Law of Civil Procedure : Module Framework

GENERAL INTRODUCTION
TEXTBOOK: CHAPTER 1
After completion of this unit, you should be able to:

1. Explain what the Law of Civil Procedure is.

2. Distinguish between the Law of Civil Procedure and the Law of Criminal Procedure.

3. Indicate which principles underlie the Law of Civil Procedure.

4. Indicate the sources of the Law of Civil Procedure.

5. Indicate which institutions apply the Law of Civil Procedure

6. Indicate the basic terminology used in Civil Procedure.

7. Discuss the historical foundations and developments of the Civil Procedure in South Africa

with reference to the impact of the Constitution of 1996 on civil litigation.

READING LIST
Erasmus “Historical Foundations of SA Law of Civil Procedure” 1991 SALJ 265

De Vos “Civil Procedural Law and the Constitution of 1996” 1997 (3) TSAR 444.

Malachi v Cape Dance Academy Int. (Pty) Ltd 2010 (6) SA 1 (CC).

STRUCTURE OF THE COURTS

TEXTBOOK: CHAPTER 2
After completion of this unit, you should be able to:

1. Indicate the hierarchy of the South African courts.

2. Identify the officers of the courts and explain their functions.

3. Discuss various forms of specialised courts in South Africa.

4. Discuss various issues with regard to the Small Claims Court.

CONSULTATION, LEGAL REPRESENTATION, DEMAND, PRESCRIPTION

AND MEDIATION
TEXTBOOK: CHAPTERS 3 AND 15
After completion of this unit, you should be able to:

1. Indicate which information you must obtain from a client during the first consultation.

2. Know how to be mandated to represent a person in civil litigation and how to withdraw as a

legal representative.

3. Draft a letter of demand.

4. Know the prescription periods relevant with regard to the institution of a civil action.

5. Have a basic understanding of how mediation in the magistrates’ courts and in the High

Court of South Africa works.

GENERAL PRINCIPLES OF JURISDICTION

TEXTBOOK: CHAPTER 4
After completion of this unit, you should be able to:

1. Explain what "jurisdiction" means;

2. Explain the general principles relating to jurisdiction; namely actor sequitor forum rei;

effectiveness and consent.

3. Explain the following concepts:

a) incola

b) local peregrinus

c) foreign peregrinus

d) arrest ad fundandam jurisdictionem

e) arrest ad confirmandam jurisdictionem

4. Discuss the problems experienced in practice with regard to consent to jurisdiction by

foreign peregrini.

5. Indicate which procedure must be followed in the event of:

a) attachment ad fundandam jurisdictionem;

b) attachment ad confirmandam jurisdictionem.

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READING LIST
• Mayne v Main 2001 2 SA 1239 (SCA) [Meaning of residence]

• American Flag v GATS 2000 1 SA 356 (W) [Submission to jurisdiction in absence of causa

jurisdictionis]

• Jamieson v Sabingo 2002 3 ALL SA 392 (A) [Submission to jurisdiction / Submission after

attachment: effect on property attached]

• Thermo Radiant Oven Sale (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 2 SA 295 (A) [Attachment

ad confirmandam and fundandam jurisdictionem]

• Veneta Mineria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 4 SA 883 (A) [Submission

to jurisdiction where both parties are peregrini in respect of court’s area of jurisdiction]
• Rosenberg v Mbanga 1992 4 SA 331 (OK) [Attachment ad confirmandam jurisdictionem:

submission to jurisdiction before order of attachment to confirm jurisdiction granted]

• Bid Industrial Holdings v Strang (2007) SCA 144 [Arrest to found/confirm jurisdiction]

JURISDICTION OF THE HIGH COURT

TEXTBOOK: CHAPTER 5
After completion of this unit, you should be able to:

1. Explain what “inherent jurisdiction” of the high court means.

2. Discuss the relevance of section 21(1) of the Superior Courts Act 10 of 2013

3. Discuss the jurisdiction of the high court with reference to:

a) claims for the payment of a sum of money;

b) claims regarding property;

c) matrimonial claims.

JURISDICTION OF THE MAGISTRATES’ COURTS

TEXTBOOK: CHAPTER 6
After completion of this unit, you should be able to:

1. Explain the notion that a magistrate’s court has no inherent jurisdiction but that it is a

creature of statute.

2. Explain the test for magistrates’ court jurisdiction.

3. Apply the test to a practical situation.

READING LIST

Dusheiko v Milburn 1964 (4) SA 648 (A).

THE PARTIES
TEXTBOOK: CHAPTER 7
After completion of this unit, you should be able to:

1. Explain what locus standi is.

2. Explain the status of class actions in South Africa law.

3. Cite the parties to a suit.

READING LIST
Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza & others 2001 (4) SA 1184

SCA
Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others 2013 (2) SA 213

(SCA)

Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC)

SERVICE
TEXTBOOK: CHAPTER 11
After completion of this unit, you should be able to:

1. Explain what the function of service is.

2. Distinguish between service and delivery of a document.

3. Distinguish between various service methods.

4. Explain the duties of the Sheriff wrt service and apply it to a practical situation.

5. Distinguish between substituted service and edictal citation and apply it to a practical

situation.

APPLICATION PROCEDURE
TEXTBOOK: CHAPTER 8
After completion of this unit, you should be able to:

1. Indicate what the difference is between the action and the application procedure.

2. With reference to case law indicate how a factual dispute arises.

3. Distinguish between different types of applications.

4. To distinguish between different types of applications and notices and to draft the following:

a) the notice of motion

b) the founding affidavit

c) the opposing affidavit.

5. Explain the principles applicable to urgent applications with reference to case law.

READING LIST

Action and application

General

Room Hire v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).

Cullen v Haupt 1988 (4) SA 39 (C).

Urgent applications
Luna Meubelvervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 (W).

Plascon-Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

OVERVIEW OF THE ACTION PROCEDURE

TEXTBOOK: CHAPTER 9
After completion of this unit, you should be able to:

1. Explain the action procedure as opposed to the application procedure.

2. Explain what a pleading is.

3. Indicate the purpose and function of pleadings.

4. Discuss the requirements for pleadings in terms of High Court Rule 18.

5. Distinguish between a pleading, a document and a notice.

SUMMONS, PARTICULARS OF CLAIM AND DECLARATION

TEXTBOOK: CHAPTER 10
After completion of this unit, you should be able to:

1. Explain what a summons is.

2. Distinguish between a simple and a combined summons in the High Court.

3. Indicate the requirements for a magistrates’ court summons.

4. Discuss the nature of and requirements for the Particulars of Claim.

5. Draw a basic set of Particulars of Claim.

READING LIST

Fatti's Engineering Co v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T).

JUDGMENT AT AN EARLY STAGE

TEXTBOOK: CHAPTER 12
After completion of this unit, you should be able to:

1. Explain what the function is of a notice of intention to defend.

2. Fully differentiate between notice of intention to defend in the High Court and Magistrates

Court.

3. Draft a notice of intention to defend.

4. Indicate what default judgment is.

5. Draft an application for default judgment.

6. Distinguish between the various types of default judgment and to explain what each entail.
7. To explain what a barring entails, what a notice of bar is and to draft such a notice.

SUMMARY JUDGMENT
TEXTBOOK: CHAPTER 13
After completion of this unit, you should be able to:

1. Explain the ratio behind summary judgment.

2. Explain how to test whether a matter is susceptible to summary judgment with reference to

a practical situation.

3. Explain the procedure for: i) A summary judgment application

ii) Opposing a summary judgment application.

READING LIST

SUMMARY JUDGMENT

Sundra Hardware v Mactro Plumbing 1989 1 SA 474 (T) (pp 474-478)

Nyingwa v Moolman 1993 2 SA 508 (TK) (pp 508-513)

DEFECTIVE PROCESSES AND NON-COMPLIANCE WITH THE RULES

TEXTBOOK: CHAPTER 14
After completion of this unit, you should be able to:

1. Explain what the exception procedure is in the High Court and Magistrate's Court respectively.

2. Draft an exception.

3. Give examples of situations where the procedure of striking out could be used.

4. Explain the procedure for the striking out in the High Court and Magistrates Court respectively.

5. Draft a request for striking out.

6. Give examples of an irregular step.

7. Explain the procedure for the setting aside of the irregular step in the High Court and Magistrates’
Court.

8. Draft a notice of application in terms of High Court Rule 30 and MCR 60A.

9. Distinguish between an exception and an irregular step by indicating the differences between
these procedures.

10. Non-compliance with rules – MC rule 60 and 60A.

READING LIST

EXCEPTIONS

Trope v South African Reserve Bank 1993 (3) SA 264 (A)

Wellington Court Shareblock v Johannesburg City Council 1995 (3) SA 827 (A)

IRREGULAR STEP

Cyril v Smiedt (Pty) Ltd v Lourens 1966 (1) SA 150 (O).\

THE PLEA, COUNTERCLAIM, REPLICATION, COUNTERPLEA AND CLOSEOF PLEADINGS

TEXTBOOK: CHAPTER 16
After completion of this unit, you should be able to:

1. Explain what a plea is.

2. Distinguish between a plea on the merits and a special plea.

3. Explain the procedure for filing a plea in the High Court and Magistrates’ Court respectively.

4. Draft a plea and a special plea.

5. Explain what a replication is.

6. Explain when the close of pleadings occur and what it entails.

AMENDMENTS OF PLEADINGS
TEXTBOOK: CHAPTER 17
After completion of this unit, you should be able to:

1. Explain the ratio behind amendments.

2. Describe the considerations and procedure applicable to amendments.

3. Draft a notice of intended amendment and an application for amendment.

4. Explain the procedure to be followed after the court has granted a party leave to amend.

PREPARATION FOR TRIAL

TEXTBOOK: CHAPTER 18
After completion of this unit, you should be able to:

1. Explain what is meant by “set down” for trial.

2. Distinguish between discovery in the High Court and the Magistrates Court (in respect of

theory and procedure).

3. Explain the consequences of failure to discover.

4. Give an explanation of the pre-trial conference in i) The High Court.

ii) The Magistrates Court.

5. Give a detailed explanation of case management in terms of rule 37A (HC).

6. Draft the following documents:

• Notice of Set Down.

• Request for discovery.

• Discovery Affidavit.

APPEALS AND REVIEWS IN CIVIL PROCEEDINGS

TEXTBOOK: CHAPTER 21
After completion of this unit, you should be able to:

1. Distinguish between appeal and review.

2. Indicate which judgments can be appealed against.

3. Explain the procedure for appeal against a Magistrates Court decision.

4. Indicate the grounds for review of a Magistrates Court decision.

5. Indicate the procedure for review of a Magistrates Court decision.

6. Discuss the principles underlying rescission of a judgment.

7. Discuss the procedure for the rescission of a judgment in the High Court and the Magistrates’
Court respectively.