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Introduction

INTRODUCTION Chapter 1

  • 1.1 Questions that the law of civil procedure answers:

    • 1. How do you (B’s attorney) know whether A will be willing to pay for the damages or not?

[Letter of demand]

  • 2. How do you cite [refer to] A, and must only A be held liable for the damages suffered by B?

[Parties]

  • 3. If A refuses to pay the damages which court must you approach for relief?

[Jurisdiction]

  • 4. How do you get A to appear in court i.e. which procedures must I use?

[Summons, Application]

  • 5. What must A, as defendant do once the summons has been served on him?

[Notice of intention to defend, pleadings etc]

  • 6. How do you place the facts before the court?

[pleadings & witnesses or affidavits]

  • 7. Trial or hearing?

[Depends on the procedure used]

  • 8. How is the matter resolved?

[Judgment, settlement etc]

  • 9. Who must pay for the legal costs incurred?

[Costs]

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  • 10. What if a party is unhappy with the judgment?

[Appeal / review/rescission]

  • 11. How are court orders enforced?

[Execution / debt collecting]

  • 2 The place of Civil Procedure in the Legal System

Substantive / Material Law

o

Creates competences

o

Provides rights

o

Creates obligations

Includes private & public law

Formal / Adjective law:

o

supplies a means to enforce the material / substantive law.

Branches of formal law includes:

  • 1. Civil Procedure

  • 2. Criminal procedure

  • 3. Law of evidence

  • 4. Legal interpretation

  • 3 Tables

Two Main Procedures

  • 3.1 Summons or action procedure

    • 1. Parties: plaintiff & defendant

    • 2. Legal document that commences the procedure: summons

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  • 4. When:

Legislation or rules prescribe the procedure

or

Complicated factual dispute & need witness (viva voce evidence)

  • 5. Always: divorce; damages (in magistrates’ court)

  • 3.2 Application or notice of motion procedure (commences / interlocutory)

    • 1. Parties: applicant & respondent

    • 2. Legal document that commences the procedure: notice of motion

    • 3. Evidence placed before the court via: sworn affidavit

    • 4. When:

Legislation or rules prescribe the procedure or

Simple factual dispute & sworn affidavits sufficient.

  • 5. Always: sequestrations, rehabilitations, liquidations

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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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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

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COURSE OF AN UNOPPOSED OR EX PARTE APPLICATION

NOTICE OF MOTION WITH SUPPORTING AFFIDAVIT(S)

HEARING

JUDGMENT

rule nisi

FINAL JUDGMENT

EXECUTION

(if applicable)

if no assets

DEBT COLLECTING PROCEDURES

(if applicable)

if applicant or respondent dissatisfied with the outcome of the case

APPEAL OR REVIEW

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COURSE OF AN OPPOSED APPLICATION

NOTICE OF MOTION WITH SUPPORTING AFFIDAVITS

ANSWERING AFFIDAVITS

REPLYING AFFIDAVITS

HEARING

JUDGMENT

rule nisi

FINAL JUDGMENT

EXECUTION

(if applicable)

If no assets

DEBT COLLECTING PROCEDURES

(if applicable)

If applicant or respondent dissatisfied with the outcome of the case

APPEAL OR REVIEW

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  • 4 Sources of the Law of Civil Procedure

    • 4.1 Magistrates’ Court:

      • 1. Constitution of 1996

      • 2. Magistrates’ Court Act 32 of 1944

      • 3. Rules to the Magistrates’ Court Act 32 of 1944

      • 4. Common law

      • 5. Case Law

“creature of statute”: No inherent jurisdiction

  • 4.2 High Court

(Only one High Court with several provincial and local divisions)

  • 1. Constitution of 1996

  • 2. Supreme Court Act 59 of 1959

  • 3. Rules to the Act

  • 4. Other Legislation:

Vexations proceedings Act 3 of 1956

Admission of Advocates Act 74 of 1964

Attorneys Act 53 of 1979

Right of Appearance in Courts Act 62 of 1995

  • 5. Common law

  • 6. Case Law

  • 7. Inherent jurisdiction

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  • 5 Different Courts and Judicial Officers

COURTS

  • 5.1. Superior Courts SCA and HC

    • 5.1.1 High Court (Supreme Court)

      • 1 1909: The Supreme Court of South Africa.

Appellate division: Bloemfontein

provincial divisions: covers the entire province. Concurrent jurisdiction with local division. Six provincial divisions. The provincial division can also hear appeals for the local divisions.

local divisions: covers only a portion of provincial division.

  • 2 S 166 Constitution (Act 108 of 1996): High Court consisting of: Supreme Court of Appeal, provincial and local divisions.

The present divisions of the High Court:

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10

11

Renaming of Courts Bill: Proposed names

Supreme Court of Appeal

 

Bloemfontein

Bisho Eastern Cape High Court

 

Bisho

Bloemfontein Free State High Court

 

Bloemfontein

Cape Town Western Cape High Court

 

Cape Town

Durban KwaZulu-Natal High Court (Local Division of Pietermaritzburg KwaZulu-Natal High Court)

 

Durban

Grahamstown Eastern Cape High Court

 

Grahamstown

Johannesburg South Gauteng High Court (Local Division of Pretoria North Gauteng High Court)

Johannesburg

Kimberley Northern Cape High Court

 

Kimberley

Mmabatho North West High Court

 

Mmabatho

Mthatha Eastern Cape High Court

 

Mthatha

Pietermaritzburg

KwaZulu-Natal

High

Pietermaritzburg

Court

Port Elizabeth Eastern Cape High Court (Local Division of Grahamstown Eastern Cape High Court

Port Elizabeth

Pretoria North Gauteng High Court

 

Pretoria

Thohoyandou Limpopo High Court

 

Thohoyandou

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Presiding Officers of the High Court

  • 1. Each division: judge president

  • 2. Presiding officers: judges

Quorum necessary to hear a matter

Ordinary High Court civil matter: = 1 judge

Quorum re appeals

Magistrates’ court → high court: = 2 judges

1 judge High Court: = full bench/3 judges HC

5.1.2

Circuit Courts

S 7 of SCA: Judge President: circuit divisions.

1 judge

“Traveling court”

High Court to rural areas

“local division status”

5.1.3

Supreme Court of Appeal

Highest court of appeal in all matters except constitutional matters.

Situated in Bloemfontein

Presiding officers

President

Deputy President

Judges of appeal

Quorum

Normal = 5 judges.

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5.2

Lower Courts

5.2.1

Magistrates’ Court [District & Regional]

o

Magistrates’ Court Act 32 of 1944.

o

Presiding officers: magistrates.

o

S2 The Magistrates’ Court 32 of 1944: 4 types of Magistrates’ Courts.

A

District courts:

Entire district.

A sub-district excludes jurisdiction of a district court.

B

Sub-district courts

Equal status with a district court.

Excludes the jurisdiction of the district court.

Can be a portion of a district or a portion of two adjoining districts.

C

Periodical courts

“portion” of a district.

specific days.

“shares” jurisdiction with district court

D

Regional courts

Until 9 August 2010 only jurisdiction in criminal matters.

Jurisdiction of Regional Courts Amendment Act 31 of 2008 came into operation on 9 August 2010

Regional Courts now also jurisdiction in civil matters.

5.2.2

Small Claims Courts

Small Claims Court Act 61 of 1984.

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Presiding officers: commissioners.

  • 6 Court Officials

    • 6.1 Registrar [High Court & Regional Magistrates’ Court]

Each division of the HC.

Minister of Justice [s34(1) of the SCA 59 of 1959.]

Duties: issues court process, filing of documents allocates court dates, issues court orders etc

Default judgment.***NB

Taxing master

  • 6.2 Clerk of the Court [District Magistrates’ Court]

Clerk of the court.

Functions: same as registrar.

  • 6.3 Sheriff

Appointment, duties and responsibilities regulated by the Sheriffs Act 19 of

1986.

HC & MC

Duties: Serves summons & court process, execute court orders

Report “ return of service”

  • 6.4 Practitioners

Any person may represent himself in court. [legal representative not necessary]

Appear on behalf of a person: qualified legal practitioner.

Exception: Juristic persons

“It is a honourable profession, one to which it is a honour to belong.”

-RPB Davies J-

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  • 6.4.1 Attorneys

    • 1. Attorneys “briefed” by the public directly. Clients can approach attorneys directly for assistance, but the same does not apply to advocates. Client addresses attorney who then approached advocate.

    • 2. The Right of Appearance in Courts Act 62 of 1995 s 4(2): attorneys right of appearance in High Court. Traditionally attorneys could only appear in lower courts and not superior courts.

  • 6.4.2 Advocates

    • 1. Litigation specialists, can only practice individually.

    • 2. “referral profession”.

    • 3. Rösemann v General Council of the Bar [2003] 4 All SA 211 (SCA)

      • - Advocate took directions directly from client.

      • - Conduct was held to be unprofessional and thus advocate was struck off the roll.

    • 7 Some Basic Principles of the Law of Civil Procedure

    “The following are the precepts of the Law: to live honestly, not to injure another, and to give to each other that which belongs to him”.

    • 1 Impartiality

    -Justinian-

    • 2 Audi et alterem partem

    • 3 Party control 1

    • 4 Open court

    • 5 Adhere to the law

    • 6 Appeal and review

    The law of civil procedure is founded on the above elements and therefore it is important

    to ensure that these elements are present so to ensure fairness.

    • 1 Theophilopoulos et al p 3 uses this term to explain that the parties effectively decide on an appropriate course of action and that the court effectively only performs a management function.

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    • 8 Inaccessibility of the Courts and Alternative Dispute Resolutions

      • 8.1 The Problem of Access

        • High costs;

        • Ignorance of public;

          • - Majority of the people in SA do not know what their rights are and what the structures are so to enforce their rights, lack of knowledge of rights.

        • Time

        • Complexity of procedure

  • 8.2 Methods to overcome problem

  • Three separate routes to follow:

    • 8.2.1 Steps within the system to overcome the problem

    i.

    Pre-trial conferences R37 HCR s54 MCA to attempt to resolve dispute between the parties before the parties go to trial. Reduces the workload of the courts and is more efficient and effective. This is an optional facility that is available to parties.

    ii.

    “Case management” S 37A SCA; Cape of Good Hope Provincial Division of the

    High Court

    iii.

    Joining of disputes in one action

    has

    the

    tendency

    of

    shortening

     

    the

    proceedings.

    If

    disputes

    arise

    from

    the

    same

    cause

    of

    action

    then

    it

    is

    recommended to join proceedings.

     

    iv.

    Joining of more than one plaintiff or defendant.

     

    v.

    Financial assistance by State

     

    o

    Legal Aid Board available for litigants who cannot afford costs of appearance in court. Registration must be made to clerk of HC.

    o

    Justice Centres

    o

    Legal Aid Clinics

    o

    Free Attorney or Advocate R40 HCR

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    vi.

    Group Actions

    • 8.2.2 The Establishment of Other Courts

      • 8.2.2.1 The Small Claims Court:

        • 1. Came into operation in 1985

        • 2. R 7000 - 00

        • 3. Clerk of the court

        • 4. Procedure is simple. Letter of demand summons defendant’s reply.

        • 5. No legal representation

        • 6. Informal: Inquisitorial.

        • 7. Juristic persons may not be plaintiffs in this court but they may be defendants.

        • 8. No costs

        • 9. No appeals.

  • 8.2.2.2 Civil Jurisdiction for Regional Magistrates’ Court

    • 8.2.3 Other Courses as Alternative To Court Action [ADR]

    • 1 Negotiations:

    o

    Informal

    o

    No formal requirements.

    • 2 Mediation

    o

    Neutral third party: reconcile & suggest solutions

    o

    Suggestions: not binding/enforceable

    o

    Aim: settlement

    o

    When: any time

    o

    ***Contractual agreement.

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    o

    Decision are not binding, they are only suggestions and the decision follow them rests on the parties.

    o

    Cheaper, efficient, quicker.

    • 3 Arbitration

    • 1 neutral third party: presiding officer

    • 2 decision: binding

     
    • 3 voluntary:

    o

    Some legislation prescribes arbitration.

    o

    Contractually agree

    • 4 Parties to arbitration:

    o

    Chooses arbitrator

    o

    Stipulates the procedure

    • 5 Arbitrator derives powers:

    o

    Agreement between parties

    o

    Arbitration Act 42 of 1965 (mostly directory) can only appeal decision if the correct procedure was followed.

    o

    Common law

    • 6 Arbitrators award:

    o

    Arbitrators award is binding.

    o

    Must be in writing - But once parties agree on the decision of the third party then that decision becomes binding on the two parties.

    o

    Made an order of court

    Appeal:

    o

    Only if prior consent.