LEARNING UNIT 1 : CIVIL PROCEDURE IN SA

THEME 1 : SA LEGAL SYSTEM

L01: Explain how Civil Procedure fits into the law as a whole ?

à Deals with enforcement of rights

à Claims, liabilities, applicant, respondent.
Law is about the enforcement of rights so procedure is part of the that
deals with the enforcement of those rights.

Civil procedure instructs us on what procedure to use when we

approach a court to seek a remedy for an infringement of rights.

It fits into FORMAL LAW/PROCEDURAL as a whole ➔

Civil procedure is in a wider scope than crim procedure.

When a person needs to recover what was due to him then civil procedure
is part of the civil law that enable how the person is going to go about it
LO2:

What does it mean if South Africa uses the adversarial system of

procedure?

Both CRIM and CIVIL are based on the adversarial system.

🧍PLAINTIFF 👩⚖. Judge is the referee (she is INDEPENDENT)

👨💼 RESPONDENT

Two opposing parties have case against each other;

Criminal à State v Accused

Civil à Plaintiff/applicant v Respondent

- Dominus litis ‘’the master of the litigation’’
Nothing happens unless plaintiff takes steps to initiate the various
process.
What are the characteristics of such a system?

➤ Judge is Umpire
The adversary system is designed to allow the parties to control their
own case and to give both parties equal opportunity to win the case. In
the process, however, the truth might not always come out. In the adversary system
the judge or magistrate is an independent umpire, making sure that the ‘battle’ is
fair and the parties follow the rules. The decision-maker does not enter the arena,
but leaves it entirely up to the parties.

➤ PARTIES CONTROL
The adversary system is designed to allow the parties to control their
own case and to give both parties equal opportunity to win the case.
The parties determine whether the case will go to court, which court, the
mode of trial, and the evidence to be presented at trial.

➤ STRICT RULES AND PROCEDURE

Court is bound by strict rules of evidence and procedure. The parties are
restricted in the timing and method of producing new material, and there
are restrictions on the type of evidence that can be produced.

➤ In a civil case, information is collected by both sides during the

pleadings and discovery stage, but witnesses’ statements are not
collected.

What are its implications for lawyers?

Due to the complex rules of evidence and procedure, each party in the
adversary system needs to be represented by an expert legal
representative who understands these rules. The legal representative
for each party will prepare and argue their case to the court.
What are the advantages and disadvantages of such a system?

ADVANTAGES ✅

✅ It protects the rights of individuals and the presumption of innocence,

✅ Serves to protect citizens from potential abuses of government,

✅ Works to check bias in the courtroom setting.

DISADVANTAGES❌

❌ Requires each side to contest each other, possibly leading to questionable tactics.

❌ Opens the door for injustice.

❌ May lead to a resolution that favors arguments over evidence/the truth.

❌ Creates issues with access to good legal counsel.

❌ Requires a slow and tedious process.

THEME 2

Distinguish between Civil Law and Criminal Law

 LO4: Differentiate between substantive law and procedural/adjectival law.

Substantive Law ‘’civil law’’ Procedural Law

‘’Civil procedure’’

Civil Law Civil procedure

Defines rights Governs the process of enforcement

Deals with the ends which the Deals with the means and instruments
administration of justice seeks. by which those ends are attained.
Which procedure will enforce the legal
Does a cause of action/legal claim exist? claim?

Steps to take to obtain relief.

Determines the elements of cause of
action

Examples; Action and application

Examples; Law of delict, contract proceedings.
Why is understanding both substantive law and procedural law important
for civil procedure?

Ensures proper application of the Law;

Substantive – By knowing what rights are defined you can know the duties and
obligations of parties in a dispute.

Adjective – By understanding adjective law who will be able to determine which

process and steps to take/choose. Eg Action vs Application

Promotes Fairness and Justice 👩⚖

Substantive – You would be able to know how to apply/enforce rights/claims. Helps

to assert rights.

Adjective – Helps to follow the correct avenue of asserting these rights.

Guidance of parties ⍰⍰

Substantive – Helps legal representatives make informed decisions and consider the
strenght of their case.

Adjective – Helps practioners select the most effective procedural mechanisms to

achieve the desired outcome.

Prevents procedural errors ❌❌

Substantive –

Adjective – Helps parties understand what is required of them in terms of

documents, evidence etc.

Management 👨💼👨💼

Substantive – Helps parties and courts to identify the asserted rights.

Adjective – Helps the courts and parties to manage their matters within the
prescribed rules
THEME 3: COURT SYSTEMS

What does Jurisdiction refer to as a concept ?

It refers to the POWER and COMPETENCE of which a particular court

has to HEAR and DETERMINE an issue between parties brought before
it.

TYPES OF JURISDICTION ;

NATURE/VALUE OF CLAIM 🚗 ; Court will hear a matter based on the

particular subject matter.
Example; Magistrate’s Court has jurisdiction to hear debt collection, MVA’s, evictions,
small claims and criminal matters.

TERRITORIAL 📍 Refers to geographical area over which a court has power and
competence to hear and determine a case. There are legislative and adminstrative
boundaries.

Example; Where an individual residing in Cape Town wishes to file a civil claim
against another individual residing in Johannesburg. In this scenario:

The Western Cape High Court in Cape Town would have territorial jurisdiction
over the case if the claim exceeds the monetary threshold or involves a matter
falling within the jurisdiction of the High Court.

Alternatively, if the claim falls within the jurisdictional limits of the Magistrate’s Court,
the individual could file the claim in the Magistrate’s Court located within the
jurisdictional boundaries of their residential area in Cape Town.

However, if the individual chooses to file the claim in Johannesburg, the Gauteng High
Court or the appropriate Magistrate’s Court in Johannesburg would have territorial
jurisdiction over the case.

In summary, geographical jurisdiction ensures that cases are filed and heard in courts
located within the appropriate geographic area. It determines which court has the
authority to hear and decide a case based on the location of the parties involved and
the subject matter of the dispute.
 HIERARCHIAL ➣ Refers to position of a court in the heiarchy system
to hear a matter.

Example ➣ If a complex and significant constitutional matter arises, it may be

initially heard in the High Court, as the High Court has jurisdiction over constitutional
matters. However, if either party disagrees with the decision of the High Court or if the
matter involves a novel legal question of national importance, they may approach the
Constitutional Court directly for leave to appeal.

In this scenario, the Constitutional Court, as the highest court for constitutional
matters, may agree to hear the case even if it was not initially appealed from a
lower court. The Constitutional Court has the authority to determine whether to grant
leave to appeal and to decide on constitutional issues of national significance, even if
they were not previously considered by lower courts. This demonstrates how courts
with higher hierarchical jurisdiction may intervene in matters that were not appealed
but are of significant legal importance

CONSENSUAL 🙆🙆➣ Parties may decide which court to hear their matter. They can
voluntarily agree to a court through consensus.

Example; In this scenario, by agreeing to arbitration, the parties are effectively

conferring jurisdiction upon the arbitrator to adjudicate their dispute. The arbitrator has
the authority to hear and determine the case based on the terms of the arbitration
agreement and any applicable arbitration rules or procedures agreed upon by the
parties.

This example illustrates how parties may voluntarily submit to the jurisdiction of
an arbitrator to resolve their dispute outside of the court system through consensual
jurisdiction.

INHERENT; This can be derived from legislation or the Constitution.

S173 Constitution. Inherent power

The Constitutional Court, the Supreme Court of Appeal and the High Court of South
Africa each has the inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interests of justice.
Discuss how a court would establish jurisdiction ?

The court will establish jurisdiction based on the nature of the claim, the value of the
claim, where the parties reside, if the court has inherent powers and based on the
territory of the court.
LO6 : What are the courts in SA ?

In terms of sec. 166 of the Constitution, the courts in south africa consist
of:

(a) The Constitutional Court;

(b) The supreme Court of appeal;

(c) The high Court;

(d) The magistrates’ Courts;

(e) any other court established or recognised in terms of any act of

Parliament.

The courts are independent and subject only to the Constitution and the
law, which they must apply impartially and without fear, favour or
prejudice.

No person or organ of state may interfere with the functioning of the

courts.
 MAGISTRATES’ COURTS

The Magistrates’ Courts only have authority given to them by the law
‘’creatures of statute’’ They get their power from specific sections in the
Magistrates’ Courts Act, like sections 26 to 50. We'll look at how some of
these sections relate to the basic questions about jurisdiction we talked
about earlier.

It is also a court of first instance.

These are full-time members of the judiciary who preside over cases at the junior level.
Typically, they handle complicated and severe offenses. Additionally, they have responsibility
for all regional court jurisdiction.
The Eastern Cape magistrate court division is a lower court with authority
over regions in the Eastern Cape province of South Africa. Its divisional
headquarter is in East London, 5200.

2. – Responsible for 56 districts in Freestate.

This division of magistrate courts is responsible for administrative

proceedings in the Free State province of South Africa. It was established
after the declaration of the Orange Free State on the 23rd of February,
1854. Regional seat in Bloemfontein.

Established under the High Court of Transvaal Republic in 1877, it was

part of the Witwatersrand circuit courts. Presently, its regional seat is
located in Johannesburg opposite to South Gauteng High Court.

Has jurisdiction over the province of Kwa Zulu Natal, South Africa. it’s
regional seat is in Durban.

It’s main seat is in Polokwane. Previously, the Limpopo Division was

within the Transvaal Provincial Division and known as the Venda Division
until 2009. However, following the restructuring of the country’s judicial
system in 2013, it falls under the Limpopo High Court Division.
The Mpumalanga magistracy oversees 31 areas within the province of
Mpumalanga. It has its regional office at Nelspruit that’s located on the 4th
Floor of Nedbank, Nelspruit 1200. Typically, it sits at multiple locations
within the Mpumalanga to try different cases.

This magistrates court jurisdiction is over the entire North West province
of South Africa. It is responsible for 27 districts. The North West
magistracy has its main office at Ayub Building, 22 Molopo Road,
Mafikeng, 2745. Additionally, its main seat is at Mafikeng.

Seated in Kimberley, this division has jurisdiction over 44 districts in the

judicial province of Northern Cape of South Africa. It was established
following the creation of the Griqualand West British colony in 1871.

Formally known as the Cape Provincial Division, it has magisterial

oversight in the Western region of the magistrates court cape town.
Currently, its administrative region has 32 areas. Seated in Plein street in
Cape Town. Also, it has a temporary location on 30 Queen Street, AA
Building Cape Town. It is an office that addresses issues related to
financing, court operations, and regional administrative functions. The
Chief Magistrate has jurisdiction of magistrates courts in South Africa.
Besides, magistracies oversee small claims court South Africa and
children’s court South Africa.
Civil Matters à

Section 29 of MCA
(i) delivery or transfer of any property, movable or immovable;
(ii) eviction against the occupier of any premises or land;
(iii) matters arising from a mortgage bond;
(iv) matters arising out of a credit agreement;
(v) other matters not already set out above, such as claims for damages
caused negligently to a vehicle or injuries to a person.

Value of claim

Regional Magistrate’s Courts à

Section 29 ➡ Claims between R200,000 and R400,000 can be heard

in Regional Magistrates’ Courts. It's the first step in deciding which court
handles a case.

Sections 38, 39, and 45 ➡ which allow cases exceeding R400,000 to be

heard in Regional Magistrates’ Courts

So essentially the MAG court can hear claims for value between R200,000 and
R400,000 à That is for regional Magistrate’s courts.

District Magistrate’s Courts à

Section 29 ➡ Less than and up tp R200,000 can be heard in District

Magistrates’ Courts.

Sections 38, 39, and 45 provide exceptions to this rule. They cover
situations like abandonment, deducting admitted debts, and consent, and
cases between R200,000 and R400,000 to be heard in District
Magistrates’ Courts.
(Q1.1)

In terms of civil procedure he would be held liable for damage to property of Jabulani’s
vehicle. In terms of criminal procedure he would be held guilty for personal injury of
Jabulani’s concussion and broken ribs.

(Q.1.2.2) Provide the definition and then apply to the scenario

the POWER and COMPETENCE of which a particular court has to HEAR and
DETERMINE an issue between parties brought before it.

1. Subject Matter: The claim arises from a motor vehicle collision involving
damage to property (Jabulani’s vehicle) and personal injury (Jabulani’s
concussion and broken ribs). The Magistrate’s Court generally has jurisdiction over
civil claims involving motor vehicle accidents, personal injury, and property damage,
particularly those of a less serious nature.
2. Monetary Threshold: The scenario does not specify the amount of
damages being claimed, but based on the injuries described (concussion and broken
ribs) and the damage to the vehicle, it is likely that the claim falls within the monetary
jurisdiction of the Magistrate’s Court, which typically handles claims up to a certain
monetary limit.
3. Territorial Jurisdiction: The scenario does not provide information
about the geographical location of the incident. However, since the Magistrate’s Court
is decentralized and has jurisdiction over specific geographic areas, the claim would
be filed in the Magistrate’s Court within the jurisdictional boundaries where the
accident occurred or where one of the parties resides.

Therefore, based on the nature of the claim, the likely monetary value, and the
decentralized nature of the Magistrate’s Court system, the Magistrate’s Court would
have jurisdiction over this matter
Based on the value of the claim it would still fall under the jurisdiction of the District
Magistrate’s court but because there is no indication of area, it cannot be determined
in which district.

In terms of section 38,39,45 of the MCA, there are exceptions for the
Mag court to have jurisdiction over a matter that exceeds the monetary
threshold the court.

The parties may consent to a claim that is more than R400,000.

Or
Jabulani can decide to abandon that portion of his claim that is in excess
of R400,000.
OR
Jabulani (plaintiff) can limit /deduct from his claim the amount of a debt
which he admits he owes to Ishmail to bring the amount within the
threshold.
IN Forma Pauperis à Rule 40 of HC ‘’assistance’’.

If a person wants to institute proceedings in the HC but cannot afford it they may turn
to Rule 40 of HC ‘’assistance’’.

This rule sets our rules for proceedings if one party does not have the funds for his
case;

In order for the party to qualify ;

(a) Cannot possses property worth more than R10,000

(b) Must make application to Registrar.

If Registrar is satisfied with application then he will refer person to attorney.

Pro Deo à Rule 53

Person may apply for leav to sue or defend as a pro deo litigant.
HIGHER COURTS

HIGH COURT

Jurisdiction à S169 of the CONSTITUTION

Each Division includes a Judge President, Deputy Judges President, and judges.

The number of judges is determined based on specific criteria and approved by the
President.

**Jurisdiction and Structure of Divisions:**

Jurisdiction of the high court in terms of section 169 of the constitution states that ;

The jurisdiction of the High Court to hear any matter includes -

(a) All persons residing or being in the Division;

(b) All causes arising and all offences triable within its area of jurisdiction;

(c) All other matters which it may legally recognise;

(d) Appeals from all Magistrates' Courts within the area of the Division; and

(e) Review of the proceedings of Magistrates’ Courts.

THUS 3 COMMON GROUNDS OF HC JURISDICTION

à RATIONE DOMICILII
The domicile of the defendant. Where the defendant/respondent resides is where
the court will exercise their jurisdiction.

à RATIONE REI GESTAE ‘’thing done’’

Court will rely on if that ‘’incident arose in that area’’ the court that excercises
jurisdiction over that area will hear the matter.

à RATIONE REI SITAE

In order for a court to claim jurisdiction based on forum rei sitae, the property in
question must be physically situated within the jurisdictional boundaries of that
court. This principle ensures that disputes over property rights are adjudicated by the
court located in the vicinity of the property, allowing for convenient access to evidence
and witnesses related to the property.

Scenario: John and Mary are involved in a dispute over the ownership of a valuable
painting. The painting is currently located in Mary’s home, which is situated in the
jurisdiction of the Gauteng High Court.

In this scenario:

Forum Rei Sitae: The valuable painting, which is the subject matter of the dispute, is
physically situated within the territorial boundaries of the Gauteng High Court.

High Court Jurisdiction: Given that the painting is located within the jurisdiction of the
Gauteng High Court, it has jurisdiction over disputes concerning the ownership or
possession of the painting based on forum rei sitae.

Doctrine of effectiveness à You should not waste the court’s time

by bringing a particular matter before it if it is clear from the onset that the
court’s judgement will not be effective.

Refer to Section 6 of the Superior Courts Act ?

It discusses the Constitution of the High Court of South Africa.
Civil Matters and Court Composition

➤ Civil matters at first instance are heard by a single judge.

➤Matters can be heard by a panel of up to three judges.
➤A single judge can refer a matter to the full court of the Division, in consultation
with the appropriate authority NB!

DIVISIONS
 COURT OFFICIALS

**Registrar of the High - Handles administrative tasks and issues civil

Court:** process.
- Acts as taxing-master for the High Court division.
- Compiles case lists, arranges court schedules, and
assists judges.
**Family Advocate:** - Assists parties in reaching agreements on custody,
access, and guardianship of children.
- Evaluates circumstances based on the child's best
interests and makes recommendations to the Court if
parties can't agree.

**Master of the High Court:** - Manages matters related to deceased estates,

liquidations, trusts, tutors, curators, and the
Guardian’s Fund.

**Sheriff of the Court:** - Executes court documents like summonses,

notices, warrants, and court orders impartially and
independently.

**Directors of Public - Responsible for handling all criminal cases in their

Prosecutions:** provinces and supervising prosecutors.
- Decide whether to proceed with a trial based on
evidence provided by the police.

**State Attorney:** - Represents government departments and officials in

civil cases.
- Protects the interests of the State in legal matters.
Chief Justice ‘’Raymond Zondo’’
☞ He is the most senior judge in the country.

The President of the SCA ‘’B Molemela’’

☞He is the most senior judge of the Supreme Court.

Judge President ‘’my lord, my lady’’

☞Is the most senior judge within a specific high court division

Presiding Officers ‘’your worship’’

☞Magistrates of regional Mag courts.

Registrar of court ‘’Admin clerk’’

☞They deal with the organisational work in each division of the HC or
MAG.
SUB-DIVISIONS OF THE HIGH COURT
LABOUR COURTS

LABOUR COURT OF APPEAL

Matters; Hears appeals in regard to labour disputes.

Jurisdiction ; The Labour Appeal Court hears appeals against decisions

in the Labour Court and this is the highest court for labour appeals.

LABOUR COURT

Jurisdiction ; Same status as HC. Adjudicate matters on labour disputes

between employee and employer.

Legislation ; Labour Relations Act

LAND CLAIMS COURT

Matters; Disputes that arise out of laws that underpin SA’s land reform
initiative.

Appeals à Go to the SCA or CC (if appropriate)

Jurisdiction ; Same status as the HC’s. Can hold hearings in any part
of SA. Main office is in Randburg.

Legislation ;

The Restitution of Land Rights Act, 1994,

The Land Reform (Labour Tenants) Act, 1996 and
The Extension of Security of Tenure Act, 1997
TAX COURTS

A tax court is established for the area of the Division of the High Court.

Presiding Officers/Court Officials ;

Nomination and Secondment;

The Judge President of the High Court nominates and seconds judges or acting
judges to serve as presidents of tax courts, either for a specific period or for a particular
case.

Appointment of Panel Members:

The President of RSA appoints members of the tax court panel for five-year
terms, with eligibility for reappointment. The President can terminate appointments
for misconduct, incapacity, or incompetence, and appointments lapse if the tax court
is abolished.

Independence and Impartiality:

Members of the tax court must perform their duties independently, impartially, and
without bias.

Registrar Appointment;
The Commissioner of the South African Revenue Services appoints the
registrar of the tax court, along with other registrar office staff, who are employees
of SARS.
LO7: Compare the high court system prior to the
Constitution, 1996, with the present high court system?

Before …..

High Court System Prior to the Constitution, 1996:

BEFORE ⇩
Limited Jurisdiction: à No section 169 of CONS
Before the Constitution, the jurisdiction of the high courts was primarily
defined by legislation enacted by the apartheid government. High courts
had limited jurisdiction over certain types of cases, and their powers
were subject to legislative restrictions.

NOW ⇩
Expanded Jurisdiction à Section 169 of CONS
The Constitution significantly expanded the jurisdiction of the high courts,
granting them the authority to hear a wide range of matters, including
constitutional disputes, administrative law cases, and appeals from lower
courts. High courts now have broader powers to ensure the protection of
constitutional rights and the rule of law.

BEFORE ⇩
Segregationà No separation of powers CH12 of CONS
During apartheid, the high courts were part of a racially segregated legal
system, with separate courts for different racial groups. This segregation
extended to the composition of the judiciary and the administration of
justice, leading to unequal access to justice for different racial groups.

NOW ⇩
Transformation and Diversityà Section 9 ‘’right to equality’’
The judiciary has undergone significant transformation since the end of
apartheid, with efforts to promote diversity and representativeness on the
bench. Judicial appointments are now based on merit and the principles
of transparency and accountability, rather than political considerations.
 BEFORE ⇩

While the judiciary maintained a degree of independence, its powers and

functions were subject to legislative control by the apartheid government.
Judicial appointments were also influenced by political considerations,
which sometimes compromised the independence of the judiciary.

NOW ⇩

Judicial Independence àSection 165 ‘’JUDICIAL INDEPENDENCE’’

The present high court system is established by the Constitution of 1996,
which guarantees the independence of the judiciary and outlines the
jurisdiction and functions of the high courts. The Constitution grants the
high courts inherent jurisdiction to hear any matter that falls within their
territorial jurisdiction.

BEFORE ⇩

Access to justice was limited, particularly for marginalized communities

who faced discrimination under apartheid laws. Legal proceedings were
often biased, and individuals had limited recourse to challenge unjust laws
or government actions.

NOW ⇩
Access to Justice à Section 34 ‘’ right to approach court’’ The
Constitution guarantees equal access to justice for all South Africans,
irrespective of race, gender, or socioeconomic status. Legal proceedings
are conducted in accordance with the principles of fairness, impartiality,
and equality before the law. Special mechanisms, such as legal aid and
public interest litigation, help to facilitate access to justice for marginalized
and vulnerable groups.
(Q1.1)
SUPREME COURT OF APPEAL

HIGHEST COURT OF APPEAL à Strictly appeals and relation to

appeals

BASE à Bloemfontein (Freestate)

Establishedà 1910

Presiding officers à

President, Deputy President, judges of appeal and 23 permanently appointed

judges.

The President of the SCA ☞ ‘’B Molemela’’

Ordinarily, proceedings are presided over by three or five judges,

depending on the nature of the appeal. An appeal in a criminal or civil
matter may be heard before a court consisting of three judges. A court
consisting of a larger number of judges hear a matter of importance.

à Any appeals EXCEPT labour and competition matters.

à Decisions against the HC

NB!! It cannot appeal decisions of the CC.

Appeals à

Except for the Constitutional Court, no other court can change a decision
of the SCA.
 Jurisdictionà Highest court of appeal

The SCA has jurisdiction to hear appeals on both civil and criminal
matters, including appeals on questions of law and fact. It has the
authority to review and overturn decisions made by lower courts, including
the High Courts and Magistrate’s Courts, on matters within its jurisdiction.

1. Highest Court of Appeal: The SCA serves as the highest court of appeal for
matters that do not involve constitutional issues. It hears appeals from the High Courts,
certain specialized courts, and other lower courts across South Africa.

2. Jurisdiction: The SCA has jurisdiction to hear appeals on both civil and criminal
matters, including appeals on questions of law and fact. It has the authority to review and
overturn decisions made by lower courts, including the High Courts and Magistrate’s
Courts, on matters within its jurisdiction.

3. Composition: The SCA is composed of a panel of judges, typically consisting of a

president and a number of justices. These judges are appointed based on their expertise
and experience in the law and are responsible for adjudicating appeals brought before the
court.

4. Role in Legal Development: The decisions of the SCA have a significant impact
on the development of South African law. Its judgments establish precedents that guide
lower courts and legal practitioners in interpreting and applying the law in subsequent
cases. The SCA plays a crucial role in ensuring consistency and coherence in the
interpretation of legal principles across the country.

5. Access to Justice: The SCA plays a vital role in providing access to justice by
offering a forum for parties dissatisfied with the decisions of lower courts to seek review
and appeal. Its decisions contribute to the resolution of complex legal disputes and the
protection of individual rights and interests
CONSTITUTIONAL COURT

The HIGHEST court in SA on constitutional matters.

BASE à

Braamfontein, Johannesburg.

Establishedà 1994

Presiding officers à

Heads are Chief Justice & Deputy Chief Justice

11 Judges

Matters à
Restricted to constitutional matters and issues connected with decisions on
constitutional matters.

Thighest court in the country when it comes to the interpretation, protection and
enforcement of the Constitution

It deals exclusively with constitutional matters - those cases that raise questions about
the application or interpretation of the Constitution.

(a) Disputes between organs of state in the national or provincial sphere

concerning the constitutional status, powers or functions of any of those
organs of state;

(b) The constitutionality of any parliamentary or provincial Bill;

(c) The constitutionality of any amendment to the Constitution;

(d) A matter that Parliament or the President has failed to fulfil a

constitutional obligation;

(e) A matter to certify a provincial constitution in terms of section 144

of the Constitution.
Appeals à

A matter may be brought directly to the Constitutional Court or

appealed directly to the Constitutional Court from any other court.
Leave of the Constitutional Court is required to do so.

Jurisdictionà

The Constitutional Court makes the final decision whether a matter is

within its jurisdiction.

Legislation à

The Constitution of the Republic of SA.

.
THEME 4: SOURCES OF CIVIL PROCEDURE

The Superior Courts Act 10/2013 which replaced Supreme Court Act
59/59,
Section 6 – The Constitution of the High Court

The Constitutional Complementary Act 13/1995

The Magistrates’ Court Act 32/1944

The Small Claims Courts Act 61/1984.

Each court has a set of rules that are read and applied in conjunction with
the legislation.

Case Law

International Law

Rules of the Court

 L011: Discuss the impact of the Constitution on civil procedure with
reference to

LANDMARK ⭐
Coetzee v Government of the Republic of South Africa

The Magistrate’s Courts Act provided that ito debt collection a civil debtor could find himself in prison for
failing to pay his debt.

LEGAL ISSUE: The CC had to look at the provisions that provided for imprisonment of civil debtors.

HELD:
Section 65 of the MCA was completely redrafted to be brought in line with the Constitutin. Held that certain
sectiond of the Magistrate’s Courts Act relating to DEBT COLLECTION procedures were unconstitutional
and declared the procedures to be invalid from the date which the court made it’s order. were found by
the court to be inconsistent with the right to personal freedom provided for in section 11(1) in Chapter 3 of
the Interim Constitution. Such provisions were also not capable of being justified as reasonable in terms
of the limitation provisions of section 33(1) of the Constitution

Significance of case; In summary, the Coetzee case illustrates the

profound impact of the Constitution on South African civil procedure,
particularly concerning constitutional challenges to legislation and
government action. It reaffirmed the judiciary’s role as the guardian of
the Constitution and provided important guidance on the justiciability of
constitutional issues and the remedies available for constitutional
violations.
BID Industrial Holdings v Strang and Others SCA – Section 34 right to access

Facts; In the Bid Industrial case (supra), the appellant sued the two respondents, who were
resident and domiciled in Australia, for delictual damages. In order to found jurisdiction of the
Johannesburg High Court, the appellant applied for an order for the respondents’ arrests.
The respondents opposed the application on two grounds, the one being that, on the merits, there
was no prima facie case against the respondents and the second being that foreign nationals,
whilst in South Africa, enjoyed the protection of the Constitution and their arrest would be contrary
to the Bill of Rights. For the purposes of this article, the former ground will not be dealt with.

The Minister of Justice (“the Minister”) was joined to the application due to the constitutional
challenge of the legislation. The Minister’s submission was that the legislation was not
unconstitutional as the provisions were enacted to give effect to a plaintiff’s rights under section 34
of the Constitution (the right to access to courts). The court could also exercise its discretion in
granting an application for arrest by balancing the rights of the plaintiff and the defendant. Lastly,
the Act spoke of “arrest” only and not actual detention.

LEGAL ISSUE :
the Court considered various aspects. The first was whether arrest infringes on the rights to freedom
and security of the person. The Court held that as there is no legal obligation on a foreigner to either
consent to the jurisdiction of a South African court or to provide a monetary basis to avoid the arrest,
the legislation could only have contemplated actual detention. Jurisdictional arrest is thus aimed at
limiting the defendant’s liberty. In determining whether this is unconstitutional, the Court had to
consider whether there was a “just cause” for such a limitation.

RATIO; the Court declared the abolition of the common law rule of arrest and in lieu thereof, should
attachment not be possible, then a “South African High Court will have jurisdiction if the summons is
served on the defendant while in South Africa and there is sufficient connection between the suit and the
area of jurisdiction of the court concerned so that disposal of the case by that court is appropriate and
convenient.” Accordingly, Section 19(1)(c) of the Act was made redundant and ordered to be removed by
legislative amendment and until this happens, the section must be read down.

Once again, the Constitution has resulted in face of civil procedure in South Africa changing to fall within
the realms of what is considered by our courts to be “reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom” (Section 36(1) of the Constitution).
University of Stellenbosch Legal Aid Clinic (Clinic) & Others v
Minister of Justice and Correctional Services & Others; Association
of Debt Recovery Agents NPC v Clinic & Others; Mavava Trading 279
(Pty) Ltd & Others v Clinic & Others [2016] ZACC 32

Facts:The case involves a Constitutional Court ruling focused on judicial

oversight of debt recovery practices in South Africa, particularly against
low-income workers.

Issue:Whether proper judicial oversight should be required for orders to

deduct payments from the wages of persons defaulting on small loan
payments.

Rule : Section 34 of the Constitution guarantees everyone the right to

have any dispute resolved in a fair public hearing before a court or an
impartial tribunal.

Application:The applicants challenged the validity of emoluments

attachment orders (EAOs) obtained without proper judicial oversight,
arguing that they were based on fraudulent documents and issued by
clerks of the court without judicial authorization.

Conclusion:The Constitutional Court ordered changes in legislation to

ensure that EAOs could not be issued without proper judicial oversight,
consistent with the right to fair public hearing guaranteed by the
Constitution.

Impact on South African Civil Procedure:

The case underscores the importance of judicial oversight in civil
proceedings, particularly concerning debt recovery practices affecting
vulnerable individuals.It highlights the role of the judiciary in safeguarding
constitutional rights and ensuring access to justice for all, especially for
low-income earners facing economic pressure from debt collection
practices.The ruling sets a precedent for the requirement of judicial
authorization in similar cases, contributing to the fair and equitable
administration of civil procedure in South Africa.
Access to Courts : Ito of Section 38 of the Constitution persons whose
rights have been threatened of infringed have right of access to approach
the court in these cases

• Anyone acting in their own interest

• Anyone acting on behalf of another person who canot act in their
own name
• Anyone acting as a member of or in the interest of a group/class of
persons
• Anyone acting in the public interest
• Association acting in the interest of it’s members.
THEME 5 : MIND MAP OF STAGES CIVIL PROCEDURE

What are the four stages of civil procedure?

STAGE 1 PRE-LITIGATION

PART 1

CAUSE OF ACTION - Determine if the client has a valid legal claim based on
contract or delict law. Person must have had his right infringed. Must have a
legally recognised cause.
LOCUS STANDI - Assess if the parties involved have the right to appear before the
court based on their direct interest and legal capacity.
JURISDICTION - Identify the appropriate court with the authority to hear the case,
considering factors like Magistrates' Courts and the High Court.
PART 2

LETTER OF DEMAND – Always done for debt collection. Before going to court, it's
often necessary to request the other party to fulfil their obligations or address a dispute.
This section explains different types of demands and why they're important. Done in
accordance with Section 129(1) of NCA.
CALCULATION OF TIME - Legal processes have specific timeframes set by laws and
rules. This part explains how to figure out these time limits correctly, which is crucial for
meeting deadlines during legal proceedings.
SERVICE OF LEGAL DOCS - There are strict rules about how legal papers should be
delivered to the other party. Although this is part of the actual legal process, it's easier to
handle this before diving into the complexities of the legal procedure. Section 168 OF
NCA.
ACTION VS APPLICATION - When starting a civil case, you have to decide whether to
pursue it through a trial (action) or through written submissions (application). This
section helps in making that decision and explains the main procedures involved in both.

Purpose of demand

à Inform defendant that prospective attorney acts on behalf of prospective plaintiff.

à The Nature and content of the claim against him.
à That payment or performance is claimed against him.
à About the time period within which the action is required.
à Consequences of failure to comply.

FORMS OF DEMAND

1. NOTICE … is a form of demand à In terms of Section 129(1) of NCA Notice

has to be given before legal proceedings can be enforced.
In a contract that stipulates that, if the defendant defaults, a notice must be given to
her to rectify such default within a certain number of days.

2. COMPLETE COA……..On the other hand if a contract stipulates that certain

moneys must be paid on demand, a summons will constitute sufficient
demand. à In terms of Section 6(1)(a) of MCA rule, a summons can be
issued for the enforcement of a debt in terms of the NCA.
These demands are when necessary ⇪
Section 29 of the Small claims Court Act 61 of 1984

Instituting proceedings against an Organ of State

 These demands are when statutorily required ⇪
ACTION VS APPLICATION

Distinction between:

HOW DOES IT START?

APPLICATION
Commence with a NOTICE OF MOTION supported by a founding affidavit.

ACTION
Issue and delivery of SUMMONS.

CONTENTS

APPLICATION
Founding Affidavit will contain the statement of facts.
Dispute of legal arguments. No dispute of fact.

ACTION
For the parties to take all the necessary steps to initiate the action and to prepare the
case for trial, while the function of the judge is merely to consider requests for interim
relief by the parties.
Dispute of fact.
Why is this distinction important in the context of the stages of the civil procedure
process?

(1) The proceedings have different procedures/steps raise a civil claim.

➢ Action proceedings are used to resolve disputes where the dispute of fact
has to be decided.

➢ Application proceedings are used for matters that can be resolved based on
legal arguments.

(2)

➢ Action proceedings involve a trial where evidence is presented and

witnesses are called.

➢ Application proceedings focus on legal issues rather than on factual

disputes.

(3) Drawing a distinction is important because it can help a party and their legal
representative decide the appropriate procedural route.

(4) Using the wrong form of proceedings can result in cost implications for the party
that instituted the proceedings.

(5) Action proceedings are more costly than application proceedings. But application
proceedings are not always permissible.

(6) A court may refuse to hear a matter .

(7) For a situation where an interdict is needed, the application proceedings may
provide for a faster relief.
ACTIONS
⇩
Claims for Damages: Cases where the plaintiff seeks compensation (damages)
for harm or loss suffered, such as personal injury claims, property damage claims, or
breach of contract claims where monetary damages are sought.
DIVORCES

Declaratory Orders: Cases where the plaintiff seeks a declaration from the court
regarding their legal rights or obligations, such as disputes over property ownership or
interpretation of contracts.

Specific Performance: Cases where the plaintiff seeks to enforce the

performance of a specific obligation under a contract, such as compelling the
defendant to fulfill their contractual duties.

INTERDICTS; Cases where the plaintiff seeks an injunction, which is a court order
requiring the defendant to refrain from or take specific actions, such as restraining
orders or injunctions to prevent the infringement of intellectual property rights.

Partition and Sale: Cases involving the division and sale of jointly-owned property
among co-owners who cannot agree on how to divide the property.

APPLICATIONS
⇩
1. Interlocutory Applications: These are applications made during the
course of litigation to seek interim relief or procedural orders, such as applications for
interlocutory injunctions or applications to amend pleadings.
2. Judicial Review: Cases where a party seeks to challenge the legality
or validity of administrative actions or decisions made by public authorities, such as
decisions by government agencies or administrative bodies.
3. Urgent Applications: Cases where a party seeks urgent relief from
the court, such as interim interdicts or orders to prevent imminent harm or irreparable
damage pending the resolution of a full trial.
4. Enforcement of Judgments: Applications to enforce court
judgments or orders, such as applications for the attachment of assets or orders for
the payment of money.
5. Declaratory Orders (in certain circumstances): While declaratory
orders can also be pursued through action proceedings, in some cases where there
is no genuine dispute of fact and the issue is purely a legal question, parties may opt
for an application for a declaratory order.
 NB!!!!
An application by means of notice of motion may be made if
1. There is no real dispute over any question of fact.
OR
2. If there is such a dispute & it cannot be decided without evidence.
3.

Scenario 1: No Real Dispute Over Any Question of Fact

Let’s say Company A enters into a lease agreement with Company B for office space.
According to the lease agreement, Company B is responsible for maintaining the
premises in good condition. However, Company A alleges that Company B has failed
to fulfill its maintenance obligations, leading to damages to the property.

In this scenario, there is no real dispute over any question of fact because both parties
agree on the terms of the lease agreement and the condition of the premises.
Company A believes that Company B breached the contract by not maintaining the
property, while Company B may deny the allegations.

Company A can file an application by means of notice of motion seeking specific

performance, requesting the court to compel Company B to fulfill its maintenance
obligations under the lease agreement. Since there is no real dispute over any
question of fact, the matter can be resolved through legal arguments and interpretation
of the lease agreement, making an application proceeding appropriate.

Scenario 2: Dispute of Fact That Can Be Decided Without Evidence

Now, let’s consider a scenario where Company A alleges that Company B breached
a supply contract by delivering defective products. Company B disputes Company A’s
claim, arguing that the products were not defective and were delivered according to
the terms of the contract.

In this scenario, there is a dispute over a question of fact – whether the delivered
products were defective. Company A and Company B have conflicting accounts of
what transpired, and resolving the dispute would require evidence, such as witness
testimony or documentary evidence.

Company A may file an application by means of notice of motion seeking an interim

interdict to prevent Company B from selling or distributing the allegedly defective
products until the dispute can be resolved. However, if there is a genuine dispute of
fact that cannot be decided without evidence, an application proceeding may not be
suitable. In such cases, action proceedings, involving a full trial where evidence can
be presented and disputed facts can be resolved, would be more appropriate.
NB!!! If a party uses an application proceedings and ignores the possibility that
a factual dispute may arise, then such party will run the risk that the application
may be dismissed with costs or may be sent for trial.

How will know when there is a dispute of fact ?

DENY MATERIAL FACTS

The respondent denies material allegations made by the deponents on the

applicant’s behalf and produces positive evidence by the deponents to the
contrary.

Scenario: Driver A files a claim for damages against Driver B following a motor vehicle
collision. In Driver A’s affidavit, they allege that Driver B rear-ended their vehicle while
they were stopped at a red light, causing significant damage to their vehicle and
resulting in injuries. Driver B denies the allegations, claiming that Driver A suddenly
stopped without warning, causing the collision.

In response to Driver A’s affidavit, Driver B submits affidavits from passengers in their
vehicle who witnessed the accident. The passengers provide sworn statements stating
that Driver A abruptly stopped their vehicle without any apparent reason, leading to
the collision. These affidavits contradict the version of events provided by Driver A.

In this scenario, Driver B denies the material allegations made by Driver A and
produces positive evidence by their own deponents (the passengers) to the contrary.
The conflicting accounts of the accident would need to be resolved through evidence
presented in court, such as witness testimony, expert analysis, and examination of the
accident scene. The court would need to determine the credibility and reliability of the
evidence presented by both parties to establish the facts surrounding the collision.
ADMIT INCIDENT BUT DENY SOME FACTS

The respondent admits the allegations contained in the applicant’s affidavit but
alleges other facts which the applicant disputes.

Scenario: Driver A files a claim for damages against Driver B following a motor vehicle
collision. In Driver A’s affidavit, they allege that Driver B ran a red light and collided
with their vehicle, resulting in injuries and vehicle damage. Driver B admits to the
collision but alleges that Driver A was speeding at the time of the accident, contributing
to the collision.

In this scenario, Driver B admits to the occurrence of the collision but disputes Driver
A’s version of events regarding the cause of the collision. Driver A disputes Driver B’s
assertion that they were speeding and maintains that Driver B’s failure to stop at the
red light was the primary cause of the accident. Evidence will need to be presented.

DENIES BOTH INCIDENT AND FACTS

The respondent concedes that he has no knowledge of the main facts stated by
the applicant but may deny them, putting the applicant to the proof and himself
giving or proposing to give evidence to show that the applicant and his
deponents are biased or unreliable and that certain facts are untrue.

Scenario: Driver A files a claim for damages against Driver B following a motor vehicle
collision. In Driver A’s affidavit, they provide details of the accident, including the
sequence of events leading to the collision and the extent of damages suffered. Driver
B concedes that they have no direct knowledge of the accident but denies Driver A’s
version of events, alleging that Driver A and their witnesses are biased and unreliable.

In this scenario, Driver B challenges the reliability and credibility of Driver A’s evidence,
putting the burden on Driver A to prove their claims. Driver B may propose to give
evidence to challenge the accuracy of Driver A’s account of the accident, such as
presenting witness testimony or expert opinions to dispute the facts alleged by Driver
A. This dispute of fact regarding the accuracy and reliability of the evidence would
need to be resolved through the examination of evidence and witness testimony in
court proceedings.
CALCULATION OF TIME 🕰

FOLI

Exclude the first day, include the last day.

If you are told today that you must hand in an essay within five days, then the five-
day period starts running tomorrow, and ends at the end of the last day of that five-
day period.

SERVICE OF LEGAL DOCS

Section 168 of the NCA regulates service of documents.

STAGE 2 : LITIGATION

‘’APPLICATIONS’’

SET OUT CASES – Parties will set out their cases in writing and the court will decide
the matter considering the documents before it. No trial
EVIDENCE – Affidavits are the form of evidence that is placed before the court. No
witnesses, no oral evidence.
They are not suited for dealing of mistake of fact matters.
3 Types ;
EX PARTE APP; No notice to parties. Unnecessary to notify parties.

NOTICE APP; Notice of motion

URGENT APP;
1. Urgent applications need to follow court rules, but exceptions may be made due
to the urgency of the situation.

2. Applicants must fully explain to the court why their application is urgent
and why they can't wait.

3. Applicants can set their own deadlines for respondents to respond, but the court
may review and adjust these deadlines if necessary.

4. The level of urgency determines the extent to which rules can be deviated from,
ranging from shortening notice periods to no notice at all.

5. In extreme cases, applications may need to be made orally to a judge after hours,
even outside of court premises.

6. Applicants cannot manufacture urgency by intentionally delaying action until the

last minute.

7. In KwaZulu-Natal, a certificate of urgency, signed by an advocate or attorney with

a right of appearance, must be attached to the application papers before the High
Court registrar will schedule an urgent hearing. This certificate confirms that the
matter appears to be urgent and has been carefully considered.
FACTORS

1. **Nature of the relief sought:** The court considers the nature of the relief sought
and whether it requires immediate attention to prevent irreparable harm or
injustice.

2. **Consequences of delay:** It assesses the potential consequences of delaying

the application, weighing the harm that may occur if relief is not granted urgently.

3. **Reasons for urgency:** The applicant must provide compelling reasons for the
urgency, explaining why the matter cannot wait to be addressed through normal court
procedures.

4. **Good faith:** The court evaluates whether the application is made in good faith
or if the urgency is manufactured by the applicant.

5. **Balancing interests:** It balances the interests of both parties involved,

ensuring fairness and justice in the decision-making process.

By considering these factors, the court determines whether the urgency of the
application justifies deviating from normal court procedures to grant timely relief.
 ACTIONS (Proceedings will take place)

PLEADINGS : During the "pleadings" stage of a legal action, parties exchange

documents with allegations and counter-allegations to define the issues in
dispute. This helps both sides understand what will be discussed in court later on.

PRE-TRIAL PROCEDURES ; After the pleadings stage, there's a pre-trial period

where parties get ready for the trial. This involves tasks like scheduling the trial
(SET DOWN) date, examining each other's documents (discovery), arranging for
witnesses to attend (subpoenas), and other necessary preparations.

TRIAL : The pre-trial stage is followed by the trial itself, during which both
sides lead the evidence of witnesses, who are subject to cross-examination
to test the truth of their evidence.

JUDGEMENT; Order or interest.

STAGE 3 : AFTER LITIGATION

APPEALS; If you decide to appeal a court's judgment, it means you believe the trial
procedures were fair, but you disagree with the decision made by the judge. You're
not accusing the judge of being biased, malicious, or corrupt, which are grounds for
reviewing the decision. Instead, you're saying that although the judge reached the
decision fairly, they got it wrong based on either the facts or the law, or both.

REVIEWS; In contrast to an appeal, a review is sought when there's a serious

problem with the trial procedure, like bias, malice, or corruption by the presiding
officer. It's not about disagreeing with the decision itself but challenging how the
decision was reached.

DEBT COLLECTION; - Civil procedure continues after judgment is granted.

- Sometimes, the party owing money ignores the judgment.
- Clients want the money, not just a court order.
- The state won't collect the money for them.
- It's up to the owed party to use debt collection procedures.
- The state enforces these procedures.

WRIT/WARRANTS OF EXECUTION ; Writs and warrants of execution are legal

methods to collect judgment debt. They instruct court sheriffs to seize the debtor's
property, which is sold at auction if the debt isn't paid. Both physical and non-
physical property can be seized, including movable and immovable assets.

SECTION 65 PROCEDURE; NB!!!!Another method to collect judgment debt is

through Section 65 of the Magistrates’ Courts Act. This involves bringing the
judgment debtor to court to investigate their financial situation. If they can afford it,
the court may order them to pay the debt in instalments. Failure to comply could
result in arrest and imprisonment for disobeying a court order. à NB!! COETZEE
CASE

ADMIN COSTS ; also known as ‘Magistrates’ Courts sequestrations’, are utilized by

debtors with multiple creditors. This procedure establishes a distribution scheme
where payments are made proportionally to all creditors.
Preliminary questions?

Perhaps even before the first stage of civil procedure, an attorney should always have
the issue of prescription in mind. This is because it is futile to continue a consultation
or try to determine whether a client has a valid cause of action if the clients claim
has prescribed. Asking the question of whether a claim has prescribed as your very
first question in a matter, can not only save you and your client time and money, but
also allows you to determine if instituting civil proceedings needs to be done on an
urgent basis before the particular debt has extinguished.

1. Does legislation or Uniform Rules of the Court prescribe whether an action or

application must be used.
2. Has the client’s claim prescribed?
3. Does the client have a cause of action.
4. Is it urgent ?
5. Does the client have locus standi?
6.

If you decide to institute civil litigation on behalf of the client, how would
you know which court to go litigate in and which procedure to follow?

à It would depend on the Cause of Action

à The locus standi
à Jurisdiction of the court.