Civil Procedure notes

CIVIL PROCEDURE NOTES
NOTE: a statutory letter of demand is a compulsory first step when initiating proceedings in a small
claims court according to section 29 of the Small Claims Court Act (see next lecture on letters of
demand), If the letter of demand is ignored - the plaintiff must initiate litigation by issuing and
serving a summons on the defendant.
Chapter 3:
The letter of demand as a first step:
In some circumstances (common or statutory) a letter of demand is a legal requirement as a first

procedural step. But note, even when a letter of demand is required it must still be followed by the
service of a summons or notice of motion (the issue and service of a summons or a notice of motion
initiate legal proceedings). A letter of demand is simply a request for the other party to voluntarily
comply with the demand (as explained in the letter). It is also a warning that if the other party does
not comply with the demand – then the plaintiff will proceed to institute legal action against the
other party by serving a summons on him/her (this warning is set out in the very last bullet point of
the formal letter of demand as set out in example 1 and 2).
The meaning of the term in mora:
In mora is a contractual term (see para 3.4 (d) of the textbook) – it means that the plaintiff must first
send a letter of demand (or an interpellatio) to the other contracting party informing him/her that
he/she has a reasonable time period in which to perform his/her obligations as set out in the
contract. Giving notice in a letter of demand of a time period to carry out a contractual obligation is
placing the other party in mora (see example 1 paragraph 5). If the other party fails to voluntarily
comply with his/her obligation within this time period (or in mora time period), the plaintiff may
then cancel the contract and serve Summons on the other party for breach of contract.
Action Application
1 Parties are referred to as “plaintiff” and Parties are referred to as “applicant” and
“defendant”. “respondent”.
2 An action is based on a real and material An application is based on a factual dis-
factual dispute. pute of such a nature that it may be
easily dealt with on affidavit or on paper.
An application may also be used for dis-
putes of law.
3 Commences with the issuing of a Commences with the issuing of a notice
summons by the plaintiff. of motion and supporting founding
affidavit by the applicant.
4 Further pleadings are exchanged by the Further affidavits are exchanged, namely:
parties, namely:  the opposing affidavit;
 defendant’s plea and counterclaim;  the replying affidavit (if applicable).
 plaintiff’s replication to defendant’s
plea;
 plaintiff’s plea to defendant’s counter-
claim.
5 After the exchange of pleadings, a stage There is no written “preparation for trial”
called “preparation for trial” follows. Cer- stage.
tain preparatory steps are then taken, that
is, discovery, expert notices, medical
examinations, pre-trial conference, etc.
6 The action procedure ends in the trial The motion procedure ends in the motion
court, where mainly oral evidence by the court. In principle, no oral evidence is
parties and their witnesses is presented. presented and the parties do not testify.
The case is argued by legal represen-
tatives on the papers before the court.
- Consultation
- Dispute
- Cause of action – action and application procedures
Can be any form of law (company, property, delict, contract)
- Mandate (power of attorney)

- Prescription
- Parties (may be many plaintiffs and defendants etc – the concept of joinder)
Locus standi of parties
- Then we move into jurisdiction
Chapter 4
Chapter 5
Chapter 6:
o Chapter 4 – Intro to Jurisdiction

 Jurisdiction depends on the confidence of a court to hear a claim brought before it and a
courts ability/power to grant an effective judgement/remedy in respect to the claim
 The competence of a court and the effectiveness of a court’s judgment depends on the
fact that:
 The defendant is resident/domiciled/employed in/or has his/her business in the court’s
territorial area
Alternatively
 The Pl’s claim occurred (arose) in the court’s territorial area
Alternatively
 The Pl’s claim arises from a dispute over property situated in a court’s territorial area
 Conclusion: A court’s jurisdiction over a Pl’s claim is founded on establishing a link (a ratio
jurisdictionis) between that court and the defendant - or where the claim arose - or where
the property is situated
 High Court – 9 divisions (6 local seats)
 Magistrate Court
 700 District MCs
 62 Regional MCs
 In order for a plaintiff to establish jurisdiction in a particular court he/she must show a
jurisdictional link between the claim and a specific court as follows:
 Common Law Jurisdictional Links:
 General principle of territoriality/effectiveness:
ᵜ Plaintiff must establish a ratio jurisdictionis between claim and court’s
territory
٠
 Step 1: Monetary Jurisdiction
ᵜ VALUE OF CLAIM (determines in which type of court Plaintiff will litigate):
ᵜ (Small Claims Crt) R0 - 20 000
ᵜ (District) R0 - 200 000
ᵜ (Regional) R200 000 – 400 000
ᵜ (High Crt) unlimited amounts
 Step 2:
ᵜ Actor sequitur forum rei (Plaintiff follow defendant to) – ratione
domicilii/ratione residentii /place of business of defendant
ᵜ Nature of Claim - ratione rei gestae (delict or contract) - ratione rei sitae
(place where property situated
٠ Need to look at which claims specific courts can or cant hear e.g.
murder, treason, rape
٠ Are there other exclusions such as juristic person not being able to
institute proceedings
٠ Mag Court Act has specific exclusions
ᵜ Convenience - where more than two connecting links between claim and
court’s territory
ᵜ Submission/Consent
Recording from 8 March – she explains how to approach questions with the 2 stage approach at
1:27:00
EXAM TYPE QUESTION
Mr X a resident of Johannesburg, and Mr Z domiciled in Pretoria are on holiday in Cape Town. One
night Mr X and Mr Z are involved in a car accident on Long Street. The accident is entirely the fault
of Mr Z who was negligent in that he failed to keep a proper lookout and ran through a red robot.
Mr X claims car repair damages from Mr Z.
First identify who is the plaintiff (Mr X) and the defendant (Mr Z)
(a) Which court(s) will have jurisdiction to hear the matter where the costs of repair to Mr X’s car
are R405 000?
Step 1: identify correct court – here delictual claim for damages (R405 000) falls within the money
jurisdiction of the High Court
(So once we know which court between MC and HC – that is the first stage of the process. The
nature of the claim doesn’t dictate that we do anything else, no other speciffc legislations in place.
No instructions to abandon the amount, so were gonna stick with R405k and approach the high
court)
Step 2: which particular High Court has territorial jurisdiction – find a ratio jurisdictionis – two courts
have jurisdiction
- So we know Mr X is an incola of the Johannesburg high court; Mr Z is domiciled in Pta,

the cause of action arose in CPT. How determine which court has jurisdiction? This is
where we look for that jurisdictional link. From the facts there are 2 things that are
applicable.
- 1, we know that he is domiciled in Pta so the actor sequitur forum rei applies. We know
we can follow him to where he’s resident and perhaps domiciled.
- But we also know the cause of action arose in cape town, so evidence and witnesses
may be there. So we can approach the cpt HC.
- So there are 2 links and 2 courts that could possibly hear the matter. The plaintiff may
choose to institute proceedings in either court as both can adjudicate the matter
 Actor sequitur forum rei – Plaintiff follows defendant to his/her domicile/residence which is
Pretoria (Gauteng Division has jurisdiction), or
 Cause of action (the accident) arose in Cape Town – ratione res delictii – (Western Cape
Province Division has jurisdiction)
 Plaintiff may apply principle of convenience and choose to litigate in Pretoria or Cape Town.
*** Note also that according to the principle of concurrent jurisdiction, the claim may also be heard
in the Gauteng Local Division
He can choose to go out of any of the 3 courts
- So that’s just the way to approach a question and the steps to follow/ facts to highlight.
 Types of jurisdiction

o Jurisdiction – Chapter 5
 How to determine jurisdiction
 E.g. decided using an action procedure
 Steps to follow through when deciding
1. What type of court?
 HC or MC? Two factors when deciding
ᵜ Monetary jurisdiction (HC = unlimited monetary jurisdiction; but costs of
litigating in HC = v high)
ᵜ MC District = R20k max; Regional MC R200k-R400k
 Legal status of the matter being brought to court:
ᵜ E.g. Will disputes = always heard in HC (wills are part of the law of
succession)
ᵜ Divorce – usually in HC but can also be held in the regional MCs (this is
bc of the high divorce rate in SA)
2. Which High Court will you proceed in?
 Look at a jurisdictional link to a particular HC – look at cause of action or factual
issue and match it to the jurisdictional link (ratio jurisdictionis – based on the
common law)
 Ratio Jurisdictionis are set out in the Mag Court act (generally rhe HC links are
the same as the MC) but because Mag court is a creature of statue, the rules are
set out.
 Ratio jurisdictionis in the HC (these links determine where you will litigate)
1. Actor sequilat forum rei principle (the plaintiff must follow the defendant
and must litigate in the area where the defendant is situated) (resident,
domiciled, place of business)
We apply this principle to give the court effective jurisdiction over the
matter
2. Res gestae principle – the plaintiff can select the court in which the contract
was breached (e.g.); or where the delict occurred
3. Res Sitae – where the property is situated (any cause of action linked to a
particular property – then the plaintiff and defendant must litigate in the
court with jurisdiction where the property is situated)
4. Submission (in the HC) aka “consent” in the mag court. This is when you
submit for the jurisdiction of a court
 Territorial jurisdiction
 The division of the courts into specific territorial areas
 Monetarial jurisdiction
 Each court has different monetarial jurisdictions e.g. claims lass then R200k
 Effective jurisdiction
 Jurisdiction based on convenience – where is it convenient for the plaintiff to litigate when
there are 2 or more options of where to litigate
*** Questions on jurisdiction in exams will be taken directly out of the board exams
Look at an example of a delict.
- Both the plaintiff and defendant on holiday in CPT. Defendant drove from Bloem,
plaintiff drove from JHB. They crash in CPT. Plaintiff comes to you as attorney and says
the damages are R500k.
- Cause of action = delict
- Where litigate? CPT where accident occurred or in Bloem where defendant is resident;
or in JHB where plaintiff resident?
- Need to look at facts in issue: The plaintiff can sue in Bloem HC bc that court can give an
effective judgement because defendant is resident there. OR
- Can also sue in CPT because that’s where the cause of action arose
In an exam if there are both options for jurisdiction, need to give all the facts so must say there are
both options but the attorney can proceed on principle of convenience
 Incolor = someone who is resident / domiciled in SA – resident of a particular court. E.g. live
in jhb = you are an incolor of jhb HC
 Local peregrinus – someone who id domiciled/sa citizen but is not resident in the area of
that particular court e.g. live in jhb = you are a local peregrinus of WC HC
 Foreign peregrinus = a foreign plaintiff who wants to sue in SA court. There are special rules
(ratio jurisdictionis) which apply to foreigners litigating in SA or SA’ns litigating against a
foreigner in a SA court
*** all these latin terms are common law principles (remember HC principles are all common law).
MC jurisdiction are applied in a statutory codified form bc it is a creature of statute (but principles
and concepts are mostly the same).
 The concept of submission – there are certain ratios as to how a foreigner can submit to a
South African court
 Recommend foreigners to sue in HC bc: 1 – they are paying in dollars; 2- HC judges are more
competent than magistrates
o Slides of above:
 Actor sequitur forum rei – first principle of establishing a jurisdictional nexus
 A plaintiff may follow the defendant and institute an action in the territorial area of the
court where the defendant is either domiciled or resident, or place of business. A
linkage is established by:
 domicile as ratione domicilli
 residence as ratione residentii.
 Place of employment or business.
 These links are codified in s 21(1) of the Superior Courts Act.
 The enabling act for MCs is the Mag court act
 Ratione rei gestae (a money claim based on a cause of action)

 A contract entered into in the territorial area of the court, or performed, or breached,
within that court’s area. Any one of these elements - entered into - performed or
breached is sufficient to establish a linkage. Establishing a link ratione contractus.
 A delict committed in the court’s territorial area. Establishing a link ratione delicti
commissi.
 Ratione rei sitae (a claim based on property)

 The court where the defendant’s property (either immovable or movable) is situated is
the only court which may hear a claim arising from a dispute over the property.
*** the above are the 3 basic principles of jurisdiction which inform you of where to instigate
proceedings
 A matrimonial action (para 5.4.3):

 In terms of s2(1) Divorce Act 1979 as amended by s1 Domicile Act 1992, a court may
exercise jurisdiction in a matrimonial action on the basis of:
 either of the spouses’ domicile or residence.
ᵜ meaning the wife may institute action against her husband either in the court
where she is resident or domiciled
ᵜ or even, if she so chooses, in the court where her husband is domiciled or
resident – and visa versa.
 NOTE: THE HIGH COURT AND THE MAGISTRATE’S REGIONAL COURTS HAVE DIVORCE
JURISDICTION (but not the district court)
 INCOLA & PEREGRINII (para 4.5.1)

 The concept of an incola and peregrinus – the attachment of a peregrinus property to
found or confirm jurisdiction in respect to money claims
 Incola - a person who is either domiciled or resident within a specific South African
court’s jurisdiction.
 A local peregrinus – a person who does not reside within the court’s jurisdiction but
is resident or domiciled in area of any other South African court.
 A foreign peregrinus – a foreigner who resides/domiciled outside South Africa.
 Only in respect to money claims – usually contractual or delictual damages.
 Based on attachment ad fundandam jurisdictionem or ad confirmandam
jurisdictionem (see annexure 2)
 ATTACHMENT TO FOUND/OR CONFIRM JURISDICTION IN RESPECT TO MONEY CLAIMS

(common law & s 21(1)) (para 5.4.5)
1. Where the defendant is an incola of the court: the actor sequitur forum rei applies & the
ground of jurisdiction is the ratione domicillii (or in addition where the cause of the action
arose). (the usual rules of jurisdiction apply)
(Note cannot attach an incola property to found or confirm jurisdiction - s 28 Superior
Courts Act.)
2. Where the defendant is a local peregrinus of the selected court (i.e an incola of another
court in South Africa): here the jurisdictional link must be found in the cause of action
alone (i.e. either ex contractus or ex delictu).
3. Where the defendant is a foreign peregrinus (i.e. of the whole of SA) & the plaintiff is
an incola of the selected court: in this situation the court will assume jurisdiction if the
plaintiff is an incola of the court and only if attachment of the defendant’s property has
taken place –
 to found jurisdiction where there is no ratio jurisdictionis - attachment ad
fundandam jurisdictionem;
or
 to confirm jurisdiction where there is an already existing ratio jurisdictionis –

attachment ad confirmandam jurisdictionem.
4. Where the defendant is a foreign peregrinus and the plaintiff a local peregrinus of the
selected court: In the situation where the cause of action arises in the court’s area, the
court will assume jurisdiction but only if attachment of property occurs to confirm the
jurisdiction it already has. (Attachment ad confirmandam jurisdictionem).
5. Where the defendant is a foreign peregrinus and the plaintiff is also a foreign
peregrinus of the selected court: In this situation a plaintiff foreign peregrinus cannot
found jurisdiction (ad fundandam jurisdictionem) due to the fact that the plaintiff is not a
South African and there are no cogent policy reasons for a South African court to come to
the assistance of a foreigner.
6. Where the defendant foreign peregrinus has no property to attach in South Africa, the
plaintiff incola has two approaches available;
 the plaintiff incola must pursue the defendant to a foreign court in which the
defendant is resident or domiciled, or:
 the plaintiff incola may serve summons on the defendant (if the defendant is
physically present in South Africa) but only if there is a sufficient connection (i.e. the
cause of action arose in) between the suit and the area of the chosen court’s
jurisdiction
- Note: In terms of s21(1) Superior Courts Act, attachment of the peregrine defendant’s
property may take place anywhere in South Africa where his/her property is situated).
 SUBMISSION (para 5.4.5.3)

 First Principle -- Where the defendant is an incola of the court: here submission is
unnecessary as the court already has jurisdiction by reason of the actor sequitur forum
rei in the form of a ratione domicilli.
1. Where the defendant is a local peregrinus of the court but an incola of another
court in South Africa: such a local peregrinus cannot submit to the jurisdiction of a
court where there is no jurisdictional link (ratio jurisdictionis) and the plaintiff must
precede in the court where the cause of action arose or where the defendant is
domiciled.
2. Where the defendant is a foreign peregrinus of South Africa and the plaintiff is an
incola of the court concerned: in this situation submission by the foreign peregrinus
defendant is sufficient to confer jurisdiction without the necessity of attachment
either ad confirmandam or ad fundandam jurisdictionem.
3. Where the defendant is a foreign peregrinus of South Africa and the plaintiff is
either a local peregrinus or a foreign peregrinus: a submission to jurisdiction in the
circumstance where there is an existing ratio jurisdictionis, is sufficient to give the
court jurisdiction without the necessity of an attachment to confirm jurisdiction ad
confirmandam jurisdictionem.
4. NOTE in the circumstance where there is no existing ratio jurisdictionis, submission
by itself will not serve to establish jurisdiction and there must also be attachment ad
fundandam jurisdictionem.
QUESTION
Beverage (Pty) Ltd ('Beverage'), is a South African company having its registered office and principal
place of business in Johannesburg, concludes a contract in Cape Town with Cocoa International Inc
('Cocoa'), a company incorporated in the United States of America,
in terms of the contract Cocoa agrees to supply Beverage with regular shipments of cocoa beans, to
be delivered to Beverage's forwarding agent in Cape Town. Cocoa defaults by supplying a shipment
of inferior beans, and Beverage cancels its contract with Cocoa.
When Cocoa learns of the cancellation it intercepts a further shipment of cocoa beans which is en
route to Cape Town for delivery to Beverage, and diverts the shipment to Durban, where the beans
are stored in a warehouse at the Durban harbour. The value of the shipment is R450 000.
Beverage wishes to sue Cocoa in a South African court for damages of R420 000 arising out of its
supply of inferior cocoa beans in the previous shipment.
Which courts will have jurisdiction to hear the matter
o CH 6: MAGISTRATES' COURT JURISDICTION

 Mag Courts are creatures of statute

 Derive jurisdiction from the Mag Courts act
 No inherent power to regulate its own matters
 Jurisdiction:
 Monetary jurisdiction;
 substantive juris (the nature of the claim);
 territory
 S170 of thr Constitution and s110 of the Mag Courts act – not competent to enquire into the
constitutional validity of any law or conduct of the President.

 Magistrates Court Statutory Jurisdiction
 The jurisdiction of a mag court (district & regional court) is determined by:,
 s 28 (persons subject to the territorial jurisdiction of a mag court); (see para 6.5)
 s 29 (maximum value and types of claims which fall in mag crt’s juris); (para 6.4.2)
 s 46 (claims excluded from mag crt jurisdiction) (para 6.4.1)
 S 29(1)(e) jurisdiction over a credit agreement (s1 NCA) based on where the cause of
action wholly arose. Note: parties cannot consent to a mag crt other than the one
where the def resides, is employed, etc (para 4.9)
 Other sections which also define a mag court jurisdiction are:

 ss 30, 31, 32 (concerning the types of interdicts a mag court may hear); (see para
6.4.4)
 s 30bis (concerning attachments to found or confirm jurisdiction of a foreign
peregrinus); (para 6.4)
 s 37 (incidental matters outside a mag court juris) (para 6.6.1)
 A mag court (district & regional court) may sometimes obtain jurisdiction over matters
which fall outside its jurisdiction by:
 ss 38, (abandon); 39 (deduction) (how to reduce a claim so that it falls within a mag
court jurisdiction); (para 6.6.2 & 6.6.3)
 s 40 (splitting of claims so that they fall within the mag court’s jurisdiction); (para
6.7.2)
 s 45 (how parties may consent to a mag court juris); (para 6.6.4)
 s 47 (counterclaims falling outside the jurisdiction of the mag court); (para 6.7.4)
 s 50 (transfer of a matter to the High Court); (para 6.7.5)
 s110 (mag court may not make any pronouncements on the validity of constitution or
legislation).
 Monetary Claim Jurisdiction:

District Court < R200 000

Regional Court R200k- R400k

NO prayer for interest or costs or alternative legal relief may be taken into account

(s37(3))
 Jurisdiction with regard to the nature of the claim
 Exclusions section 46
 Validity or interpretation of a will
 Status of a person ito mental capacity
 Decree of perpetual silence
When there is a potential plaintiff who is continuously threatening to institute
action in public. To place that person on terms, can go to court and ask them to
place on terms – tell them to institute action by a certain date or be in perpetual
silence afterwards
 Claims for a specific performance without the alternative claim for damages. If its just
a claim for performance the mag court does not have jurisdiction. There are 3
exceptions
1. Rendering of an account – I have an account with someone who has to pay
royalties, but they aren’t paying. In court I am actually asking for specific
performance (performance ito the contract) but because it is the rendering of
an account it Is allowed
2. The delivery or transfer of property – if you ask for the delivery or transfer it is a
claim ito specific performance but can be done if it is within the monetary
jurisdiction of that court.
3. Same as above except if it is not within the limit but the parties consented to it
 S29(1)(a) (Action) Delivery or transfer of any property, movable or immovable
 Mag has juris mainly when it is an application (within the monetary jurisdiction)
 S29(1)(b) (action) – ejectment if it is within the monetary jurisdiction – if the occupier of
the premises is disputing the right to occupation then that right’s claim must fall within
the monetary jurisdiction of the court
 S29(1)(c) (Action) – Right of way – having a right to cross the property if it’s the only way
you can get to a certain destination (don’t need to worry about the monetary jurisdiction)
 no limitation on value – action proceedings only and only for specific performance
 s29(1)(d) Liquid document or mortgage bond – only action proceedings – a liquid
document is where there is an acknowledgment of debt and you are able to det how
much is owned and the identity of the person e.g AOD.
Something which needs to be quantified is not a liquid claim ?
 S29(1)(e) (actions) Credit agreement as defined by the NCA
 S29(1)(f) (actions) consent from a spouse married ICOP
 S29(1)(fA) Close Corporations Act (actions including an application for liquidation)
 S29(1)(g) General provision ( any other action proceedings within the monetary limit (see
also s28(1)(d)
 S30(1) Interdicts
 Attachments
 Interdicts
 Spoliation orders
 S30bis – attachment of the property of foreigners to found or confirm jurisdiction
 Claim or value of at least R2500
 Value of property may not exceed the monetary jurisdiction limits
 Common-law principles
 S31 – Automatic rent interdict
 To ensure lessee doesn’t sell all their furniture or whatever might be claimable by the
lessor for unpaid rent
 S32 – attachment of property for arrear rentals (in security of rent)
More urgent than s31 because you suspect property is already being sold etc
 Jurisdiction with regard to territory
 S28(1)(a) - Where the defendant is domiciled or resident or employed or carries on
business; Where the registered office/place of business of a juristic person (as defendant)
is situated
 S 28(1)(b) - Where a partnership (as defendant) has its place of business or where any
partner resides
 S 28(1)(c) ((see also s29(2) & s37) - Over any matter instituted by the defendant which is
incidental to the principal matter
 S 28(1)(d) – in mag crt the delictual/contractual cause must arise wholly within a court’s
area. Where the delictual or contractual cause partially arose in a court’s territorial area
 S 28(1)(e) - Interpleader proceedings
 S 28(1)(f) – fails to object to jurisdiction (-) or (S 45 – consents to jurisdiction (+))
 Defendant’s submission to jurisdiction
 S 28(1)(g) (see also s 46(2)(1)(III)) - Where the defendant’s immovable property in dispute
is situated (res sitae)
 S 28(2)
 Suing the State – resident in Pretoria or any crt where the contract/delict/property
dispute arises
***page 110 - 114 – abandonment of claims
MONEY CLAIMS WHICH EXCEED THE JURISDICTION OF THE MAG COURT can be
brought into jurisdiction by:
Abandonment of part of claim S 38
Deduction (set-off) of an admitted debt S 39
No splitting of claims – where a single cause gives rise to

S 40
multiple claims
Cumulative jurisdiction – multiple claims based on

S 43
separate causes contained in a single summons
Parties may consent, in writing, to an increase in the

money jurisdiction of a district or regional which already
has jurisdiction;
• No consent possible to causes of action excluded

by s 46, or S 45
• S 28(1A) – no consent to district crt for marriage
causes falling within regional crt,
• Parties cannot consent via a contractual
provision to the jurisdiction of a court which
does not possess original jurisdiction over def
Counterclaim exceeding jurisdiction – (i) stay

proceedings and remove to higher court; (ii) abandon a S 47
portion of the counterclaim
o Chapter 7 – Parties and Citations

 The litigating parties:
 Action proceedings (trial) – Plaintiff v Defendant
 Application proceedings (motion hearing) – Applicant v Respondent.
 The plaintiff/applicant initiates & controls the litigation - dominus litis.
 Any party initiating or defending legal proceedings must have locus standi
 Any number of parties with locus standi may be joined to an action or application:
 Joinder of necessity - (Common Law) (S 41-2 Mag Crt Act)
 Joinder of convenience - (HCR 10)
 3rd Party Joinder - (HCR 13 & + s 2 Apportionment of Damages Act) (MCR 28A)
 Joinder of any number of causes of action in one summons - (HCR 10(2)) (MCR 28(4))
 Intervention by a third party not initially included in the litigation (HCR 12) (MCR 28(1))
 Submissions by amicus curiae (HCR 16A)
 Consolidation of separate but similar actions into one action (HCR 11) (MCR 28(3))
 Locus standi in iudicio - two distinct legal concepts

a) An examination of whether the litigating party has a sufficient interest in the civil
dispute on which the litigation is based.
 Common law – the party instituting the proceedings and bringing the claim before
the court must possess a direct and substantial interest in the right that forms the
subject matter of the litigation
Jones & Buckle - plaintiff or applicant must have a:
a) Adequate interest in the subject matter of the litigation which is not a technical
concept but is usually described as a direct interest in the relief sought.
b) Interest that is not too far removed
c) Actual, not abstract or academic, interest
d) Current, not hypothetical, interest
 Constitutional def
 Class action def
 Public interest def

b) An examination of whether the litigating party has the capacity to sue or to be sued.
 (A) a sufficient interest and right in the relief claimed

 Common law definition:
 The party bringing the claim before the court must possess a direct and substantial
interest in the civil dispute. This means:
ᵜ an adequate or direct interest in the civil dispute;
ᵜ an interest that is not too far removed;
ᵜ actual, not abstract or academic, interest;

ᵜ current, not hypothetical, interest.
 Constitutional definition: Standing to enforce rights guaranteed in the Constitution

 The common-law definition of substantial interest above, will apply in the majority
of civil legal proceedings;
However
 When litigation is based on a Bill of Rights issue, section 38 in chapter 2 of the
Constitution defines a much wider type of locus standi:
ᵜ A person alleging that a right in the Bill of Rights has been infringed may
approach a court in terms of the following types of locus standi
a) Anyone acting in their own interest.
b) Anyone acting on behalf of another person who cannot act in their
own name.
c) Anyone acting as a member of, or in the interest of, a group or class of
persons.
d) Anyone acting in the public interest.
e) An association acting in the interest of its members.
Identifying a class action

 Definition of class – a representative action instituted by a plaintiff on behalf of, and in
the interests of, a group of person's having the same or similar factual and/or legal
issues in common
 The following questions to be asked in order to identify a class action:
 Is there an identifiable class?
 Is the cause of action known?
 Is there a commonality of legal and factual issues?
 Is there a suitable representative?

 Is it of legal importance to institute the action?
 Is this a suitable method to institute the action?
 Is it possible to plead res judicata at the conclusion of the matter?
 If yes to all – plaintiff may apply for a class action certification
Applying for a class action certification

 Trustees for the time being of the Children's Resources Centre Trust etc v Pioneer Food
(Pty) Ltd (SCA) - and Mukaddam v Pioneer Foods (Pty) Ltd and Others (CC) - an
application for certification for a class action must meet the following requirements:
 There must be a cause of action raising a triable factual or legal issue,
 The right to relief depends upon the determination of issues of fact and/or law
common to all members of the class;
 The relief sought, or damages claimed, must flow from the cause of action and are
ascertainable and capable of determination;
 Where the claim is for damages there must be an appropriate procedure for
allocating damages to the members of the class;
 The proposed representative to conduct the action must be a suitable
representative of the class;
 Whether, given the composition of the class and the nature of the proposed
action, a class action is the most appropriate means of determining the claims of
class members.
 The nature of a class action certification

 Nkala v Harmony Gold Mining Co Ltd (GJ)
 Class certification is obligatory – in all matters;
 It was not necessary for the entire class membership to be determined before the
dispute (i.e. issues of fact or law) can be heard;
 The fear that a class may be too broadly defined does not prevent the certification
of that class as:
 ‘once it is established that there are issues which are applicable to every plaintiff’s
claim, then the concerns of unmanageability of the class action or overbreadth of
the class definition do not feature’;

 The issues common to all the plaintiff’s claims do not need to outweigh the non-
common issues, as the requirements for class certification are merely factors to be
considered by the court in determining what is right and in the interests of justice.
All that is required is that there are sufficient common issues to justify a class
action.
 Public Interest actions: to protect the rights guaranteed in chapter 2 of the

Constitution
Requirements:
 Unrestricted public interest litigation against the State;
 Plaintiff acting in the public interest may sue any organ of State;
 Two Requirements
ᵜ Must establish that a party is indeed acting in the public interest;
ᵜ Does the public (i.e. all members of the SA community) have a sufficient
interest in the proposed remedy
 (B) In the sense of capacity to litigate
 Every natural person possessing full legal capacity may sue or be sued.
 Certain types of natural person do not enjoy full legal capacity & may not appear as
parties in legal proceedings without appropriate assistance;
 Minors
 Insane persons
 Disabled persons
 Prodigals
 Insolvents
 Trusts
 Partnerships
 Juristic persons such as companies incorporated in terms of the Companies Act and close
corporations incorporated in terms of the Close Corporations Act do have full capacity to
litigate.
 Minors
 S17 of the Children’s Act - majority at 18 yrs
 A natural person under the age of 18 yrs - a child
 a minor (infans) under the age of 7 yrs not possess legal capacity and must always
be represented by a guardian acting in a representative capacity on behalf of the
minor
 A minor (impube or pupillus) over the age of 7 yrs may choose to institute/defend a
claim either:
ᵜ in the name of the guardian acting in a representative capacity or
ᵜ in the name of the minor duly assisted by the guardian
 Sometimes a guardian may act in a dual capacity:
ᵜ in his/her own behalf (eo nomine) and
ᵜ as a representative of the minor (nomine officio)
 Where a minor has no guardian the court may appoint a curator ad litem to act on
the minor’s behalf
 Married persons
 Spouses married in community of property cannot institute or defend a legal
proceeding without the permission of the other spouse.
 Insane and disabled persons

 HCR 57 - application to appoint a curator to a mentally incapacitated person
 HCR 57 refers to two types of curator:
ᵜ a curator ad litem appointed by the court to protect the interests of a patient
unfit to manage his or her own affairs during the course of a legal proceedings
ᵜ a curator bonis appointed by the court to manage and control the property of
such an unfit patient
 Curators of both types are commonly appointed for elderly persons who may be
suffering from various degrees of senility or dementia, as well as persons with
incapacitating physical handicaps, or where a person is comatose or mentally
retarded
 The application is usually brought by the applicant before a court in two stages:
ᵜ firstly for the appointment of a curator ad litem

ᵜ secondly for the appointment of a curator bonis
 Prodigals
 A prodigal is someone incapable of managing his/her own financial affairs
 The court may, on application, appoint a curator bonis directly to manage the estate
of a prodigal without the prior appointment of a curator ad litem
 A curator ad litem is appointed only where the prodigal is incapable of
understanding the nature of legal proceedings and requires assistance in litigating.
 Insolvents
 An insolvent has a restricted locus standi
 On being declared insolvent, the sequestrated estate is administered by a court-
appointed trustee, who will in a representative capacity sue or be sued in any
matter relating to the sequestrated estate
 The insolvent may sue and be sued in his/her own name in respect of a limited
number of matters:
 matters relating to status
 any right not related to the sequestrated estate
 actions relating to the insolvent’s profession, occupation, service or trade
 actions for the recovery of a pension
 actions related to the recovery of non-patrimonial damages
 actions for review of proceedings relating to the sequestrated estate
 actions against the trustee for maladministration of the sequestrated estate
 Trustees
 A trust is a legal entity without separate legal personality in which trustees
administer property (separate from their own) on behalf of/for the benefit of one
or more beneficiaries
 A trust cannot sue or be sued in its own name - it is the trustees who must either
sue or be sued
 When instituting legal proceedings against a trust, all the trustees must be cited in
their representative capacity (nomine officii) unless one or more of the trustees has
been authorised by the others to act on behalf of the trust
 Partnerships, firms or associations
 A partnership, firm or association consists of a group of individuals with the same
objectives which does not possess separate legal personality
 In terms of the common law each and every partner must be cited and joined in
legal proceedings concerning the partnership
 HCR 14 and MCR 54 allow a partnership, firm or association to sue or to be sued in
its own name
 HCR 14 and MCR 54 provide a procedural advantage only and do not endow a
partnership, firm or association with legal personality
 Citation of parties
 The citation of the plaintiff (dominus litis) must include the following factual
content:
ᵜ full names - first names and surname
ᵜ gender
ᵜ occupation
ᵜ Residence or place of business address

ᵜ when the plaintiff sues in a representative capacity - a description of such
capacity
ᵜ when the plaintiff sues on an instrument of which presentation is necessary, a
full description of the instrument and the date of presentation
 The citation of the defendant must include the following:
ᵜ surname, first names or initials by which the defendant is known to the
plaintiff
ᵜ business or residential address; and where known, the occupation and
employment address; and
ᵜ when the defendant is sued in a representative capacity, a description of such
capacity
 PURPOSE OF CORRECT PARTY CITATION
 A citation serves a four- fold purpose:

 It identifies and describes the plaintiff and the defendant
 It establishes that both parties as adults having the capacity to litigate
 In respect to the jurisdictional principle – jurisdiction follows the defendant (actor
sequitur forum rei) the defendant’s residence/employment or business establishes
the court’s jurisdiction
 It indicates to the sheriff the location of the defendant for the service of initiating
summons
 Citation of the principal natural litigants
 Plaintiff is Mr John XXX, an adult electrician residing (or employed) (or having his
business) at 14 Main Road, Randburg.
 Defendant is Ms Anne XXX, an adult accountant residing (or employed) (or having
her business) at 16 Second Street, Sandton.
 Citation of juristic litigants
 Plaintiff is XYZ (Pty) Ltd, a company with limited liability and duly incorporated in
terms of the Companies Act, with its registered address (or principal place of
business) at 14 Main Road, Randburg.
 Defendant is ABE CC, a close corporation with limited liability and duly incorporated
in terms of the Close Corporations Act, with its registered address at 16 Second
Street, Sandton
 Citation of partnerships and trusts

 Plaintiff is The Shoe Shop, a firm (or partnership) carrying on the business of retail
shoe sales and having its place of business at 14 Main Road, Randburg.
 Defendant is Mr John XXX, an adult businessman residing (or having his place of
business) at 16 Second Street, Sandton, in his capacity as trustee for the time being
of the XXX Family Trust.
 Citing the State
 Where a national department is the defendant
ᵜ Defendant is Mr/Ms X in his/her capacity as Minister of Safety and Security,
with offices at Wachthuis, 231 Pretorius Street, Pretoria.
 Where a provincial department is the defendant
ᵜ Defendant is Mr/Ms Y in his/her capacity as a member of the Executive
Council, Gauteng Provincial Department of Safety and Security, with offices at
Wachthuis, 231 Pretorius Street, Pretoria.
 Citation of minors
 Where the guardian is acting in a representative capacity only:
ᵜ Plaintiff is Mr John XXX, an adult accountant residing at 14 Main Road,
Randburg, in his representative capacity as the father and natural guardian of
his minor son, James XXX, residing at the same address.
 Where the minor is litigating in his/her own name and duly assisted by his/her
guardian:
ᵜ Defendant is Sam XXX, a minor scholar residing at 16 Second Street, Sandton,
duly assisted by his mother and natural guardian, Mrs Sally XXX, residing at
the same address.
 Where the adult is litigating in a dual capacity, on his own behalf and in a
representative capacity on behalf of his/her minor child:
ᵜ Plaintiff is Mr John XXX, an adult attorney residing at 14 Main Road,
Randburg, in his personal capacity as well as in his representative capacity as
the father and natural guardian of his minor son, James XXX, residing at the
same address.
 Curators
 Citation for the appointment of a curator (for minors and the mentally disabled):
 Plaintiff is Ms A XXX, an adult advocate practising at 14 Main Road, Randburg, in her
capacity as duly appointed curator ad litem to assist Alicia XXX, a minor female
scholar of 20 Third Street, Sandton.
 Defendant is Mr TTTT, an adult advocate residing at 16 Second Street, Sandton, in
his capacity as the duly appointed curator ad litem to assist Mr Fred Ferdi, an adult
male residing at No 10, The Bellavie Mental Institute.
 Citation Headings in Pleadings (High Court):

 Citation Headings in Pleadings (Magistrate Court)
o Joinder of Parties
 Joinder of convenience
 Joinder of necessity
 Waiver, non-joinder, misjoinder
 3rd Party joinder (apportionment of damages act)
 Intervention (amicus curiae, consolidation)
o Joinder of: Convenience, Necessity or 3rd party Joinder:

 Other types of joinder:

 Intervention, submission, consolidation
o Joinder of Parties and claims:

 Joinder is a procedure by which multiple parties or multiple claims (or multiple causes of
action) are joined together in a single action/application
 Usually a single plaintiff will bring an action/application against a single defendant;
 joinder of parties allows several plaintiffs to join together against a single defendant; or
 a single plaintiff may join several defendants together in the same legal proceeding;
 joinder of claims makes it possible for a plaintiff to join several separate claims or
causes of actions together against two or more defendants in the same legal
proceeding;
 A single summons/application may therefore cite several plaintiffs or defendants and
contain several claims based on separate causes of action.
 The primary rationale (reason) for joinder of parties or claims is to save costs and time
spent in court and to prevent a multiplicity of proceedings.
 3 types of joinder in the HC: (v similar to joinder in MC)

 Joinder of convenience (HCR 10)
 Joinder of necessity, which is not set out in the Rules but in common law
 Third party joinder (HCR 13)
**Note: Joinder applies to both action and application proceedings (HCR 6(14))
 In the magistrates courts: (only difference between MC and HC is the rule numbers
 Joinder of plaintiffs and joinder of defendants in action proceedings (ss41 & 42 of the
Magistrates’ Courts Act)
 Joinder in application proceedings inferred from MCR 28(2)
 Joinder of causes (MCR 23(3); or separation of trials (MCR 23(4);
 Third party joinder (MCR 28A)
 Joinder of convenience in the HC (HCR10)

 Joinder of convenience allows the court, at its discretion, to permit parties to join or to
be joined together in proceedings even though it is not essential for these parties to be
joined.
Plaintiff or defendant can join other parties to these proceedings as long as it is
convenient for these other parties to be joined
** Convenience defined as = all the person’s claims are substantially based on the
same question of law or fact
 HCR 10(1) states that any number of persons having a claim, whether jointly, jointly
and severally, separately, or in the alternative, may join as plaintiffs in one action
against the same defendant or defendants and
 HCR 10(3) provides that several defendants may be sued in one action by a plaintiff
either jointly, jointly and severally, separately or in the alternative.
 So there may be many parties to a litigation and the common denominator between
these parties is simply joinder of convenience
 Joinder of necessity in the HC (Common law)

 Joinder of necessity is not at the court’s discretion, and the court must order joinder
before granting judgment
 Joinder of a necessary party may take place:
ᵜ at the request of the plaintiff, or
ᵜ at the request of the defendant, or
ᵜ the court may raise the issue of non-joinder on its own accord
*** Necessity defined as = all the persons who have a direct and substantial interest
in any order the court might make in a proceeding must be joined out of necessity
 The legal interest has to be direct interest and a mere financial or commercial or
political interest is insufficient - as it amounts to an indirect interest.
 Specific test for joinder of necessity

 Amalgamated Engineering Union v Minister of Labour – two step test to decide
whether a third party has a direct and substantial interest:
1. Would a third party have locus standi to claim relief in respect of the same subject
matter? (this means that all the parties who have a direct and substantial interest
in the matter must be joined to the litigation)
2. Where a third party has not been joined – would any order the court might make
also be res judicata against a third party - If the order will be res judicata a third
party must be joined out of necessity. (remember court has no discretion – all the
parties with direct and substantial interest in the matter must join together in the
litigation process
 Examples where joinder of necessity is required

 where joint proprietary or joint financial interests are involved - joint owners, joint
contractors and partners
 where a landlord directly sues a sub-lessee for ejectment and the sub-lessee relies on
a right of occupation derived from the lessee, the lessee has a direct and substantial
interest in the proceedings and must be joined
 The direct interest of co-owners in a case involving common property
 When the validity of a contract is in issue - all of the contracting parties must be joined
 When the rights and duties of co-creditors and co-debtors are linked - a joinder of
either creditors or debtors is necessary
 When the validity of a will is in question - all the beneficiaries must be joined
 Co-trustees must be joined except when a single trustee has been nominated by the
others to represent the trust
 Joinder of causes of action:

 HCR 10(2) & MCR 28(3) - a plaintiff may join several causes of action together in the
same proceedings;
 The particulars of claim attached to a single summons may contain multiple claims
where each claim is based on a separate cause of action;
 A summons may also contain a single claim based on two or more causes of action;
 where these causes conflict with one another, they must be pleaded in the
alternative; (pleader must use the words “pleaded in the alternative”
 When a plaintiff bases a claim on two alternative causes of action and elects to take
judgment only on one of them, the other cause is extinguished;
 Separation of trials:
 HCR 10(5) & MCR 28(4) - where there has been a joinder of parties or causes of action,
a court may at any time order a separation of trials in regard to some or all of the
parties or to some or all of the causes on a discretionary case-by-case basis.
(separation of trials will be ordered where the separation is just and in the interest of
justice or where the separation of trials will be much more cost effective than
consolidating all of them into one trial
NON-JOINDER MISJOINDER WAIVER

(applies to joinder of (applies to joinder of
necessity) convenience)
Non-joinder means
that a necessary Misjoinder is the A person who has
party has not been joinder of a party who established a right of
joined has no interest in the joinder, either through
– i.e. that a person matter convenience or
whose joinder is – i.e. the question is necessity, may waive
compulsory has not whether or not joinder such a right and
been joined; of convenience is agree to be bound by
justified; the judgment of the
It does not amount to court;
non-joinder - where it Where justified, there
is merely convenient is no problem, but
to join a person and where not justified, it
the person has not amounts to
been joined; misjoinder
A party who raises an objection against the non-joinder of a

necessary party or the misjoinder of another party may do so by way of
a special plea or in an application by a point in limine.
waiver:
without involving himself in the litigation process – waiving their right to be joined to the litigation
process
 MAGISTATES’ COURT JOINDER (must read para 7.3.4 and understand joinder in MC v
similar to joinder in the HC)
 S 41 (any number of plaintiffs against same defendant – where there is a prima facie
common question of law or fact) and
 S 42 (several defendants may be sued either jointly or in the alternative where the
plaintiff is uncertain as to which defendant is responsible for the damages).
 S 43(1) allows for a process of cumulative jurisdiction and the indirect joining of
causes.
 MCR 28(2) a court may by way of application order another party to be joined to an
action either as plaintiff or applicant, and defendant or respondent, as is just.
 Usually made by a defendant to join a 3rd party as a co-defendant.
 Against the 3rd party as co-defendant - a court may only issue a declaration of
proportional degree of fault.
 The original defendant is responsible for the entire damages - and in order to recover a
degree of damages from the 3rd party the original defendant must institute a separate
action against the 3rd party .
 MCR 28(3) allows for joinder similar to HCR 10(2) - plaintiff may join several causes of
action together in one summons.
 MCR 28(4) - Separation of trials in cases of joinder at the court’s discretion – similar
to HCR 10(5).
 Voluntary intervention in the High Court (HCR 12 & 6(12)):

 HCR 12 (voluntary intervention in action proceeding ) and HCR 6(12) (VI in application
proceeding): any person may, on notice to all parties, at any stage of the proceedings
apply for leave to intervene;
 A HCR 12 application for leave to intervene is made by an outside party who intends
voluntarily to intervene in a legal proceeding, either as a plaintiff or defendant:
 in order to protect an interest in the subject-matter of the proceedings
 who may suffer prejudice by not intervening
 Joinder and intervention are similar concepts, and intervention is regarded as being a
subdivision of joinder;
 Joinder is usually made by the plaintiff or defendant; intervention is the voluntary
intervention by a 3rd party who voluntarily seeks to intervene in a litigation process
between a plaintiff and a defendant.
 A court has discretion to grant leave to intervene by an outside party as a co-plaintiff
or co-defendant especially when the application for leave is based on convenience;
 when the outside party establishes a direct and substantial interest (i.e. has locus
standi) in the proceedings, no such discretion exists - the outside party must be joined;
 The applicant must establish a prima facie case for intervention – i.e. that it has been
made seriously and not frivolously.
 Voluntary intervention in Magistrates’ Courts MCR 28(1):

 MCR 28(1) only a person having a direct and substantial interest (i.e. has locus standi)
in the proceedings may make an application to intervene;
 the court has a discretion to grant leave to intervene on such terms as it may deem fit;
 the applicant must show prima facie proof of an interest in the subject matter of the
proceedings;
 establish that his/her interest can only be properly safeguarded by an intervention
 Third party Joinder

Forced Joinder HCR 13(1)(a) & (b); MCR 28A(1) & (3)
 Third party joinder - is to prevent a multiplicity of unnecessary actions and is
available in two instances:
 When a party to an action claims an entitlement to a contribution or
indemnification from another person (i.e. 3rd party) who is not a party to the
action.
or
 When one of the parties to an action (either the plaintiff or the defendant) claims
that the issue in the action before the court is substantially the same as an issue
which has arisen or is likely to arise between the party and a third party and the
action cannot be adjudicated upon without the presence of the third party.
 Two likely circumstances for the use of a HCR 13 or MCR 28A notice to join a 3 rd
party:
 Circumstance 1 (contractual nexus):
ᵜ Where Plaintiff sues defendant and -
ᵜ Defendant decides that a 3rd party is liable:
٠ to contribute to the plaintiff’s claim on the basis that both the defendant
and the 3rd party have jointly contributed to the damages suffered by
the plaintiff; or
٠ to indemnify the defendant who has already satisfied the plaintiff’s

claim (usually a contractual indemnification)
OR
 Circumstance 2 (same legal/factual issues):
ᵜ Where Plaintiff sues defendant and -
ᵜ Defendant decides that a factual or legal issue in dispute between the pl and
def is substantially the same as that between the defendant and a 3rd party &
the 3rd party should be joined to the action
 The connection between a plaintiff and the 3rd Party after service of a third party
notice:
 A third-party joinder notice is usually issued by a defendant, but a plaintiff is not
precluded from making use of the notice.
 Joinder of a third party by a defendant (HCR 13) to an action does not create a lis
(legally enforceable right) between the third party and the plaintiff, and the third
party does not become a defendant in relation to the plaintiff.
 When a defendant joins a third party:
ᵜ a court cannot give judgment against a third-party defendant in favour of a
plaintiff and may only grant a declaration as to what degree of fault or
percentage of liability for the plaintiff’s claim rests with the original
defendant and what degree or percentage rests with the third-party
defendant.
ᵜ the original defendant who is being sued by the plaintiff is still liable for the
full amount of the plaintiff’s claim.
 Therefore, when a defendant joins a third party by serving a notice in terms of
HCR 13(1) or MCR 28A, the third party does not become a joint co-defendant vis-
à-vis the plaintiff and the court may only make a declaration;
the court cannot give a judgment against the third party for the payment of a sum
of money in respect of the amount being claimed in the action
 Procedures:
 3RD PARTY NOTICE – drafted in terms of High Crt Form 7 or Mag Crt Form 43;
 The third party notice is usually attached to the summons + any other pleadings
 Served by sheriff at any stage before close of pleadings or by leave of crt after close on
3rd party;
 3rd party pleads to third party notice by way of a notice of intention to defend & plea;
 Crt may grant:
 An award of damages against defendant, but,
 only a declaration against joined 3rd party;

 After award of damages against defendant by crt – defendant may institute a separate
action against 3rd party based on the declaration award.
 APPORTIONMENT OF DAMAGES
 HCR 13 and a s2(2) notice of apportionment of damages
 In terms of s 2(2) of the Apportionment of Damages Act, where a plaintiff elects to
sue only one (or some) of the joint wrongdoers at any stage before the close of
pleadings, the plaintiff or, one of the defendant’s, may give notice to the other
joint wrongdoers who are not being sued, informing them of the action and
inviting them to intervene in the action.
 A s2(2) notice is usually served together with a third party notice where there are
any number of joint wrongdoers;
Note: a notice of apportionment of damages only applies in a unique situation –
where the plaintiff is suing one of the wrongdoers without suing any of the other
wrongdoers. So the wrongdoer being sued may give notice to the others that he
intends to claim an apportionment of damages
 In terms of a s 2(2) notice - the court may order the joint wrongdoers to pay any
damages awarded to the plaintiff either jointly or severally or in such proportion
as the court may deem just and equitable.
*** potential exam question
 Difference between HCR 13 notice and SEC 2(2) notice:
 The difference between HCR 13 and s 2 lies in the type of relief sought;
 HCR 13:
 HCR 13 - only an apportionment of degree of fault in the form of a declaratory
order may be sought by a defendant wrongdoer against another 3RD party;
 HCR 13 does not allow for a judgment sounding in money in favour of a
wrongdoer against the 3rd party;
 The defendant who obtains such a declaratory order cannot execute upon it;
 the defendant will have to sue the 3rd party in a separate action
 s2(2) Notice:
 When an action is instituted against two or more joint wrongdoers in terms of s 2
of the Apportionment of Damages Act, or
 where a joint wrongdoer who was not sued by the plaintiff initially is forced to
intervene in the action in terms of a s 2(2) notice,
ᵜ the court may order the joint wrongdoers to pay any damages awarded to
the plaintiff in such proportion as the court may deem equitable;
 S 2(4)(a) and (b) - if any party (either the plaintiff or the defendant wrongdoers
being sued) fails to serve a s 2(2) notice on the joint wrongdoers who are not
being sued, they may well lose the right to sue such parties at a later stage.
 Submissions by Amicus curiae (HCR 16A)

 An intervention allowed in the High Crt but not in the Mag Crts provides for any party
interested in a constitutional issue to be admitted to a proceedings as an amicus
curiae (“friend of the court”) upon such terms and conditions as may be agreed upon
in writing by the litigating parties.
 If the interested party is unable to obtain the necessary written consent, an application
may be made to the court for admittance as amicus curiae:
 The application must by a submission briefly describe the amicus curiae interest;
 The submission must clearly state the relevance of the interest to the court and
how this interest will assist the court.
 Consolidation of Actions (HCR 11 & MCR 28(3))::

 Where separate actions have already been instituted by different parties, it may be
convenient to consolidate these diverse actions into a single action.
 The purpose of a consolidation of actions and a joinder of third parties is generally the
same - to have issues which are substantially similar tried in a single hearing so as to
avoid the disadvantages and costs of a multiplicity of actions.
 The test for consolidation of actions is convenience and fairness to all the parties
involved
Exam question could be difference between submission by amicus curiae and consolidation of
actions
Chapter 8 – Application Procedure
*** For the exam:
- Understand different types of applications

- What specific document is used when
- Type of summons
- Bilateral v ex parte (why would you use ex parte?)
o Applications
 Application proceedings (i.e. motion proceedings), are based upon the exchange of
affidavits.
1. Issue/service of application:
 The applicant commences proceedings by issuing a notice of motion, to which is
attached a founding affidavit setting out the applicant’s claim and the relief sought
 The application - notice of motion + founding affidavit - is served by the sheriff of the
court on the respondent (if there is a respondent).
 Supporting affidavits and relevant documentation may be attached to the founding
affidavit.
2. Delivery of notice of intention to oppose + answering/opposing affidavit:
 The respondent opposing the application delivers a notice of intention to defend to
the applicant
 The respondent must deliver an answering/opposing affidavit (together with any
supporting affidavits/relevant documentation), in which the respondent answers any
allegations of fact contained in the applicant’s founding affidavit.
3. Delivery of replying affidavit
 If necessary, the applicant may deliver a replying affidavit in order to address any
further allegations contained in the respondent's opposing affidavit.
Action Application
Parties are referred to as “plaintiff” and Parties are referred to as “applicant” and
“defendant”. “respondent”.
An action is based on a real and material factual An application is based on a factual dispute of
dispute. such a nature that it may be easily dealt with on
affidavit or on paper. An application may also
be used for disputes of law.
Commences with the issuing of a summons by Commences with the issuing of a notice of
the plaintiff. motion and supporting founding affidavit by the
applicant.
Further pleadings are exchanged by the parties, Further affidavits are exchanged, namely:
namely:  the answering/opposing affidavit;
 defendant’s plea and counterclaim;  the replying affidavit (if applicable).
 plaintiff’s replication to defendant’s plea;
 plaintiff’s plea to defendant’s counterclaim.
After the exchange of pleadings, a stage called There is no written “preparation for trial” stage.
“preparation for trial” follows. Certain
preparatory steps are then taken, that is,
discovery, expert notices, medical
examinations, pre-trial conference, etc.
The action procedure ends in the trial court, The motion procedure ends in the motion
where mainly oral evidence by the parties and court. In principle, no oral evidence is
their witnesses is presented. presented and the parties do not testify. The
case is argued by legal representatives on the
papers before the court.
o Distinguishing action proceedings from application proceedings:

 General rule:
 The choice between an action or an application procedure depends on whether a bona
fide material dispute of a fact-in-issue is anticipated by the party initiating proceedings
(Room Hire Co (Pty)Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T))
 Material dispute of fact-in-issue: by way of action proceedings:

 All patrimonial delictual damages (unliquidated damages);
 Personal injury claims
 Motor vehicle claims
 Non-patrimonial damages
 Divorce proceedings
 Most breaches of a contract
 Certain types of claims: by way of application proceedings:

 Where statute requires proceeding by way of application;
 Where urgent relief is required;
 Types of claims suitable for application proceedings;
 Insolvency proceedings
 Interdicts (see annexure 3 – back of 4th edition)
 Joinder of parties ( see ch 7 -convenience or necessity)
 3rd party joinder (see ch 7)
 Rescission of judgments (see ch 19 para 19.6),
 Reviews (see ch 21)
o Resolving a dispute of fact (HCR 6(5)(g)):

 Where a material bona fide dispute of fact arises during an application proceeding, a court
may:
 allow oral evidence to be heard:
 permit cross-examination on the fact at its discretion: but only where the factual
dispute is of limited scope
 The court will not allow a party to establish a defence through oral evidence where
such defence has not been set out originally in the party’s affidavit
OR
 refer the matter to trial:
 where the factual dispute is extensive/complicated;
 order that the applicant’s founding affidavit serve as a particulars of claim; and the
respondent’s opposing affidavit as a plea
 Dismiss the application with costs.
 Requiring the person (now plaintiff) to begin over again by commencing
proceedings via an action proceedings
 Resolving a dispute of fact according to the Plascon - Evans Paints v Van Riebeeck Paints AD
case (see fn 20) rule:
 When during an application proceedings a respondent denies a fact-in-issue alleged by
the applicant
 and the denial does not raise a real, genuine or bona fide dispute of fact
 and where the court is satisfied as to the inherent credibility of the applicant's
averments in regard to the fact-in-issue;
 the court may decide the disputed fact in the applicant's favour without hearing
oral evidence;
In other words:
 The court will accept a fact-in-issue alleged by the applicant in his/her affidavit:
 Where the respondent’s denial of the fact alleged by the applicant does not raise
a bona fide dispute of fact; or
 Where the respondent’s rebuttal or denial of the fact is far-fetched.
Summons + POC (action) NoM + Affidavit (application)

Citation of plaintiff/defendant Citation of applicant/respondent
Pleading of disputed material facts-in-issue Averring facts defining claim and relief
No pleading evidence May include evidence
No pleading points of law May include points of law
Signed by unrepresented plaintiff or attorney or Signed/sworn to by maker (deponent)
advocate
Attested to by commissioner of oaths
Amendments made by application to amend Specific mistakes in original affidavit corrected
by further supplementary affidavit
o Interim or interlocutory proceedings

 An interlocutory application is a provisional/temporary application for the purpose of
obtaining ancillary relief incidental to certain main proceedings pending between the parties.
 It is an intervening step that may be taken after the commencement of an action or motion
proceeding and decides a procedural point.
 Where the respondent is obliged to take a procedural step or to conform with a procedural
rule and does not do so - the applicant may by an interlocutory application to force the
respondent to take such a step or to conform with such a rule.
 HCR 6(11) & MCR 55(4)(a) - The structure of an interlocutory notice of motion is set out in
Form 2 - the interlocutory claim may be set out entirely in the notice of motion – or with an
attached founding affidavit where necessary (see para 8.4.7 Selepe v Santam Insurance Co
1977 case in footnotes)
 Examples are:
 an interim application compelling an opposing party to furnish security for costs (see ch
15 para 15.9)
 an application to strike out or to set aside an irregular step (see ch 14 paras 14.4 & 14.5)
 an application compelling an opposing party to comply with the rules relating to the
delivery of documents for the purpose of discovery) (see ch 18.4.5)
 An interim interdict (see annexure 3)
 Interim claims for money support during action proceedings based on a claim for
patrimonial damages – and maintenance support during divorce proceedings
o HCR 43 - three sets of affidavits are exchanged:

 The applicant’s founding affidavit;
 The respondent’s opposing (or answering) affidavit;
 the applicant’s replying affidavit.
o Most common types of application:

 Ex parte applications (no notice to other party);
 Bilateral applications (must give notice to the other party);
 Urgent applications.
 Final interdicts.
 Interlocutory/interim applications:
 Interim interdicts (see annexure 3)
 HCR 34A(1) interim payments made during the course of an action based on claim for
patrimonial damages - HCR 43 interim maintenance payments to spouse made during
the course of a divorce (see ch 15 para 15.8 and annexure 15)
 Joinder applications
 3rd party applications
 Review applications
o Structure of application (HCR 6(1)(2))
o Service of application (see ch 11):

 Issue (case no…) and service by sheriff of application (HCR 4);
 by substituted service where necessary;
 Mere delivery of notice to oppose; opposing and replying affidavits between parties.
 Alternative service:
 Where circumstances impossible (i.e. time limits) for sheriff’s service;
 Application may be brought to respondent’s attention by any reasonable means.
 Example: “my attorney notified respondent by telephone/e-mail, etc that the
application will be heard on….at……by Hon Court. See attorney's affidavit attached
hereto, marked X”
o The form of the proceedings

 Structure of notice of motion
 Form 2 (the short form notice of motion) - used for ex parte applications;
 only the registrar gets prior notice of the application.
 NOTE: Form 2 short form also used for interlocutory applications (see part 1 –last
slide)
 Form 2(a) (the long form notice of motion) – used for bilateral applications;
 where it is necessary for both the registrar and the respondent to be given prior
notice of the application
o Structure of a basic affidavit

 the purpose of the affidavit is to set out the facts of the cause/claim under oath, which the
court considers in determining whether or not to grant the relief sought in the application.
 There is no standard prescribed form for the affidavit, and the contents of the affidavit will
vary widely depending on the nature of the specific application
 The general formalities of an affidavit

 “must be clearly/legibly printed in black ink on one side only of good quality A4
standard size” – MCR 63(1)(2)
 Structure of an affidavit
 Heading & citation of parties;
 Factual basis of jurisdiction;
 Division into paragraphs & sub-paragraphs;
 Averment of material facts defining claim;
 Averment of relevant evidence;
 Averment of points of law;
 Averments explaining relief sought;
 The signature;
 Oath by maker deponent;
 Certified by commissioner of oaths.
 The information appearing in an affidavit

 the names and addresses of the applicant and respondent (if applicable);
 the applicant has locus standi;
 the court has jurisdiction;
 the essential material facts upon which the claim is based (facta probanda);
 admissible relevant evidence which the deponent wishes to place before the court
(facta probantia);
 The facts of the relief sought and a request to the court to grant the relief as prayed for
in the notice of motion.
 Where the applicant refers to documentary evidence in the affidavit, such documents
must be attached to the affidavit (i.e. properly marked: see annexure X).
 The conclusion to be drawn from attached documents must be covered in the affidavit.
 Where the applicant refers in the affidavit to communications or actions by other
persons, such reference must be affirmed by obtaining verifying/confirmatory
affidavits from the said persons and attaching it to the affidavit.
 The attachment of confirmatory affidavits is necessary in order to comply with the
evidentiary rule against hearsay evidence.
 Where the applicant fails to include essential averments in the founding affidavit, these
cannot be included in the subsequent replying affidavit.
 Basic precedents: (see below diagrams)

1. Founding affidavit by applicant;
2. Founding affidavit by a duly mandated attorney acting on behalf of an applicant
3. Founding affidavit by appointed company official acting on behalf of a juristic applicant.
4. An opposing or answering affidavit by respondent
o Ex Parte Application (HCR 6(4))

 An ex parte application (i.e. unilateral application) is used where the applicant is the only
party before the court.
 Where only one party is before the court as a litigant, the application procedure is always
appropriate, as the possibility of a dispute of fact does not exist.
 In accordance with the audi alteram partem principle, justice and fairness demand that the
court should not make an order against any person unless the affected person has received
prior notice of the legal relief sought.
 Ex parte applications represent a departure from this rule,
 The courts will therefore examine any such application carefully so that the interests of
affected persons may be safeguarded
 The ex parte application may be used:

 when the applicant is the only party:
 voluntary surrender of an insolvent estate
 admission as an attorney or advocate;
 when the application is a preliminary step in the matter:
 where application is made to sue by means of substituted service; appointment of
a curator ad litem;
 attachments to found/confirm jurisdiction;
 when urgent or immediate relief is required and notice to the respondent will result in
prejudice to the applicant:
 Anton Piller type applications
 Where the relief required is so urgent that the normal rules of notice cannot be
complied with.
 Two principles apply to ex parte applications - to ensure fairness to the party against whom
relief is sought:
1. Firstly, in ex parte applications the applicant must observe the utmost good faith in
placing all material facts before the court - the court has the discretion to set the
application aside on the grounds of non-disclosure.
2. Secondly, if another person’s interests stand to be affected by an order in an ex parte
application, the court will not grant a final order without giving the respondent the
opportunity to present a defence.
 The court will initially grant a provisional order with a return date - a rule nisi. After the
order has been provisionally granted, it is served on the respondent.
o The rule Nisi
 The rule nisi calls upon the respondent to appear before the court at a final hearing - to give
reasons why the provisional order should not be made final.
 The respondent must deliver an answering affidavit, unless relying solely on a point of law
 The audi alteram partem rule is complied with by affording the affected party the
opportunity to state a case on the return day of the final hearing.
 The requirements for an ex parte application are set out in HCR 6(4).
o Notice of motion in ex parte applications

 the notice of motion in ex parte applications is Form 2 of the First Schedule (the short form)
- read with HCR 6(4)(a),
 The requirements of a notice of motion:
 addressed directly to the registrar.
 indicate in which High Court division the matter is being brought.
 identify the applicant.
 notify the registrar that on a certain date and at a certain time an application will be
made to a specific High Court division for relief as set out in the notice of motion.
 The order sought by the applicant must be set out in the form of prayers and itemised
in the notice of motion.
 confirm that the application is supported by a founding affidavit and it must indicate
the name of the deponent of the affidavit.
 require the registrar to enrol the matter for hearing.
 be signed and dated by the applicant (if he or she is unrepresented) or his or her
attorney.
 set down/enrolment
 HCR 6(4)(a) provides that ex parte applications must be set down/enrolled with the
registrar before noon of the second court day prior to the day on which it will be
heard.
o Opposing an ex parte application
 HCR 6(4)(b) - any person having an interest affected by an order based on an ex parte
application, may deliver notice for leave to oppose.
 Such application must be supported by an affidavit setting out the nature of the
interest/grounds upon which the person wishes to be heard.
 The registrar will set such opposing application down for hearing to be heard
simultaneously with the ex parte application.
 At the hearing, the court may then grant, or dismiss, either or both applications, or the
court may postpone the applications for the filing of further affidavits at its discretion.
 Where an affected party does not apply for leave to oppose prior to the granting of an ex
parte application, a provisional order with a return date will be granted
 The respondent will be served with the provisional order and must indicate by means of an
opposing affidavit, to the court on the return date, why the provisional order should not be
made final.
 If the respondent successfully opposes the provisional order, it will be discharged.
 If the respondent is unable to oppose it successfully the provisional order will be confirmed.
 Any person against whom an ex parte order is granted may anticipate the return date with
24 hours’ notice.
o Bilateral application (HCR(6)(2))

 used when relief is claimed against any person or where it is necessary to give any person
notice of such application,
 the notice of motion must be addressed to both the registrar and such other person.
 This application is a substantive application, which will give the respondent an opportunity
to answer the allegations made by the applicant.
 the respondent may, as part of a defence in the opposing affidavit, raise a dispute of fact.
 The application is issued by the registrar and served by the sheriff.
 Steps in the bilateral application
o HCR 6(5) – requirements for a bilateral applications.

 Form 2(a) read with HCR 6(5)(b)(c)(d)(e) & (f)
 Notice of motion:
 addressed to the registrar and the respondent;
 indicate in which High Court division the matter is being brought;

 identify the parties;
 notify the registrar and respondent that on a certain date and at a certain time an
application will be made to a specific division of the High Court for the relief set out in
the notice of motion;
 reflect the order sought by the applicant set out in the form of itemised prayers;
 the application is supported by a founding affidavit;
 indicate that the applicant has appointed an address within 15 kilometres of the office
of the registrar at which the applicant will accept notices and service of all processes in
the proceedings;
 inform the respondent that in order to oppose the application, a notification must be
made to the applicant’s attorney in writing within 10 days after service of the
application on the respondent;
 inform the respondent that within 15 days after giving notice of the intention to
oppose, an answering affidavit must be filed;
 inform the respondent to appoint an address within 15 kilometres of the office of the
registrar at which the respondent will accept notices and service of all processes in the
proceedings;
 state that if no notice of intention to oppose is delivered by the respondent, the
application will be set down for hearing on a specific date and at a specific time, which
shall be not less than 10 days after service of the application on the respondent;
 be signed and dated by the applicant (if unrepresented) or by his/her attorney
 The respondent/opposing application must:

a) give the applicant written notice, within 10 days stated in the notice of motion of the
intention to oppose the application, indicating an address within 15 kilometres of the
office of the registrar at which all notices and service of all documents relating to the
proceedings will be accepted;
b) deliver an answering/opposing affidavit within 15 days of notifying the applicant of
the intention to oppose the application together with any relevant documents;
c) deliver notice of the intention to raise a point of law (i.e. in limine), if this is the only
intention, within the time period provided for in (b), and in the notice set out the
point of law raised.
 The respondent, in the answering affidavit, must respond to all the allegations of fact
contained in the applicant’s founding affidavits
 Must also set out any additional facts which makes up the respondent’s defence.
 Where a respondent wishes to raise a preliminary issue as well as a defence on the
merits, the preliminary issue as well as the defence must be raised at the same time.
(In trial actions this is known as pleading over).
 Therefore, the respondent may not postpone the filing of an affidavit dealing with the
merits until the court has made a determination on the preliminary issue.
o Replying affidavit
 The applicant may deliver a replying affidavit within 10 days of receiving service of the
respondent’s answering affidavit.
 There is no obligation on the applicant to file a replying affidavit, and this should be done
only when the applicant wishes to place a further explanation or further evidence before
the court.
 Since there is no obligation to file a replying affidavit, the applicant will be taken to have
denied all the allegations made in the answering affidavit in so far as they are inconsistent
with the allegations contained in the applicant’s founding affidavit.
 Even where the applicant does file a replying affidavit, any allegation contained in the
answering affidavit which is not dealt with in the replying affidavit will be deemed to have
been denied.
 There must be a good reason to file a replying affidavit.
 It is not permissible for the applicant to raise a cause of action for the first time in the
replying affidavit
o Further affidavits (HCR6(5)(e))

 the court may exceptionally allow the filing of further affidavits as it deems fit.
 the party wishing to file further affidavits must obtain leave of the court before doing so.
 The court will allow further affidavits provided that there is a reasonable explanation as to
why the evidence was not placed before the court earlier,
 the court must be satisfied that no prejudice will be caused to the opposing party which
cannot be remedied by an appropriate costs order.
 the court decides according to what is in the best interests of fairness and justice.
o Urgent application (HCR 16(12))

 In certain circumstances a party may need to obtain relief on an urgent basis - proper
compliance with the rules and time limits may not be possible.
 HCR 6(12) - the court may dispense with the forms and service provided for in the rules;
 When a matter is urgent it is appropriate to proceed by way of application, at least to
obtain temporary relief, even though a dispute of fact is anticipated.
 Urgency:
 First, involves the abridgement of time periods prescribed by the rules and,
 Secondly, departure from established filing/sitting times of the court.
 Practitioners should analyse the facts of each case to determine whether a greater or lesser
degree of relaxation of the rules is required;
 The degree of relaxation must be commensurate with the degree of urgency;
 An applicant must make out a case in the founding affidavit to justify the particular extent
of departure from the normal time limits.
o Notice of motion
 Applicant uses a Form 2(a) notice of motion adjusted to reflect the shortened time periods
and other changes warranted by the degree of urgency.
 The applicant may, in the notice of motion, nominate a date for the hearing and may
stipulate time limits for the delivery of opposing/answering affidavits.
o The need to make out a case of urgency:

 In an affidavit supporting a urgent application the applicant must specifically describe the
circumstances/reasons which render the matter urgent.
 the applicant cannot create a sense of artificial urgency;
 the affidavit must set out reasons why the applicant would not be afforded substantial
redress at a hearing in the ordinary course.
 where the court is not satisfied with the explanation as to urgency, the application will be
dismissed.
 Whether a matter is urgent will also depend on the nature of the right being threatened:
 A threat to the life/liberty of a person is a valid ground for urgency;
 the threat to a commercial interest - the potential loss of profits, may only in
exceptional circumstances constitute a valid ground of urgency
o Hearsay evidence in a founding affidavit
 no hearsay evidence is admissible in application proceedings.
 for this reason verifying/confirmatory witness affidavits must be attached to the main
affidavit.
 The deponent to the confirmatory affidavit must declare to having read the main affidavit
and must confirm that it is correct in so far as it pertains to him/her.
 A confirmatory affidavit addresses the hearsay nature of the evidence contained in the
main affidavit and renders the main affidavit admissible.
 In urgent matters there may not always be time to obtain confirmatory affidavits:
 the rule about confirmatory affidavits may be relaxed to a certain degree, where an
application is brought by way of urgency,
 provided that the deponent to the main affidavit reveals the source of the hearsay
information contained in the main affidavit, indicates a belief in the truthfulness of the
information, and furnishes grounds for such a belief.
o Service of urgent application

 Urgent applications may be served on a respondent before issue by registrar (unlike a
summons);
 In any appropriate reasonable manner – by fax, e-mail, telephone, etc;
 Supporting affidavit must be attached to main affidavit to show how service was effected;
 After service the registrar will issue application, place in court file, and hand to judge
pending the urgent hearing.
Chapter 9
Overview of Action Proceedings
o The purpose and function of pleadings

 The purpose of a pleading is to enable each litigating party to come to trial fully prepared to
meet the case of the opposing party;
 Each pleading must therefore contain a clear, concise, sufficiently particular, (accurate), set
of averments based on the material facts relied on:
 by the plaintiff as pleader for the claim (i.e. the particulars of claim) or
 by the defendant for the defence (i.e. the plea);
 A pleading must also establish the parties’:
 locus standi in iudicio and
 the court’s jurisdiction;
 The primary rules for pleading are set out in HCR 18; MCR 6.
o 5 practical functions of a pleading

1. To define the issues in dispute:
 The principal function of a pleading is to define the issues (by setting out all the
material facts) between the parties;
 The plaintiff through the particulars of claim must state:
 What His/her cause of action is,
 What material facts are being relied upon,
 What will be proved at trial;
 the defendant must through the plea:
 state his/her defence – (the defence may include a counterclaim + a special plea)
2. To define the limits of the action:

 The litigating parties are strictly bound by the issues contained in their respective
pleadings;
 A party may not adduce evidence at trial of any issue which has not been raised in the
pleading - this may prejudice the opposing party;
 The court has a discretion and may allow the pleader to amend a pleading as long as it
does not prejudice the other party (see ch 17).
3. To establish whether the issues are good in law:

 A pleading is necessary to determine whether a party has disclosed a cause of action,
claim or defence which is good in law;
 If a litigating party raises issues which are irrelevant or immaterial the opposing party
may request the court to dismiss the claim or defence.
4. To place the issues on record:

 The issues raised in pleadings are placed on record in order to prevent further litigation
on the same issues;
 A party may plead res judicata when the opposing party institutes a second trial action
against the same party based on the same issues.
5. To establish the onus of proof:

 The primary onus of proof is usually determined by the pleadings;
 The party making the claim in the pleadings (i.e. the party making a positive averment)
is usually the plaintiff; - is obliged to assume the primary burden of proof;
 Unless the opposing party raises a special defence (i.e. a confession and avoidance) –
usually raised by the defendant;
o Particularity (accuracy/clarity) in pleadings:

 The plaintiff’s cause of action must be clearly set out so that the defendant understands
the case to be met and can, at the trial, attempt to disprove the plaintiff’s averments (i.e.
allegations);
 The defendant’s plea must also be set out clearly to allow the plaintiff to understand the
nature of the defence;
 a pleading should not contain statements of evidence (facta probantia);
 to plead evidence is irrelevant and may be embarrassing and render the entire pleading
vulnerable to a challenge.
 a pleading must contain the material facts of the dispute and not law. The pleading of a
legal principle is irrelevant and is likely to be objected to
 note: there are exceptions to the rule that no legal principle may be pleaded:
 When it is absolutely necessary to plead conclusions of law, these averments of law
must be supported by material facts.
 For example:
 It is insufficient to plead locus standi in iudicio, being a conclusion of law, without
making averments of material facts which support such a conclusion;
 A bare allegation that the defendant is contractually indebted to the plaintiff for a
sum of money or that the defendant is under a contractual obligation to perform a
specific act (both of which are conclusions of law) is insufficient. Material facts
which set out the nature of the contract, and the manner in which the defendant is
contractually liable for specific performance, must also be averred;
 A bare allegation that the defendant is indebted to the plaintiff for a sum of money
is insufficient - the pleader must aver that the indebtedness arises from a loan, a
salary, a contractual debt or is a claim based on delictual damages.
o The basic rules about accurate and particular pleading:

 A comprehensive knowledge of substantive law is required to draft a good particulars of
claim or a plea;
 A bad pleading usually contains facts which cannot be proved at the trial because the
evidence needed to support these facts is inadmissible;
 HCR 18; MCR 6 does not require a pleading to be drafted in perfect language – no need
for elegant pleadings - but requires each separate averment to be grammatically
coherent;
 The pleadings of an unrepresented party should not be held to the same level of skill as
that of the party represented by a professional pleader.
o The general formalities of pleading (HCR 18; MCR 6)

 These rules may appear formal and inflexible, the courts have a wide discretion to condone
infringements of these technical rules where there is no prejudice to the opposing party:
 Structure/format of a pleading:
 Heading & citation of parties;
 Division into paragraphs & sub-paragraphs;
 Pleading of material facts-in-issue;
 The prayer (setting out the claim);
 The signature;
o The heading: HCR 18(2); MCR 6(2)

 Each pleading must contain a title which describes the court in which the pleading is being
filed and correctly cites the litigating parties;
 Abbreviations may be adopted where there are multiple joined parties and these render the
title cumbersome;
 The registrar or clerk assigns a case number - top right-hand corner of the first page.
 Note – combined summons + particulars of claim (the POC does not need a court
heading citation as it is attached directly to the summons)
 Simple summons must contain a heading citation
o Division into paragraphs: HCR 18(3); MCR 6(3)

 Each pleading is divided into paragraphs - where necessary into sub-paragraphs; • The
paragraphs are numbered consecutively;
 Each paragraph must contain a separate and distinct averment;
 The paragraphs must not be repetitive.
 Legally tenable but inconsistent averments are acceptable, provided they are pleaded in the
alternative and do not prejudice the opposing party
o Pleading of material facts only: HCR 18(4); MCR 6(4)

 A pleading must contain a clear and concise statement of all the material facts upon which
the pleader relies for a cause of action or defence;
 Pleadings should be lucid, logical, and set out in an intelligible form;
 Each pleading must be sufficiently particular to allow the opposing party to understand and
reply to it;
 The term “material facts” means all the facts-in-issue which are essential in order to enable
a party to succeed with a claim or defence;
 Must distinguish between the:
 material facts or the facts-in-issue (facta probanda) and
 evidentiary facts or the facts which prove the facts-in-issue (facta probantia);
 The evidentiary facts or facta probantia may not be pleaded at all, whereas the
material facts or facta probanda must be pleaded with sufficient particularity
o The prayer: HCR 20(2); MCR 15(2)

 The particulars of claim (or declaration) must set out a prayer for the relief claimed;
 A pleading which does not set out the relief claimed does not contain a complete cause of
action and will render the pleading irregular;
 Included in the prayer is a request for further or alternative relief;
 This prayer allows the plaintiff to claim further relief which flows from the particulars of
claim but which the plaintiff may have mistakenly overlooked;
 When a plaintiff claims on a debt sounding in money, the prayer include a claim for interest.
o The signature:
 High Court pleadings are signed by an advocate and an attorney, except where the attorney
has been granted a right of appearance - s4(2) of the Right of Appearance in Courts Act;
 Magistrate’s Court pleadings are signed by, the unrepresented litigating party, or by an
attorney or counsel (MCR 6(1)(a));
 High Court - a company (and other juristic entities) is represented by an advocate, and all
company pleadings must be signed by both an advocate and an attorney acting together,
except when the attorney has a right of appearance, in which case the attorney may act
alone;
 Mag Courts - a company officer so designated by the company, may act on its behalf.
o Specific particularity required in certain types of pleadings

 HCR 18 and MCR 6 prescribe certain particulars which must be alleged in various types of
causes of action and claims.
 Contract: HCR 18(6); MCR 6(6)
 A party relying on a contract must state whether the contract is written, or oral, and
when, where and by whom it was concluded. If the contract is written, a true copy of
the contract relied upon must be annexed to the particulars of claim;
 Divorce: HCR 18(8)
 A party suing for divorce must, when time, date, and place, or any other person(s) are
relevant give such details in the pleading.
 Claims of forfeiture, etc: HCR 18(9); MCR 6(8)
 When a claim for division, transfer or forfeiture of assets is brought in a divorce in
respect of a marriage out of community, the claimant must give details of the grounds
on which the claim is being made.
o Delictual damages (personal damages): HCR 18(10); MCR 6(9)

 A plaintiff suing for damages must set out each material fact in a manner which will enable
the defendant reasonably to assess the quantum.
 A plaintiff suing for personal injury damages must specify date of birth, the nature, effects
and duration of the disability giving rise to such damages and must reasonably separate the
different amounts claimed. (in your particulars make the necessary averments with the
particular facts in issue – then say as a result there was damages. If the damages isn’t only
to the MV repair etc. must first list the damages separately). The following damages may be
claimed for personal injury:
 Medical costs and hospital and other similar expenses, and how these costs and
expenses are determined;
 Pain and suffering, whether temporary or permanent, and the injuries responsible for
the condition;
 Disability in respect of:
 the earning of income, setting out the earnings lost to date, how these amounts
are made up, and the estimated future loss to the plaintiff, including the possible
type or nature of work the plaintiff will be limited to in future;
 the enjoyment of amenities of life, and whether the loss is temporary or
permanent (give particulars of the loss of such amenities);
 disfigurement, whether temporary or permanent, giving a full description of the
extent of the disfigurement
(first say what the different damages are, then for each must breakdown how much each cost and
how you reached the final quantum claim).
- Example of a Plaintiff’s particulars of claim based on a breach of a contract of sale (mora

ex persona) and where there is no specific lex commissoria (cancellation clause) inserted
in the contract
- In this instance had to specify whether a written demand was made. Paragraphs 1-10 are
the specific averments and from wherefore onwards is the prayer
- In this case above there was more facts necessary to explain what happened’
- In pleadings use the averments to come to a legal conclusion
So for example say there were no steps taken to restrain the dog etc. So use the facts to
reach a legal conclusion
- List all the different amounts then at the end where there is a prayer give the total
amount
Interest:
Not asking us to calculate interest – its asking you based on the set of facts there are different
principles to
o Calculating interest:
 Interest may be claimed on the capital amount of the plaintiff’s claim.
 It is charged over a fixed period of time & at a fixed rate.
 The calculation is made from the due date of performance (for a contractual debt) or from
the date of service of a demand or summons (for delictual debts) - until the judgment
debtor makes payment in full to the plaintiff creditor
 A claim for interest is not automatic and must be pleaded in the plaintiff’s particulars of
claim
 A prayer for interest is usually set out in a standard default formula: “interest at the rate of
10.5% per annum from the date of [the letter of demand or the service of summons] to the
date of final payment”.
 The calculation of interest is based on four essential factors:
 the rate at which interest may be charged (i.e. 10.5%)
 the time period during which interest accumulates
 Either in the form of simple or compound interest
 Whether the claim is liquid or illiquid
o The common law rate of interest

 CL ROI - When there is no agreement between the parties
 interest must be charged as simple interest.
 Simple interest is calculated as a percentage of the capital amount of the claim for a
fixed period of time but kept separate from and not added to that capital amount.
 This is the default position set out in the Prescribed Rate of Interest Act
 The rate, referred to as the mora rate of interest, is varied from time to time but is
currently 10.5% per annum.
 (10.5% is incorrect the default position is the prescribed rate of interest Act, the
interest is calculated using the repo +3.5%.
The repo rate has increased since Jan when it was 10.5% - it is now 10.75%
 CL ROI - when there is agreement between the parties.

 First - when the plaintiff’s claim is based on a contractual debt, it will often be the case
that the parties have contractually agreed on a certain rate as part of the terms of their
contract.
 The parties may agree on a rate higher or lower than the current benchmark of
10.5%.
 Second – the parties may also agree upon a rate based on either simple – or compound
– interest
o The parties may agree to charge compound interest instead of simple interest
 Compound interest is described as interest upon interest
 This means that the interest that has accumulated at a certain point in time, usually at the
end of every month, is added to the capital amount before the next interest calculation is
made.
 This process is then repeated regularly for a fixed period of time.
 If the parties agree on the rate and type of interest - this agreement must be pleaded by the
plaintiff in the particulars of claim.
 A prayer for compound interest may be set out as follows: “interest at the rate of 10.5%
per annum, calculated and compounded monthly in arrears”.
o The time period during which interest will be calculated

 Liquid claims in a contract
 Mora ex re breach
 Mora ex persona breach
 There is a close relationship between the concept of contractual mora and the calculation
of interest in respect of liquidated debts arising from a contract
 The mora ex re breach.

 A breach in mora ex re occurs when the due date (expressly set out as a term of the
agreement) for the performance of a contractual obligation (usually payment of a
money debt) has not been met.
 The defaulting debtor will be in mora ex re automatically (i.e. no letter of demand is
necessary). The contractual debt becomes payable on the due date and the rate of
interest begins to run simultaneously from that date
 Mora ex re breach formula
 A prayer for simple interest should be drafted as: interest at the rate of 10.5%
[or other agreed upon rate] per annum, from [date of performance as set out in
contract] to date of payment”.
 Alternatively,
 A prayer for mora ex re compound interest should be drafted as: “interest at a
rate of 10.5% [or other agreed upon rate] per annum, calculated and
compounded monthly in arrears from [date of performance set out in contract]
to date of payment”
 The mora ex persona breach

 A breach in mora ex persona occurs when a contract does not specify a due date for
performance and the defaulting debtor must be placed in mora by means of a letter of
demand (i.e. an interpellatio).
 A letter of demand demanding performance by a certain reasonable date will be
delivered by the creditor’s attorney to the defendant’s attorney.
 The letter should include a clearly specified date of performance.
 The prayer for simple interest should be drafted as:
 “interest at the rate of 10.5% [or other agreed upon rate] per annum, from the
[date specified in the interpellatio] to the date of payment”.
 Alternatively, a prayer for compound interest should be drafted as:
 “interest at a rate of 10.5% [or other agreed upon rate] per annum, calculated and
compounded monthly in arrears, from [date specified in the interpellatio] to date
of payment”.
o Illiquid claims in delict:

 A claim for interest based on an illiquid amount is not dealt with in terms of the common
law but in terms of s 2A of the Prescribed Rate of Interest Act which deals with all
unliquidated debts such as delictual claims for damages:
 Section 2A(2)(a) reads “Subject to any other agreement between the parties . . .
[interest] shall run from the date on which payment of the debt is claimed by the
service on the debtor of a demand or summons, whichever date is earlier”.
 This means that for all delictual claims interest will run from the date on which
payment is demanded and not from the date of judgment.
 The prayer for simple interest should be drafted as: “interest at a rate of 10.5% [or
other agreed upon rate] per annum, from [date of demand] until date of payment”,
 Alternatively:
 The prayer for compound interest should be drafted as:
“interest at the rate of 10.5% [or other agreed upon rate] per annum, calculated and
compounded monthly in arrears from [date of demand] until date of payment”.
o The in duplum rule:

 In terms of the common law, interest cannot exceed the capital amount of the claim.
 The in duplum rule states that when the amount of interest is equal to the capital amount of
the claim interest ceases to run.
 The rule has been codified in s103(5) of the National Credit Act 34 of 2005 and applies to all
credit agreements governed by that Act.
 In other words, “interest may not exceed the unpaid balance of the principal debt at the
time the default occurs”.
Chapter 10:
Summons, POCs and Declaration
o Summons:
 Definition: A written legal demand that initiates/commences the action proceedings

- Note: LOD must be delivered before a summons in some contractual clauses or where
legislation requires it (p35-36)
 The issue/service of summons

 signed by the plaintiff, or the plaintiff’s legal representative;
 issued by a registrar (HC); clerk (DCrt); registrar (Reg Crt);
 addressed to and served by the sheriff
 Function of summons:
 Informs the defendant of the nature of the plaintiff’s COA and claim
 initiates the process whereby the defendant is brought before the court.
 informs the defendant of the procedural steps & specified time limits (dies induciae) to
be followed in disputing the plaintiff’s claim
 The issue and service of a summons has the following legal effects:
 Meets the constitutional right to access to justice, fairness - and informs the other
party;
 determines the jurisdiction of the court - a change of jurisdiction may be made only by
permission of the court or by a withdrawal of the original summons;
 interrupts the running of prescription (s15(1) of the Prescription Act 1969) (see pgs 38-
42);
 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 (lis pendens);
 allows the plaintiff’s heirs to inherit the claim on the death of the plaintiff.
 Different types of summons

 Simple summons - based on a debt or liquidated demand owed to the plaintiff.
 Combined summons – based on illiquid demand defined negatively (not founded on
debt or liquidated summons)
 used when the plaintiff’s claim is not founded on a debt or liquidated demand
 A combined summons sets out the plaintiff’s claim in greater detail than a simple
summons.
 Provisional sentence summons
 a hybrid type of summons – where the claim is based on a “liquid document”
 purpose = to obtain a speedy & provisional judgment against the defendant.
 Rent interdict summons – in mag court only

 claim for arrear rentals in mag crt,
 Includes an automatic interdict & landlord’s tacit hypothec.
 Use of summons:
 Magistrate courts
 The use of a simple summons in claims based on a debt or liquidated amount is
not obligatory - MCR5(2)(b) contains the word “may”
 attorneys prefer to use a combined summons instead of a simple summons for all
claims, principally for reasons of time and cost-effectiveness, when the matter is
likely to be defended;
 High Court
 the situation is different because HCR 17(2)(b) contains the expression “shall be”,
thereby making the use of a simple summons for all liquid claims obligatory.
 A simple summons (HCR 17(2); MCR 5(2)(b)):

 Advantages:
 the particulars of claim are concisely set out in the body of the simple summons;
 need only be signed by an attorney and not by an advocate;
 In practice, many claims based on liquid amounts are not defended;
 The use of a simple summons is cost-effective because there is no need to deliver
a subsequent declaration to the opposing party.
 Disadvantages:
 There may be material inconsistencies between the particulars of claim contained
in the body of a simple summons and the declaration delivered to the defendant
at a much later date in the proceedings;
 Certain liquid claims based on mortgage bonds, covering bonds and surety bonds
may require complicated averments which are better suited to the particulars of
claim of a combined summons rather than those of a simple summons;
 A simple summons does not constitute a pleading as it may not disclose a cause of
action;
 Where no cause of action is set out in the simple summons - no summary or
default judgment can be obtained
 Meaning of the term debt or “liquidated demand”:

 The old Transvaal Rule 42 (now defunct) interpreted a debt demand as a claim for a -
“fixed or definite thing”;
 example, delivery of goods, cancellation of a contract, transfer or ejectment, and
the rendering of an account by a partner;
 or a “fixed or definite amount”;
 example, an agreed price for goods sold and delivered, rental in terms of a lease
agreement, and repayment of a loan or an admitted debt.
 A liquidated demand was described in Fatti’s Engineering Co (Pty) Ltd v Vendic Spares
(Pty) Ltd: As a claim for a “monetary amount capable of prompt and speedy
ascertainment”;
 example, a claim by a commercial firm for reasonable remuneration (a specific
sum of money) for work done and material supplied
 Meaning of “prompt & speedily/easily ascertainable”:
ᵜ A claim is easily and promptly ascertained if it is;
٠ an agreed contract price,
٠ an amount which is susceptible to a simple arithmetical calculation,
٠ proof of the amount is clear and brief determined on a case-by-case
basis,
٠ A predetermined agreed upon contractual claim for damages as a result
of a contractual breach,
٠ A fixed amount which appears clearly ex facie a liquid document.
٠ The scope of liquidated demand also includes ejectment, money stolen,

collection commission, and foreign judgments
 What is not a liquidated demand?
 A claim cannot constitute a liquidated demand where it is necessary to produce
extrinsic evidence in order to determine & calculate the amount claimed;
ᵜ An action for divorce, maintenance,
ᵜ delictual damage, where the quantum must be proved can never be a
liquidated demand.
 combined summons consist of 2 separate documents:

 a summons +
 a complete particulars of claim attached as an annexure to the combined summons -
headed “Annexure A: Particulars of Claim”;
 the particulars of claim consist of a statement of all the material facts-in-issue

relied upon by the plaintiff in support of the cause of action and relief sought;
 may be used for all claims - but is more readily used for illiquid claims.
 General requirements:
 Simple summons - Form 9 of the HCR and Form 2 of the MCR;
 Combined summons - Form 10 of the HCR and Form 2B or 2C of the MCR;
 Provisional Sentence summons – Form 3 of the HCR and Form 2A of the MCR.
 Rent interdict summons – Form 3 of the MCR.
 Technical requirements of all summons:

 addressed to the sheriff;
 directs the sheriff to inform the defendant – to give the plaintiff notice of an intention
to defend within the prescribed dies induciae (time limits);
 contains the physical address of the representing attorney - for the purpose of
accepting further delivery of pleadings;
 attorney’s address must be within 15 kilometres of any court;
 contains the representing attorney’s, or the unrepresented plaintiff’s, postal address
and where available fax & electronic mail address;
 signed and issued by a registrar or clerk and
 made returnable by the sheriff to the court through the registrar or clerk – return of
service(see ch 11)
 sets out the citation of the defendant – (as known to the plaintiff) - and legal/any
representative capacity of def - see ch 7
 sets out the citation of the plaintiff - and legal/any representative capacity of pl – see
ch 7.
 Electronic address in all summons:

 HCR 17(3)(a)–(f) and MCR 5(3)(a)(i)–(ii)) an attorney, or an unrepresented plaintiff,
may include fax & electronic mail addresses - where available - in addition to the
postal address;
 HCR 17(3)(d) and MCR 5(3)(b), the plaintiff may also state - whether prepared to
accept service of all subsequent documents and notices in an action by way of a
fax or electronic mail address;
ᵜ The defendant may, in response to a written request from the plaintiff,
deliver written consent to the exchange or service of subsequent documents
or notices by way of fax or electronic mail;
ᵜ Where the defendant refuses or fails to deliver such consent, the court may,
on application by the plaintiff, grant consent as may be appropriate in the
circumstances;
ᵜ aimed at encouraging the use of cost- and time-efficient electronic means of
exchange of documents.
 Procedural requirements in summons:

 state that within 20 court days after the notice of an intention to defend - defendant
must deliver a plea;
(Note: A simple summons does not set above out because after the defendant has
given notice of an intention to defend - it is the plaintiff who takes the next step.)
 High Court Signature:

 A simple summons is not defined as a pleading - need only be signed by an
attorney acting on behalf of a plaintiff, or by an unrepresented plaintiff acting on
own behalf;
 A combined summons is defined as a pleading - signed by an advocate or an
attorney who has right of appearance in the High Court or by an unrepresented
plaintiff.
 Mag Court Signature:
 Both types of summonses must be signed by the attorney acting for the plaintiff,
or by the unrepresented plaintiff;
 There is no requirement that a combined summons or pleadings be signed by an
advocate as well.
 A simple summons does not constitute a pleading:

 must concisely and sufficiently set out the nature of the claim and the relief sought by
the plaintiff (flexibly comply with HCR 18 or MCR 6);
 a brief explanation of the cause of action;
 a reference to the court’s jurisdiction;
 a reference to the parties’ locus standi;
 a legal conclusion drawn from the material facts in issue;
 a request for legal relief.
 Note: a declaration to a simple summons constitutes a pleading and must comply with
HCR18; MCR 6
 Note: HCR 41A(2)(a) – requires all summons to include an attached notice indicating
agreement or opposition to court annexed mediation
 A combined summons constitutes a pleading:

 its substantive content must strictly comply with all the requirements in HCR 18 or
MCR 6 (see ch 9);
 the particulars of claim must contain averments of all the material facts (facta
probanda) in support of the claim;
 The particulars sets out the:
 nature of the claim,
 conclusions of law which the plaintiff shall be entitled to deduce from the facts
stated therein, and
 prayers for the relief claimed;
 Where the plaintiff seeks relief in respect of several distinct claims founded upon
separate and distinct facts, such claims and facts shall be stated separately and
distinctly (see ch 7 joinder of causes).
 Note: HCR 41A(2)(a) – requires all summons to include an attached notice indicating
agreement or opposition to court annexed mediation. High Crt annexed mediation is
effective from March 2020 – and is similar to the procedures in the Mag Crt. ( See ch 15
pgs 278-283)
 Provisions relevant the MC only (MCR 5&6)

1. Additional forms for the benefit of the defendant:
 MCR 5(5) allows for a number of forms and notices to be included in the summons
in order to assist the defendant:
a) a form of consent to judgment;
b) a form of intention to defend;
c) a notice drawing the defendant’s attention to the provisions of s 109 (change of
address) of the [Mag’ Cts Act] and
d) a notice in which the defendant’s attention is directed to ss 57, 58, 65A and 65D
of the [Magistrates’ Courts] Act – consent - in cases where the action is based
on a debt referred to in s 55 of the Act [i.e. the liquidated amount due]. (see ch
15 pages 296-301)
 These forms and notices are incorporated into Form 2 (simple summons); Form 3
(automatic rent interdict summons), & Form 2B (combined summons)
 Form 2C (i.e. divorce combined summons) should only contain a form of intention
to defend or consent to judgment
2. Jurisdictional provisions (MCR 5(6)):

 S 28(1)(d) - When the plaintiff sues the defendant based on a cause of action, the
summons must aver that the whole cause of action arose within the district or
region and contain particulars in support of this averment;
 S 28(1)(g) - When the dispute is based on immovable property physically situated
within the court’s geographical area, the summons must aver that “the property
concerned is situated within the district or region”;
 S 38 & 39 - The summons must contain averments indicating abandonment or set-
off of part of the claim.
3. Provisions relating to legislation

 Any legislation - When the plaintiff issues a summons in respect of a claim
regulated by legislation, the summons may contain an averment of compliance with
the legislation;
 S 58 National Credit Act - When the cause of action is a credit agreement and the
plaintiff seeks to obtain judgment - the summons must comply with each of the
relevant procedures set out in ss 129 and 130 of the NCA.
4. Note Court annexed mediation –

 when both parties want to refer the dispute to mediation a request must be made
to the registrar/clerk of court via a MED 1 – 3 form ( see MCR 77(2)) (see ch 15
pages 278-283)
5. Automatic rent interdict summons:

 MCR 5(8) allows for a summons containing a notice of automatic rent interdict
(Annexure 1, Form 3);
 S 31 Mag Crt Act - when a summons based on a claim for arrear rentals of any
premises is issued, the plaintiff (i.e. the landlord or lessor) may include in the
summons a notice:
ᵜ of automatic rent interdict, preventing any person (i.e. usually the lessee) from
removing any furniture or any effects from the leased premises;
ᵜ subject to the landlord’s hypothec for rent (i.e. any movable property
belonging to the person owing the arrear rental) - until the court has made an
order concerning the property;
 Anyone aware of the notice is interdicted from removing the property from the
premises until the court has made its order.
Chapter 11
Service of Process
o Ordinary service (pages 221-230)

 Service of process - General principles
 Service of process of the court = legal delivery, delivery of court documents
 Based on the Audi alteram partem principle - Notice to opposing party
 Prescribed service by the sheriff of summons/founding affidavit initiating proceedings
(see s43(1) of the Superior Courts Act)
 Service without unreasonable delay;
 Service within sheriff’s designated jurisdictional area - s3(1) Sheriff’s Act 90 of 1986;
 May call on police to assist with service (MCR 8(2));
 Sheriff’s failure to discharge duty – amounts to a delict;
 Note: notices and documents not defined in s43(1) of the superior courts act may be
delivered:
 By hand or registered post
 By email (HCR 4A(1) & MCR 9(9)(c)
o Service procedure
 Physical service:
 Sheriff must display the original copy to the recipient;
 generally personal (physical) service by hand; OR as set out in HCR 4 & MCR 9 (see
diagram);
 Time for service:
 time of service – 7h:00- 19h:00 hrs – except Sundays, public holidays;
 interdicts/attachment/arrest orders served at any time
 Return of service:
 signed return of service (or non-service) – prima facie proof of service or non-service;
 void/defective service – court discretion to order new/amended service;
 Physical service:
 the sheriff must display the original document to the recipient and hand over a copy;
 duty on the sheriff to explain to the recipient the nature & contents of the document;
 the sheriff returns the original together with a duly completed and signed return of
service to the attorney of record for filing in the court file
 Return of service:
In the return of service, the sheriff\deputy-sheriff must make the following averments:
 what document(s) has been served on the recipient;
 the manner/circumstances of service;
 whether service was successfully effected on the recipient or a person qualified in
terms of the rules to receive service on behalf of the recipient;
 where & at what time service was effected;
 the nature & contents of the document served have been explained to the recipient.
o Substituted service p(230-234)

 Service which cannot be effected in the prescribed manner:
 SUBSTITUTED SERVICE - person on whom service must be effected cannot be traced
although he/she is physically present within South Africa; (HCR 4(2) & 5; MCR 9(10));
 EDICTAL CITATION - person is no longer physically present in South Africa, even though
person’s foreign address is known or unknown to the plaintiff (HCR 5(1); MCR 9(10) &
10);
 2 step procedure:
1. Apl/pl must seek the court’s leave by way of an application to serve in a manner
different to the ordinary mode of service. Apl/pl must obtain the court’s direction as to
mode of service.
 2. Apl/pl must then serve summons according to court’s direction as to mode of service.
 SUBSTITUTED SERVICE – general principles

 Substituted service may not be claimed as a right – it is subject to the court’s discretion:
 Ap/pl must make an ex parte application + affidavit to crt; showing that
ᵜ the applicant has a prima facie cause of action;
ᵜ the court has jurisdiction to hear the matter;
ᵜ the application is necessary in order for the applicant to proceed with the
claim.
 Time periods:
 usually 21 court days for def to deliver an appearance to defend;
 one month for def to deliver an appearance to defend where a summons is served
outside the area of jurisdiction of the court in which it is issued (150 kms);
 Substituted service in SA – Specific procedures

 where a plaintiff proceeds against a party – whose physical whereabouts is unknown.
The plaintiff knows only that the defendant is somewhere in the province;
1. (First step) – ex parte application for the court’s permission to initiate proceedings
against the defendant by serving a court process in a manner not prescribed by the
ordinary rules;
ᵜ Apl/pl argues - reasonable grounds for believing that the defendant is
somewhere in South Africa;
ᵜ Apl/pl applies for permission to court to bring the main proceedings;
2. (Second step) - After permission is granted, the Apl/pl’s attorney serves summons
in the manner authorised by the court;
ᵜ The court will fix the time within which the respondent/defendant must enter
an appearance to defend;
ᵜ One month when def is outside the jurisdiction of the court in which the
summons is issued (more than 150km) (s 24(a) Sup Crt Act)
 First step –
 contents of plaintiffs application for substituted service
 brought by way of an ex parte application;
 notice of motion signed by the Pl/applicant ;
 addressed to the registrar,
 attached supporting affidavit;
 The defendant is not cited - whereabouts is unknown
 The attached affidavit contents:
 the nature and extent of the claim;
 the grounds upon which the claim is based;
 the grounds upon which the court has jurisdiction;
 the suggested court authorised mode of service;
 the last-known whereabouts of the defendant;
 what steps taken/enquiries have made to determine the defendant’s
whereabouts - why such steps unsuccessful;
 there is a reasonable probability that the suggested method of service will come
to the defendant’s knowledge.
 Second step – mode of service
 The court will order a method of service most likely to cause the proceedings to come to
the defendant’s notice:
 Types of alternative service:
 publication in one/more newspapers;
 service by registered letter to the defendant’s last known address or next of kin or
legal representative;
 service ad valvas curiae (“to the doors of the court”);
 a combination of above methods;
 at the subsequent hearing of the ex parte application, there must be proof of
service in compliance with the court’s direction;
 CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604
(KZD), the court allowed substituted service in the form of a social media Facebook
message.
 (Note: the use of social media as a mode of substituted service is exceptional and to be
decided on a case-by-case basis).
 Service by edictal citation outside SA:

 where plaintiff/applicant wishes to effect service upon a person no longer physically
present within the Republic, where the person’s foreign address is known or unknown;
1. (First step) - obtain the court’s direction as to the relevant mode of service. Obtain
the court’s permission to initiate substituted proceedings.
2. (Second step) – serve on the defendant in the foreign country by way of a citation +
intendit.
 In order to initiate the proceedings the plaintiff must:

 1st step:
ᵜ apply to the court for leave to sue by way of edictal citation - an ex parte
application;
ᵜ The affidavit contains the same averments as that of substituted service;
 2nd step:
ᵜ If the court grants permission in terms of the ex parte application:
٠ the plaintiff issue’s a citation (the equivalent of a summons addressed to
the defendant) to which is attached an intendit (the equivalent of a
particulars of claim);
٠ Service of the citation & intendit will be effected in accordance with the
court’s direction – depending on whether the defendant’s address is
known or unknown;
ᵜ A period of 21 days must be allowed for the defendant to enter an appearance
to defend.
 Substituted service in the form of an edictal citation procedure is unnecessary where:
 the defendant has appointed an address for service of process via a domicilium
clause in a contract;
 the defendant has an agent within South Africa authorised to accept service of
process;
 However, service upon an agent is not allowed where the cause of action requires
personal service upon the defendant, (i.e. divorce matters or matters affecting
status)

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CIVIL PROCEDURE NOTES

The letter of demand as a first step:

In some circumstances (common or statutory) a letter of demand is a legal requirement as a first

The meaning of the term in mora:

- Mandate (power of attorney)

o Chapter 4 – Intro to Jurisdiction

EXAM TYPE QUESTION

- So we know Mr X is an incola of the Johannesburg high court; Mr Z is domiciled in Pta,

He can choose to go out of any of the 3 courts

Look at an example of a delict.

 Ratione rei gestae (a money claim based on a cause of action)

 Ratione rei sitae (a claim based on property)

 A matrimonial action (para 5.4.3):

 INCOLA & PEREGRINII (para 4.5.1)

 ATTACHMENT TO FOUND/OR CONFIRM JURISDICTION IN RESPECT TO MONEY CLAIMS

 to confirm jurisdiction where there is an already existing ratio jurisdictionis –

 SUBMISSION (para 5.4.5.3)

Which courts will have jurisdiction to hear the matter

o CH 6: MAGISTRATES' COURT JURISDICTION

 Mag Courts are creatures of statute

 Other sections which also define a mag court jurisdiction are:

 Monetary Claim Jurisdiction:

***page 110 - 114 – abandonment of claims

Abandonment of part of claim S 38

Deduction (set-off) of an admitted debt S 39

No splitting of claims – where a single cause gives rise to

Cumulative jurisdiction – multiple claims based on

Parties may consent, in writing, to an increase in the

• No consent possible to causes of action excluded

Counterclaim exceeding jurisdiction – (i) stay

o Chapter 7 – Parties and Citations

 Locus standi in iudicio - two distinct legal concepts

 (A) a sufficient interest and right in the relief claimed

ᵜ actual, not abstract or academic, interest;

 Constitutional definition: Standing to enforce rights guaranteed in the Constitution

Identifying a class action

 Is there a suitable representative?

Applying for a class action certification

 The nature of a class action certification

 Public Interest actions: to protect the rights guaranteed in chapter 2 of the

 Insane and disabled persons

ᵜ firstly for the appointment of a curator ad litem

ᵜ Residence or place of business address

 PURPOSE OF CORRECT PARTY CITATION

 A citation serves a four- fold purpose:

 Citation of partnerships and trusts

 Citation Headings in Pleadings (High Court):

 Citation Headings in Pleadings (Magistrate Court)

o Joinder of: Convenience, Necessity or 3rd party Joinder:

 Other types of joinder:

o Joinder of Parties and claims:

 3 types of joinder in the HC: (v similar to joinder in MC)

 Joinder of convenience in the HC (HCR10)

 Joinder of necessity in the HC (Common law)

 Specific test for joinder of necessity

 Examples where joinder of necessity is required

 Joinder of causes of action:

NON-JOINDER MISJOINDER WAIVER

A party who raises an objection against the non-joinder of a