LED306D – A SYNOPSIS OF THE KEY SECTIONS AND RULES RELEVANT FOR LEGAL DRAFTING (THE

NOTES WILL FURTHER BE UPDATED): JV MASWANGANYI

For the High Court – Uniform Rules of Court (A SYNOPSIS OF THE KEY PROVISIONS OF THE
MAGISTRATES’ COURT RULES, WHICH GOVERN THE PROCEDURES AT THE MAGISTRATES COURTS,
WILL BE ADDED IN DUE COURSE. There is however a great overlap between the two sets of Rules,
which means that understanding the workings of the Uniform Rules of Court will assist you in
understanding the workings of the Magistrates’ Court).

Rule 1 – Key definitions to note: calculation of court day: all days other than Saturday, Sunday and
public holidays (It should further be noted that for the purposes of the delivery of any pleading (e.g.
summons, pleas, etc.) the period between 16 December and 15 January is not counted (rule 26 of
the Uniform Rules of Court). Understanding of the meaning of court days is important as most of the
activities in litigation have to be done within specified time periods, and these time periods are often
stated in terms of days.

Rule 6 – Deals with applications (in the case of application proceedings). Applications must, in
general, be in the form of a Notice of Motion, and accompanied by an Affidavit, stating facts upon
which the relief claimed is based. (Rule 6 (1)).

The above (rule 6 (1)) is not applicable where proceedings are initiated by way of petition. Every
petition must conclude with an order prayed for, which must be verified by an oath by the petitioner
or by someone acting on his or her behalf (Rule 6 (3)).

Where relief is claimed against another person, notice must be directed or addressed to both the
Registrar and that other person. Where no relief claimed against another person, it must be directed
or addressed only to the Registrar (rule 6 (2)).

-Ex parte applications: Where no relief is claimed against any person, in which case, as noted above,
no notice to any person other than registrar. This could therefore be by way of petition or by notice
to the Registrar. The ex parte applications must be filed with the Registrar and set down on a date
(no later than the date) before the court day on which it is to be heard (rule 6 (4).

Rule 6 (5) outlines what a notice of motion, for applications other than ex parte applications, should
cover, and what format it should take. It should be as near as may be to Form 2 (a) of First Schedule
and the ‘true’ copies and all annexures thereof must be served on every party to whom the notice
must be given. Read the sub-rule for the content of the notice of motion.

- Urgent applications, e.g. interdicts against striking and violent students will often be done by way
of urgency and therefore by way of urgent applications. The normal rules and forms may be
suspended in the case of urgent applications (Rule 6 (12). Applicant must set out the circumstances
or facts giving rise to urgency. Any person affected by an order granted on the strength of an urgent
application may apply to court for the reconsideration of the order.

Rule 7 – Filing a power of attorney is not compulsory unless the authority of the attorney to act is
challenged. (Rule 7 (1)). Power of attorney is however required in the case of appeal applications
(rule 7 (2) and (3)). No power of attorney is required in the case of state attorneys. (Any position in
the case of trust advocates? Think about it).

Rule 17 – Deals with summons and its requirements. It distinguishes between combined summons
and simple summons (which is used when the claim is for a debt or liquidated demand) (see rule 17
(2) (a) and (b) of the Uniform Rules of Court). Summons generally commence action in civil
proceedings, whether in the High Court or Magistrates Courts (in the case of the magistrates court, s
56 of the Magistrates Court Act of 1944 also contemplates that a summons may also, in the case of a
liquidated sum of money, be preceded by a letter of demand, which shall state the nature as well as
the amount of the claim (see rule 4 (1) (a) of the Magistrates Court Rules. Also see s 55 of the
definition of a debt in the case of that chapter). Such a letter of demand may, if the debt arises from
a credit agreement, cover the requirements contemplated in ss 129 and 130 of the National Credit
Act) (rule 4 (1) (b)).

Rule 18 – It deals with what should be contained in pleadings. Pleadings includes summons
(including the particulars of claim or declaration accompanying or following the summons) by the
plaintiff; notice of intention to defend (by the defendant); a plea (by the defendant) and other
relevant documents. In the case of combined summons, this must be accompanied by particulars of
claim while In the case of a simple summons, a declaration must follow the combined summons if
the action is defended. A declaration, which must be delivered within fifteen days after receipt of
notice of intention to defend, has the same content as would be required in the case of particulars of
claim. The provisions applicable to what declarations should contain, as stated in rule 20 (2) and (3)
of the Uniform Rules of Court, will arguably also apply in the case of particulars of claim that
accompany combined summons (Also see Van Blerk, Legal Drafting in Legal Proceedings, p.11). A
declaration, and by implication particulars of claim, state the following:

- The nature of the claim

- The conclusions of law the plaintiff may deduce from the facts
- A prayer or relief claimed. Where plaintiff ‘seeks relief in respect of several distinct claims
founded upon separate and distinct facts, such claims and facts shall be separately and
distinctly stated’ (rule 20 (3)).
- This content must be read together with the requirements of pleadings generally, as
outlined in rule 18, and summarized below.

What pleadings in general should contain:

- States who must sign the summons or pleadings in general: (a) if represented by an
advocate (where attorney does not have the right of appearance in the High Court): By both
the advocate and attorney.
(b) If attorney has the right of appearance in the High Court: by the attorney alone.
(c) If party appears in person: by the party himself or herself.
- Tittle of the action describing the parties thereto or its shortened form (if reasonably
possible) if long or parties numerous.
- The case number assigned by the registrar.
- Each pleading must be paragraphed (including being sub-paragraphed) and consecutively
numbered.
- Each paragraph must, as nearly as possible, contain a distinct averment.
- Each pleading must ‘contain a clear and concise statement of the material facts upon which
the pleader relies for his claim, defence or answer to any pleading, as the case may be, with
sufficient particularity to enable the opposite party to reply thereto’.

What must pleadings not contain? Evidence and legal arguments should not be stated in the
pleadings, but facts and conclusions of law should. Evidence may however be included in an affidavit
supporting an application in motion proceedings.
Rule 19 – Notice of intention to defend (an initial indication by the defendant that he or she seeks to
defend the claim

Rule 22 – A plea (a response by the defendant to the summons). If the defendant has filed a notice
of intention to defend, the defendant shall deliver a plea within twenty days from the date of serving
upon defendant of (receiving) the declaration (in case of simple summons) or, in the case of
combined summons, of the delivery of the notice of intention to defend to plaintiff, deliver a plea
(rule 22). If the defendant fails to deliver the plea (or any other pleading) within the required period,
plaintiff may bar the defendant from proceeding with the delivery of the plea (or any other pleading
where applicable) (rule 26). Barring the defendant takes place by way of a notice to the defendant,
requiring him or her to deliver the plea (or any other pleading where applicable) within 5 days,
failing which defendant will automatically be barred (prevented) from delivering any plea (or any
other pleading where applicable). This will then enable plaintiff to, after the expiry of the 5 days,
proceed with an application for default judgment against the defendant. Where defendant has been
barred he cannot, unless the court in the interest of justice otherwise orders, be permitted to
partake in the proceedings.

Rule 29 – closure of pleadings

Four ways in which pleadings may be said to have closed:

- Either party has joined issue without raising any new matter or filing any new pleading;
- The time for filing replication or subsequent pleading has lapsed;
- Agreement by the parties, and then filed with the registrar;
- If the court upon application so orders;

Once pleadings are closed, the registrar must inform the parties of allocated dates for trial. The party
that applied for the allocation must within 10 days after receiving the allocated date or dates from
the registrar deliver a notice to all the parties involved.

Rule 30 – Trial

Where a matter has been set down for hearing but defendant does not appear, whether in person or
through representation, plaintiff may, where he has burden of proof, proceed proving his claim
against the defendant (Plaintiff does not however have to prove his claim where the action is based
on a or debt or liquidated claim). Where defendant attends but plaintiff does not attend, defendant
may apply for absolution from the instance, or proceed presenting his evidence for the court to
grant judgment in his favour. As indicated earlier, defendant may not permitted to be present if he
has been barred in terms of rule 26.

Basic Trial Advocacy

The actual conduct of the trial involves certain procedures, which in the main take the following
forms:

- Opening statement or address: Used by both parties to briefly inform the court about the
nature of the case, and the evidence that they will present to prove their case. The person
bearing the onus (i.e. having the burden to prove certain facts) will often start. (In criminal
matters it is the state that burdens the onus).
- Evidence (examination) in chief: A party (often through its legal representative) leads the
way in the giving of evidence. This is done by asking the witness, in a logical and
chronological manner, questions that guide the giving of the evidence, without telling the
 witness what to say. Open-ended questions are often asked, rather than closed questions.
Leading questions (i.e. those that suggest answers to the witness) are prohibited except
under a few instances, e.g. where the facts to be elicited are non-contentious and where the
opposing party consents to the questions being asked (also see Mahommed SH, Clinical Law
in South Africa 3rd ed (LexisNexis Durban 2022) 272). This process will be followed for all the
witnesses brought by that party.
- Cross-examination: This entails a process where the opposing party or his legal
representative asks questions to the witness he has not called, after that witness had given
evidence in chief. The purpose of cross-examination (literally cross-questioning) is to
discredit the evidence of that witness; elicit facts favourable to the party cross-examining
and to the put the version of the party or client to the witness (Mahommed Clinical Law, pp.
274 – 276). This process will be followed for each witness not called by that party (i.e. the
party cross-examining).
- Re-examination: at this stage the party that called the witness asks, immediately after that
witness has been cross-examined by the opposing party, questions that clarifies issues that
arise during the cross-examination.
- Closing argument: At the end of the giving of evidence, both parties will address the court,
presenting arguments to persuade the court to rule in its own favour. It involves the analysis
of the evidence presented, the analysis of the law and the application of the law to the
evidence presented.
- Judgement: the court then gives its judgment.

Alternatives to trials

Apart from using the trial process, it is possible for the parties to resort to alternative dispute
resolution mechanisms. The rules of both the High Court and the Magistrates Court make provision
for mediation. Though not expressly provided for by the rules of the courts, other alternative dispute
resolution mechanisms may be resorted to. These include negotiations; conciliation; arbitration and
facilitations. There is also a con-arb and a med-arb, where arbitration follows immediately after
conciliation (in case of a con-arb) and after mediation (in case of a med-arb) in case any of these
initial processes fail to resolve the dispute. These processes are more flexible than the trial process.
The procedure about the trial process above is not applicable to these processes, although
arbitration (whose outcome is in the form of an arbitration award rather than a judgment) often,
with some adaptation and flexibility, takes almost the same form as the conduct of the trial process.
The outcome of the other processes, i.e. conciliation, negotiation, mediation and facilitation are
often reflected in agreements by the parties, if the parties agree. Unless the parties agree, the
outcome of the conciliation, mediation, negotiation and facilitation processes is not binding on the
parties, while the outcome of an arbitration process, which takes the form of an arbitration award, is
binding on the parties. Whoever is not satisfied with the decision of the arbitration will therefore
have to apply for the review of the award. Awards are however not appealable (except for some few
statutory exceptions).