisdiction of the court,
arrest or attachment will not be necessary.
- As long as a party submits to jurisdiction before an order for arrest or attachment is executed, such arrest
or attachment will not be necessary for purposes of jurisdiction.

5.5 Concurrent Jurisdiction

“Concurrent jurisdiction” means that 2 or more courts exercise jurisdiction in respect of a matter.

5.6 Jurisdiction for the purposes of counterclaims

It is a well-established rule of law that a plaintiff who has instituted proceedings in a particular court will be subject
to that court’s jurisdiction in respect of any counterclaim brought against the plaintiff in the same action by the
defendant.

5.7 The “causae continentia” doctrine

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This is the common law doctrine of cohesion or continuity of a cause of action, which allows a court that has
jurisdiction over a part of a cause to exercise its jurisdiction over the whole cause on the basis of considerations of
convenience, justice and good sense.
- It may therefore be applied where causes of action flow or continue from a main cause.
- E.g. a plaintiff may sue a number of different defendants in one matter, some of whom were incolae, while
others were peregrini, but where the cause of action in respect to all of them are similar.
- However, s 19(1)(b) SCA render it unnecessary to apply the cohesion of causes doctrine because the
section provides that a division of the HC has jurisdiction over a person “who is joined as a party to any
cause in relation to which such division has jurisdiction or who in terms of a third-party notice becomes a
party to such a cause”, even if that person is not otherwise subject to its jurisdiction.

5.8 Removal of a matter to another division

Section 9(1) SCA provides that if, in any civil proceedings instituted in a provincial or local division, it appears to the
court that the matter may more conveniently be determined in another division, the court may, on application by
any party and after hearing all the other parties, order removal to that other division.
- The division to which the case is transferred need not have been originally competent, but the court in
which the matter was first instituted must itself have had jurisdiction.
- Section 26(1) SCA: the civil process authorised by a specific provincial or local division of the HC is
otherwise valid throughout the Republic and may thus be served or executed within the jurisdiction of any
such provision.

CHAPTER 6
Jurisdiction of the Magistrates’ Courts

6.1 Introduction

Since the MCs derive jurisdiction from the Magistrates’ Courts Act (MCA), a court may hear only those matters
which the MCA allows it to hear.
- The MCs also do not have the inherent power to regulate their own procedure.
- The MCs must therefore regulate their procedure strictly from the Magistrates’ Courts Rules (MCR).
- Statutes other than the MCA itself may also confer jurisdiction upon the civil MCs.

As is in the case of the HC, the jurisdiction of the MCs may be limited in respect of:
- 1) The type of claim.
- 2) The value of a claim.
- 3) The area or territory over which it has jurisdiction.

6.2 Constitutional jurisdiction

Section 170 of the final Constitution reads: “MCs and all other courts may decide any matter determined by an Act
of Parliament, but a court of a status lower than a HC may not enquire into or rule on the constitutionality of any
legislation or any conduct of the President.”
- Section 170 must be read together with s 110 MCA, which also holds that a MC is not competent to inquire
into the constitutional validity of “any law” or “any conduct” of the President.

There is still question as to whether the MC have competency to develop the common law.

6.3 Jurisdiction with regard to the TYPE of claim

There are 2 sections in the MCA that provide for substantive jurisdiction:
- Section 29: which indicates which matters may be adjudicated in the MC.
- Section 46: which indicates which matters are excluded from the jurisdiction of the MC.

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 6.3.1 Matters excluded in terms of section 46

The following matters are excluded from the jurisdiction of the MCs:
- S 46(1): Actions for divorce.
- S 46(2)(a): Matters in which the validity or interpretation of a will or other testamentary document is in
question.
- S 46(2)(b): Matter in which the status of a person in respect of mental capacity is sought to be affected.
- S 46(2)(d): Matters in which a decree of perpetual silence is sought.
- S 46 (2)(c): Claims for specific performance without an alternative claim for the payment of damages.

The first 3 are self-explanatory (status), and so only the last 2 will be looked at.

6.3.1.1 Decrees of perpetual silence

This is an order which may be sought against a person who has publicly threatened to institute an action against
another.
- The threatened defendant may ask the court to order the prospective plaintiff to institute the threatened
action within a certain time, failing which the prospective plaintiff must remain silent on the matter.

6.3.1.2 Claims for “specific performance”

Although the plaintiff may not bring a claim for SP without an alternative claim for damages in the MC, s 46(2)(c)
purposely provides that a claim for SP without an alternative claim for the payment of damages is allowed in only 3
exceptional cases:
- 1) Where a plaintiff seeks an order compelling a defendant to render an account (e.g. royalties or
commission) not exceeding the limit of the court’s jurisdiction (R100 000).
- 2) Where a plaintiff claims delivery or transfer of property, movable or immovable, not exceeding the value
limit of the court’s jurisdiction (R100 000).
- 3) Where the plaintiff claims the delivery or transfer of property, movable or immovable, exceeding the
value limit (R100 000), and the parties have consented to the claim ITO s 45 MCA (which allows parties to
extend the value limit of the court by written agreement).

There have been conflicting decisions on the meaning of the words “specific performance” in s 46(2)(c). the
following 2 questions arise regarding the meaning:
- (a) Is a claim for the payment of money a claim for SP?
o Orders sounding in money (ad pecuniam solvendam), regardless of the cause of action, are not
orders for SP for the purposes of s 46 and are therefore not excluded from the competence of the
MCs  Tucker’s Land & Development Corp v Van Zyl 1977.
- (b) Does the term SP relate only to performance of a contractual obligation, or does it relate to the
performance of any obligation, whether contractual, delictual, quasi-contractual or statutory?
o The words SP are confined to SP of a contractual obligation  Olivier v Stoop 1978.
o Accordingly, a claim for the performance of an act (ad factum praestandum) is excluded from the
competence of the MC only if the obligation to perform has its origin in a contract.
o Therefore where s 46 prohibits a magistrate from hearing claims for SP without an alternative claim
for damages it should be read only to prohibit a magistrate from hearing claims for the performance
of an act which arises from a contract.

It has been held that s 30(1) MCA which authorises civil MCs to grant, inter alia, interdicts, has to be read subject to
the exclusionary provisions of s 46.
- Therefore a magistrate may not grant an order for the performance of a positive contractual obligation (a
mandatory interdict) or an order enforcing a negative contractual obligation (a prohibitory interdict, such as
a restraint-of-trade agreement) in the absence of an alternative claim for damages.
- The power to grant a mandament van spolie is not qualified by the provisions of s 46, and a magistrate
may order that something be done in addition to the mere restoration of the property  Zinman v Miller
1956.

6.3.2 Matters which may be adjudicated in terms of section 29

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The various types of claim that may be adjudicated in a MC are contained in s 29 MCA and are summarised below.
- Note: s 29 provides that “actions” may be brought in respect of each type of claim.
o Actions = a real dispute of fact. Applications = more of a legal issue.

(a) Section 29(1)(a): Actions in which is claimed the delivery or transfer of any property, movable or immovable, not
exceeding in value the amount determined by the minister.
- Similar to point 2 in exclusions above…
- This would include a rei vindicatio, for example. As has already been pointed out, although vindicatory
proceedings would ordinarily be brought in motion proceedings in the HC, such proceedings should
properly be brought by way of action in the MCs since the MCA makes no provision for a rei vindicatio to
be brought on motion.

(b) Section 29(1)(b): Actions of ejectment against the occupier of any premises or land within the district: Provided
that, where the right of occupation of any such premises or land is in dispute between the parties, such right does
not exceed the amount determined by the Minister in clear value to the occupier (R100 000).
- It is NB to note that a defendant sued for ejectment may not invoke the proviso to s 29(1)(b) at all and
contend that the matter is beyond the court’s jurisdiction, unless the defendant alleges in the plea and is
able to prove that there exists a bona fide dispute as to the right of occupation.
- The defendant cannot resist an action for ejectment on the basis that the clear value of the right of
occupation exceeds the amount determined by the Minister if, for example, the defendant admits that he or
she is not entitled to occupy the premises.
- Because the value limitation applies only to where there is a dispute as to the right of occupation, where a
defendant does not dispute a plaintiff’s allegation that he or she has no right to be in occupation, the MC of
the area in which the property or land is situated will always be competent to order ejectment, even where
the clear value to the defendant exceeds the value limit.
- Therefore it is not necessary for the plaintiff to state the value of the right of occupation in the summons.
The issue is usually raised by the defendant in the plea, and the defendant bears the onus of proving:
o That there is a bona fide dispute as to the right of occupation.
o That the clear value to the occupier of that right exceeds the court’s jurisdiction.

(c) Section 29(1)(c): Actions for the determinaion of a right of way, notwithstanding the provisions of s 46.
- No restriction is placed upon the value of a right of way, and the order may be one of specific performance.

(d) Section 29(1)(d): Actions on or arising out of a liquid document or a mortgage bond, where the claim does not
exceed the amount determined by the Minister (R100 000)
- A liquid document is one which, upon proper construction of the document, supports, by its terms and
without resort to extrinsic evidence:
o An acknowledgement of indebtedness,
o In an ascertained amount of money,
o The payment of which is presently due to the creditor,
o Whose identity is apparent from the document.
- A liquid document is thus one in which the acknowledgement or undertaking to pay is clear and certain on
the face of the document itself, and in respect of which no extrinsic evidence is required to prove the
indebtedness.
o E.g. acknowledgements of debts, promissory notes, cheques, deeds of sale, etc.
- A document will also be regarded as “liquid” for purposes of s 29(1)(d) if it satisfies the requirements for the
grant of provisional sentence.

(e) Section 29(1)(e): Actions on or arising out of any credit agreement as defined in section 1 of the National Credit
Act 34 of 2005, where the claim or the value of the property in dispute does not exceed the amount determined by
the Minister (R100 000).
- A “credit agreement” as defined ITO s 1 of the NCA is an agreement that meets all the criteria as set out in
section 8.

(f) Section 29(1)(f): Actions in terms of section 16(1) of the Matrimonial Property Act 88 of 1984, where the claim or
the value of the property in dispute does not exceed the amount determined by the Minister (R100 000).
- Section 16(1) of the MPA provides that when a spouse married in community of property withholds the
consent required by that Act for certain transactions in which common property will be alienated or dealt

18
 with in some way, or where a spouse withholds consent for the institution of certain legal proceedings, a
court may, on the application of the other spouse, give leave to enter into the transaction or to institute the
legal proceedings in question without the consent of the first spouse.
- The court must be satisfied that the first spouse is withholding consent unreasonably or that there is a good
reason to dispense with that consent.

(g) Section 29(1)(fA): Actions, including an application for liquidation, in terms of the Close Corporations Act.
- No restriction is placed upon the value with regard to such actions, and the application for the liquidation of
a CC may thus always be brought in the MCs.

(h) Section 29(1)(g): Actions other than those already mentioned in this section where the claim or the value of the
matter in dispute does not exceed the amount determined by the Minister (R100 000).
- This is a general provision, which will apply to all matters not already specifically catered for by subsections
(a)-(f) of s 29(1) and not excluded by s 46.

6.4 Jurisdiction with regard to the VALUE of a claim

Section 29 MCA empowers the Minister of Justice to determine value limits in respect of different types of claim set
out in s 29(1) by publication of a notice in the GG.
- ITO s 29(1)(g) and since 1 May 1995, the MCs may, in principle, adjudicate all cases involving amounts not
exceeding R100 000.
- Since the monetary limit has been standardised in respect of each type of claim, the different categories of
claim set out in s 29(1) should be seen as setting out specific provisions either:
o Dispensing with the monetary limit entirely, as is the case with s 29(1)(c), which deals with actions
for the determination of a right of way and s 29(1)(fA), which deals with actions or applications for
the liquidation of CCs; or
o Setting out the manner in which the R100 000 limit is determined.

It should also be noted that s 37(3) MCA provides that no prayer for interest or costs or alternative legal relief may
be taken into account when determining whether or not a claim falls within the monetary jurisdiction of the MCs.

6.5 Jurisdiction with regards to TERRITORY

Section 28(1) MCA provides that the MCs shall have jurisdiction over only those persons set out in the subsection.
- The word “person” refers to the defendant, and the court must therefore have jurisdiction over the person of
the defendant. The word “person”, as it appear in s 28, will include natural persons, companies and other
corporate bodies, municipal and provincial bodies and the State, as set out in s 28(2).

In terms of s 28(1), a MC has jurisdiction in respect of the person of the defendant in the instances set out below:

(a) Section 28(1)(a): Any person who resides, carries on business or is employed within the district of the court.
- This section read with the general principle actor sequitur forum rei is concerned with determining where
the defendant resides, carries on business or is employed.
- The plaintiff must seek out the defendant and institute action where the defendant lives or works.
- Where the plaintiff resides, carries on business or is employed is irrelevant in the application of this section.

(b) Section 28(1)(b): Any partnership which has business premises situated in or any member whereof resides
within the district of that court.

(c) Section 28(1)(c): Any person whatever, in respect of any proceedings incidental to any action or proceeding
instituted in the court by such person himself.

(d) Section 28(1)(d): Any person, whether or not he resides, carries on business or is employed within the district, if
the cause of action arose wholly within the district.
- A cause of action is said to arise “wholly” within a district of the court ITO s 28(1)(d) when all of the facta
probanda have occurred within the jurisdiction of a particular MC.
o What must fall within the court’s jurisdiction are the facts that are necessary for the plaintiff to
prove, not the evidence needed in order to prove each essential fact.

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 - MCR 6(5)(f) relating to the endorsement of a summons states that when this ground of jurisdiction is relied
upon the summons must contain an averment that the whole cause of action arose within the area of
jurisdiction of the court that is approached, but need not set out further particulars, although the defendant
may request them.
- In certain instances, specific Acts contain provisions relating to jurisdiction based on cause of action.
o E.g. s 15(3) of the Motor Vehicle Accidents Act 84 of 1986 states that the court of the area in which
an accident took place has jurisdiction to hear claims arising out of that collision against third-party
insurers.

(e) Section 28(1)(e): Any party to interpleader proceedings if:

- The execution creditor and every claimant to the subject matter of the proceedings reside, carry on
business, or are employed within the district; or
- The subject matter of the proceedings has been attached by process of the court; or
- Such proceedings are taken under s 69(2) MCA and the person therein referred to as the “third party”
resides, carries on business, or is employed within the district; or
- All the parties consent to the jurisdiction of the court.
o Interpleader proceedings are proceedings which enables a person in control of property that does
not belong to him or her and which is being claimed by 2 or more third parties contesting title
against each other, to call upon these third parties to appear before the court in order for the court
to determine who is legally entitled to the property.

(f) Section 28(1)(f): Any defendant whether in convention or reconvention who appears and takes no objection to
the jurisdiction of the court.

(g) Section 28(1)(g): Any person who owns immovable property within the district, in actions in respect of such
property or in respect of mortgage bonds thereon.
- For this provision to be applicable, the defendant must be the owner of the immovable property in question
and the action must be in respect of the property or a mortgage bond passed over it.
- MCR 6(5)(g) provides that when this ground of jurisdiction is relied upon, the summons must contain an
averment that the property concerned is situated within the area of jurisdiction of the court.

~See example on page 74.

6.7 Extension of jurisdiction

The jurisdiction of the MC may be extended in the following ways:

6.7.1 Incidental jurisdiction

Section 37 MCA has the effect of enabling a court to assume jurisdiction as long as the capital amount claimed is
within the courts jurisdiction. It does not matter that the transactions or circumstances giving rise to the claim
involve much larger amounts.
- Therefore, where an amount of money is claimed that falls within the jurisdiction of the MC, and such
amount represents the balance of an account, the court may enquire and take evidence, if necessary on
the whole account, even if such account contains items and transactions that cause it to exceed the
monetary jurisdiction of the MC.
- It has been held that the MC do not have jurisdiction to make a decision with regard to the validity or
interpretation of a will if this is incidental to the main relief claimed.
o Therefore s 46(2)(a) is not qualified by s 37(2) – Fourie v Fourie 1998.
- It has also been held that the MC does not have jurisdiction to decide a constitutional issue on the basis
that the constitutional issue was incidental to the main relief claimed – Hahndied NO v Raath 1977.

6.7.2 Abandonment of portion of a claim ITO s 38

ITO s 38 when the plaintiff’s claim exceeds the jurisdiction of the MC’s, the plaintiff may, in the summons or any
time thereafter, explicitly abandon a portion of the claim in order to bring it within the jurisdiction of the court.
- It has been held that the words “or at any time thereafter” are wide enough to include abandonment during
the trial before judgement is given.

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 - ITO MCR 6(3)(b) an averment of abandonment must be included in the summons. If abandonment is not
set out in the summons, the defendant would be likely to plead that the court has no jurisdiction to entertain
the plaintiff’s claim.
- It is NB to note that if the abandonment is made after the service of summons, the summons should be
amended ITO MCR 55A to include the particulars of the abandonment.

6.7.2.1 When will a plaintiff abandon?

When:
- (a) The amount by which the claim exceeds the court’s jurisdiction is not sufficiently large to justify incurring
HC costs, which are larger than MC costs.
- (b) When the plaintiff anticipates not succeeding in obtaining judgement for the full amount of the claim and
the amount that it is expected to recover is within, or exceeds by only a small margin, the jurisdiction of the
MC.
o A plaintiff who institutes action in the HC and succeeds in proving entitlement to only an amount
which falls within the jurisdiction of the MC’s will normally be awarded costs on only the MC scale.

6.7.2.2 Proviso to s 38

If any part of a claim is abandoned, it shall be deemed to be extinguished. However, the proviso contained in s
38(2) states that if the claim is upheld in part only, the abandonment made under s 38 shall be deemed to take
effect first upon that part of the claim which is not upheld.

The effects of this is that the plaintiff has to abandon only so much as is necessary to bring the amount for which
the court gives judgement within the court’s jurisdiction.
- To put it differently, when the claim is upheld in part only, the amount which was initially abandoned must
be subtracted from the amount claimed in the summons, not from the lesser amount which has in fact been
proved.

~See examples on page 76!

Note: The golden rule for abandoning is that the plaintiff gets judgement for the amount that the plaintiff proves so
long as the final amount does not exceed R100 000.

6.7.3 Deduction of an admitted debt ITO s 39

in order to bring a claim within the monetary jurisdictional limit of the MC’s, a plaintiff may, in the summons or any
time thereafter, deduct from the claim any admitted amount due to the defendant, irrespective of whether that
amount is liquidated or unliquidated.
- It is also NB to include an averment of such deduction in the summons ITO MCR 6(3)(b) to avoid a plea of
lack of jurisdiction.
- If the deduction is made after the service of the summons, the summons should be amended accordingly
ITO MCR 55A.

6.7.3.1 Where the plaintiff’s claim is partially successful

When a claim is only partially successful, the operation of this section is not the same as that of s 38. Under s 39,
the plaintiff has to deduct the admitted debt from the amount to which the court finds the plaintiff entitled.

~See examples on page 78!

Note: the golden rule for deducting an admitted debt is that the plaintiff gets judgement for the amount proved,
minus the admitted debt as long as the final amount does not exceed R100 000.

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 6.7.3.2 Successful counterclaim after an abandonment

A plaintiff who chooses to abandon rather than deduct an admitted debt may obtain a net award of less than that
which would have been received on a deduction ITO s 39. This will be the case when the defendant successfully
counterclaims after the plaintiff has abandoned an amount ITO s 38.

~See example on page 79!

6.7.4 Consent to the extension of jurisdiction ITO s 45

ITO s 45 it is possible to confer jurisdiction by consent on the MC’s or on a specific MC where the MC’s or that
specific MC did not initially have jurisdiction.
- The extension of jurisdiction by consent cannot, however, be done in respect of those causes of action
which are specifically excluded by s 46.
- According to s 45, the parties may consent in writing to an extension of jurisdiction in the following
situations:
o (a) The parties may consent to increase the monetary jurisdictional limit of the MC’s.
 Such consent may be given beforehand without reference to a particular claim – i.e. it may
be given in anticipation of claims which might arise in the future.
o (b) The parties may also consent to the jurisdiction of a specific MC which would not ordinarily
have jurisdiction in respect of the person of the defendant.
 However, in such a case the proviso contained in s 45(1) states that such consent will be
valid only if it is given “specifically with reference to particular proceedings already
instituted or about to be instituted”.
 Therefore the consent may not be given in anticipation of claims which might arise in the
future.

~See examples on page 81!

6.8 Further provisions and related matters

6.8.1 Transfer of a matter from one court to another

Section 35 provides that an action proceeding may, with the consent of all the parties or upon the application of any
party thereto, be transferred by the court to any other court.
- It must be indicated that the trial of such action or proceeding in the court wherein summons has been
issued may result in undue expense or inconvenience to that party.

6.8.2 Splitting of claims is disallowed

Section 40 MCA provides that a substantive claim exceeding the jurisdiction of the MC’s may not be split with the
object of recovering the relevant amount in more than one action if the parties to all such actions would be the
same AND the point at issue would also be the same.
- However, where the claims are based on different causes of action, there will not be an improper splitting
of claims.

~See example on page 82!

6.8.3 Cumulative jurisdiction

Section 43 MCA provides that if 2 or more claims, each based on a different cause of action, are combined in one
summons, the court will have the same jurisdiction to decide each such claim as it would have had if each claim
had formed the sole subject of a separate action.
- Therefore the effect of s 43(1) is that a plaintiff may bring a number of claims against the same defendant
in the same summons, provided that each claim arises out of a separate cause of action and that each
cause of action falls within the limits set by s 29.

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~See example on page 83!

6.8.4 Counterclaim exceeding jurisdiction of the court

Section 47 MCA sets out the procedure to be followed when a defendant’s counterclaim exceeds the jurisdiction of
the MC’s. Section 47 will apply when the court has no jurisdiction because either the court lacks territorial
jurisdiction ITO s 28, or because the amount claimed exceeds the monetary limit stipulated in s 29, or because the
counterclaim is excluded from the jurisdiction of the court by s 46.

In such a case s 47(1) provides that the MC’s must receive evidence in order to decide whether the defendant has
a prima facie reasonable prospect of success on the counterclaim.
- If the court is satisfied that there is a reasonable prospect of success, it may stay the action in the MC for a
reasonable period of time to enable the defendant to institute action in the HC. The original plaintiff may
then counterclaim in the HC.
- The procedure to be followed is set out in MCR 20(4), (5) and (6).

If the period for which the action has been stayed has expired and the defendant has failed to issue and serve a
summons in a competent court, then upon application the MC may either stay the action for a further reasonable
period or dismiss the counterclaim.
- Where the defendant fails to institute action within such further period, or if the action instituted by the
defendant has been stayed, dismissed, withdrawn or abandoned, or if the competent court has granted
absolution from the instance, the MC shall, upon application by the plaintiff, dismiss the counterclaim and
shall proceed to determine the claim.

6.8.5 Removal of a matter to a HC

Where a defendant is not content for a matter to be heard in the MC, he may ITO s 50 MCA, have the matter
removed to the HC.
- Section 50(1) states that the defendant may make such an application in any action in which the amount of
the claim exceeds the amount determined by the Minister of Justice (R100 000), subject to the following
procedural requirements being met:
o (a) Notice of intention to make such application must be given to the plaintiff, and to other
defendants, if any, before the date on which the action is set down for hearing.
o (b) The notice must state that the applicant objects to the action being tried by the court or any MC.
o (c) The applicant must give such security as the court may determine and approve, for payment for
the amount claimed and such further amount to be determined by the court not exceeding R100
000.

If there is more than 1 defendant, then any defendant may have the matter removed, provided that the
requirements of s 50 have been met.
- If the applicant (defendant) has complied with these requirements, then the action must be stayed by the
magistrate. The plaintiff may either:
o (a) Elect to remove the action to a HC, in which event the summons will stand as a summons in the
HC; or
o (b) The plaintiff may issue a fresh summons in any HC having jurisdiction, in which event the costs
already incurred by the parties to the action shall be costs in the cause.

Section 50(2) expressly provides that if a plaintiff is successful in an action which has been removed to the HC, the
plaintiff may be awarded costs as between attorney and client.
- Therefore, in such a case the defendant will have to give a good reason why such costs should not be
awarded. It is only if there is something in the plaintiff’s conduct which induces the court to express its
disapproval by withholding such costs that attorney-and-client costs will be refused.

6.9 Attachments to found or confirm jurisdiction

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Section 30bis MCA provides that the court may order attachment of the person or property to found or confirm
jurisdiction against any person which does not reside in the Republic, in respect of an action within its jurisdiction,
where the claim or the value of the matter in dispute amounts to at least R40, exclusive of any costs in respect of
the recovery thereof, and may grant an order allowing the service of any process in such action to be effected in
such manner as may be stated in such order.

Save for the provisions of s 30bis, the principles regarding the attachment of persons or property of a foreign
peregrinus, in order to found or confirm jurisdiction, are determined by reference to the general common law
principles (set out in chapter 5 above).

CHAPTER 7
The Parties

7.1 Introduction

In common law jurisdictions civil litigation is an adversarial process with one or more parties requesting specific
legal relief, and one or more parties opposing the granting of legal relief.
- The plaintiff drives the litigation, and is therefore sometimes referred to as the dominis litis.

Before a party may either initiate or defend legal proceedings, he must have locus standi.
- It is also necessary for a plaintiff to consider whether there are any other persons (natural or juristic) which
have a sufficient interest in the outcome of the litigation which the plaintiff intends to institute.
o If so, the plaintiff must “join” that person as either a plaintiff or a defendant in the proceedings.
o If a person who is not a party to the litigation believes that he has a sufficient interest in that
litigation he may “intervene” in the proceedings.

7.2 Locus standi

An analysis of a party’s locus standi involves a consideration of 2 discrete legal concepts:

- (a) An examination of whether the litigating party has a sufficient interest in the right which is the subject
matter of the litigation.
- (b) An examination of whether the litigating party has the capacity to sue or be sued.

7.2.1 In the sense of a right and interest in the relief claimed

In this sense, locus standi refers to a determination of whether the correct party is before the court. ITO common
law, the party instituting the proceedings and bringing the claim before the court must have a direct and substantial
interest in the right which forms the subject matter of the litigation.

Suggested requirements for a plaintiff or applicant:

- An adequate interests in the subject matter of the litigation, which is not a technical concept but is usually
described as a direct interest in the relief sought.
- Interest that is not too far removed.
- Actual, not abstract or academic, interest.
- Current, not hypothetical, interest.

7.2.1.1 Standing to enforce rights guaranteed in the Constitution

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The common law definition of interest above will apply in the majority of legal proceedings. However, section 38 of
the Constitution deals with litigation based on a Bill of Rights (Chapter 2) issue.
- The effects of this clause is to allow any person or organisation to enforce the rights contained in chapter 2,
irrespective of whether that person or organisation is adversely affected by the alleged infringement of
rights.
- Locus standi as defined in the Constitution has been significantly extended in the case of fundamental
human rights litigation and is much broader than common-law standing.

7.2.1.2 Class actions and public interest actions

Section 38(c) and 38(d) are perhaps the most far-reaching sub-sections of the clause and may be interpreted as
introducing the notion of a “class-action” and a “public-interest action”.

ITO s 38(c) a class action or 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.
- The South African Law Reform Commission defines a class action as “a device by which a single plaintiff
may pursue an action on behalf of all persons with a common interest in the subject matter of the suit”.
- The following questions help identify a class action:
a. Is there an identifiable class?
b. Is the cause of action known?
c. Is there a commonality of legal and factual issues?
d. Is there a suitable representative?
e. Is it of legal importance to institute the action?
f. Is there a suitable method to institute the action?
g. Is it possible to plead res judicata at the conclusion of the matter?
- The most NB characteristic of a class action is whether other members of the class, although not formally
and individually joined, benefit from and are bound by the outcome of the litigation.

Section 38(d) introduced the concept of an unrestricted public interest action. In the case of a public interest action,
the plaintiff institutes an action on behalf of the public or a distinct section of the public, even if the plaintiff has no
direct, indirect or personal interest in the outcome of the action.
- Public interest actions will mostly be directed at State organs in order to protect the rights guaranteed in the
BoR.
- 2 requirements must be fulfilled in order to institute a public interest action:
a. It must be established that a person is indeed acting in the public interest.
b. It ust be established that the public has a sufficient interest in the proposed remedy.
- A public interest action does not give rise to a res judicata. Although there are similarities between a public
interest action and a class action, their procedures differ.

7.2.2 In the sense of capacity to litigate

Every natural person possessing full legal capacity may sue or be sued. However, certain types of natural persons
do not enjoy full legal capacity and may not appear as parties in legal proceedings without appropriate assistance.

7.2.2.1 Minors

Note: a guardian who acts in a “representative capacity” is not liable for costs or damages awarded against the
minor at judgement. Since the minor is the litigant.
- However, where the guardian acts mala fide, negligently or unreasonably, the court may order the guardian
to pay costs in a personal capacity.
- Sometimes a guardian may act in a dual capacity, namely on his or her own behalf ( eo nomine) and as a
representative of the minor child (nomine officio).
o this circumstance usually arises where the minor is injured through the negligence of a third party.
- Where the minor has no guardian, or the guardian refuses to act for the minor, or when there is a conflict of
interest between the minor and guardian, the court may appoint a curator ad litem to act on the minor’s
behalf in legal proceedings.
o Note: a minor may sue without the assistance of a guardian or curator ad litem when:

25
 i. Applying for the appointment of a curator ad litem,
ii. The court grants the minor permission to sue unassisted, and
iii. Applying for permission to marry without the guardian’s consent.

7.2.2.2 Married women

All married women possess locus standi. However, spouses married in community of property cannot institute or
defend a legal proceeding without the permission of the other spouse.
- Such consent is not required when the legal proceeding is:
a. Between spouses.
b. In respect to a spouse’s separate property.
c. For the recovery of non-patrimonial damages.
d. Related to the spouse’s profession, trade or business.

7.2.2.3 Insane persons and prodigals

ITO HCR 57 an application may be made to the HC to appoint a curator to the person or property of a person or
“patient” incapable of managing his or her own affairs by reason of some mental disability or any other factor.
- ITO HCR 57(12) the provisions of the sub-rules of HCR 57 shall also apply mutatis mutandi to any
application for the appointment of a curator for a detained “state patient” as defined in the Mental Health
Act 18 of 1973.
- HCR 57 refers to 2 types of curator, namely:
a. A curator ad litem appointed by the court to protect the interests of a “patient” unfit to manage his
or her own affairs during the course of legal proceedings.
b. A curator bonis appointed by the court to manage and control the property of such an unfit
“patient”.
- A curator may be appointed for any condition or combination of conditions in any circumstance which
renders a person legally unfit.

The application is usually brought by the applicant before a court in 2 stages:

- Firstly for the appointment of a curator ad litem.
- Secondly for the appointment of a curator bonis.

The application for a curator ad litem is brought by an ex parte notice, together with supporting affidavits of:
- (a) A person(s) who is familiar with the patient and who can attest to the patient’s unsound medical health or
otherwise (HCR 57(3)(a)).
o (b) 2 medical practitioners, one of which must be an alienist or psychiatrist (HCR 57(3)(b)).
- The court-appointed curator ad litem is obliged to conduct a comprehensive investigation into the mental
condition and capacity, financial means, physical circumstances and any other subjective requirements of the
patient, including the necessity for appointing a curator bonis to manage the patient’s property.

A patient who has been declared of unsound mind and incapable of managing his or her own affairs may apply to
the court for a declaration holding that he or she is no longer of unsound mind or for release from curatorship (as
the case may be), on 15 days notice to such curator and to the Master (HCR 57(14)-(17)).

7.2.2.4 Prodigals

A prodigal is someone who is incapable of managing his or her own financial affairs.
- The court may, upon application, appoint a curator bonis directly to manage the estate of a prodigal without
the prior appointment of a curator ad litem.
- A curator ad litem is appointed only where the prodigal is incapable of understanding the nature of legal
proceedings and requires assistance in litigating.

7.2.2.5 Insolvents

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An insolvent has a very restricted locus standi. On being decalred insolvent, the sequestrated estate is
administered by a court-appointed trustee, who will in a representative capacity sue or be sued in any manner
relating to the sequestrated estate.
- The insolvent may sue or be sued in his or her own name in respect of a limited number of matters.
- The insolvent posseses locus standi with regard to:
a. Matters relating to status.
b. Any right not related to the sequestrated estate.
c. Actions relating to the insolvent’s profession, occupation, service or trade.
d. Actions for the recovery of a pension.
e. Actions related to the recovery of non-patrimonial damages.
f. Actions for review of proceedings relating to the sequestrated estate.
g. Actions against the trustee for maladministration of the sequestrated estate, etc.

7.2.2.6 Trusts

A trust is a legal entity without separate legal personality in which one or more persons described as trustees
administer property (separate from their own) on behalf of and for the benefit of one or more beneficiaries or for a
charitable or other purpose.
- Although the trustees own the trust property, they have no beneficial interest on the property other than for
the purposes of administering the trust.
- A trust cannot sue or be sued in its own name, and when instituting legal proceedings against a trust all the
trustees must be cited in their representative capacity (NO), except where one or more of the trustees has
been authorised by the opthers to act on behalf of the trust.

7.2.2.7 Partnerships, firms and associations

A common law a partnership itself has no locus standi and cannot sue or be sued in its partnership name.
- This means that each and every partner must be cited and joined in legal proceedings concerning the
partnership.
- At common law, suing a partnership is therefore procedurally complicated.
- For this reason, HCR 14 and MCR 54 allows a partnership, firm or association to sue or be sued in its own
name.
o Note: this only adds a procedural advantage! It does not endow legal personality.

7.2.2.8 Judges, diplomats and others

Consent is required to institute legal proceedings or to subpoena a HC judge or a judge of Appeal.

To issue a summons or a subpoena out of a lower court against a magistrate requires the consent of the Provincial
Division which has appeal jurisdiction over the inferior court.

To summons or subpoena a CC judge requires the consent of the Chief Justice.

- To proceed against a Chief Justice requires the consent of the President of the SCA.
- To proceed against the President of the SCA requires the consent of the Chief Justice.

A person can institute proceedings against a Member of Parliament but not while that Member is attending
Parliament, unless those proceedings are instituted in a Cape Court.

All foreign diplomats and their representatives, agents, officials or delegates enjoy immunity from all legal
proceedings in the civil jurisdiction of SA courts.
- But the immunised person may expressly and in writing waive immunity.
- Similarly, the diplomats country of origin may expressly waive immunity in respect to that person.

7.2.2.9 Citation of parties in the HC and MC

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To establish the identity and locus standi of the litigating parties, it is standard practise to give complete descriptive
citation of each party.

Citation of the plaintiff as the principal litigant must contain the following content:
(a) First name, surname, sex;
(b) Occupation;
(c) Business or residential address;
(d) When suing in a representative capacity, a full description of his representation;
(e) When suing on an instrument of which presentation is necessary, a full description of the instrument and
date of presentation.

The citation of the defendant must contain the following content:

(a) Surname, first name or initial, sex;
(b) Occupation;
(c) Business or residential address;
(d) When sued in a representative capacity, a full description of such capacity.

~See examples on page 95.

7.3 Joinder of parties and actions

Joinder is a procedure by which multiple parties or multiple causes of action are joined together in a single action.
- “Joinder of causes of actions” makes it possible for a plaintiff to join several separate causes of action
together against two or more defendants in the same legal proceeding.
- A single summons may therefore cite several plaintiffs or defendants and contain several claims based on
separate causes of action.
- Joinder of parties and causes of action also applies in application proceedings and provisional sentence
proceedings.

The primary rationale for joinder of parties or causes of action is to save costs and time spent in court and to
prevent a multiplicity of actions.
- A distinction is made between 2 types of joinder in the HC, namely joinder of convenience (set out in HCR
10) and joinder of necessity (determined through common law).
o HCR 10 makes direct reference only to joinder in action proceedings, and joinder in application
proceedings must be inferred from section 1 SCA read together with HCR 6(14), which holds that
the joinder applies mutatis mutandis to application proceedings.
- In the MC joinder of plaintiffs and joinder of defendants in action proceedings is dealt with by MCR 41 and
MCR 42 respectively.
o Joinder in application proceedings in the MC is also not directly referred to in the rules but may be
inferred from MCR 28(2), which uses the wording “any proceeding”.

7.3.1 Joinder of parties in the HC

7.3.1.1 Joinder of convenience

ITO HCR 10 joinder of convenience allows the court, at its discretion, to permit parties to join or be joined together
in proceedings even though it is not essential for these parties to be joined.
- HCR 10(1) allows for joinder of more than one plaintiff, and
- HCR 10(3) allows for joinder of more than one defendant where 2 or more matters between 2 or more
plaintiffs and defendants depend upon substantially the same question of law or fact which would, if
separate actions were instituted, arise in each such situation.
Although joinder of parties usually takes place during the litigation stage, it may also take place during the
preparation of trial or the trial stage.

HCR 10(1) states that any number of persons having a claim, whether jointly, jointly and severally, separately or in
the alternative, may join as plaintiffs in one action against the same defendant(s).
- A proviso to the rule is that joinder is conditional and may occur where the claim of any other plaintiff fails.

28
HCR 10(3) provides that several defendants may be sued in one action by a plaintiff either jointly, jointly and
severally, separately or in the alternative.

When plaintiffs join, each must make out a separate cause of action against the defendant, and when the
defendants join, the plaintiff must disclose a separate cause of action against each defendant.

7.3.1.2 Joinder of necessity

Joinder of necessity is not defined in the Rules of Court and must be determined from common law. Accordingly,
where an outside party has or will have a direct and substantial interest in any order the court might make in a
proceeding, such a party must be joined as of right by the court unless the party has waived the right to be so
joined.
- Joinder of necessity, unlike joinder of convenience, is not at the court’s discretion, and the court must order
the joinder before granting judgement.
- Joinder of a necessary party may take place on the initiative of the plaintiff or on the request of the
defendant or the court may, in the event of a non-joinder of a necessary party, raise the issue of non-
joinder on its own accord and give the order to join an outside party.

Note: the right of a party to demand the necessary joinder of another party was not limited to the nature of the
subject matter of litigation and that the test of necessary joinder was dependant on whether the party had a direct
and substantial interest in the subject matter of the legal proceeding or a legal interest in the subject matter which
may be affected prejudicially by the judgement of the court (Almalgamated Engineering Union v Minister of Labour)
- In this case, 2 tests were employed to decide whether a third party has a direct and substantial interest:
a. Would a third party have locus standi to claim relief concerning the same subject matter?
b. Where a third party has not been joined, any order the court might make would not be res judicata
against a third party and therefore entitle a third party to approach the court again concerning the
same subject matter and possibly obtain an order irreconcilable with the order made in the first
instance.

~An example of a direct and substantial interest = the interest of co-owners in a case involving common property.
- The rights of each co-owner are directly involved in the dispute, and co-owners should all be parties to the
proceedings, otherwise the rights or obligations sued upon will be incomplete.

~When the validity of a will is in question all the beneficiaries must be joined, but an intestate heir of a deceased
estate cannot join other intestate heirs in order to declare the deceased’s will invalid, as their rights are not being
attacked.

7.3.2 Joinder of causes of action and separation of trials

HCR 10(2): a plaintiff may join several causes of action together in the same proceedings.
- The particulars to a single summons may contain multiple claims where each claim is based on a separate
cause of action. A summons may also contain a single claim based on 2 or more causes of action.
- Where these causes conflict with one another, they must be pleaded in the alternative.
- When a plaintiff bases a claim on 2 alternative causes of action and decides to take judgement on one of
them, the other cause is extinguished.

HCR 10(5): where there has been a joinder of parties or causes of action, a court may on application by any party
and at any time order separation of trials in regard to some or all of the parties or to some or all of the causes. The
court has discretion in ordering separation on a case-by-case basis.

7.3.3 Waiver, non-joinder and misjoinder

A person who has established a right of joinder, either through convenience or necessity, may waive such a right
and agree to be bound by the judgement of the court, in which event it will be unnecessary to join such a person.

It is NB to distinguish between non-joinder and misjoinder.

- Non-joinder means that a necessary party has not been joined.

29
 o Note: if it is merely convenient to join a person and the person has not been joined, it does not
amount to non-joinder.
- Misjoinder entails the joinder of a party who has no interest in the matter.
o Note: here we ask whether the joinder of convenience is justified. If not – misjoinder.

A party to a proceeding who wishes to raise an objection against the non-joinder of a necessary party or the
misjoinder of another party may do so by means of a special plea or in the event of an application by means of a
point in limine.

7.3.4 Joinder in the MC

This is determined by sections 41 and 42 MCA.

Section 41: any number of plaintiffs may join against the same defendant in one action, even when there is no
similarity or correspondence between the various plaintiffs’ claims or causes of action.
- Plaintiff’s may join only where it can be shown prima facie that each plaintiff has a separate claim against
the same defendant and that the determination of each of these separate claims depends upon some
question of law or fact.

Section 42: several defendants may be sued in the alternative or jointly and in the alternative in one action
whenever the plaintiff alleges damages and is uncertain in law which of a number of defendants is responsible for
the damage.
- The plaintiff need only establish a bona fide allegation of uncertainty of which defendant is liable in order to
justify joinder of any number of defendants.

~E.g. in delict a joinder would be justified when:

- All the defendants deny responsibility.
- One of the defendants puts the blame on another.
- The defendants reciprocally blame each other.

~E.g. in contract a joinder is justified when the plaintiff does not know and cannot find out from several persons
involved in the transaction who is really liable when it is certain that some of these persons are liable and are
concealing the truth.

MCR 28(2): the court may, on application by any party to the proceedings, order that another person be added
either as a plaintiff or an applicant, or as a defendant or respondent on such terms as may be just.
- This interpretation is wide enough to be based on “convenience” and “in the interests of justice”.
- A magistrate has the discretion to allow joinder even though the party against whom joinder is sought does
not have a direct and substantial interest in the action/application proceedings.
- Usually an application for joinder ITO MCR 28(2) will be made by a defendant to join an outsider as
defendant, even when the plaintiff and the prospective defendant are opposed to the joining.
o A defendant will seek to join a prospective defendant in order to ensure that the court, when
passing judgement, allocates a proportionate degree of fault to the co-defendant.
- It must also be notes that a successful joining ITO MCR 28(2) is not binding and does not render the
outside party joined liable for a part of the plaintiff’s claim.
- The effect of MCR 28(2) is to allow a magistrate to determine the proportional degree of fault between the
original defendant and the joined defendant.
o The original defendant is still obliged to pay the plaintiff’s entire claim.

Joinder of causes of action is not catered for in the MCA, and there are no rules or sections in the Act which define
this type of joinder.
- However, s 43 MCA does allow indirectly for a joinder of causes in certain circumstances through the
process of cumulative jurisdiction.

Separation of trials is allowed for in the provisos to sections 41(1) and 42(1) MCA, which permit the court to
exercise discretion in deciding on the separation of trials after joinder.
- The proviso to s 41(1) allows a defendant to apply to court for a separation of trials where a number of
plaintiffs have joined against the defendant.

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 - The proviso to s 42(1) allows any defendant to apply for a separation of trials where a single plaintiff has
joined a number of defendants.

7.4 Intervention

7.4.1 Intervention in the HC

HCR 12: any person entitled to join as a plaintiff or liable to be joined as a defendant in any action proceedings
may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a
defendant.
- Leave to intervene is also made applicable to application proceedings through HCR 6(14).
- An application ITO HCR 12 is usually made by an outside party who intends voluntarily to intervene in a
legal proceeding, either as a plaintiff or defendant, in order to protect an interest in the subject matter of the
proceedings and who may well suffer prejudice by not intervening.
- Joinder and intervention are similar concepts, and intervention is generally regarded as being a sub-
division of joinder.

The use of the word “may” in HCR 12 indicates that the grant of leave to intervene by an outside party applicant as
a co-plaintiff or co-defendant is at the discretion of the court, especially when the application is based on
convenience.
- However, when the outside party applicant establishes a direct and substantial interest in the proceedings,
no such discretion exists and the outside party must be joined.

An application for leave to intervene must be made on notice to all parties. The applicant must establish a prima
facie case for intervention and must show that it has been made seriously and not frivolously.
- The application may be made at any stage of the proceedings.
- When leave to intervene is successfully granted by a court, the intervening party is paced in exactly the
same position and with the same rights as the other parties.
- The court may then make an appropriate order as to costs and give such direction as to further procedure
as it may deem fit.

7.4.2 Intervention in the MC

MCR 28(1): only a person having a direct and substantial interest in the proceedings may make an application to
intervene, and the court may grant leave to intervene on such terms as may be just.
- The application to intervene as either a co-plaintiff or co-defendant is at the courts discretion and the
applicant must show prima facie proof of an interest on the subject matter of the proceedings and establish
that his or her interest can be properly safeguarded only by his or her intervention in the proceedings.

7.5 Third-party joinder and HCR 13

The third party procedure allows any litigant to join a third party to an already instituted action. The purpose of HCR
13 is to prevent a multiplicity of unnecessary actions and is available in 2 instances:
(a) When a party to an action claims an entitlement to a contribution or indemnification from another person
who is not a party to the action.
(b) When one of the parties to an action claims that the question or issue in the action before the court is
substantially the same as a question or issue which has arisen or is likely to arise between the party and a
third party and the action cannot be adjudicated upon without the presence of the third party.

A third party notice is usually issued by a defendant, but a plaintiff is not precluded from making use of the notice.
Joinder of a third party by a defendant to an action does not create a lis between the third party and the plaintiff,
and the third party does not become a defendant in relation to the plaintiff.
- When a defendant joins a third party, a court cannot give judgement against a third-party defendant in
favour of a plaintiff and may only give a declaration as to what degree of fault or percentage of liability for
the plaintiff’s claim rests with the original defendant and what degree with the third-party defendant.
- The original defendant who is being sued by the plaintiff is still liable for the full amount of the plaintiff’s
claim.

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 - After the original defendant has paid the full amount to the successful plaintiff, the original defendant may
then launch a separate action against he third-party defendant in order to recover a proportional share of
the amount paid.
- Note: a third-party procedure is competent in provisional-sentence proceedings.

7.5.1 HCR 13 and an apportionment of damages

The Apportionment of Damages Act 34 of 1956 (ADA) regulates the circumstances in which a number of persons
(that is, joint wrongdoers) are jointly or severally liable to a plaintiff for the same delictual damages and where the
plaintiff as dominis litis elects to sue one or some but not all of the joint wrongdoers.
- ITO s 2(2) ADA, where a plaintiff elects to sue only one or some of the joint wrongdoers at any stage
before the close of pleadings, the plaintiff or one of the defendant wrongdoers may give notice to the other
joint wrongdoers who are not being sued, informing them of the action and inviting them to intervene in the
action.

The procedure set out in s 2 ADA is complementary to HCR 13. The only difference lies in the type of relief that
may be sought.
- Note: ITO HCR 13 only an apportionment of fault in the form of a declaratory order may be sought by one
alleged wrongdoer against another. The rule makes no provision for a judgement sounding in money in
favour of one alleged wrongdoer against another.
- Therefore, when a defendant joins a third party by serving a notice ITO HCR 13(1), the third party does not
become a joint defendant vis-à-vis the plaintiff and the ocurt cannot give a judgement against the third
party for the payment of a sum of money in respect to the amount being claimed in the action.
- As between the defendant and the joined third party, all that may be claimed is a declaratory order
apportioning the degree of fault between the various wrongdoers.
- The defendant who obtains such a declaratory order cannot execute upon it. The defendant will have to
sue the third party in a separate action should the third party become recalcitrant and refuse to make
payment.

However, when an action has been instituted against 2 or more joint wrongdoers ITO s 2 ADA, or where a joint
wrongdoer who was not sued by the plaintiff initially intervenes in the action pursuant to a notice ITO s 2(2), the
court may order the joint wrongdoers to pay any damages awarded to the plaintiff either jointly or severally or in
such proportion as the court may deem just and equitable.

Furthermore, ITO s 2(4)(a) and (b) ADA, if any party fails to serve a s 2(2) notice on the joint wrongdoers who are
not being sued, they may well lose their right to sue such parties at a later stage.

7.5.2 Third party notice procedure

A party as defined in HCR 13(1)(a) and (b) may issue a third party notice, which notice is served on the third party
by the sheriff. The notice must state the following:
- The nature and ground of the claim of the party issuing same;
- The question or issue to be determined;
- Any relief or remedy claimed.

HCR 13(3)(a) and (b): the third party notice must be served before the close of pleadings in the action.
- After pleadings the notice may be served only with the leave of the court.
- The third party notice must also be accompanied by a copy of all pleadings filed in the action up to the date
of service of the notice.

HCR 13(4) and (5): once served with the notice the third party becomes a party to the action.
- The third party must deliver a notice of intention to defend, as if pleading to a summons.
- The party issuing the third party notice must inform all the other parties immediately upon receipt of the
notice of intention to defend.
- The third party must be furnished with copies of all pleadings filed in the action up to the time of service of
the third party notice.

HCR 13(6) contains specific provisions relating to a plea by a third party:

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 (a) The third party may plead or except to the third party notice in the same manner as any other defendant to
the action.
(b) The third party may file a plea or any other proper pleading and contest the liability of the party issuing the
notice on any ground, notwithstanding that such ground has not been raised in the action by such latter
party.

There is, however, a proviso to HCR 13(6): the third party is not entitled to institute a counterclaim against any
other person other than the person issuing the notice, save to the extent that the third party would be entitled to do
so ITO HCR 24.
- This means that the third party cannot institute a counterclaim against the plaintiff.

HCR 13(7) sets out 2 rules with regard to the filing of further pleadings. Insofar as the third party’s plea relates to:
(a) The claim of the party issuing the notice, the said party is regarded as plaintiff and the third party as
defendant.
(b) The plaintiff’s claim, the third party is regarded as a defendant, and the plaintiff must file pleadings as
provided for by the Rules.

HCR 13(9) allows a party joined by virtue of a third party notice to apply to the court at any time for the separation
of the trial of all or any of the issues arising by virtue of the third party notice.

HCR 13(8): when a party to an action has, against any other party, a claim referred to in HCR 13(1), the party may
issue and serve on such other party a third party notice in accordance with the provisions of HCR 13.

7.5.3 Submissions by amicus curiae

A particular type of intervention allowed in the HC (ITO HCR 16A) but not in the MC, provides for any party
interested in a constitutional issue raised in proceedings to be admitted to the proceedings as an amicus curiae
(“friend of the court”) upon such terms and conditions as may be agreed upon in writing by the parties.
- If the interested party is unable to obtain the necessary written consent, an application may be made to the
court for admittance as amicus curiae. The following apply:
o The application must, by way of submissions, briefly describe the amicus curiae interest.
o The submissions must clearly state the relevance of the interest to the court and how this interest
will assist the court.

The court may grant or refuse the application on the grounds set out in HCR 16A(8) and dispense with the
requirements of HCR 16A if it is in the interest of justice to do so ITO HCR 16A(9).

7.6 Consolidation of actions

In the HC, where separate actions have already been instituted by different parties, it may sometimes be
convenient to consolidate these diverse actions into a single action.

The purpose of consolidation of actions ITO HCR 11 and a joinder of third parties ITO HCR 13 is generally the
same, namely: to have issues which are substantially similar tried in a single hearing so as to avoid the
disadvantages and costs which flow from a multiplicity of actions.

The test for consolidation of actions is simple convenience defined either as “expediency” or “appropriateness”, in
the sense that such a consolidation appears to be “fitting and fair” to all the parties involved.

No similar procedure for consolidation of separate actions exists in the MC’s.

7.7 Parties to a suit, plurality of parties, cession, subrogation

7.7.1 General

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It is always extremely NB to ascertain the potential parties to a civil suit.

7.7.2 Plurality of contractual parties

From a procedural point of view the issue of joinder becomes complicated where there is a plurality of parties. E.g.
A and B (co-buyers) purchase a farm from C and D as joint sellers. Questions which may arise are:
- Who must pay the purchase price? Both A and B or only A or B?
- Who must affect transfer? Both C and D or only C or D?
In the absence of a particular agreement regulating the liability of the parties in this regard, certain legal rules will
apply.

The general rule is that where parties bind themselves to each other, as in the above example, they are jointly
entitled and liable to each other. This means that they are liable or entitled to a pro rata share of the contractual
performances provided that the performance is divisible.
- E.g. A and B will thus be liable to pay the purchase price on a pro rata basis, and an equal amount can be
claimed from each unless otherwise agreed. However, C and D will have to affect the transfer of the farm
jointly as transfer is an indivisible performance.
- However, where the parties have agreed that A and B are jointly and severally liable to C and D, the full
amount of the purchase price may be claimed from either A or B. The party who settles the amount in full
(A or B) will usually have a right of recourse against the co-debtor for a proportionate share except in the
instance where a specific legal principle applies.
o That is, where persons are jointly and severally liable by operation of law, as in the case of
partners after dissolution of the partnership.

7.7.3 Cession and delegation

A may have a claim against B based on a loan agreement. In the event of B failing to settle the loan as agreed, A
will become the plaintiff and B the defendant in the action that will follow. This action will be based on the loan
agreement and the subsequent non-performance by B.
- However, if A cedes his or her contractual rights under the loan agreement to C, C will then be able to
institute an action against B in similar circumstances, but the cession will have to be explained in the
pleading, since C was not a party to the original contract.
- Similarly, where B properly delegates his or her obligations ITO the loan agreement to D, A will be able to
institute an action against D in view of the delegation.

7.7.3.1 Subrogation

Another NB legal doctrine to observe in litigation is the doctrine of subrogation as it applies in the aw of indemnity
insurance.
- It is an accepted principle of indemnity insurance law that when an insurer fully indemnifies an insured
party in the case of loss caused by a third party, the insurer has a contractual right of recourse against the
indemnified insured party with regard to any benefit received from the third party.
- The policy behind this doctrine is to prevent the insured party from receiving a double compensation from
both the insurer and the third party.

CHAPTER 8
The Application Procedure

8.1 Introduction

Application proceedings, also known as “motion proceedings”, are based upon the exchange of affidavits.
- The applicant commences proceedings by issuing a notice of motion, which serves to advise the
respondent of the applicant’s claim and the relief which the applicant seeks.
- The notice of motion is usually accompanied by a founding affidavit. Sometimes one or more supporting
affidavits and relevant documentation are attached to the affidavit.

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 - The respondent who wants to oppose the application must deliver an opposing affidavit (also referred to as
an answering affidavit) together with any supporting affidavits and relevant documentation, in which the
respondent answers the allegations of fact contained in the founding affidavit.
o if necessary, the applicant may then deliver a replying affidavit in order to address and respond to
any allegations contained in the answering affidavit.
- There are usually 3 sets of affidavits exchanged, namely:
a. The founding/initial affidavit.
b. The opposing/answering affidavit.
c. The replying affidavit.
- The affidavits together with the annexed documentation set out the facts and evidence on which the
parties’ claim or defence is based.
- The application procedure culminates in the hearing of the matter in the motion court.
o As a general rule, vive voce oral evidence is not heard, but there are exceptions.

8.2 Types of application

There are 3 general types of application, namely:

- Ex Parte applications;
- Applications with notice to the other party (bilateral applications);
- Interlocutory or interim applications.

8.2.1 Ex parte applications

This is an application where no notice is given to the party (if any) against whom or which legal relief is being
sought and the applicant is the only party before the court.
- The applicant addresses the application directly to the registrar or the clerk, who must be given prior notice
of the proposed application.
- Since no respondent need be cited, this is also termed a “unilateral application”.

8.2.2 Bilateral applications

This type of application is brought when it is clear from the outset when another person’s rights will be affected and
that such person must receive prior notice of the proceedings.
- Furthermore, the nature of the matter is such that prior notice to the other party will not defeat the object of
the application.
- The application is directed to the registrar (or clerk) as well as to the respondent, and both are informed of
the proceedings.

8.2.3 Interlocutory or interim applications

An interlocutory application is a provisional or temporary application which is brought in order to obtain ancillary
relief incidental to certain main proceedings pending between the parties.
- Essentially it is an intervening step which may be taken after the commencement of an action or motion
proceeding and which decides a procedural point.
- Where the respondent is obliged to take a procedural step or to conform with a procedural rule and does
not do so, the applicant may by means of an interlocutory application force the respondent to take such a
step or conform with such a rule.

8.3 The form of the proceedings

As was previously indicated, an application will generally consist of a notice of motion and one or more supporting
affidavits.
- In certain interlocutory applications, however, it is not necessary for the notice of motion to be supported by
an affidavit, e.g. an application to compel further particulars in the MC.

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 8.3.1 The notice of motion

The notice of motion serves to inform the court and the respondent, if applicable, that a specific type of application
will be made on a specified date at a specified time at a specified court and that the legal relief mentioned therein
will be requested.
- The form of the notice of motion will depend on the type of application brought:
o In the HC the prescribed forms are: Form 2 (short form of notice of motion) and Form 2(a) (long
form of notice of motion).
 Form 2 is used in ex parte applications, and only the registrar gets prior notice of the
application.
 Form 2(a) is used in bilateral applications, where it is necessary for both the registrar and
the respondent to be given prior notice of the application.
o In the MC Form 1 Annexure 1 is the general form of notice of motion prescribed for an application
procedure.

8.3.2 The affidavit

In those instances wher the notice of motion has to be supported by an affidavit, the purpose of such affidavit is to
record certain facts under oath, which the court will then consider in determining whether or not to grant the
application.
- There is no standard prescribed form for the affidavit, and the contents of the affidavit will vary widely
depending on the nature of the specific application.

Nevertheless there are certain basic principles that apply to all affidavits regardless of the type of application.
Generally, the following information should appear in all supporting affidavits:
(a) The names and addresses of the applicant and respondent (if applicable).
(b) The fact that the applicant has locus standi.
(c) The fact that the court has jurisdiction.
(d) The material facts upon which the claim is based (facta probanda) as well as the evidence which the
deponent wishes to place before the court (facta probantia).
(e) A request to the court to grant the relief as prayed for in the notice of motion.

It should be noted that if the applicant refers to documentary evidence in the supporting affidavit, such documents
must be attached to the affidavit.
- Where the applicant refers in the supporting affidavit to communications or actions by the other person,
such reference must be affirmed by obtaining affirming or “confirmatory” affidavits from the said persons
and attaching it to the supporting affidavit.
- The attachment of confirmatory affidavits is necessary in order to comply with the evidentiary rule against
hearsay evidence.
- Only admissible evidence should be contained in the affidavit.

8.4 Application in the HC

8.4.1 The general rule

According to Room Hire Co v Jeppe Street Mansions the general rule is that the choice between the application
and action procedure depends on whether a bona fide material dispute of fact should have been anticipated by the
party launching proceedings.
- When such a dispute is anticipated a trial action should be instituted; otherwise motion proceedings are
permissible in order to avoid the expense and delay involved in a trial action.

Therefore motion proceedings should not be instituted in:

- Claims for unliquidated damages.
- Matters in which it is anticipated that a material dispute of fact will arise, unless the application procedure is
specifically authorised for that kind of claim.
- Claims for divorce.

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Notwithstanding the rule regarding anticipated disputes of fact, there are certain types pf proceedings in which
application proceedings should always be used, e.g.
- Insolvency proceedings.
- Proceedings where urgent relief is claimed, at least to obtain temporary relief regardless of an anticipated
dispute of fact.

8.4.2 Disputes of fact

According to the Room Hire case, a dispute of fact might arise in the following situations:
(a) Where the respondent denies all material allegations made by the various deponents on behalf of the
applicant and furnishes positive evidence by deponents or witnesses to the contrary;
(b) Where the respondent admits to the allegations (evidence) in the applicant’s founding or supporting
affidavits, but raises other facts which in turn are denied by the applicant;
(c) Where the respondent concedes that he or she has no knowledge of the main facts alleged by the
applicant , but denies same and orders the applicant to proof thereof and furnishes evidence or undertakes
to furnish evidence to indicate that the applicant and the applicant’s deponents are prejudiced and not
credible or otherwise unreliable, and that certain facts upon which the applicant and the deponents rely in
order to prove the main facts are also unreliable.
(d) Where the respondent states that he can lead no evidence himself or by others to dispute the truth of the
applicant’s statements, which are peculiarly within the applicant’s knowledge, but he puts the applicant to
the proof thereof by oral evidence subject to cross-examination.

8.4.3 Resolving a dispute of fact

HCR 6(5)(g): where an application cannot properly be decided on affidavit a motion court may dismiss the
application or make such an order as is necessary to ensure a just and expeditious decision.
- Examples of orders:
o The court may order oral evidence to be heard.
o The court may order any deponent to appear personally to be examined and cross-examined as a
witness.
o The court may refer the matter to trial.

Therefore, if a material factual dispute arises during application proceedings which cannot be resolved on the
papers, the court has a discretion to proceed as set out below.

8.4.3.1 Dismissal of the application

If it appears that the applicant must reasonably have foreseen that a material dispute of fact will arise at the time
the application is brought, but the applicant nevertheless proceeds by way of application, the court dismiss the
application with costs (but is not obliged to).

8.4.3.2 Presentation of oral evidence

ITO HCR 6(5)(g) the court may order that oral evidence be heard to decide a specific factual dispute. This
procedure is applicable only where the dispute is of limited scope and not where it is extensive and complicated.

If a party to an application wants to present oral evidence to the court, they must first obtain the court’s leave to do
so. The party must make such a requets either at the outset or after presenting the case on the papers.

NB points:
- Firstly, oral evidence should be allowed if there are reasonable grounds for doubting the correctness of the
allegations concerned.

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 - Secondly, the court has a discretionary power to order a cross-examination of a deponent, and this
discretion is not limited to cases in which a dispute of fact is shown to exist.

8.4.3.3 Referral to trial

If the factual dispute is extensive or complicated, the court may refer the matter to trial. The result is that the
application is converted to a trial action where oral evidence may be led.
- The court may give such direction regarding the pleadings and the determination of the issues as it deems
proper.
- Where an application is referred to trial, a decision must be reached as to the allocation of the costs of the
application.
o If the applicant should reasonably have foreseen that a substantial factual dispute would arise the
court may order him or her to pay the costs.
o If such a dispute could not reasonably have been anticipated, the court may order the costs of the
application to be costs in the cause, or alternatively order the issue of costs to stand over for
determination at the trial.

8.4.4 General requirements of HCR 6

HCR 6: except where proceedings by way of petition are prescribed by law, every application in the HC must be
brought on notice of motion, supported by an affidavit containing the facts upon which the applicant relies.

8.4.5 Ex parte applications

Requirements for ex parte applications are laid out in HCR 6(4).

The ex parte application may be used in the following cases:

(a) When the applicant is the only person with an interest in the case.
(b) When the application is merely a preliminary step in the matter.
(c) Where urgent or immediate relief is required and notice to the respondent and the delay which such notice
may occasion will result in prejudice to the applicant.

Justice and fairness (in accordance with the audi et alteram partem principle) demand that the court should not
make an order against any person unless the affected person has received prior notice of the legal relief sought.
- Ex parte applications represent a departure from this rule.
- The courts will therefore examine any such application very carefully so that the interest of persons
affected can be properly safeguarded.
- Furthermore, there are 2 NB principles which apply to ex parte applications in order to ensure fairness to
the party against whom relief is sought:
o Firstly, the applicant is obliged to observe the utmost good faith in placing all material facts before
the court.
 If not, the court may set the order aside on the grounds of non-disclosure.
 This applies irrespective of whether the failure to disclose was wilful, mala fide or
negligent.
o Secondly, if another person’s interests stand to be affected by an order in an ex parte application,
the court will not grant a final order without giving the respondent the opportunity to present a
defence.
 The court will merely grant a provisional order with a return date – a rule nisi.

8.4.5.1 The notice of motion in ex parte applications

The prescribed form here is Form 2of the First Schedule (the short form). In accordance with Form 2, read with
HCR 6(4)(a), the notice of motion in an ex parte application should contain the following factual content:
(a) It must be addressed directly to the registrar.
(b) It must indicate in which division of the HC the matter is being brought.
(c) It must identify the applicant.

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 (d) It must notify the registrar to the application.
(e) The order sought by the applicant must be set out in the form of prayers and itemised in the notice of
motion.
(f) It must confirm that the application is supported by a founding affidavit and it must indicate the name of the
deponent of the affidavit.
(g) It must require the registrar to enrol the matter for hearing.
(h) The notice of motion must be signed and dated by the applicant (if unrepresented) or his or her attorney.

8.4.5.2 Enrolment

HCR 6(4)(a): ex parte applications must be enrolled with the registrar before noon of the second court day prior to
the day on which it will be heard.

8.4.5.3 Opposing an ex parte application

HCR 6(4)(b): any person having an interest which may be affected by a decision on an application being brought
ex parte may deliver notice of an application for leave to oppose, with a supporting affidavit.
- If the respondent successfully opposes the provisional order, it will be discharged.
- If the respondent is unable to oppose it successfully the provisional order will be confirmed.

8.4.6 Bilateral Applications

HCR 6(5) sets out the requirements relating to bilateral applications.

HCR 6(2): when relief is claimed against any person or where it is necessary to give any person notice of such
application, the notice of motion must be addressed to the registrar and such other person.
- This type of application will be a substantive application, which will give the respondent an opportunity to
answer the allegations made by the applicant.

8.4.6.1 The notice of motion in bilateral applications

The prescribed form here is Form 2(a) of the First Schedule (the long form). In accordance with Form 2(a), read
with HCR 6(5)(b), the notice of motion should:
(a) Be addressed to the registrar and the respondent.
(b) Indicate in which division of the HC the matter is being brought.
(c) Identify the parties to the application.
(d) Notify the registrar and the respondent about the application.
(e) Reflect the order sought by the applicant set out in the form of prayers, and these must be itemised.

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