TOPIC 1
2023
INTRODUCTION THE LAW OF CIVIL PROCEDURE
A Practical Scenario
Y collides with X at an intersection
What type of claim will X have against Y?
(Delictual Claim)
X wants to institute a claim against Y for damages
How do you (X’s attorney) know whether Y will be willing to pay for the damages or not?
[Letter of demand]
How do you cite [refer to] Y, and must only Y be held liable for the damages suffered by X?
[Parties]
If Y refuses to pay the damages which court must X approach for relief?
[Jurisdiction]
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How do you get Y to appear in court i.e. which procedures must X use?
[Action, Application]
What must Y, as defendant do once the summons has been served on him?
[Notice of intention to defend, Pleadings etc]
How do you place the facts before the court?
[Pleadings & Witnesses or Affidavits]
Does the matter proceed as a trial or a hearing?
[Depends on the procedure used]
How is the matter resolved?
[Judgment, Settlement etc]
Who must pay for the legal costs incurred?
[Costs]
What if a party is unhappy with the judgment?
[Appeal / Review / Rescission]
How are court orders enforced?
[Execution / Debt collecting]
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What is the Law of Civil Procedure?
A basic distinction must be made between substantive and procedural law
Substantive law
Describes what a person’s rights, duties, and remedies are in a given situation
Examples:
Procedural law
Describes how a person’s rights, duties, and remedies may be enforced
Examples:
This module focuses on the Law of Civil Procedure
What are the main differences between the Laws of Civil Procedure and Criminal Procedure?
Civil Procedure
Court -
Parties -
Criminal Procedure
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Court -
Parties -
Example:
8 Principles Underlying the Law of Civil Procedure
• The right to equal and effective access to an independent and impartial judiciary
The right to present your case to court (audi alteram partem)
It ensures 3 things:
• The decision to institute or defend an action (and to determine the scope of the dispute) rests with
the parties, and the parties decide on the evidentiary material to be presented as proof of their
cases (party control)
• Provision must be made for direct oral communication between the parties (or their agents) and
the court
• The main proceedings (trial or hearing) must in principle take place in public
• The court must consider the evidentiary material on objective and rational grounds
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• The court must give a reasoned and legally motivated judgment and give it expeditiously
• The decision of the court is final and binding, but provision exists for appeal, review or rescission
Sources of the Law of Civil Procedure in South Africa
The most important sources of the law of civil procedure
• The Constitution of South Africa
• The Constitutional Court Complimentary Act 13 of 1995 and the Rules of the Constitutional Court
• The Superior Courts Act 10 of 2013
• The Rules of the Supreme Court of Appeal
• The Uniform Rules of Court in the High Court (High Court Rules)
• The Magistrates’ Court Act 32 of 1944
• The Magistrates’ Court Rules
• The Small Claims Court Act 61 of 1984
• The common law underlying the rules of procedure and jurisdiction in the High Court
• Other legislation and regulations to specialised courts
• The practice arrangements and directives applicable in the respective divisions of the High Court
• Case law –
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FOCUS OF THIS COURSE IS THE PROCEDURES IN THE HIGH COURT AND
MAGISTRATE’S COURT
High Court
The procedures in the High Court are primarily set out in the Superior Courts Act which must be read
together with the Uniform Rules of Court = High Court Rules (HCR)
Magistrates’ Court
The procedures in the Magistrates’ Court are primarily set out in the Magistrates’ Court Act which
must be read together with the Magistrates’ Courts Rules (MCR)
Note:
Structure of the South African Courts, and Specialised Courts
Hierarchy of South African Courts and the Doctrine of Stare Decisis:
• Constitutional Court
• Supreme Court of Appeal
• High Court of South Africa
• Magistrates’ Courts
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• Any other court established in terms of an Act of Parliament
Stare Decisis:
Introduction to the various courts in the Republic of South Africa
The Constitutional Court
• Presiding officers:
• Seat:
• Where procedure found:
• Jurisdiction:
• Precedent:
The Supreme Court of Appeal
• Presiding officers:
• Seat:
• Where procedure found:
• Jurisdiction:
• Precedent:
The High Court
Single High Court in South Africa with a number of divisions with main seats and local seats
• Presiding officers:
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• Seat:
Divisions of the High Court of South Africa
Division Seat and Location Citation
Eastern Cape Division Main Seat, Grahamstown ECG
Local Seat, Bisho ECB
Local Seat, Mthatha ECM
Local Seat, Port Elizabeth ECP
Free State Division Main Seat, Bloemfontein FB
Gauteng Division Main Seat, Pretoria GP
Local Seat, Johannesburg GJ
KwaZulu Natal Division Main Seat, Pietermaritzburg KZP
Local Seat, Durban KZD
Limpopo Division Main Seat, Polokwane LP
Local Seat, Thohoyandou LT
Mpumalanga Division Main Seat, Nelspruit MN
Northern Cape Division Main Seat, Kimberly NCK
North West Division Main Seat, Mahikeng NWM
Western Cape Division Main Seat, Cape Town WCC
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NB!
In terms of s 50(2) of the Superior Courts Act, the Gauteng Division will also function as the Limpopo
and Mpumalanga Divisions respectively until these divisions are formally established by the Minister
of Justice
Note:
Note:
Section 7 of the Superior Courts Act also allows for the establishment of circuit courts at a place
designated by the Judge President of that division
Main and Local Seats of a Division
(GAUTENG)
PROVINCIAL DIVISION
MAIN SEAT
Pretoria
LOCAL SEAT
Johannesburg
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High Court of South Africa (Continue)
• Procedure:
• Jurisdiction:
• Appeal from the Magistrates Court:
• Appeal from the High Court:
• Precedent:
Magistrates’ Court
• Creature of statute: Created by and operate within the four corners of the Magistrates’ Court Act
32 of 1944
S 170 of the Constitution of South Africa: No power to rule on the constitutionality of legislation or
rule on the conduct of the President of South Africa
• Procedure:
• Presiding officers:
• Two levels:
• Regional Courts:
Jurisdiction: Exercises both civil and criminal jurisdiction
• District Courts:
Jurisdiction: Exercises both civil and criminal jurisdiction
• Amount of District Courts in South Africa:
• Chief Magistrate:
Small Claims Courts
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• Specialised type of court:
• Purpose:
• Hours:
• Legal representation:
• Language usage:
• Presiding Officers:
• Court of record:
• Plaintiff:
• Jurisdiction:
Procedure in Small Claims Court (Example)
• Contact person
• Letter of demand
• Go to Small Claims Court with documents
• Summons prepared
• Court date
• Payment
• Failure to comply
Specialised Courts (self-study) pages 19 - 24 of prescribed text book
• Labour Courts
• Land Claims Court
• Special Income Tax Court
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• Competition Appeal Court
• Electoral Court
• Consumer Court and Related Matters
• Divorce Court
• Children’s Court
• Maintenance Court
• Equality Court
Officers of the South African Courts
• Judges
Preside in:
Appointed by:
• Magistrates
Serve in:
Registrars
Serve in:
Rank:
Work:
• Clerks and Registrars of the Magistrates Courts
• Serve in:
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Rank:
Work:
District Division of a Magistrates Court:
Regional Division of a Magistrates Court:
• The Sheriff
Work:
Writes out the Return of Service:
• Master of the High Court
Appointment:
Work:
Legal Practitioners
Legal Practice Act 28 of 2014:
One profession known as the Legal Practice Council
Position before Legal Practice Council:
Legal practitioners and candidate legal practitioners
Attorneys with Trust Accounts and Advocates with Trust Accounts
Fit and proper persons
Cases
General Council of the Bar of South Africa v Jiba and Others 2019 (8) BCLR 919 (CC)
NW Civil Contractors CC v Anton Ramaano Inc and Another 2020 (3) SA 241 (SCA)
Pretoria Society of Advocates and Others v Nthai 2020 (1) SA 267 (LP)
Alves v Legal Practice Council and Similar Matters 2019 (6) SA 18 (WCC)
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Johannesburg Society of Advocates v Edeling 2019 (5) SA 79 (SCA)
Ndinga v Cape Law Society [2018] 2 All SA 250 (ECM)
Main Procedures and Tables
Summons or Action Procedure
Parties:
Legal document that commences the procedure:
How evidence placed before the court:
When is this procedure used:
When is this procedure always used:
Application or notice of motion procedure
Parties:
Legal document that commences the procedure:
How evidence placed before the court:
When is this procedure used:
When is the procedure always used?
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4 TABLES ON CIVIL PROCEDURE NB!!!
TABLE 1
COURSE OF A DEFENDED CIVIL ACTION
SUMMONS
NOTICE OF INTENTION TO DEFEND
EXCHANGE OF PLEADINGS
SET-DOWN FOR TRIAL
PREPARATION FOR TRIAL
TRIAL
JUDGMENT
Judge / Magistrate
EXECUTION
If no assets
DEBT COLLECTING PROCEDURES
If plaintiff or defendant dissatisfied with the outcome of the case
APPEAL OR REVIEW
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TABLE 2
COURSE OF AN UNDEFENDED CIVIL ACTION
SUMMONS
If no response (no notice of intention to defend or no plea)
APPLICATION FOR DEFAULT JUDGMENT
DEFAULT JUDGMENT
Judge / Magistrate or Registrar / Clerk of the court
EXECUTION
If no assets
DEBT COLLECTING PROCEDURES
If plaintiff or defendant dissatisfied with outcome of the case
APPEAL / REVIEW / RESCISSION
TABLE 3
COURSE OF AN UNOPPOSED OR EX PARTE APPLICATION
NOTICE OF MOTION WITH SUPPORTING AFFIDAVIT(S)
HEARING
JUDGMENT
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Usually Rule Nisi
EXECUTION
(If applicable)
If no assets
DEBT COLLECTING PROCEDURES
(Only if applicable)
If applicant or respondent dissatisfied with the outcome of the case
APPEAL OR REVIEW
TABLE 4
COURSE OF AN OPPOSED APPLICATION
NOTICE OF MOTION WITH SUPPORTING AFFIDAVITS
ANSWERING AFFIDAVITS
REPLYING AFFIDAVITS
HEARING
JUDGMENT
Usually Rule Nisi
EXECUTION
If no assets
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DEBT COLLECTING PROCEDURES
If applicant or respondent dissatisfied with the outcome of the case
APPEAL OR REVIEW
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