Introduction to South African law

Civil Procedure
Civil cases: involves a dispute, of a civil nature, between two or
more parties which they are unable to settle without the intervention
of the courts and the relief sought is not aimed at punishment but
rather to enforce or realise substantive legal principles.

Section 34 of the constitution:

“Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal
forum”.

Civil procedure: regulates all processes that relate to civil law. The
law of civil procedure is essentially private in nature and regulates
the process of resolving a dispute of a civil nature.
• The law of civil procedure can be used for
various purposes:
• To obtain a declaratory order: declaring
something or a position stated in law
• To prevent damage or injury: where a
right is threatened one can approach court
to obtain an interdict preventing the
particular threat of the right
• To make damages or injury good: a
claim for damages by a wronged party
• To claim for specific performance: failure
to act/ perform by one party where a
binding contract between the party exists.
In civil procedure we have two types of
proceedings one can use or rely on in order
to obtain the remedy sought from the courts.

• Action and application proceedings

Action proceedings: a type of civil

proceeding in which the parties have
fundamental differences regarding the
facts.
• Application proceedings: a type of civil
proceeding where there are no
fundamental differences regarding the
facts, which include, interdict proceedings
and declaratory orders.
• Examples: X and Y are involved in a car
accident. Both feel aggrieved and
blame each other for the accident. X
approaches court to claim damages
suffered as a result of the accident.
• X seeks to evict Y from his premises for
unlawful occupation and X relies on
relief provided in the Prevention of
Illegal Eviction and Unlawful
Occupation of Land Act 19 of 1998 (PIE
Act)
• We will look at the difference between
action & application proceedings in more
detail.
• So we approach the court in civil cases
when:
• a right has been infringed/may potentially
be infringed and;
• We seek legal relief (a prayer)
• Burden of proof: on a balance of
probabilities
• Stages of proceedings:
• In action and application proceedings, there are two
stages that follow:
• Pleadings stage
• Trial stage
• Pleadings stage:
• Exchange of documents between the two
parties (the pleadings)
• The process is guided by the rules of court
(depending on the court where parties are
litigating)
• Pleadings contain statements by the
parties of facts of the case
• What is the purpose of the pleadings?
• To reduce the dispute between the parties
in writing
• So both parties are aware of each party’s
claim and basis in law
• To appraise the facts before the presiding
officer (Judge or Magistrate)
• Pleadings are filed at court
• In the High Court: Registrar
• In the Magistrate court: clerk
• Sherriff: officer of the court who serves as
a messenger as serve certain pleadings.
• Trial Stage
• Court proceedings when exchange of
pleadings is complete
• In South Africa proceedings are
accusatorial and NOT inquisitorial
• Accusatorial: the court battle is
between the parties, the judge does not
actively participate and does not enter
the arena.
• Inquisitorial: the Judge participates
actively in the proceedings. She questions
the parties to obtain the necessary and
required evidence for the judgment.
• At the trial stages, in action proceedings,
there is hearing of oral evidence in order
to prove the facts.
• In application proceedings, no need for
oral evidence as there is no fundamental
difference in the facts.
• The matter is decided on the papers filed
before court.
• In both action and application
proceedings, the presiding officer (Judge
of Magistrate) makes a ruling or a
judgment which takes the form of a court
order.
• In civil procedure, there are fundamental
questions one needs to answer before
approaching the court:
• Do you have a cause of action?
– On what aspect of substantive law is your case
based?
• Do you have locus standi?
– Capacity to institute action?
– Do you have an interest in the case?
• Which court has jurisdiction?
– Type of case? How much is claim worth?
Geographical area?
• If you are able to answer all these
questions, then you are eligible to
approach a court and seek whatever legal
relief.
 Action Proceedings
Plaintiff issues
summons
• Combined summons with
• Simple summons
particulars of claim

If opposed – notice of intention to

defend
• Plaintiff files • Defendant files plea and
counterclaim
declaration
• Plaintiff replies to plea
• Defendant files plea
and pleads to
• Plaintiff replies to plea counterclaim
Litis contestatio (close of pleadings)
• Trial preparation stage (as courts move to online
operations, preparation will gradually look different
• Notice to enrol matter
• Notices to discover sent and received
• Discovery affidavits sent and received
• Notices to inspect sent and received
• Notice of intention to present expert evidence and
summary of expert evidence
• Pre-trial conference
• Trial date allocated
• Notice of set down served
 TRIAL STAGE
• Opening address (plaintiff/legal
representative)
• Evidence presented by plaintiff (witnesses are
called)
– Evidence in chief
– Cross-examination
– Re-examination
• Plaintiff closes his case
• Defendant applies for absolution from the
instance / Does not apply for absolution
• Test used by the presiding officer for an
application for absolution from the
instance:
• Prima facie case established by the
plaintiff?
• If no, the application by the defendant
succeeds.
• If application (absolution from the
instance) successful, case = finalised,
otherwise
Defendant presents evidence
»

Defendant closes his case

» if there was a counterclaim: plaintiff

may apply for absolution from the
Judgment instance

Post-trial
Application proceedings:
• They are instituted where legislation
prescribes it
• Where there is no material dispute of fact
• Called a hearing and not a trial
• Audi alteram partem
– Hear both sides
– Exception: ex parte applications
• Ex parte applications
• This type of application is brought when no
other party has an interest in, or will be
affected by the relief sought by the
applicant.
 • Furthermore..
• When no one’s rights are affected
• Matter so urgent that notice of application
cannot be given
• When giving notice would defeat purpose of
application
• E.g: application for admission as an
attorney or an advocate
• Applicant issues notice of motion  founding
affidavit is attached; supporting affidavit
• Opposed: answering affidavit is delivered by the
Respondent
• Answering affidavit: defence presented by the
Respondent
• Replying affidavit may be delivered
• Reply by the applicant in response to defendant’s
answering affidavit
• Not a requirement in the rules of court for Replying
affidavit
 Application is heard in court
Unopposed Opposed If oral evidence
• Applicant / • Applicant/ necessary:
Representative Representative • May be referred for
addresses court addresses court oral evidence or
• Respondent/ • Dismiss application
Representative because action
addresses court proceedings should
• Apply for application have been used
to be granted /
dismissed in closing EVIDENCE
address • Led in the same way
as in action
proceedings
• Apply for application
to be granted or
dismissed in closing
address

Court grants or dismisses application

Court order in an ex parte application
– A provisional order
• Why? Because of the infringement of audi alteram
partem
– Is a temporary order  operates until respondent has
opportunity to present his case
– If he fails, court gives final order OR
– A rule nisi may be issued:
• Gives Respondent an opportunity to come to explain why
a provisional order should NOT be made final
• Return date
– Respondent may furnish reasons before return date
why order should not be made final
• Appeal/review
• In any civil case, where one party feels
aggrieved about a decision or outcome of
a court decision, they can apply for an
appeal or a review from a higher court.
• There is a fundamental difference between
an appeal and review.
Appeal
• Party is of the view that
the judgment/ruling by
court was incorrect, either
on the law or the facts
• Party who appeals is
called an appellant and
the opposing party is
called the respondent
• Issue is based on the
merits
Review
• A party is of the view that
there was some
irregularity with the
process followed
• Party remain: applicant
and respondent
• Issue is based on the
process/procedure
followed.
• Fees
• “The rates of attorneys vary according to the
experience and level of expertise. You may
be charged R450 per hour for the services of
a newly qualified attorney, whereas if you
have an attorney with a lot of experience at
your service, expect to be charged anything
from R800 to R3 000 or more per hour”
(http://www.vanwyklaw.com/userfiles/Attorney
s%20Fees%281%29.pdf)
• Charging of fees in the legal profession
are not regulated
• No legislation or regulations in place
• Good or bad? Why?
• Attorneys and advocates charge according
experience, seniority, complexity of the
matter etc.
• Different for pro bono attorneys and law
clinics