Civil procedure previous tests and each chapter questions and memo

Supplementary exam 2021

Chapter 3
Discuss the procedure to be followed by a prospective litigant before
instituting action against an organ of State. You are also required to refer to
the applicable time frames. (6)
A In terms of section 3 of the Legal Proceedings Against Certain Organs of
State
Act a person must a person must, before instituting action against an organ of
state, give notice in writing 6 months from the date on which the debt became
due.
The organ may however consent to the institution of the action without
notification or may accept a notice that does not comply with the requirements.
The notice must be served on the organ of state by delivering it by hand or by
sending it by certified mail or in certain instances by means of electronic mail or by
fax.
The notice must contain a brief summary of the facts giving rise to the debt and
the particulars of such debt as are within the knowledge of the creditor. The
action must be instituted by serving the summons, in the ordinary way, as
provided for by the rules of court.
However, the action may only be instituted after 30 days have elapsed from
the date on which the notice was given.
QWhat is meant by the term “locus standi”? (6)
A This term is used in two senses. First, the term may be used to refer to the
capacity of a natural or juristic person to institute or defend legal proceedings,
i.e. capacity to litigate.
Every natural legal person may sue or be sued if he is of full legal capacity
Certain types of natural persons do not, however, enjoy full legal capacity and
may not appear as parties in legal proceedings without appropriate assistance.
So, for example, a minor lacks locus standi and has to be assisted by his
guardian.
Secondly, the term is used to refer to the right of a party to claim the relief and
the interest which a party has in the relief claimed.
In this sense a plaintiff or applicant would be said to lack locus standi if his
claim was not enforceable by him. In order to establish this, one has to ask:
(a) whether the claim is based on a legally enforceable right; and (b)
whether the particular plaintiff or applicant who has brought the claim is
interested closely enough to enforce that right
QDiscuss and illustrate the differences between the action and application
procedure. (6)
A The action procedure is marked by a fairly extensive period of the exchange of
pleadings followed by a period to prepare for trial and then the trial until judgment
is given
The application procedure is said to be a relatively short procedure when
compared to the action procedure. As a rule, evidence is presented to court
by means of affidavits
In the action process the parties are called plaintiff and defendant and in
applications they are called applicant and respondent. The action process
commences with the issuing of a summons and applications commence with
the issuing of a notice of motion and supporting founding affidavit.
In most case the action process deals with a substantial dispute of fact and one
cannot use the application process if a substantial dispute of fact is foreseen a
judgment debt;
(iii) any debt in respect of tax levied in terms of any statute;
(iv) any debt owing to the state, regarding the prospecting for and mining of
minerals or other substances.
(b) Fifteen years in respect of a debt owing to the state arising from a loan of
money and the sale or lease of land, unless a longer period applies under
(a) above.
(c) Six years in respect of a debt arising from:
(i) a bill of exchange or any other negotiable instrument (for example, a
cheque or promissory note); or
(ii) a notarial contract unless a longer period applies under (a) or (b)
above.
(d) Three years in respect of any other debt, unless specifically provided for by
statute.1
The time-periods are calculated by making use of the ordinary civil method of
computation in this respect.
It must be noted that prescription must be pleaded specifically and the court will
not take notice of prescription mero motu. Thus, even where a claim has become
prescribed judgment may still be granted if prescription is not formally raised by
the defendant.
QUnder what circumstances will a letter of demand be required to complete
the cause of action? (5)
A Where the cause of action is based on a breach of contract and the terms of
the contract require a letter of demand.
It will also be essential to place a debtor on terms when a creditor intends to
cancel an agreement, where the original agreement contains no right to
automatic cancellation as well as to place a debtor in mora where no date for
performance has been agreed upon
Where a party wishes to claim in mora interest in the latter case, he will have to
indicate that he did send a demand to the counterparty placing him in mora. Interest
will then be levied from the date on which the period for payment as mentioned in
the letter of demand, expires.
Where return of a vehicle is claimed in accordance with the National Credit Act, a
notice in terms of section 129 of the said Act must first be forwarded to the
consumer.
1 See for example, s 135 of the Liquor Act 87 of 1977.
Where for instance, an organ of state like the Ministry of Safety and Security is
sued on the basis of a delict committed by a person in the police services, then
the prospective plaintiff must, before instituting action against such an organ,
give notice in writing 6 months from the date on which the debt became due,
usually as from the date on which the delict was committed
QYour client claimed that he was unlawfully arrested by members of the
South African Police service and detained for 72 hours before he was
released on 12 January 2021. He consulted with you as his attorney today
and his instructions are to issue a summons against the police for
unlawful arrest and detention. What will be the first step for you to take?

Discuss briefly what you will do and time limits, if any, applicable.
(5)
A Firstly you need to consult properly to obtain all the relevant information as to
the exact circumstances of the assault, the place where and if known the identity
of the police officers or whether your client will be able to identify them. Open a
file for your client with an account number and make extensive notes of the
consultation.
Obtain names and or identities of any prospective witness.
Issue a letter of demand to the Commissioner of Police and have it served by
way of registered post, email or hand delivery.
The letter of demand must be served before the expiry of 6 months from the
incident. Where you file it late you may request the Commissioner to condone
the late filing and if the fail to condone or to respond bring an application to
court to condone it.
Ensure that the summons is issued 30 days after the letter of demand but
before the expiry of 3 years because your claim will become prescribed
thereafter
Chapter 4- 6
1. Discuss the factors to be considered in order to establish whether a
particular court has jurisdiction to hear a matter in terms of the
common law. (10)
At common law, in order to determine whether a particular court has
jurisdiction in any matter brought before it, it will consider the following two
factors:
(a) Whether one or more rationes jurisdictionem apply to the
circumstances of the matter.
(b) Whether an order given by the court would be meaningful
(or effective).
At common law, the general rule is that a court will assume jurisdiction only if
there is a recognized link between it and the matter before it. The link may
relate to the locality of (a) the defendant (or respondent); (b) property which
is the subject matter of the litigation; or (c) the cause of action. Therefore, the
existence of such a link will depend largely on the nature of the action and/or
the subject matter of the action. Such a link is often referred to as a ratio
jurisdictionis.
The principle of effectiveness is an important consideration in the
determination of whether a court has jurisdiction to adjudicate a matter.1
The following principles are also important in terms of the common law The
principle of ‘actor sequitur forum rei.
The general rule regarding the institution of legal proceedings, actor sequitur
forum rei, entails that the plaintiff (or the applicant) follows the defendant (or
the respondent) to his forum and institute proceedings there.
The principle of effectiveness
The basic theme underlying the territorial jurisdiction of our courts is
the doctrine of effectiveness. In terms of this principle, a court should
ordinarily assume jurisdiction only in those cases where the court is able to
give effect to the order which it makes so as to make that order meaningful.
The principle of convenience
A court may be inclined to assume jurisdiction on the basis that it is most
convenient for it to so in the circumstances. A court will therefore, often
assume jurisdiction on the 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. It will be
convenient for that court to entertain the matter because it is likely that most
of the evidence will arise from that area and that most of witnesses will be
domiciled or resident within that jurisdiction.
2. Discuss the basis of jurisdiction of the High Court with regard to
territory as set out in section 21 of the Superior Courts Act. (7)
Section 21(1) specifically mentions two alternative grounds of jurisdiction:
(a) The fact that a person is “residing or being in” its area of jurisdiction; and
(b) The fact that the “cause” arose within its area of jurisdiction.
Section 21(1) does not set out how that territorial limitation is to be
determined. Such territorial limitations are, therefore, determined
according to the common law principles. At common law, in order to
determine whether a particular court has jurisdiction in any matter brought
before it, it will consider the following two factors: (c) Whether one or more
rationes jurisdictionem apply to the circumstances of the matter.
(d) Whether an order given by the court would be meaningful (or effective).
3. Discuss jurisdiction of the High Court in in respect of proceedings
relating to immovable property. (12)
The general rule is that the court, in whose area the property is situated
(forum rei sitae) will have jurisdiction to determine matters which affect the
rights in such property. Therefore, as a general rule, it will be less important
whether the plaintiff or defendant is either domiciled, resident or physically
present within the court’s area of jurisdiction. However, the
question is whether the forum rei sitae has exclusive jurisdiction.
It seems clear that the forum rei sitae will have exclusive jurisdiction in respect
of:
(a) Proceedings to determine title to the property;
(b) 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; and
(c) Claims for the handing over of occupation or possession of property It
appears that, in respect of the following types of claims, the forum rei
sitae will have jurisdiction, but not exclusive jurisdiction:
(a) Claims for the transfer or partition of immovable property.
This involves claims in which the Registrar of Deeds is called upon
to effect a change in the Deeds Registry. In such a case, a court may assume
jurisdiction on the ground that the defendant is an incola of its area because
it then has the power to compel him to execute a deed of transfer.
(b) Claims for the rescission of a contract for the sale of
immovable property. Although, it seems clear that the forum rei sitae will
have jurisdiction in such a case, it is unclear whether any court, other than
the forum rei sitae, will have jurisdiction.
(c) Proceedings for a declaration that property is executable. This will
often arise where a mortgagee, suing on a debt secured by a
mortgage bond, passed in his favour, asks for such an order. (d) An
application to sell or mortgage a minor's immovable property is usually
brought before the court of the minor's domicile. In fact, in such matters, it
is not even clear whether the forum rei sitae has jurisdiction.
4. You are an attorney in Bizana and your client Vuyani approached you
to claim the sum of R250 000,00 from Nomfundo. Both of them are residing
in Bizana and Vuyani approached you to advise him as to whether he
can institute action in Bizana Magistrates’ Court. Advise him as to his
options with regard to the court in which proceedings can be instituted and
the consequences of the different options. (5)
The Magistrates’ Court may in principle hear a case involving amounts not
exceeding R200 000.
The client may abandon R50 000 and then claim R200 000 only. In that case
he may not claim the R50 000 later.
Therefor he can institute proceedings in Bizana Magistrates’ Court
In terms of section 28(1)(a) of the Magistrates’ Court Act a court has
jurisdiction over any person who resides within the district or regional
division of that court. “Any person” relates to the defendant only. If the client is
not prepared to abandon the R50 000 then proceedings must be instituted in the
regional division.
He can also institute proceedings in the High Court but then he will only be
entitled to costs on the lower court scale.
5.Your client resides in Mthatha and he wants to sue Zoleka who resides in
Mqanduli for payment of goods sold and delivered to Zoleka in
Mthatha for R150 000.00. Which court/s will have jurisdiction and give
reasons. (3)
The Mqanduli Magistrate’s Court has jurisdiction because Zoleka resides within
that district in terms of section 28(1)(a).
The Mthatha Magistrate’s Court will only have jurisdiction only if the cause of
action arose wholly within that district in terms of section 28(1)(d). In this
case it will depend as to whether the agreement to sell was entered into in
Mthatha and if payment had to made in Mthatha. If that is the case then
summons can be issued here as well.
5. John and Stephen entered into a contract for the sale of
a house situated in Mthatha. The purchase price of the house is R800
000.00. John resides in Durban and Stephen in Cape Town. John paid the
purchase price, but Stephen refuses to transfer the property to John.
John approached you as his attorney to claim transfer of the property. In
which court/s will you institute the proceedings and give reasons for
your answer. (4)
The case has to go to the High Court as of the value of the property exceeds
the jurisdiction amount of the lower court.
Summons can be issued in Western Cape Division as the defendant
(Stephen) resides there.
As the property is situated within Mthatha the proceedings can be instituted
in the Eastern Cape Division, Mthatha or In Makhanda as the last
mentioned court has concurrent jurisdiction with Mthatha.
7. John and Sarah are married to each other and stayed together
in Mthatha for 5 years. John moved out of the house and moved
to Durban where is now staying for the last year. Sarah stayed behind in
Mthatha. She approached you as her attorney and instructed you to obtain a
divorce. In which court/s will you institute the divorce action and give
reasons for each answer. (5)
In terms of section 2(1) of the Divorce Act shall have jurisdiction if the parties,
or either party is”
domiciled within the area of the court on the date when the action is instituted
or’
ordinarily resident in the area of jurisdiction of the court instituted and have or
has been ordinarily resident in the Republic for one year immediately prior to
that date.
It will be more convenient for Sarah to institute proceedings in the Eastern
Cape Division Mthatha as she is domiciled or resident in the area. She can
also issue summons out of the Natal Provincial Division as Stephen is
residing there,
She can also issue summons out of the Regional Division, Mthatha or Durban for the same
reasons set out above.
8. You issued summons on behalf of a client out of the High Court
Mthatha against a defendant who, at the time of service of the
summons, resided in Mthatha. The cause of action arose in Durban.
The defendant filed a notice of intention to defend and thereafter
moved to Durban. Once he had moved, he filed a plea in which he claims
that the Mthatha court does not have jurisdiction. Will he
succeed in his special plea? Motivate your answer. (2)
He will not succeed in his special plea as jurisdiction is determined at the time
of the issue of the summons. When the court assumes jurisdiction on the
basis that the defendant is resident within its area of jurisdiction, it is
sufficient that the defendant was resident within the jurisdiction at the time of
institution of action and it does not matter that, while the trial is pending, the
defendant moves out of the court’s area and takes up residence elsewhere.

9. Discuss jurisdiction of the magistrate’s court with reference to the

ways provided for in the Magistrate’s Court Act in which the parties to an
action may extend the jurisdiction of the court so that actions
involving higher amounts than those set out in section 29 may be
adjudicated upon by the magistrate’s court.
(5)
When the plaintiff’s claim exceeds the jurisdiction of the Magistrates’ Courts, the
plaintiff may, in his summons or at any time thereafter, explicitly abandon portion
of the claim in order to bring it within the jurisdiction of the court. This is dealt
with in terms of section 38 of the Magistrates’ Courts Act. It is important to note
that if the abandonment is made after the issue of summons, the summons
should be amended, in terms of MCR 55A, to include the particulars of
the abandonment.
If any part of the claim is abandoned it shall be deemed to be extinguished.
In order to bring a claim within the monetary jurisdictional limit of the
Magistrates’ Courts, a plaintiff may in terms of section 39, in his summons or
at any time thereafter, deduct from his claim, any amount admitted by him to
be due by himself to the defendant, irrespective of whether that amount is
liquidated or unliquidated.
The parties may consent in terms of section 45 to increase the monetary
jurisdictional limit of the Magistrates’ Courts. In such a case a matter may be
adjudicated in the Magistrates’ Courts, even if the amount claimed exceeds
R200 000 or R400 000 in respect of Regional Courts.

10. Discuss the types of claims where the magistrate’s court will never
have jurisdiction at all, even where both parties have attempted
to consent to such jurisdiction. (5)
Section 46 excludes the following types of claims from the jurisdiction of the
Magistrates’ Courts:
(a) matters in which the validity or interpretation of a will or other
testamentary document is in question,
b) matters in which the status of a person in respect of mental capacity is
sought to be affected;
(c) matters in which a decree of perpetual silence is sought; and (d)
claims for specific performance without an alternative claim for the
payment of damages.
A magistrate’s court also has no jurisdiction in respect of divorce
proceedings. The regional division has jurisdiction however.
A magistrates’ court does not have jurisdiction to decide a constitutional
issue on the basis that the constitutional issue was incidental to the main relief
claimed

chapter 7
1. What is meant by the term “locus standi”? (6)
A This term is used in two senses. First, the term may be used to refer to the
capacity of a natural or juristic person to institute or defend legal proceedings,
i.e. capacity to litigate.
Every natural legal person may sue or be sued if he is of full legal capacity.
Certain types of natural persons do not, however, enjoy full legal capacity and
may not appear as parties in legal proceedings without appropriate assistance.
So, for example, a minor lacks locus standi and has to be assisted by his
guardian.
Secondly, the term is used to refer to the right of a party to claim the relief and
the interest which a party has in the relief claimed.
In this sense a plaintiff or applicant would be said to lack locus standi if his
claim was not enforceable by him. In order to establish this, one has to ask:
(a) whether the claim is based on a legally enforceable right; and (b)
whether the particular plaintiff or applicant who has brought the claim is
interested closely enough to enforce that right

2. Discuss the test to be applied to determine whether the joinder of a party

to proceedings is essential or not. (8)
The test to determine whether joinder of a party is essential or not is phrased
as follows. If a third party has, or may have, a direct and substantial interest in
any order the Court might make in proceedings or if such order could not be
sustained or carried into effect without prejudicing that party, he is a
necessary party and should be joined in the proceedings, unless the Court is
satisfied that he has waived his right to be joined.
Such a person is entitled to demand as of right that he be joined as a party and
cannot be required to establish in addition that it is equitable or convenient
that he should be joined as a party.
Where he is a necessary party in this sense the Court will not deal with the
issues without a joinder being effected, and no question of discretion or
convenience arises.”
This “direct and substantial interest” is described as “a legal interest in the
subject matter of the action which would be prejudicially affected by the
judgment of the Court.
In Amalgamated Engineering Union v Minister of Labour,1 two tests were
employed in order to decide whether a third party had a direct and substantial
interest, namely:
(a) would the third party have locus standi to claim relief concerning the
same subject matter;
(b) could a situation arise in which, because the third party had not been
joined, any order, the court might make would not be res judicata against him
entitling him to approach the court again concerning the same subject matter
and possibly obtain an order irreconcilable with the order made in the first
instance.
In Judicial Service Commission and Another v Cape Bar Council and Another2 the
court held that it has by now become settled law that the joinder of a party is
only required as a matter of necessity — as opposed to a matter of
convenience — if that party has a direct and substantial interest which may be affected prejudicially by
the judgment of the court in the proceedings concerned.

3. A plaintiff issued a summons against two defendants. It appears that

the second defendant has no interest whatsoever in the outcome of the
proceedings and his joinder is not justified. Discuss the procedure to be
followed by the second defendant in such circumstances. (4)
The second defendant has been misjoined in the proceedings. Misjoinder
entails the joinder of a party that has no interest in the matter.
In such a case the question is not, if the relevant person is a necessary party (in
other words, whether his joinder is compulsory) but merely whether his
joinder of convenience is justified.
If it is justified, there is no problem, but if not, it amounts to misjoinder. A
party to proceedings who wishes to raise misjoinder of another party, can do
so by means of a special plea. In the event of an application, by means of a
point in limine.

4, Your client became aware of proceedings instituted by an applicant

against a respondent in the High Court and your client has a direct and
substantial interest in the proceedings. Explain to your client the available
procedure and what must be shown if he would follow the procedure
available.
The client can apply to court for leave to intervene in the proceedings. The
client has a legal interest in the proceedings and must be joined as he is
entitled to be joined as of right because his joinder is necessary. The courts
have frequently observed that their power to grant leave to intervene is
wider than where joinder is demanded as of right, because the court has a
discretion.
The court does have a discretion to grant leave to intervene on the ground of
convenience, even though the applicant has not established a legal interest.
The above reasoning may not apply to the magistrates’ court where rule 28(1)
provides that any person "having an interest" in the proceedings may apply
for leave to intervene. The meaning of "interest" here is unclear.

4. Distinguish between joinder of necessity and joinder of convenience.

(10)
Joinder of necessity usually applies where a person’s rights can be so directly
affected by an order that the Court may make that his joinder as a party to
the proceedings are essential for the final adjudication of the matter. Thus, it
is not a matter of discretion but of absolute necessity that such
person be joined Joinder of such an essential party can take place on initiative of the plaintiff
when the action is instituted. It can also happen on request of the defendant or by order of
the Court once the action has already been instituted. Finally the Court can, in the event of
the non-joinder of a necessary party, mero motu (out of own accord) raise the issue and give
directives to secure his rights.
In order to save time and costs and avoid a multiplicity or actions it is often
desirable for parties to join or be joined in a matter, even where it is not
essential for them to be joined.
Joinder of convenience can consequently occur where the issues in dispute
"depend on the determination of basically or substantially the same questions
of law or fact".
In Vitorakis v Wolf,3 the application of this principle is explained as follows: “…
the mere fact that the applicant has not a common cause of action or common
ground with the plaintiff in the action is irrelevant. Plaintiffs may go in if they
have separate claims and may even claim alternatively.
The only prerequisite to the exercise of this right is that their right to relief is
dependent upon the determination of substantially the same question of law
or fact.”4
Although the joinder of parties as plaintiffs or defendants usually takes place
ab initio, when the matter is instituted, it can also take place thereafter on
initiative of a party.

5. Distinguish and illustrate the difference between non-joinder and misjoinder

(7)
It is important to distinguish between non-joinder and misjoinder. Non-
joinder means that an essential party has not been joined.
In other words, it means that a person whose joinder is compulsory, has not
been joined.
If however, it would merely be convenient to join a person and he is not so
joined, it does not amount to non-joinder.
Misjoinder entails the joinder of a party that has no interest in the matter
In such a case the question is not, if the relevant person is a necessary party (in
other words, whether his joinder is compulsory) but merely whether his
joinder of convenience is justified.
If it is justified, there is no problem, but if not, it amounts to misjoinder. A
party to proceedings who wishes to raise an objection against the non-
joinder of a necessary party or the misjoinder of another party, can do so by
means of a special plea, or in the event of an application, by means of a
point in limine.
6 You are the attorney acting for an applicant, who instructed you to
bring an application against A. After considering the merits you realise
that Mr B, who has got a direct and substantial interest in the matter,
should be joined. You discuss the matter with B and he indicates that he
will not oppose the application. Is it still necessary to join Mr B in the
proceedings? (3)
A person who has a “right to joinder” can waive such right and accept to be
bound to the judgment of court, in which event it will not be necessary to join
such person.
Where a party has a direct and substantial interest in litigation and has been
given formal notice of such litigation and waives the right to be joined in the
circumstances, amounting to a consent to be bound by the judgment, such
joinder would no longer be necessary as the principle of res judicata would
operate to permit the judgment to be maintained and carried into execution,
notwithstanding the prejudice, having so been waived.
In practice you will make an averment in the pleadings to the effect that such
person has waived his right to be joined in the proceedings.

7. What is the purpose of the Third Party Procedure and when is it available?
Sometimes situations arise where a plaintiff institutes a claim against a
defendant and the defendant then pleads that although he is liable toward the
plaintiff, he is entitled to a contribution or indemnification from a third person
or that a third person was actually instrumental as a joint wrongdoer in for
instance the damage caused to the plaintiff.
In such instances the plaintiff is usually not legally entitled to sue the third
person as a defendant but the defendant will often raise the issue that he is
entitled to indemnification from such third person or that he is entitled that
the plaintiff's damage be apportioned between himself and the third person.
In the High Court the Third Party Procedure in terms of HCR 13 has
consequently been created in order to avoid such a multiplicity of separate
actions and to secure:5
5 HCR 13(1)(a). For more detail on a right of indemnity, see Eimco (SA) (Pty) Ltd v P Mattioda's
Construction
(O)(SA)(Pty) Ltd 1967(1) SA 326(N).
(a) that a person not a party to an action, against whom a party to
the action claims a contribution or indemnity can be brought before the
court and have his obligations, if any determined together with those of
the other defendants;6 or
(b) the determination as between a litigant and a non-litigant, of
any question or issue in an action, of substantially the same question or
issue has arisen or will arise between them.
The Third Party Procedure is available in two instances, namely: (a) where
a party to an action claims that he is entitled to a contribution or
indemnification from another person who is not a party to that action, or
(b) where a party to an action claims that any question or issue that arises
in that action is substantially the same as a question or issue which ha
arisen or will arise between such party and the third party, and should
properly be determined not only between the parties to the action but
also between such parties and the third party or between any of them

chapter 8
1. A party may proceed by way of the application procedure alternatively by
way of action. On what does this choice depends? (8)
The question whether a party should proceed by way of the application
procedure alternatively by way of the action procedure was dealt with in
Room Hire Co (Pty) Ltd v Jeppe Street Mansions.
It was decided 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 the proceedings.
When such a dispute is anticipated, a trial action should be instituted;
otherwise motion proceedings are permissible so as to obviate the delay and
expense involved in a trial action.
From this general rule, it follows that motion proceedings should not be
instituted in claims for unliquidated damages and matters in which it is
anticipated that a material dispute of fact will arise, unless the application
procedure is specifically authorized for that kind of claim.1
It has been laid down that it is never appropriate to proceed by way of motion
in claims for divorce and claims for damages.
1 Moleah v University of the Transkei and others 1998(2) SA 522 (Tk)
Notwithstanding the rule regarding anticipated disputes of fact, there are
certain types of proceedings in which application proceedings should always
be used. An insolvency proceeding is one example.
It has also been held that where a party seeks urgent relief, the application
procedure is always appropriate, at least to obtain temporary relief, regardless
of an anticipated dispute of fact.
It is also important to note that frequently, legislation lays down that a party
may “apply” to court for relief of a particular type. While the court may then be
approached on notice of motion, despite the foreseeability of a dispute of fact,
statutory provisions of this nature will not be interpreted as rendering
application proceedings peremptory in every case: sometimes proceedings by
way of action will be permitted instead.

2. An applicant brought an application in the High Court and it was opposed by

the respondent. All the affidavits have been filed and when the matter is
argued it appears that there is real dispute of fact as set out in the affidavits
and the matter cannot be resolved on the papers before court. Discuss the
options available to the court in such situation. (14)
Where there is a dispute of fact it has been held that a court will be justified
in rejecting a denial by the respondent where the respondent’s case is
“wholly fanciful and untenable” or “far-fetched
A court may also reject a respondent’s version on the papers where it is
satisfied that viva voce evidence would not disturb the balance of probabilities
appearing from the affidavits.
Furthermore, where a matter is so urgent that it is not practical to hear oral
evidence, the court will do the best it can to resolve any dispute simply on the
affidavits placed before it.
in Truth Verification Testing Centre CC v PSE Truth Detection CC and others the
court stated that the so-called “robust, common-sense approach”, which is
adopted in relation to the resolution of disputed issues on paper, usually
relates to a situation where a respondent contents himself with bald and
hollow denials of factual matter confronting him.
If it appears that the applicant must reasonably have foreseen that a material
dispute of fact would arise between him and the respondent at the time he
brought the application, but he nevertheless proceeded by way of
application, then the court may dismiss the application with costs. However,
even in such a case the court is not obliged to dismiss the application. It has
a discretion to decide on one of the other steps mentioned hereafter, and to
still penalise the applicant with a costs order The court may order that oral
evidence be heard to decide a specific factual dispute. This procedure is only
applicable where the dispute is of limited scope, and not where it is
extensive and complicated.
If a party to an application wishes to present oral evidence to the court in
accordance with this procedure, he must obtain leave from the court to do so.
This is usually done by such party making such a request either, at the outset,
or after he has presented his case on the papers
In Khumalo v Director-General of Co-operation and Development, a number of
important points were made regarding the referral of a matter to oral
evidence.
First, it was held that, without limiting the wide discretion implicit in HCR 6(5)
(g), oral evidence in one form or another should be allowed if there are
reasonable grounds for doubting the correctness of the allegations concerned.
Secondly, the court found that there was nothing in the language of HCR
6(5)(g) which limited the discretionary power of the court to order the
cross-examination of a deponent to cases in which a dispute of fact is shown
to exist.
It has also been held that a court will be more inclined to allow an applicant to
adduce oral evidence and to cross-examine the deponents of the answering
affidavits where the applicant is obliged to proceed by way of application,
although not every request will be granted as a matter of course If the factual
dispute is extensive or complicated the court may refer the matter to trial.
The result is that the application is converted into a trial action where oral
evidence may be led.
Where an application is referred to trial, the question will arise as to which
party should bear the costs of the application. The court may order that the
applicant pay the costs of the application if it seems that he should reasonably
have foreseen that a substantial factual dispute would arise

3. On what will the form of the notice of motion depends on in the High Court?
(3)
The form of the notice of motion will depend on the type of application that is
brought.
In the High Court the first prescribed forms is Form 2 (also known as the short
form of notice of motion) Form 2, or the short form notice, is used in those
instances where the application is brought on an ex parte basis and only the
registrar gets prior notice of the application
The second form is Form 2(a), or the long form notice, is used for bilateral
applications, where it is necessary for both the registrar and also the
respondent to get prior notice of the application.

4. What information should generally appear in all founding affidavits? (5)

The names and addresses, of the applicant and respondent (if applicable).
That the applicant has locus standi.
That the court has jurisdiction.
The material facts upon which the claim is based (that is, the facta probanda)
as well as the evidence which the deponent wishes to place before the court
(that is the facta probantia).
A request to the court to grant the relief as prayed for in the notice of motion.

5. What must set out by an applicant in urgent applications additionally

to the normal requirements as to what must be set out in normal
applications? (5)
In every affidavit filed in support of any urgent application the applicant must
set forth explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims he could not be afforded substantial redress at
a hearing in due course. It is therefore necessary for the applicant to set out,
in detail, the reasons for proceeding by way of urgency.
The importance of this stipulation cannot be overstated and if the court is not
satisfied with the explanation as to urgency set out in the affidavit, the
application will be dismissed. Whether a matter is urgent will also depend, to
a large extent, on the nature of the right which is being threatened and which
the applicant seeks to protect.

6. An applicant brought an urgent application against a respondent without

prior notice to the respondent and the court granted an interim order against
the respondent. Discuss the options available to the respondent once the
application and interim order have been served upon him. (7)
The respondent will then be served with the provisional order and a copy of
the original application and he will be informed that he must indicate (by
means of a notice to oppose and an opposing affidavit) to the court, on or
before the return date, why the provisional order should not be made final.
Where the respondent fails to file a notice of intention to oppose on or before
the return date, then the court can make the provisional order final on the
return date, if satisfied that the respondent was properly served and the
applicant has made out a case for the relief sought.
Any person against whom an ex parte order was granted, may anticipate the
return date with 24 hours’ notice.
The respondent may be notice set the matter down for reconsideration of the
offer in terms of Rule 6(12)(c)
The rule nisi calls upon the respondent to appear before the court on a certain
date to furnish reasons why the provisional order should not be confirmed and
made final.
If the respondent intends to oppose the application must then deliver an
answering affidavit, unless he relies solely on a point of law. If he is
unable to oppose it successfully the provisional order will be confirmed.

7.Under what circumstances may a bilateral application be brought on an ex

parte basis in the High Court? (5)
Where the application is merely a preliminary step in the matter. For
example, where application is made to sue by means of substituted service. If
the identity of the respondent/respondents is not readily ascertainable (in
which event the relief sought will be for a rule nisi with directions of how to
serve the rule nisi)
Where urgent relief is required and the nature of the relief sought is such that
notice to the respondent may render the relief nugatory . For example,
where the applicant applies to attach a vehicle which is in the defendant’s
possession and which the defendant plans to take over the border or the so-
called Anton Piller type applications2.
Where due to the urgency of the matter notice cannot be given to the
respondent, for instance, if the harm is imminent.
8. What needs to be served in addition to the application upon a respondent
in a bilateral application? (3)
Rule 41A requires that every new application must be accompanied by a
notice, which must be delivered by an applicant with the notice of motion and
indicating whether the party agrees to or opposes referral of the dispute to
mediation.
The notice must state the reasons for each party’s belief that the dispute is or
is not capable of being mediated. This notice is delivered on a without
prejudice basis and therefore does not form part of the record of the trial or
hearing.
There is no sanction for non-compliance provided for in the rule.
2 Universal City Studions Inc v Network Video (Pty) Ltd 1986(2) SA 734 (A

Chapter 9

1. What is the primary object of pleadings? (3)

The primary object of a pleading is to enable each litigating party to come to
trial fully prepared to meet the case of the other party. Each pleading must
therefore contain a clear and concise statement of the material facts upon
which the pleader relies for the claim, defence or reply, and each statement
must consist of sufficient particularity in order to allow the opposing party to
understand the alleged facts and to reply thereto
2. What is the purpose of pleadings? (4)
A pleading is a highly technical and formal document which serves the
multifold purpose of:
• establishing the litigating parties’ locus standi in iudicio;
• establishing the court’s jurisdiction;
• informing the parties’ of the material facts (facta probanda) upon which the
legal dispute is founded; and
• giving each party the opportunity of presenting a case and of receiving
notice of the opposing party’s case.

3. What must be set out in the particulars of claim? (5)

The particulars of claim must set out”

•the nature of the claim,

•the permitted conclusions of law which the plaintiff may properly deduce
from the facts
•a prayer for the relief claimed.

•It must also be clear that the court has jurisdiction to hear the matter; and
that the party has locus standi to appear in it.
4. Under what circumstances is the filing of a replication to defendant's plea
necessary? (3)
The plaintiff’s replication is only necessary when the intention is to place new
facts before the court and unnecessary when the plaintiff’s response to the
defendant’s plea is a bare denial of the defendant’s averments. A replication is
usually necessary when the defendant’s defence is one of confession and
avoidance.
5. What needs to be served upon the defendant in addition to the summons?
(3)
Rule 41A requires that every new action must be accompanied by a notice,
which must be delivered by a plaintiff with the summons indicating whether
nvassing all the material averments raised in the plaintiff’s claim.
Where a simple summons has been served upon the defendant he only needs
to file a notice of intention to defend. The plaintiff then needs to serve a
declaration and then only will the defendant file a plea.
7. You are required to set out the general requirements of particularity in
pleadings.
1. HCR 18(4) and MCR 6(4) requires that every pleading must
contain a clear and concise statement (as brief as the nature of the case
will allow) of all the material facts (facta probanda) upon which the
pleader relies for the claim or for the defence to the claim. Particularity
in pleading would, in general terms, require the following:
2. The plaintiff’s cause of action must be so clearly set out that the
defendant understands the case to be met and is able, at the trial, to
attempt to disprove the plaintiff’s allegations, and the defendant’s plea
must also be set out with an exactness which will allow the plaintiff to
understand the nature of the defence.
3. A pleading should ideally not contain statements of evidence
(facta probantia). To plead evidence is irrelevant and may be
embarrassing, and render the entire pleading vulnerable to an exception
or the vulnerable portion of the pleading open to a striking out.
4. The defendant is entitled to know the limits of the plaintiff’s
claim and the plaintiff is similarly entitled to know the limits of the
defence. 5. A pleading must ideally contain material facts and not law.
The pleading of a legal proposition, conclusion or inference is irrelevant
and legal principles contained in a pleading are likely to be objected to if
embarrassing to the opposing party. The pleading of a conclusion of law,
although considered a bad pleading, will not render it excipiable or
warrant an application to strike out unless it goes beyond a mere
technicality and is prejudicial to the opposing party. When it is
unavoidable or absolutely necessary to aver conclusions of law, then
these averments of law must be supported by material facts.
6. The form of each pleading must be based on the structure of
paragraphs and sub-paragraphs. Each paragraph must be consecutively
numbered and contain a distinct and precise averment. The paragraphs
must not be repetitive and when alternative or separate claims are
made which are based on the same essential facts, these should be
made by reference and not by repetitive restatement. Legally tenable
but inconsistent allegations are acceptable provided they are made in
the alternative and do not cause prejudice or embarrassment to the
opposing party.
7. A comprehensive knowledge of substantive law is required to
draft good particulars of claim or a plea. A bad pleading usually
contains material facts which cannot be proved at the trial because the
evidence needed to support these facts is inadmissible.
8. The Rules do not require a pleading to be drafted in perfect
language. The law does not insist on elegant pleadings but simply
requires that each separate averment be grammatically coherent
chapter 10
1. What must the Sheriff explain to the defendant when he/she serves the
summons at the defendant?
The summons is addressed to the sheriff. The summons directs the sheriff to
inform the defendant of the following particulars:

The plaintiff has a claim and intends to obtain a judgment order against the
defendant.

Should the defendant choose to defend the action, notice of the intention  to
defend must be given within the prescribed dies induciae.

The summons commences the action process and depending on the type  of
summons, the defendant is obliged to follow the correct steps in pleading by
serving a notice of intention to defend and a plea.

Should the defendant ignore the summons or fail to give notice of an 

intention to defend, the court may award default judgment in favour of the
plaintiff.

2. What is the legal effect of service of a summons? 4

 The summons determines the jurisdiction of the court.

The summons interrupts the running of prescription

The issue of a summons prevents the plaintiff from issuing a second
alternative summons on the same cause of action against the same defendant
in the same or any other court.

The issue and service of a summons allows the plaintiff’s heirs to inherit the
claim on the death of the plaintiff, subject to the qualification that a personal
right (based on a personal action) may only be transferred after the close of
pleadings (once the stage of litis contestatio is reached).
3. Explain the different types of summons. (4)
A simple (ordinary) summons which is founded on a debt or liquidated
demand owed to the plaintiff (i.e. where no further evidence is needed to
prove the quantum of the plaintiff’s demand).
A more detailed summons or combined summons which is usually based on
a plaintiff’s claim and which is not for a debt or liquidated demand. An
extraordinary type of summons, called a provisional sentence summons,
may be used in both the High Court and the Magistrates’ Court by a plaintiff
whose claim is founded on a liquid document

4. Illustrate the different procedure following the service of a simple summons

compared to the service of a combined summons (6
After issue by the registrar and service by the sheriff of a simple summons, the
formal pleading stage of the action procedure commences and the defendant
is confronted by two choices:
The defendant may fail to react to the summons within the stipulated time
period. A failure to react within the prescribed time limits will permit the
plaintiff to apply for default judgment.
The defendant may react to the summons by delivering a notice of intention to
defend within the prescribed dies induciae.
The plaintiff, in turn, and within the prescribed dies induciae of 15 days in
terms of HCR 20(1), must respond by delivering to the defendant and filing in
court a type of particulars of claim referred to as a declaration. Subsequent
to the filing of the declaration the defendant must file his/her plea within 20
days of service of the summons.
Once the combined summons has been served by the sheriff upon the
defendant, the dies induciae allow the average defendant a standard 10 court
days (and the state defendant 20 court days) in which to deliver a notice of
intention to defend.
After the delivery of a notice to defend, the defendant has a further 20 court
days in terms of HCR 17(1)(b) in which to deliver a plea (with or without a
counterclaim), a special plea, take an exception to the plaintiff’s summons or
make an application to strike out specific averments in plaintiff’s summons.
5. Illustrate the technical requirements of both the simple and combined
summons. (10)
Both types of summonses must be signed and issued by the registrar. oThe
simple summons is not defined as a pleading and need only be signed by an
attorney acting on behalf of a plaintiff or alternatively by unrepresented
plaintiffs acting on their own behalf.
oThe combined summons as a pleading must be signed by an advocate (or
an attorney who has right of appearance in the High Court) and an
attorney, or alternatively by an unrepresented plaintiff.
oFor the purpose of accepting further delivery of pleadings, both
summonses must contain the physical address of the representing
attorney (the address must be within 15 km’s of any court) or the physical
address (again within 15 km’s of a court) of the unrepresented
plaintiff.
oIn addition to the physical address the attorney’s postal address and
where available, the attorney’s facsimile and electronic mail address
must also be supplied. Where no attorney is acting the plaintiff must, in
addition to the physical address supply his/her postal address and
where available, his/her facsimile and electronic mail address.
The combined summons or the declaration to a simple summons is the
initial pleading of the action procedure and is governed, as are all
pleadings, by the rules of pleading contained in HCR 18.
Every summons shall be divided in paragraphs, sub-paragraphs and
consecutively numbered.
Every summons must contain a clear and concise statement of all the
material facts (facta probanda) with each averment contained in a
separate paragraph and with sufficient particularity in order to fully inform
the defendant of the plaintiff’s claim.
Where the plaintiff’s cause of action and claim is founded upon a
contract, then the particulars of claim (or declaration) shall state
whether the contract is written or oral, when, where and by whom it
was concluded, the appropriate remedy and, if applicable, the quantum
(amount) of contractual damages. Where the contract is a written one a
true copy thereof or of the part relied on in the pleading must be
annexed to the pleading. Where it is impossible for a plaintiff to
produce the written contract or a copy of it, the law allowed it to prove
its execution and terms by other evidence.

If the cause of action is founded upon a delict, then the particulars of claim
shall expressly describe the kind of delict claimed, the time, place and
manner in which the delict was committed and the quantum of damages
claimed.

6. What are the necessary averments that must be contained in the particulars
of claim? (8)
In substance, the particulars of claim must contain the following necessary
averments:

•The names and capacities of the plaintiff and defendant.

•The nature, extent and grounds of the cause of action.

•The relief sought is a distinctive part of the particulars and must be laid out
with precision.

•The prayer must set out the following detail :

1. The amount of the claim.
2. If the claim bears interest, the rate at which interest is calculated and the
time periods within which the interest will be calculated.
3. The amount claimed for legal and court fees. (The successful party is
entitled to claim costs from the losing party)
4. An alternative relief which is not specifically requested but to which the
plaintiff is entitled on the basis of the averments made in the particulars
of claim.
7. Within how many days must a defendant file an appearance to defend
in the magistrates' court and how is the number of days calculated? (4)
After service of the summons, the defendant has 10 days; and the state,
as defendant, has 20 days in which to deliver a notice of intention to
defend.
These days are referred to as “court days” and are calculated by excluding
Saturdays, Sundays, public holidays;
and the days between 16 December and 15 January (both days inclusive) when
the court is in recess

chapter 13
1. On what must a plaintiff's claim be based upon when applying for summary
judgment? (4)
A summary judgment may only be requested when the plaintiff’s cause of
action and claim is based upon:

•A liquid
document.

•A liquidated amount of
money.

•The delivery of a specified movable

property.

•Ejec tment.

2. The Plaintiff served a simple summons upon the defendant and the
defendant filed an appearance to defend, Can the Plaintiff immediately apply
for summary judgment? (3)
No be cannot. Application can only be made after the defendant filed a plea.
Where the simple summons had been served and the defendant filed an at
least 15 court days before the actual hearing of the matter.

4. The Plaintiff applied for summary judgment and Defendant filed an

opposing affidavit. On the date of the hearing the Defendant did not appear
in court. Can the court still grant summary judgment in the absence of the
Defendant?
The court will still consider the defendant’s answering/opposing affidavit even
though the defendant fails to appear at the actual hearing. The defendant
cannot ask for rescission of judgment as though it were a default
judgment when the court, in the absence of the defendant, has held that the
affidavit does not disclose a bona fide defence.
5. Read questions (a) and (b) hereunder before answering any of the
questions.
(a) Discuss the procedure to be followed by the plaintiff when he
served a simple summons upon the defendant based upon a liquidated
amount of money and the defendant served a notice of appearance to
defend and the plaintiff is of the opinion that the defendant has no
bona fide defence to the claim.
(b) Explain the difference in procedure, if any, where the plaintiff
served a combined summons upon the defendant. (12)
Once the defendant filed an appearance to defend following the service of a
simple summons upon him/her the plaintiff first have to file a declaration
and then wait for the defendant to file a plea.
After service of the plea and within 15 days the plaintiff has to file an
application for summary judgment, The defendant must have at least 15
days’ notice of the application which the plaintiff’s case is based.
The plaintiff or deponent must explain briefly why the defence as pleaded
does not raise any issue for trial
(b) Where a combined summons was served then the plaintiff must wait for
the defendant to file his/her plea. Thereafter the same procedure is
followed in respect of the application for summary judgment.
6. What can the defendant do to prevent the granting of summary judgment?
(4)

The defendant may give security to the plaintiff, and to the satisfaction of the

court, for any judgment amount (including costs) which may be granted. The
defendant may attempt to convince the court by means of an
answering/opposing affidavit that he/she does have a prima facie and bona
fide defence.
In terms of HCR 32(3)(b) and MCR14(3)(b) the defendant’s
answering/opposing affidavit must be deposed to either by the defendant or
by any other person (who has the authority to make it and has knowledge of
the facts) and who can positively swear that the defendant has a bona fide
defence to the plaintiff’s action.

The affidavit must set out fully the nature and the grounds of the defence and all
the material facts relied upon
1. What is the primary object of pleadings? (3)
The primary object of a pleading is to enable each litigating party to come to
trial fully prepared to meet the case of the other party. Each pleading must
therefore contain a clear and concise statement of the material facts upon
which the pleader relies for the claim, defence or reply, and each statement
must consist of sufficient particularity in order to allow the opposing party to
understand the alleged facts and to reply thereto
2. What is the purpose of pleadings? (4)
A pleading is a highly technical and formal document which serves the
multifold purpose of:
• establishing the litigating parties’ locus standi in iudicio;
• establishing the court’s jurisdiction;
• informing the parties’ of the material facts (facta probanda) upon which the
legal dispute is founded; and
• giving each party the opportunity of presenting a case and of receiving
notice of the opposing party’s case.

3. What must be set out in the particulars of claim? (5)

The particulars of claim must set out”
CIVIL P 7 SEP 2017 TEST
1. Discuss the circumstances when an exception to pleadings may be taken, the test to be
applied by the court when deciding on whether or not to uphold an exception and the practical
procedure for taking an exception. (20)
HCR 23(1) and MCR 19(1) are designed to limit the circumstances in which an exception may be
taken to summons or pleadings. Consequently an exception may only be taken against a pleading
which fails to disclose a cause of action or defence or is vague and embarrassing. In terms of HCR
18 a pleading must contain a complete chain of relevant factual allegations which set out in a clear
and concise language the claim or defence relied upon.
The omission of a necessary averment in a pleading breaks the sequence of factual allegations
and renders the pleading excipiable because of the omission of a necessary averment, it may be
considered vague and the whole pleading becomes unintelligible and legally invalid. When the
vagueness is such as to embarrass the opponent by preventing the opponent from
understanding the case which must be met, the pleading may be excepted to. Similarly where
the vagueness is due to the failure to disclose a cause of action or defence, the pleading is
rendered excipiable.
In Leathern v Tredoux, it was provided that where a statement is vague, it is either meaningless or
capable of more than one meaning. It is embarrassing in that it cannot be gathered form it what
ground is relief on, and therefore it is also something which is insufficient in law to support in
whole or in part the action or defence.
The practical procedure for taking an exception
A. The content of an exception- a notice of exception is a pleading and therefore in
the HC the notice must be signed by an advocate and by an attorney, unless the attorney
in question has been granted the right of appearance in a HC, in which event the pleading
may be signed by the attorney alone. The document must set out the grounds on which
the exception is founded and must end with a prayer for the relief sought. It is not
necessary to plead over when an exception is taken.
B. The exception to a vague and embarrassing pleading- when an exception wishes
to except to a vague and embarrassing pleading, the excipient must by notice afford the
opponent an opportunity to remove the cause of complaint within 15 days. If the
opponent concedes that the pleading is vague and embarrassing, then he/she may rectify
the defect by amending the pleading or by furnishing the other party with greater
particularity with regard to the pleading complained of.
C. The exception to a pleading that does not disclose a cause of action or defence-
when a pleading lacks averments necessary to sustain a cause of action or defence, there
is no obligation on the excipient to afford the opponent an opportunity of remedying the
defect in terms of HCR 23(1). The excipient may immediately deliver a notice of exception.
D. Conclusion- when an exception is upheld the pleading against which it is raised is
immediately destroyed. This does not mean that the action is dismissed or that the
defence is struck out. The exception will only serve to finalise the matter when the party
against whose pleading the exception is upheld is unable to effectively breach the
problem by means of an amendment.
The test to be applied by the court when deciding on whether or not to uphold an exception
I. The court is oblige to determine whether the pleading lacks particularity
and whether this lack of particularity amounts to vagueness.
II. If there is vagueness, the court is then oblige to undertake a quantitative
analysis of such embarrassment as the excipient can show is caused to him/her by
the vagueness complained of. In other words is the pleading very vague or not so
vague? III. Consequently a decision must be made as to whether the
embarrassment resulting from the vagueness is so serious as to cause prejudice to
the excipient of he/she is compelled to plead to the pleading in its present vague
form.
IV. Prejudice to the excipient is the ultimate test to determine whether or
not an exception should be upheld.
V. The onus is therefore on the excipient to show both vagueness
amounting to embarrassment and embarrassment amounting to prejudice.
VI. When an exception is upheld, the court will usually give the
respondent an opportunity to file an amended pleading within a certain time
limit.
2. Where summons has been issued and served and the defendant does not wish to defend
the action he may enter into negotiations with the plaintiff to settle the dispute. Discuss
the various forms of offer or tender that may be made and the procedure to be followed
A. An unconditional offer or tender
In terms of the rules the defendant may make an unconditional admission of liability either in
part or in whole. This is done by means of an unconditional offer of an amount in settlement
of the plaintiff’s money claim or an unconditional tender of performance of an act in
settlement of an obligation due to the plaintiff. The plaintiff may accept the amount offered or
the performance tender and still proceed to recover the balance of the claim or the balance of
the performance. The plaintiff will be granted an order of costs if successful in providing an
entitlement to any portion of the balance.
B. A conditional offer or tender
The defendant may choose not to admit liability but is prepared, as a compromise, to make
an offer or tender of settlement in order to end the litigation. This allows the defendant to
continue to defend the action should the plaintiff refuse to accept the settlement. This type
of offer or tender presents the plaintiff with a difficult choice. If the plaintiff accepts the
settlement, the action is ended and if the plaintiff cannot proceed to recover the balance. If
the plaintiff rejects the offer or tender and continues with the action and subsequently at
trail fails to prove an entitlement to more than was offered or tendered, he/she is liable for
all the legal costs incurred in the action from the date of the offer or tender to the date of the
trial.
C. Offer or tender at common law
An offer or tender to settle need not necessarily be made in terms of the rules of the court. The
procedure described in rules is obviously the most effective one but it does not exclude other
forms of offers or tenders being made. Offers and tenders outside the rules are governed by the
common law. Here offer or tender is simply an offer of payment or performance made by one party
for acceptance by another.
Three different types at common law;
• The debtor-offeror may make an offer of compromise with a denial of liability. Such an
offer is made on condition that it is accepted in full and final settlement. (an offer of
compromise)
• The debtor-offeror may make a tender admission of liability. The debtor-offeror admits
liability for part payment of the creditor-offeree’s claim but denies liability for the
balance. (tender with admission of liability)
• The debtor-offeror may make a payment with admission of liability for part or the
whole of the claim. (unconditional payment with admission of liability)
Discuss the requirements of a plea on the merits in response to the plaintiff’s particulars claim.
• HCR 22(2) and (3)-
• (2)- The defendant shall in his plea either admit or deny or confess and avoid all the
material facts alleged in the combined summons or declaration or state which of the
said facts are not admitted and to what extent, and shall clearly and concisely state all
the material facts upon which he relies
• (3) every allegation of fact in the combined summons or declaration which is not stated
in the plea to be denied or to be admitted shall be deemed to be admitted if any
explanation, or qualification or any denial is necessary, it shall be stated in the plea.
MCR 17(2) and (3)
Admission
Denial
Non-admission
Confession and avoidance
Multiple defences and alternative defences
• Admission- admitted facts are deemed to have been proved and no evidence need to
be adduced at trial to establish the truth of the admitted fact. HCR 22(3) and MCR
17(3) provide that every allegation of fact in the combined summons or declaration
which is not addressed on answered shall be deemed to be admitted.
• Denial- where the defendant denies an allegation, he places that allegation in issue and
plaintiff is required to prove that allegation by adducing evidence. Although it was
stated that a pleader should adopt a very cautious approach to the making of an
admission, that does not mean to say that the pleader should habitually deny
allegations which ought properly to be admitted. The manner in which a denial is made
is important.
• Non-admission- the defendant would plead a non-admission by, for instance, stating
that, the defendant has no knowledge of the averment and in the premises denies the
said allegation and puts the plaintiff to the proof thereof.
• Multiple defences and alternative defences- where the defendant wishes to raise
more than one defence against the plaintiff’s claim each separate defence must be
pleaded. If two defences are mutually destructive, the defendant cannot rely on both
at the same time. Put otherwise, only one or the other and not both can succeed. In
such a case defences must be raised in the alternative.
• Confession and avoidance- a plea of confession ad avoidance is termed because the
defendant admits the substantial facts upon which the plaintiff relies but he wishes to
avoid the resulting legal consequences by raising additional facts which, if proved will
defect the plaintiff’s claim. This arises where the defendant raises a specific defence
such as,

Fraud on the part of the plaintiff

A defence of volenti no fit injuria

Waiver by the plaintiff of his rights

Payment or settlement by the defendant of his allegation

One of the parties were acting ultra vires

Admission by the defendant of the plaintiff’s claim, but the plea of a

counterclaim.

November exam 2017

1. Illustrate under what circumstances will an application strike out be granted [5]
• When a replying affidavit in motion proceeding contains matters which
should have been set out in the founding affidavit.
• When an averment in an affidavit or pleading amounts to an argument in
law.
• When evidence is set out in a pleading in a trail action.
• When an affidavit contains inadmissible evidence.
• When a pleading contains an averment of fact which can only be proved by
inadmissible evidence.

2. Illustrate the difference between an exception and striking out. [5]

Exception
Striking out
Available to either party
Available to either party only
applies to trail actions
To both trial and motion applications Must
establish prejudice if vague and
embarrassing
Must establish prejudice
A notice which amount to a pleading an
interlocutory application and a short
form of notice
No pleading over is necessary No
pleading over is necessary

3. Discuss the procedure to be followed by a party to the proceedings where his opponent
took an improper an irregular step which hinders the litigation process and give 5 examples
of what constitutes an irregular step. [10]
• In the HC Procedure, the application may be brought by any party to a legal
proceeding in which an irregular step has been taken by the opposing party. The party may,
within 10 days of becoming aware of such an irregular step, give a written notice to the
opponent to remove the cause of complaint and to do so within 10 days. If this is written
notice is ignored, again the applicant must notify the opponent that after the expiry of a
further 10 days an application will be made to court to have the irregular step set aside.
This application must be specify particulars of the alleged irregularity or impropriety and
must be taken by the applicant before he or she makes a further procedural step. The
notice is therefore subject to proviso that the applicant may not take a further step in the
ligation process while knowing of the irregularity in terms of HCR 30(1) and HCR 30(2)(a)-
(c).
• The MC, the equivalent rule in the MC providing for the setting aside of an irregular
pleading is MCR 60A. The wording of MCR 60A is now in accordance with HCR 30 and
accordingly the same principles and procedures are applicable.
Examples
a) When a proper power of attorney has not been filed.
b) When proper service of a summons has not occurred
c) When notice of intention to defend is delivered irregularly or out of time.
d) Where there is a premature enrolment.
e) When a notice of appeal is defective.
4. Discuss the option available to a party from whom security of costs is demanded and the
procedure to be followed under each circumstances. [8]
• May give security, as required
• Dispute the amount of security requested
• Dispute his liability to give security for costs.
Procedure- where the party dispute the amount, the matter is referred to the Registrar.
The Registrar fixes the amount and his decision is final. Where the party, however disputes
his liability the matter must serve before motion court.
If the party from whom security is requested disputes his liability or fails to give security or
fails to give security in the amount fixed by the Registrar, the party who desires security
can apply to court that an order be granted for furnishing security and that the
proceedings must be suspended until the order has been complied with.
5. Discuss the purpose of a tender (in terms of HCR 34 or MCR 34 and illustrate various forms of tender.
[15]
• The purpose of a tender to settle is aimed at preventing litigation form
beginning or to terminate a litigation which has already began.
• It constitutes a deterrent against unnecessary litigation by the plaintiff. Most
importantly, it provides the defendant with a protection against legal costs.
• At the very least it limits costs should negotiations fail and the litigation proceed
to trial.
• The general principle is that should the plaintiff elect to refuse the offer and
subsequently at trial is unable to prove that he/she is entitled to more than was
originally offered, the plaintiff will be liable for all the costs incurred after the date on
which the offer was made.
• The earlier offer is made the more extensive will be the defendant’s protection
against liability for costs.
• If the defendant’s offer is accepted and the defendant subsequently fails to
perform in terms of the offer or tender, the plaintiff may apply for judgment based on
the settlement.
D. An unconditional offer or tender
In terms of the rules the defendant may make an unconditional admission of liability either in
part or in whole. This is done by means of an unconditional offer of an amount in settlement
of the plaintiff’s money claim or an unconditional tender of performance of an act in
settlement of an obligation due to the plaintiff. The plaintiff may accept the amount offered or
the performance tender and still proceed to recover the balance of the claim or the balance of
the performance. The plaintiff will be granted an order of costs if successful in providing an
entitlement to any portion of the balance.
E. A conditional offer or tender
The defendant may choose not to admit liability but is prepared, as a compromise, to make an
offer or tender of settlement in order to end the litigation. This allows the defendant to
continue to defend the action should the plaintiff refuse to accept the settlement. This type of
offer or tender presents the plaintiff with a difficult choice. If the plaintiff accepts the
settlement, the action is ended and if the plaintiff cannot proceed to recover the balance. If
the plaintiff rejects the offer or tender and continues with the action and subsequently at trail
fails to prove an entitlement to more than was offered or tendered, he/she is liable for all the
legal costs incurred in the action from the date of the offer or tender to the date of the trial.
F. Offer or tender at common law
An offer or tender to settle need not necessarily be made in terms of the rules of the court. The
procedure described in rules is obviously the most effective one but it does not exclude other
forms of offers or tenders being made. Offers and tenders outside the rules are governed by the
common law. Here offer or tender is simply an offer of payment or performance made by one party
for acceptance by another.
Three different types at common law;
• The debtor-offeror may make an offer of compromise with a denial of liability. Such
an offer is made on condition that it is accepted in full and final settlement. (an offer of
compromise)
• The debtor-offeror may make a tender admission of liability. The debtor-offeror
admits liability for part payment of the creditor-offeree’s claim but denies liability for the
balance. (tender with admission of liability)
• The debtor-offeror may make a payment with admission of liability for part or the
whole of the claim. (unconditional payment with admission of liability)
6. Discuss the requirements of a plea on the merits in response to the plaintiff’s
particulars claim. [10] above
7. During the pre-trail stage any of the parties can file a discovery notice upon his/her
opponent. Discuss the possible sanctions in respect to a failure to discover. [7] • A failure to
discover a document or tape recording, as required by HCR 35(1), will prevent the party
obliged to make discovery from using that document or tape at trial. It can however be
used by any other party. Exceptionally, the court may allow the party who failed to disclose
it, to use it on such terms as the court may deem reasonable.
• A party failing to provide discovery, in terms of HCR 35(1) or failing to allow
inspection of discovered documents in terms of a HCR 35(6) notice will, on application by
the desiring discovery and inspection, be compelled by a court to make such discovery or
inspection. Failing such compliance the claim may be dismissed or the defence struck out
• A party failing to comply with a notice requiring production of documents and
tape recordings, and the making of copies or transcriptions thereof, shall not be allowed,
save with leave of the court, to use such document or tape recording at trial. However
any other party may make use of such a copy or tape recording.
• When a party is prejudiced and unable to properly prepare for trial because of
the failure of the opposing party to discover timeously, the party may approach the court
for leave to postpone the trial.
• The general rule is that the costs occasioned by discovery are, on application,
made costs in the cause.

8. Define special plea and give examples of the defences which may be raised as special plea.
[10]
• the plea which address the merits of the plaintiff’s case
• Apart from raising a defence on the merits the defendant may also raise a
special plea.
• A special plea is not a reply to the factual allegations made by the plaintiff
• Where a special plea destroys the cause of action it is known as a declaratory
plea • where a defence is raised by way of a special plea, it may either be
dealt with at the trial or it may be set down to be heard prior to the trial.
• In the HC this may be done in terms of HCR 33(4) and in the MC in terms of
MCR
29(4)
Examples
• Non-joinder or Misjoinder- as a general rule all parties who have a right or an
interest in litigation should be cited as parties to that litigation so that any
order of court may be carried into effect against those parties or in favour of
those parties. Therefore, where a party has not been cited as either a plaintiff
or a defendant, the defendant may raise this point by way of a special plea.
The effect of this plea is usually to delay the action.

• Locus standi in judicio- the defendant may raise the point that the defendant
lacks the locus standi to litigate against him by way of special plea.
• Lack of jurisdiction- where the defendant wishes to raise the point that the
matter has been brought in the incorrect court he may do so by way of a
special plea.
• Prescription- where a plaintiff’s claim has prescribed it will be unenforceable.
However, the court will not raise prescription mero motu and this must be
specifically be raised by the defendant by way of a special plea or in certain
circumstances by way of exception.
• Res judicata- this is an objection that the claim raises an issue which has
already been dealt with and pronounced upon by another competent court
provided that the prior action was between the same parties, concerning the
same subject-matter, and founded on the same cause of action.
• Issue estoppel- a plea of issue of estoppel will only be permitted if it will not
cause unfairness in the proceedings.
• Lis pendens- where the defendant objects the same matter is already before
another competent court that is another suit is pending between the same
concerning the same thing founded on the same cause of action.
• Some other condition precedent- legislation may lay down certain conditions
precedent to the plaintiff instituting action. For instance the plaintiff may be
required to send a notice to defendant before issuing summons.
• Arbitration as a condition precedent to the bringing of action- at common law,
the defendant may raise the objection that a plaintiff has instituted action in
respect of a matter which, it was agreed, should first have been referred to
arbitration. This was suspended by section 6(1) of Arbitration Act.
9. Discuss onus proof in provisional sentence applications. [5]
• The plaintiff and the defendant bear distinct and separate onuses in respect of
different issues at the provisional sentence stage. Initially the plaintiff need not to
prove anything and may prima facie discharge the primary onus by the mere averment
in the summons that he/she is the holder of a liquid document bearing the defendant’s
signature or that of an authorised agent
• If the defendant disputes the validity of the liquid document, then the onus lies
to the plaintiff to prove the validity of the document or the fulfilment of the simple
condition on a balance of probabilities.
• The defendant bears the onus of showing that the probabilities of success in
the principal case lie in his or her favour. Even when the defendant raises a defence
which is unconnected with the liquid document, the onus remains the same.
10. Illustrate the difference between the appeal and review process. [10]
Appeal process
Where the litigating party is of the view
that the court came to a wrong conclusion
on the facts or the law and he therefore
wishes to question the substantive
correctness of the decision, then it would
be appropriate for him to take the
decision on appeal.
Review process
However, where the litigating party is of
the view that method used by the court in
arriving at its conclusion was flawed and
he therefore wishes to question the
procedural fairness of the proceedings,
then it would be appropriate for him to
take the decision on review.
appeal
Appeal is a re-evaluation of the court’s
decision, it generally a matter of argument
on the record of the proceedings alone.
review
When a matter is taken on review, it is
unlikely that the irregularity will appear from
the record since the objection will often
concern an action or remiss on the part of
the decision make

appeal brought by lodging a notice of

appeal.
Time limits apply to the noting and the prosecution of appeals. review
Brought by way of an application and the affidavits.
Reviews need not be brought within a fixed period of time, but must be within a reasonable time
11. Discuss the procedure to be followed in the High Court by a party who wishes to
appeal to the full Bench of the court against a judgment of a single judge in a division of
that High Court. [15].
• Leave to appeal- leave to appeal may be requested at the time of delivery of
the judgment or grant of the order appealed against. However, as a matter of practice,
leave to appeal will not ordinarily be requested at such time.

When leave to appeal has not been requested at the time of judgment, then leave to
appeal must be sought within 15 court days after the date of the delivery of
judgment or grant of order in question.

The application will then be set down by the registrar and the registrar will give a written
notice of the dates to the parties. It is usually heard by the same judge who presided at
the proceedings forming the subject of the appeal.
• Noting the appeal- if leave is granted to appeal to a full bench of a HC, then
notice of appeal must be delivered to all the parties within 20 court days after the date
on which leave to appeal was granted, sometimes it may be longer.
The notice of appeal must state whether whole or part of the judgment in question is
appealed against and if part only then which part.
A notice of cross must be delivered within 10 court days after delivery of notice of appeal
or within such longer period.
• Security- before applying for a date for the hearing, and lodging copies of the
record, the appellant is required to enter into good and sufficient security for the
respondent’s costs of appeal unless the respondent waives the right of such security. If
the parties cannot agree on the amount of the security needed, then the registrar may
fix the amount of the security to be provided.
• Application for a date for the hearing- within 60 court days after delivery of
notice of appeal, the appellant must make a written application to the registrar of the
HC in which the appeal is to be heard for a date for the hearing.
If the appellant fails to apply for a date of hearing, the respondent may, within 10 court
days after the expiry of the 60 day period, apply for the set down of the appeal or
cross-appeal which he may have noted. If the either of apply the appeal lapse.
• Filing of power of attorney- simultaneously with the filing of the request for a
date for the hearing of the appeal, appellant’s attorney must also file a power of
attorney authorising him to appeal. No power of attorney required for the State
attorney or deputy state attorney.
• The record- at the same time as the appellant applies for a date for the hearing
of the appeal, he must file with the registrar three copies of the record of the
proceedings and furnish two copies to the respondent. Copies of all papers, documents
and exhibits in the case and index of all such documents, must be furnished together
with the record.
• The set down of the appeal- after the copies of records have been delivered.
The registrar of that court that is to hear the appeal or cross-appeal will assign the date
for the hearing.
• The heads of argument- not later than 15 court days before the appeal is
heard, the appellant is required to deliver a concise statement of the main points
which he intends to argue on appeal, as well as a list of the authorities to be tendered
in support of each point.

• Urgency- the judge president of a Division may, in consultation with the parties
concerned, direct that a contemplated appeal be disposed of as a matter of urgency,
and the appeal may then be prosecuted at such time and in such manner as to him
seems meet

November 2015
1. Above
2. Above.
3. Above
4. Above
5. What is a plea, when must it be delivered and what must be contained in
the plea?
[10]
• A plea is the defendant’s answer to the plaintiff’s claim.
• The defendant must set out the defence upon which he relies
• This is done by the defendant pleading to each of the averments made by the
plaintiff in one of the ways recognised by the rules of pleading and by clearly and
concisely stating all the material facts upon which he relies.
• It is the defendant’s duty to plead in such a manner that the plaintiff will be
informed of the defendant’s case and that he will have no doubt about the nature of
the defence.
• The plea must therefore be drafted in such a manner that the plaintiff will be sure
about what he has to prove at the trail.
• The time periods within which a plea must be delivered by the defendant in the HC
and the MC are set in the HCR 22 and MCR 17.
• HCR 22, where the defendant receives, from a plaintiff a simple summons the he
must deliver a plea within 20 days after service upon him of the plaintiff’s
declaration. Where he receives, form the plaintiff a combined summons the must
deliver within 20 days after the date on which he delivers a notice of intention to
defend.
• MCR 17 is in line with HCR 22.
6. above
7. Discuss the procedure to be followed where;
a. A party intends to amend his/her pleading after the service of such pleading
upon opponent, and
• HCR 28 governs the amendment procedure. In terms of the rule 28
any party may amend any pleading or document filed in connection with a
proceeding at any stage before judgment. However a party may not amend an
affidavit or other sworn statement.
• A party proposing to ament a pleading must do so by delivering a
written notice to all the other parties informing them of the intention to
amend and furnishing particulars of the proposed amendment.
• The notice must state that the amendment will be effected unless
written objection to the proposed amendment is lodged within 10 days of
delivery of the said notice.
• The notice must also state that any objection to the proposed
amendment must clearly and concisely set out the grounds upon which it is
founded.
b. Where the opponent opposes an application for amendment, and •
When an objection is raised and delivered within the prescribed period
referred to in the notice, the party proposing the amendment may within 10
days make an application to court for leave to amend.
• The application for amendment, on at least 10 days’ notice to the
opposing party, is then set down for argument before a motion court and if
the amendment is granted it must be effect not later than 10 days after the
order is granted.
• The court may at any stage before judgment grant leave to amend in
respect to ant pleading or document and on such terms as to costs or other
matters as it deems fit.
• Unless the court direct otherwise, the amending party shall effect the
amendment by timeously delivering each relevant page in its amended form
to the opposing party.

• In turn the opposing party may, within 15 days after the amendment
has been effected or within such other period as the court may determine,
make any consequential adjustment to his/her pleading or document as is
necessary • The opposing party may also raise an exception, strike out or
attempt to set aside the amended pleading or document as an irregular step.
c. The factors the court will consider when there is an application for amendment of
pleading which is opposed by the opposing party
• The court may, in terms of its discretion, may either refuse or grant
leave to amend. Where it grants leave to amend it may do so on such terms as
to costs and other matters as it deems fit. It may also allow postponements so
provide for filing of amended pleadings or documents.
• When amendment is granted the defendant may be granted
postponement in order to re-consider his/her position.
• The rule is wide enough to allow the court, when granting the
application, to impose certain conditions.
• These conditions usually relate to the payment of costs of opposition
prior to the delivery of the amendment or to the delivery of a power of
attorney.
• When an objection against an amendment is properly lodged and the
court upholds the objection, it means that leave to amend the specific
pleading is refused.
8. Discuss the steps followed in the Magistrates’ Court and High Court by a party who wishes
to appeal against a judgment in the Magistrates, Court. [12]
• Procedure by MC
MCR 51 indicates which steps must be taken in the MC before the appeal case can be
transferred to the HC for hearing. They are;

 Magistrate’s reasons for judgment-

a) Within 10 days after judgment, a party can, in writing, request
reasons for the judgment.
b) The judicial officer must the, within 15 days after receipt of the
request for reasons, hand to the clerk of the court, a written
judgment showing the facts he found to be proved and his reasons for
judgment.
c) The clerk of the court must then hand a copy of the written judgment
to the party who applied for it.

 Noting the appeal

a) Thereafter, the party who wishes to appeal must note the
appeal with 20 days after the of the judgement appeal against or
within 20 days after the clerk of the court has supplied a copy of the
written judgment to the party applying for the judgment, whichever
period is the longer.
b) The appeal noted by delivering the notice of appeal to his
opponent and the MC.
Together with notice of appeal, he must furnish security in the
amount of R1 000, in respect of his opponent’s costs of appeal, unless
the court of appeal orders otherwise.
d) A cross-appeal is noted by the delivery of a notice of cross-appeal within
10 court days after delivery of the notice of appeal.
e) Notice of appeal or cross-appeal must state that, (1) whether the
appellant appeals against the whole judgment or part only of the
judgment, if part only then which part, (2) the grounds of appeal
specifying the findings of fact or rulings of law appealed against.
f) Upon delivery of the notice of appeal, the judicial officer must then
within 15 days hand to the clerk of the court a written statement
showing (1) the facts he found to be proved, (2) the grounds upon which
he arrived at any finding fact specified in the notice of appeal as
appealed against, (3) his reason for any ruling of law for admission or
rejection of any evidence so specified as appealed against
g) Such statement shall become part of the record
h) The matter is thereafter transferred to the HC where the appeal is
prosecuted

 Amendment of the notice of appeal

a) If the notice of appeal is valid it may be amended. Otherwise it is
incapable of amendment. If defective or late application extension of
the time is allowed.
• HC procedure HCR 7 and 50

 The magistrate’s reason and the prosecution of the appeal

b) Prosecuted within 60 court days, otherwise it is deemed as lapsed
c) Within 40 the appellant must give a written notice to all other
parties. Apply to the Registrar of the HC for date of the hearing. He
 must give his full residential and postal address in writing and of his
attorney
d) If the appellant fails to do so within, in 60 court days the respondent
allow for the prosecution of the appeal, in the same manner as the
appellant.
e) The appeal is deemed to have been prosecuted once an application
for a date of hearing is received from one of the parties
f) If no application by either of the parties, the appeal lapse.

 Filing of a power of attorney

a) The appellant attorney must also file a power of attorney
authorising him to appeal
b) An attorney an instructing an advocate to oppose an appeal,
must before the hearing, file a power of attorney with the registrar
authoring him so to act
c) No power of attorney is required of the State Attorney or
deputy state attorney

 The record
a) In 15 court days the appellant must furnish each of the other party with two
copies of the record

 The set down of the appeal

b) In 40 court days the registrar must assign a date for hearing
c) Then the appellant delivers a notice of set down to the opponent

 The heard of argument

a) At least 15 court days before the appeal is heard the appellant must
deliver a copy of a concise statement of the main point he intend to
argue.

 Power of the court to appeal

b) Provided by section 87 of the magistrates’ court Act

 Further appeal
c) If the matter originated in the MC, there is one appeal as of right.
If dismissed by the HC any further appeal lies to the Supreme Court
of Appeal upon special leave having been granted by the SCA.
9. ABOVE
10. Discuss the procedure to be followed by a party who intends to call an expert
witness during an upcoming trial. [3]
• The party wishing to employ the services of an expert at a trial must notify the
opposing party in writing at least 15 court days before the trial. At least 10 court days
prior to the trial the party must deliver a written summary to the opposing party
describing the expert’s opinion.

Test 12 October 2015

1. Discuss the various stages in the adversarial trail process. [12]
• The commencement of trial and the determination of onus

 The incidence of the burden of proof- begin with which party will bear
the primary burden of proof.

 The duty to begin- HCR 39(13) describes the circumstances in which

one or other of the parties has a procedural duty to adduce evidence first in
relation to different issues in the trial.

 The evidentiary burden- the evidentiary burden is a duty to adduce

evidence to combat a prima facie case established by an opponent.

 The relationship between the primary onus, the evidentiary burden

and duty to begin.
• Examination of the witness

The party(plaintiff) begin the trial

Plaintiff establish a prima facie case

Examination of a witness in three stages, examination-in-chief, cross

examination, and re-examination.
• Absolution from the instance
 At the close of the plaintiff’s case, the defendant’s counsel may apply
to the court for absolution from the instance.

 This application may be done in two stages of the trial, namely at the
end of the plaintiff’s case and at the end of the trial.

 At the end it simple mean there is no evidence to support the

plaintiff’s claim, or there is insufficient evidence.

 Judge must bring his own judgment but of a reasonable man.  If

absolution is unsuccessful, the defendant’s counsel is afforded the opportunity
to call the defendant’s witnesses.
• Closing arguments

 After the closing of both party’s cases, their counsel are called upon to
deliver closing arguments

 The opposing closing argument is to summarise each party’s case. 

Normally the plaintiff’s counsel delivers the first closing address followed by
the defendant’s counsel.

 In this stage the court does not hesitate to ask questions and review
problematic issues.

 The court has duty to ensure that is clearly understood the legal
positions as raised and argued by the parties.
• Judgment

 After closing arguments, the judge delivers the judgment and gives
brief reasons therefore.

 The judge may reserve judgment if the matter is complicated and

requires further deliberation.
a) On a balance of probability
o Degree of proof require by civil standard involves a comparative
rather than a qualitative test.
b) Judgment orders
o Grant judgment on behalf of the plaintiff o Dismiss the
plaintiff’s case
o Grant absolution from the instance at the end of the
plaintiff’s case
o Grant absolution from the instance at the end of the
whole case o Grant judgment in favour of the defendant in
respect of a counterclaim o Dismiss the defendant’s
counterclaim.
2. Above
3. Discuss the requirements for application for rescission of default judgment in terms
of HCR 31(2)(b). [8]

4. Above
5. Discuss the procedure prescribed in Rule 53 to be allowed by a party who wants to
apply to the HC to review the proceedings in a lower Court. [15]
HCR 53(1)
• The party who desires review is required to deliver his notice of motion together with
an affidavit setting out the ground and facts on the basis of which the review is sought.
• The notice of motion must, (1) call upon person(s) to give reasons why the decision or
proceedings should not be reviewed and corrected set aside, (2) call upon the
Magistrate to, within 15 court days after receipt of the notice of motion, forward the
record of the proceedings to the registrar of the HC hearing the application review, with
supporting reasons of his decision, (3) indicate the relevant decisions or proceeding
together with an affidavit containing grounds, facts and circumstances where the
application relies for review.
• The registrar must then make the record available to the applicant to enable the
applicant to inspect and take copies of the parts of the record of proceedings that are
relevant for the review application. The applicant must furnish the registrar and all
other parties to the review with two copies of those portions of the record that he the
applicant consider necessary for the purpose of the review.
• The applicant may then, within 1 court days after the registrar availed the record to him,
by delivery of a notice and an accompanying affidavit, amend or expand on his notice of
motion and supplement the supporting affidavit.
• If the Magistrate or either of the parties wishes to oppose the application for review, he
must, within 15 court days of receipt of the notice of motion deliver a notice of
intention to oppose the grant of the order sought by the applicant. Give an address with
8 km of the registrar’s office, (2) he must within 30 days after the expiry provided by
HCR 53(4), he may file an answering affidavit in opposition to the application.
• The applicant may then file a replying affidavit within 8 court days after an answering
affidavit has been served upon him
• The application is thereafter set down for hearing in the normal way
September 2014
1. What is purpose of discovery of documents in action process? [3]
• To enable all the parties to properly prepare their case with regard to the
presentation of documentary evidence
• All the parties are thereby safe guard against being surprised of trial which may
well result in unnecessary delays , postponements and costs
2. Above
3. Above
4. What must be contained in the minutes of a pre-trial conference? [10]
• The date, place and duration of the conference and the names of the parties
present
• Should a party allege prejudice on the basis that the opposing party did not
comply with rules of court, the nature of such non-compliance and prejudice
suffered must be clearly set out
• That every party claiming relief has requested the opposing party to make
settlement offer and that the opponent has reacted thereto
• Whether any issue was referred by the parties for mediation, arbitration or
decision making by a third party and on what basis it was so referred •
Whether the case should be transferred to another court
• Which issues should be determined separately in terms of HCR 33(4)
• The admission made by each party
• Any dispute regarding the duty to begin or the onus of proof
• Any agreement which may be reached regarding the presentation of proof
by means of an affidavit in terms of HCR 38(2)
• Which party will be responsible for the making of copies and such other
preparation of documents as necessary
• Which documents or copies will without further proof, serve as evidence of
what they purport to be, which extracts may be proved without proving the
whole document or any other agreement regarding the proof of such
documents.
5. Above
September 2012
1. What are the options available to a defendant after service of a simple or combined
summons upon him by the SHERIFF? [4]
2. Discuss the time periods within which intention to defend must be entered in the HC.
[6]
3. What is a notice of bar, under what circumstances may it be served and what is the effect
thereof once served? [5]
4. Under what circumstances will pleading be regarded as vague and embarrassing? [6] • A
pleading is vague and embarrassing when despite establishing a cause of action or defence,
there is an inherent defect in the pleading as a result of the manner in which the
allegations have been set out and the defect prevents the opposing party from properly
responding thereto.
• Firstly, when it is worded in such a manner that the opposing party is unable to
understand the case he/she is being called upon to meet. This usually occurs when an
averment or statement in a pleading in meaningless or capable of more than one
meaning, or when it is not clear whether the plaintiff is suing in contract or delict or
when the defendant pleads a general denial which contains within itself the possibility
of an admission.
• Secondly, when there is a lack of particularity. An exception may be raised when
a party alleges that a contract was constituted by conduct but fails or refuses to specify
what the conduct was.
• Thirdly, when the pleading contains two sets of contradictory allegations and the
opposing party may, by admitting one of them, destroys the cause of action or defence
that the pleading seeks to make out
5. Above
6. Discuss difference between an unconditional and conditional offer or tender. [6]
• An unconditional offer or tender
In terms of the rules the defendant may make an unconditional admission of liability
either in part or in whole. This is done by means of an unconditional offer of an amount in
settlement of the plaintiff’s money claim or an unconditional tender of performance of an
act in settlement of an obligation due to the plaintiff. The plaintiff may accept the amount
offered or the performance tender and still proceed to recover the balance of the claim or
the balance of the performance. The plaintiff will be granted an order of costs if successful
in providing an entitlement to any portion of the balance.
• A conditional offer or tender
The defendant may choose not to admit liability but is prepared, as a compromise, to make
an offer or tender of settlement in order to end the litigation. This allows the defendant to
continue to defend the action should the plaintiff refuse to accept the settlement. This
type of offer or tender presents the plaintiff with a difficult choice. If the plaintiff accepts
the settlement, the action is ended and if the plaintiff cannot proceed to recover the
balance. If the plaintiff rejects the offer or tender and continues with the action and
subsequently at trail fails to prove an entitlement to more than was offered or tendered,
he/she is liable for all the legal costs incurred in the action from the date of the offer or
tender to the date of the trial.
7. What is required from the defendant when he is pleading to the particulars of claim of the
plaintiff? [4