LOCUS STANDI

• Locus Standi in iudicio – does a person have legal standing to sue or be

sued:
• (i) Needs a substantial interest in the proposed litigation
• (ii) Must have the necessary capacity to litigate

Direct and Substantial Interest

- Must have a direct actual interest in the subject matter of the litigation
and the outcome of the litigation.
- Interest must not be too far removed
- Not abstract or academic
- Not hypothetical
Section 38 of the Constitution
Actions based on Bill of Rights – extended locus standi, s38 of the constitution

Anyone listed in this section has the right to approach a competent court, alleging that
a right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a
court
are—
(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; and
(e) an association acting in the interest of its members.
 LOCUS STANDI
Capacity to Litigate
As a general rule natural persons & juristic persons enjoy the capacity to sue
and be sued.

• Minors
▫ Under 7 – no capacity at all. Action will be brought in the name
of the guardian or legal representative.
▫ Over 7 – Limited capacity. Action may be brought in their own
name but assisted by guardian or legal rep or brought in the
name of the guardian or legal rep.
Exceptions:

Minors may litigate without assistance :

- When applying for a curator ad litem to be appointed

- Where the court grants permission
- When applying for permission to marry without guardian’s consent
- When statute permits
• Mentally ill
▫ Persons who are mentally ill and cannot appreciate the nature of legal proceedings
cannot litigate
▫ HC – can declare a person unfit or of unsound mind to handle their affairs
▫ A curator bonis can be appointed by the court to assist the client

• Married persons
▫ Consent of the other spouse is required to litigate in terms of s17 (1) of the
Matrimonial Property Act, however there are exceptions where consent is not
required.
▫ Failure to obtain consent does not result in loss of locus standi, but costs will be
recovered from the litigating spouses separate estate.
• Exceptions

▫ Litigation between spouses

▫ Litigation in respect of a spouse’s separate property
▫ Litigation in respect of damages for patrimonial loss e.g. a RAF claim
▫ Litigation in respect of a spouse’s profession or business
LETTERS OF DEMAND
• FIRST STEP IN THE LITIGATION PROCESS

• PURPOSE:
▫ Sets out your client’s cause of action
▫ Allows the other side an opportunity to remedy the problem
▫ Puts the other side in mora (i.e. put them on terms)
Structure of the letter of demand
a) Introduction:
Relationship and Mandate
b) Averments
- Include all the ESSENTIAL allegations that would sustain your
cause of action
- List in logical and chronological order
c) Conclusion in law and fact
 Power of attorney
-Written document which confers authority on an agent to act for his
principle.

-Special Power of attorney ( for specific matters ) : description of the nature

of the particular action, nature of relief to be claimed, parties names,
attorneys names authorized to act on client’s behalf.

-General Power of Attorney : authorized to perform all acts on behalf of the

principal which he might normally perform himself.
 CALCULATION OF TIME LIMITS
• Introduction
Magistrate’s Courts Acts and Uniform Rules of Court
(High Court) contain many provisions which dictate that
certain steps need to be taken within stipulated times.

• Time periods ‘within’

- FOLI (First Out last In)
- When a section or rule requires something to be done
within a certain time period, you exclude the 1st day
and include the last day.
 CALCULATION OF TIME LIMITS
• Court Days and Calendar Days
- Acts refer to ‘days’ the reference is to normal calendar days
(including weekends and public holidays)
- However if the last day (Last in) in a period of calendar says falls
on a Sunday or Public Holiday then it is not counted as part of the
period, and the period will end on the next day
- Rules refer to days , the reference is to court days (excluding
weekends and public holidays)

• Time periods ‘after’

- Sometime the section or rule provides that something may only
be done after the lapse of a certain period
- Exclude the 1st and the last day