INTRODUCTION TO CIVIL PROCEDURE
Tuesday, 18 February 2020 14:00
1.1) CLASSIFICATION OF CIVIL PROCEDURE AND ITS PLACE WITHIN THE LEGAL
SYSTEM:
-Adjective law - Covers Civil Procedure
-Adjective law described as "procedural law".
-Adjective describes this law better because it clearly implies that the law of procedure exists for the sake of
substantive law .
-The law of procedure enforces the rules and provisions of substantive law . It would make no sense to grant a Substantive- rights and obligations
person rights without ensuring that these rights could be enforced by means of procedural rules. Adjective - procedure to enforce rights /duty
-Substantive law determines rights and obligations of a person
It therefore , describes the nature of these rights and duties , the manner in which they are established , what
their legal effect is and how they are terminated.
-Adjective law deals with procedure to be adopted in order to enforce a right or duty .
Example : X lends his car to Z , who refuses to return it.
Adjective la sets out the procedure that X must follow to regain possession , in which court he must institute
proceedings , the procedure to be adopted and what evidence will be required to prove his claim.
1.2) ENFORCING THE LAW:
1.2.1)FUNCTIONS OF THE COURT:
-To resolve disputes between legal subjects or between legal subjects and the state.
**NB: Both civil and criminal proceedings may be described as formal systems of dispute resolutions that are
sanctioned (enforced) by the state.
The above means that judicial officers (i.e.: a judge , magistrate or commissioner of small claims) will hear the
presentation of evidence and arguments of both parties in an environment that is controlled by formal rules
and then decide the matter in the form of a judgment or order that is enforced by the state.
-State has no direct interest in civil proceedings - in merely provides the infrastructure (court buildings) within
which the dispute may be resolved and if necessary , enforces the order or judgement of a court .
-Court administration and court times are , therefore , provided by the state free of charge to citizens involved
in a civil dispute.
-Parties to a civil dispute conduct civil proceedings independently and without interference from the state.
1.2.2) SUBJECT MATTER:
-can be either civil or criminal in nature.
-Civil proceedings relate to a dispute between legal subjects (one of which may be the state or state official) -
Dispute of this nature is described as a "claim"
-Criminal proceedings are between the state and ordinary citizen.
-Possible for a person to lay a criminal charge and institute civil proceedings on the same cause of action.
Example: If D assaults G , G may lay a criminal charge on the grounds of assault and may also institute civil
proceedings to claim compensation for the personal and monetary damages allegedly incurred.
1.2.3) PARTIES:
The respective parties to civil and criminal proceedings each have different roles and objectives.
Criminal proceedings- parties are the state and the accused. - The person who has suffered as a result of the
criminal conduct of the accused is called the complainant.
Civil Proceedings- Terminology differs according to the type of procedure involved.
In matters concerning summons:
Person who starts proceedings by issuing summons - Plaintiff
Person against whom the summons is issued - Defendant
Proceedings brought on application:
Person bringing application - Applicant
Opposing party- Respondent
STUDY UNIT 1 Page 1
,Opposing party- Respondent
If the matter goes on appeal:
Person who lodges appeal - Appellant
Other party- Respondent
1.2.4) ONUS OF PROOF:
Civil Proceedings:
Burden of proof is on the balance of probabilities
This means that the court must be satisfied that the version put forward by the plaintiff/applicant is more
probable that that put forward by the defendant/respondent.
Criminal Proceedings:
The burden of proof is on the state to prove beyond a reasonable doubt that the accused committed the
offence as charged.
This means that a court must be satisfied that no probable conclusion can be reached , other than that the
accused committed the offence as charged.
STUDY UNIT 1 Page 2
,SOURCES OF CIVIL PROCEDURAL LAW
Thursday, 27 February 2020 13:32
2.1) INTRODUCTION:
Unlike Magistrates' Courts , the civil procedure of the High Court does not consist solely of
statutory provisions and rules of court ; a substantial part of it consists of common -law
rules.
The Const. 1996 serves as the supreme law of the Republic and any laws that are inconsistent with it
may be declared invalid.
2.2)STATUTORY LAW:
Law relating to civil procedure is derived from various Acts , rules of court and the
jurisprudence that has been built up around their interpretation.
Following statutes -Main statutory sources for civil procedure:
• The Superior Courts Act 10 of 2013 (Replaced the Supreme Court Act 59 of 1959)
• The Magistrates' Courts Act 32 of 1944
• The Constitution of the Republic of South Africa , 1996
There are additional statutory sources that provide for the procedure in special courts ,
there are also numerous statutory provisions that confer jurisdiction on a court , for
example : S2(1) - Divorce Act 70 of 1979.
Apart from the above mentions Acts , ("Primary legislation") , court rules that regulate the
conduct of proceedings in the various courts have also been promulgated ( subordinate
legislation) - These rules must therefore be read in conjunction with their particular Act.
2.3) RULES OF COURT:
2.3.1) COMPETENCE TO MAKE THE RULES:
Until 1965 , the various divisions of the then supreme court had different Rules of Court for
different divisions . In that same year , with effect from 15 January 1965 , under the
provisions of section 43(2)(a) -Supreme Court Act of 1959 , the Uniform Rules of Court were
promulgated to regulate the conduct of proceedings in all provincial and local divisions of
the then Supreme Court.
The effect of these Rules was to repeal all the previous rules of the various divisions of the
then supreme court , except those rules of particular divisions regulating court terms ,
vacations , sessions and set down.
These remaining matters now exist as the Rule for specific High Courts . Consequently ,
since 1965 , proceedings have been conducted uniformly in all the divisions of the then
supreme court (now the High Court) , under a common set of Rules , which are still known
as the Uniform Rules of Court.
STUDY UNIT 2 Page 3
, as the Uniform Rules of Court.
S25 - Magistrates' Courts Act similarly provided for the making , amendment and repeal of
rules for the Magistrates' Courts. The present magistrates' courts rules came into operation
on 30 August 1968.
Rules regulating the proceedings of the Appellate Division (AD) (now SCA) could be
promulgated under section 43(1) - Supreme Courts Act of 1959 . The present Supreme Court
of Appeal Rules were promulgated on 15 December 1961.
The Rules Board was established in 1985 .
- Members of the board appointed by Minister of Justice.
- For a period of 5 years
- Eligible for reappointment (s3)
- Section 6- powers of the Rules Board -to make , amend or repeal rules "for efficient ,
expeditious and uniform administration of justice" in Supreme Court of Appeal , the
High Court and magistrates' courts (lower courts) .
Constitutional Court - President of the CC , in consultation with the Chief Justice (CJ) , may
make rules relating to the manner in which this court may be engaged and for all matters
relating to the proceedings of and before that court.
The present rules of the CC came into operation on 23 October 1998.
The rules of court for both courts contain annexures that set out the forms prescribed by
the rules. These forms contain wording of various processes mentioned in the rules .This is
done for the benefit of litigants and legal practitioners , as well as to maintain uniformity
and consistency.
2.3) NATURE OF THE RULES:
Since ,they are , by nature , delegated legislation , the rules of court have statutory force
and are therefore binding on a court.
However , the rules exist for the sake of the court not the other way around .
- Rules are a means to an end.
Purpose of rules: to facilitate inexpensive and efficient legislation , not to obstruct the
administration of justice.
This means that a court , subject to its competence to do so , may condone non-compliance
with procedure that would lead to substantial injustice to a litigant .
A superior court may also exercise its inherent jurisdiction to grant relief in circumstances
where the rules do not cover a particular matter or where strict compliance with a rule
would result in substantial prejudice to a litigant.
2.4) COMMON LAW:
The civil law procedure of the High Court does not consist of exclusively statutory provisions
and rules of court.
A considerable portion of it comprises rules of common law .
STUDY UNIT 2 Page 4
Tuesday, 18 February 2020 14:00
1.1) CLASSIFICATION OF CIVIL PROCEDURE AND ITS PLACE WITHIN THE LEGAL
SYSTEM:
-Adjective law - Covers Civil Procedure
-Adjective law described as "procedural law".
-Adjective describes this law better because it clearly implies that the law of procedure exists for the sake of
substantive law .
-The law of procedure enforces the rules and provisions of substantive law . It would make no sense to grant a Substantive- rights and obligations
person rights without ensuring that these rights could be enforced by means of procedural rules. Adjective - procedure to enforce rights /duty
-Substantive law determines rights and obligations of a person
It therefore , describes the nature of these rights and duties , the manner in which they are established , what
their legal effect is and how they are terminated.
-Adjective law deals with procedure to be adopted in order to enforce a right or duty .
Example : X lends his car to Z , who refuses to return it.
Adjective la sets out the procedure that X must follow to regain possession , in which court he must institute
proceedings , the procedure to be adopted and what evidence will be required to prove his claim.
1.2) ENFORCING THE LAW:
1.2.1)FUNCTIONS OF THE COURT:
-To resolve disputes between legal subjects or between legal subjects and the state.
**NB: Both civil and criminal proceedings may be described as formal systems of dispute resolutions that are
sanctioned (enforced) by the state.
The above means that judicial officers (i.e.: a judge , magistrate or commissioner of small claims) will hear the
presentation of evidence and arguments of both parties in an environment that is controlled by formal rules
and then decide the matter in the form of a judgment or order that is enforced by the state.
-State has no direct interest in civil proceedings - in merely provides the infrastructure (court buildings) within
which the dispute may be resolved and if necessary , enforces the order or judgement of a court .
-Court administration and court times are , therefore , provided by the state free of charge to citizens involved
in a civil dispute.
-Parties to a civil dispute conduct civil proceedings independently and without interference from the state.
1.2.2) SUBJECT MATTER:
-can be either civil or criminal in nature.
-Civil proceedings relate to a dispute between legal subjects (one of which may be the state or state official) -
Dispute of this nature is described as a "claim"
-Criminal proceedings are between the state and ordinary citizen.
-Possible for a person to lay a criminal charge and institute civil proceedings on the same cause of action.
Example: If D assaults G , G may lay a criminal charge on the grounds of assault and may also institute civil
proceedings to claim compensation for the personal and monetary damages allegedly incurred.
1.2.3) PARTIES:
The respective parties to civil and criminal proceedings each have different roles and objectives.
Criminal proceedings- parties are the state and the accused. - The person who has suffered as a result of the
criminal conduct of the accused is called the complainant.
Civil Proceedings- Terminology differs according to the type of procedure involved.
In matters concerning summons:
Person who starts proceedings by issuing summons - Plaintiff
Person against whom the summons is issued - Defendant
Proceedings brought on application:
Person bringing application - Applicant
Opposing party- Respondent
STUDY UNIT 1 Page 1
,Opposing party- Respondent
If the matter goes on appeal:
Person who lodges appeal - Appellant
Other party- Respondent
1.2.4) ONUS OF PROOF:
Civil Proceedings:
Burden of proof is on the balance of probabilities
This means that the court must be satisfied that the version put forward by the plaintiff/applicant is more
probable that that put forward by the defendant/respondent.
Criminal Proceedings:
The burden of proof is on the state to prove beyond a reasonable doubt that the accused committed the
offence as charged.
This means that a court must be satisfied that no probable conclusion can be reached , other than that the
accused committed the offence as charged.
STUDY UNIT 1 Page 2
,SOURCES OF CIVIL PROCEDURAL LAW
Thursday, 27 February 2020 13:32
2.1) INTRODUCTION:
Unlike Magistrates' Courts , the civil procedure of the High Court does not consist solely of
statutory provisions and rules of court ; a substantial part of it consists of common -law
rules.
The Const. 1996 serves as the supreme law of the Republic and any laws that are inconsistent with it
may be declared invalid.
2.2)STATUTORY LAW:
Law relating to civil procedure is derived from various Acts , rules of court and the
jurisprudence that has been built up around their interpretation.
Following statutes -Main statutory sources for civil procedure:
• The Superior Courts Act 10 of 2013 (Replaced the Supreme Court Act 59 of 1959)
• The Magistrates' Courts Act 32 of 1944
• The Constitution of the Republic of South Africa , 1996
There are additional statutory sources that provide for the procedure in special courts ,
there are also numerous statutory provisions that confer jurisdiction on a court , for
example : S2(1) - Divorce Act 70 of 1979.
Apart from the above mentions Acts , ("Primary legislation") , court rules that regulate the
conduct of proceedings in the various courts have also been promulgated ( subordinate
legislation) - These rules must therefore be read in conjunction with their particular Act.
2.3) RULES OF COURT:
2.3.1) COMPETENCE TO MAKE THE RULES:
Until 1965 , the various divisions of the then supreme court had different Rules of Court for
different divisions . In that same year , with effect from 15 January 1965 , under the
provisions of section 43(2)(a) -Supreme Court Act of 1959 , the Uniform Rules of Court were
promulgated to regulate the conduct of proceedings in all provincial and local divisions of
the then Supreme Court.
The effect of these Rules was to repeal all the previous rules of the various divisions of the
then supreme court , except those rules of particular divisions regulating court terms ,
vacations , sessions and set down.
These remaining matters now exist as the Rule for specific High Courts . Consequently ,
since 1965 , proceedings have been conducted uniformly in all the divisions of the then
supreme court (now the High Court) , under a common set of Rules , which are still known
as the Uniform Rules of Court.
STUDY UNIT 2 Page 3
, as the Uniform Rules of Court.
S25 - Magistrates' Courts Act similarly provided for the making , amendment and repeal of
rules for the Magistrates' Courts. The present magistrates' courts rules came into operation
on 30 August 1968.
Rules regulating the proceedings of the Appellate Division (AD) (now SCA) could be
promulgated under section 43(1) - Supreme Courts Act of 1959 . The present Supreme Court
of Appeal Rules were promulgated on 15 December 1961.
The Rules Board was established in 1985 .
- Members of the board appointed by Minister of Justice.
- For a period of 5 years
- Eligible for reappointment (s3)
- Section 6- powers of the Rules Board -to make , amend or repeal rules "for efficient ,
expeditious and uniform administration of justice" in Supreme Court of Appeal , the
High Court and magistrates' courts (lower courts) .
Constitutional Court - President of the CC , in consultation with the Chief Justice (CJ) , may
make rules relating to the manner in which this court may be engaged and for all matters
relating to the proceedings of and before that court.
The present rules of the CC came into operation on 23 October 1998.
The rules of court for both courts contain annexures that set out the forms prescribed by
the rules. These forms contain wording of various processes mentioned in the rules .This is
done for the benefit of litigants and legal practitioners , as well as to maintain uniformity
and consistency.
2.3) NATURE OF THE RULES:
Since ,they are , by nature , delegated legislation , the rules of court have statutory force
and are therefore binding on a court.
However , the rules exist for the sake of the court not the other way around .
- Rules are a means to an end.
Purpose of rules: to facilitate inexpensive and efficient legislation , not to obstruct the
administration of justice.
This means that a court , subject to its competence to do so , may condone non-compliance
with procedure that would lead to substantial injustice to a litigant .
A superior court may also exercise its inherent jurisdiction to grant relief in circumstances
where the rules do not cover a particular matter or where strict compliance with a rule
would result in substantial prejudice to a litigant.
2.4) COMMON LAW:
The civil law procedure of the High Court does not consist of exclusively statutory provisions
and rules of court.
A considerable portion of it comprises rules of common law .
STUDY UNIT 2 Page 4
