Civil Procedure Notes Part 1
Chapter 1 – Intro to Law of Civil Procedure........................................................................................................................2
Chapter 2 – Court Structure..................................................................................................................................................7
Chapter 3 – Consultation, Legal Representation, Demand and Prescription.....................................................................13
Chapter 4 – Jurisdiction......................................................................................................................................................20
Chapter 5 – Jurisdiction of the High Court.........................................................................................................................25
Chapter 6 – Jurisdiction of the Magistrates Court..............................................................................................................32
Chapter 7 – Parties to Litigation & Citation.......................................................................................................................38
1
, Chapter 1 – Intro to Law of Civil Procedure
SUBSTANTIVE LAW VS PROCEDURAL LAW
o Substantive law (the what)
Ø Content & meaning of legal rules
Ø Person’s rights, duties, remedies – content & scope Two concepts are
interdependent
o Procedural law (the how)
Ø Enforcement of rights, duties, obligations
Ø How enforcement of rights, duties, & remedies should be practically handled – before trial, during trial, post-trial
CRIMINAL VS CIVIL
o Civil law
Ø Enables parties to take action to enforce rights, claim remedies & defend actions
o Criminal law One set of facts can give rise
Ø Enables State to prosecute wrongdoer on behalf of general public to both civil matter &
criminal matter
Ø In order to promote & protect health & safety of general public
Civil Criminal
Area of law Private Public
Aim Compensation/interdict Protect health & safety of public + punish wrongdoers
Quantum of proof Balance of probabilities Beyond reasonable doubt
Parties Normally individuals – A v B Always State v Accused – S v X
Role of state State not always a party State always a party
Dominus litis Plaintiff/applicant State
Burden of proof Rests on plaintiff/applicant Rests on State
Interests affected Private – one person Public – General public
Voluntary? Voluntary State decides
Outcome of case Relief granted/dismissed Accused convicted/acquitted
Forum Some courts deal exclusively with civil Some courts deal exclusively with criminal matters
matters + ADR
ACTION VS APPLICATION PROCEDURE
o Choosing between action & application Material =
Ø Whether there is a material dispute of fact substantial dispute
Ø Material dispute – action
F Due to need for oral evidence
Ø No material dispute – use application
F Due to lack of need for oral evidence – matter decided merely on the papers
o MC mostly hears action procedures
Ø Applications are exception rather than rule – can only bring application if authorised by statute & regulations
Action procedure
Action procedure
Parties Plaintiff & defendant
Basis for claim Delict, contract, unjustified enrichment
Want to claim o Compensation (contractual/delictual damages)
o Specific performance
Used when o Material dispute of fact
o Application inappropriate
o Action prescribed by statute (e.g. divorce)
Commences with Issuing of summons by plaintiff
How matter is resolved o Pleading exchanged between parties
Ø Defendant’s plea & counterclaim
Ø Plaintiff’s reply to defendant’s plea
Ø Plaintiff’s plea to defendant’s counterclaim
Oral evidence? Action trial where oral evidence is presented
2
, Court judgment Grants in favour of plaintiff or dismisses (in favour of defendant)
Examples o Divorce
o Claim for damages (contract/delict)
Costs Takes longer & is more expensive
Application procedure Also known as “motion” procedure Insolvency
Natural person – sequestration
Juristic person – liquidation
Application procedure
Parties Applicant & respondent
Want to claim o Other forms of relief (not compensation) Application
Ø Interdict, ejectment, insolvency prescribed for
Used when insolvency by both
o No material dispute of fact HC & MC
o Prescribed by statute (e.g. insolvency)
o Not prohibited (e.g. not permissible for claiming damages)
o Disputes of law
Commences with Issuing of notice of motion & supporting founding affidavit by applicant
How matter is resolved Arguing on papers by legal representatives
Oral evidence? Oral evidence & witnesses not allowed
Court judgment (outcome) Granted (applicant) or dismissed (respondent)
Examples o Admission as an attorney
o Sequestration/liquidation
o Interdict
Two types o 1. With notice – more than one party (opposition to application)
o 2. Without notice – only one party before court (ex parte)
With notice Affidavit
Sworn statement signed in presence of
o With notice commissioner of oaths
Ø More than one party (opposition to application)
Ø Commences with – notice of motion + founding affidavit
o 3 sets of affidavits (NOT pleadings) in application with notice
Ø 1. Founding affidavit (applicant’s case) Application without notice
Applicant issues only a notice of motion
Ø 2. Answering affidavit (respondent’s answer) & founding affidavit
Ø 3. Replying affidavit (applicants reply)
o No trial
Ø Argument in court made by legal representatives
ACTION APPLICATION
Parties Plaintiff & defendant Applicant & respondent
Basis Material dispute of facts No material dispute of facts or prescribed/prohibited
How to resolve Decided following oral (& other) evidence by Decided on the papers before court – general rule:
parties & witnesses no evidence allowed
Commencement Plaintiff issues summons Applicant issues notice of motion & supporting
founding affidavit
Dominus litis Plaintiff Applicant
Further Further pleadings exchanged: Further affidavits are exchanged:
documents 1. Defendant’s plea & counterclaim 1. Opposing affidavit
2. Plaintiff’s reply to defendant’s plea 2. Replying affidavit
(replication)
3. Plaintiff’s plea to defendant’s counterclaim
Summons Notice of motion & founding affidavit
Plea Answering affidavit
Replication Replying affidavit
Trial After exchange of pleadings preparation for No written preparation for trial stage
trial
Evidence Oral evidence Normally no oral evidence
End Ends in trial court – where oral evidence & Ends in motion court – no oral evidence, parties do
witnesses are presented not testify, argued on papers by legal representatives
Nature o More expensive & time-consuming o Less expensive & quicker
o Takes longer thus involves more costs o Can be done in a shorter space of time & legal
3
, costs are therefore less
Remedies? Damages Cannot be used for damages, used for
interdicts/declarations/ejectments/insolvency
Court order Judgment in favour of plaintiff/defendant Application granted or dismissed
Choosing between action and application
o For purposes of choosing between action & application:
Ø 5 categories of cases must be considered
o 1. Action/application directed by statute
Ø Type of procedure laid down in statute must be followed
F Companies Act – winding-up of company takes place using application Procedure applicable prescribed
by rules of court which prescribe
F Divorce Act – proceedings must be instituted using action action
o 2. Unliquidated claim for damages
Unliquidated = amount has
Ø Action procedure compulsory not been agreed beforehand
o 3. Cases in which urgent relief is sought
Ø Litigant must use urgent application (no mechanism for granting of urgent relief to plaintiff in action
proceedings)
Ø Even if matter requires action procedure to properly settle it, to acquire urgent relief – application procedure
must be used
o 4. Cases in which no relief is sought against any other person
Ø Can only use application procedure (ex parte) – e.g. application for admission as attorney
o 5. Cases outside the above categories where choice between procedures is available
Ø Depends on whether material dispute of fact exists or is likely to arise during litigation
F Material dispute of fact – action ; no material dispute of fact – application
o Finding on a material dispute of facts
Ø Can only be made after having opportunity to observe demeanour of parties &/or their witnesses, in particular
under cross-examination
F Opportunity not available in application proceedings
Deponents –
Ways in which material dispute of fact may arise – Room Hire case statement under oath
o 1. Respondent may deny material allegations made by applicant &/or deponents of applicant’s behalf
Ø & produce evidence by deponents to the contrary
o 2. Respondent may plead new allegations (not contained in applicant’s founding affidavit) in confession &
avoidance of applicant
Ø Allegations may be disputed by applicant
o 3. Respondent may concede that he has no knowledge of material facts averred by applicant but may deny them,
putting the applicant to the proof of them
Ø May give evidence to show applicant & their deponents are untruthful or unreliable
Ø May give evidence that certain facts (facta probantia) on which applicant relies in order to prove main facts
(facta probanda) are untrue
o Respondent must raise real/genuine/bona fide disputes of facts
Ø SCA: Bare denials not acceptable where the facts deposed [testified] to lie purely in knowledge of litigant
deposing to answering affidavit
F Unless facts in question are peculiarly in knowledge of applicant & respondent has no knowledge of them
Ø Disputes must not be too vague & general
F Each material averment must be met & answered appropriately, not enveloped in fog that hides reality
o In order to argue that disputes of fact were reasonably foreseeable
Ø Those disputes must be set out in answering affidavit
F Which must set out basis on which it is alleged that disputes were reasonably foreseeable
4
Chapter 1 – Intro to Law of Civil Procedure........................................................................................................................2
Chapter 2 – Court Structure..................................................................................................................................................7
Chapter 3 – Consultation, Legal Representation, Demand and Prescription.....................................................................13
Chapter 4 – Jurisdiction......................................................................................................................................................20
Chapter 5 – Jurisdiction of the High Court.........................................................................................................................25
Chapter 6 – Jurisdiction of the Magistrates Court..............................................................................................................32
Chapter 7 – Parties to Litigation & Citation.......................................................................................................................38
1
, Chapter 1 – Intro to Law of Civil Procedure
SUBSTANTIVE LAW VS PROCEDURAL LAW
o Substantive law (the what)
Ø Content & meaning of legal rules
Ø Person’s rights, duties, remedies – content & scope Two concepts are
interdependent
o Procedural law (the how)
Ø Enforcement of rights, duties, obligations
Ø How enforcement of rights, duties, & remedies should be practically handled – before trial, during trial, post-trial
CRIMINAL VS CIVIL
o Civil law
Ø Enables parties to take action to enforce rights, claim remedies & defend actions
o Criminal law One set of facts can give rise
Ø Enables State to prosecute wrongdoer on behalf of general public to both civil matter &
criminal matter
Ø In order to promote & protect health & safety of general public
Civil Criminal
Area of law Private Public
Aim Compensation/interdict Protect health & safety of public + punish wrongdoers
Quantum of proof Balance of probabilities Beyond reasonable doubt
Parties Normally individuals – A v B Always State v Accused – S v X
Role of state State not always a party State always a party
Dominus litis Plaintiff/applicant State
Burden of proof Rests on plaintiff/applicant Rests on State
Interests affected Private – one person Public – General public
Voluntary? Voluntary State decides
Outcome of case Relief granted/dismissed Accused convicted/acquitted
Forum Some courts deal exclusively with civil Some courts deal exclusively with criminal matters
matters + ADR
ACTION VS APPLICATION PROCEDURE
o Choosing between action & application Material =
Ø Whether there is a material dispute of fact substantial dispute
Ø Material dispute – action
F Due to need for oral evidence
Ø No material dispute – use application
F Due to lack of need for oral evidence – matter decided merely on the papers
o MC mostly hears action procedures
Ø Applications are exception rather than rule – can only bring application if authorised by statute & regulations
Action procedure
Action procedure
Parties Plaintiff & defendant
Basis for claim Delict, contract, unjustified enrichment
Want to claim o Compensation (contractual/delictual damages)
o Specific performance
Used when o Material dispute of fact
o Application inappropriate
o Action prescribed by statute (e.g. divorce)
Commences with Issuing of summons by plaintiff
How matter is resolved o Pleading exchanged between parties
Ø Defendant’s plea & counterclaim
Ø Plaintiff’s reply to defendant’s plea
Ø Plaintiff’s plea to defendant’s counterclaim
Oral evidence? Action trial where oral evidence is presented
2
, Court judgment Grants in favour of plaintiff or dismisses (in favour of defendant)
Examples o Divorce
o Claim for damages (contract/delict)
Costs Takes longer & is more expensive
Application procedure Also known as “motion” procedure Insolvency
Natural person – sequestration
Juristic person – liquidation
Application procedure
Parties Applicant & respondent
Want to claim o Other forms of relief (not compensation) Application
Ø Interdict, ejectment, insolvency prescribed for
Used when insolvency by both
o No material dispute of fact HC & MC
o Prescribed by statute (e.g. insolvency)
o Not prohibited (e.g. not permissible for claiming damages)
o Disputes of law
Commences with Issuing of notice of motion & supporting founding affidavit by applicant
How matter is resolved Arguing on papers by legal representatives
Oral evidence? Oral evidence & witnesses not allowed
Court judgment (outcome) Granted (applicant) or dismissed (respondent)
Examples o Admission as an attorney
o Sequestration/liquidation
o Interdict
Two types o 1. With notice – more than one party (opposition to application)
o 2. Without notice – only one party before court (ex parte)
With notice Affidavit
Sworn statement signed in presence of
o With notice commissioner of oaths
Ø More than one party (opposition to application)
Ø Commences with – notice of motion + founding affidavit
o 3 sets of affidavits (NOT pleadings) in application with notice
Ø 1. Founding affidavit (applicant’s case) Application without notice
Applicant issues only a notice of motion
Ø 2. Answering affidavit (respondent’s answer) & founding affidavit
Ø 3. Replying affidavit (applicants reply)
o No trial
Ø Argument in court made by legal representatives
ACTION APPLICATION
Parties Plaintiff & defendant Applicant & respondent
Basis Material dispute of facts No material dispute of facts or prescribed/prohibited
How to resolve Decided following oral (& other) evidence by Decided on the papers before court – general rule:
parties & witnesses no evidence allowed
Commencement Plaintiff issues summons Applicant issues notice of motion & supporting
founding affidavit
Dominus litis Plaintiff Applicant
Further Further pleadings exchanged: Further affidavits are exchanged:
documents 1. Defendant’s plea & counterclaim 1. Opposing affidavit
2. Plaintiff’s reply to defendant’s plea 2. Replying affidavit
(replication)
3. Plaintiff’s plea to defendant’s counterclaim
Summons Notice of motion & founding affidavit
Plea Answering affidavit
Replication Replying affidavit
Trial After exchange of pleadings preparation for No written preparation for trial stage
trial
Evidence Oral evidence Normally no oral evidence
End Ends in trial court – where oral evidence & Ends in motion court – no oral evidence, parties do
witnesses are presented not testify, argued on papers by legal representatives
Nature o More expensive & time-consuming o Less expensive & quicker
o Takes longer thus involves more costs o Can be done in a shorter space of time & legal
3
, costs are therefore less
Remedies? Damages Cannot be used for damages, used for
interdicts/declarations/ejectments/insolvency
Court order Judgment in favour of plaintiff/defendant Application granted or dismissed
Choosing between action and application
o For purposes of choosing between action & application:
Ø 5 categories of cases must be considered
o 1. Action/application directed by statute
Ø Type of procedure laid down in statute must be followed
F Companies Act – winding-up of company takes place using application Procedure applicable prescribed
by rules of court which prescribe
F Divorce Act – proceedings must be instituted using action action
o 2. Unliquidated claim for damages
Unliquidated = amount has
Ø Action procedure compulsory not been agreed beforehand
o 3. Cases in which urgent relief is sought
Ø Litigant must use urgent application (no mechanism for granting of urgent relief to plaintiff in action
proceedings)
Ø Even if matter requires action procedure to properly settle it, to acquire urgent relief – application procedure
must be used
o 4. Cases in which no relief is sought against any other person
Ø Can only use application procedure (ex parte) – e.g. application for admission as attorney
o 5. Cases outside the above categories where choice between procedures is available
Ø Depends on whether material dispute of fact exists or is likely to arise during litigation
F Material dispute of fact – action ; no material dispute of fact – application
o Finding on a material dispute of facts
Ø Can only be made after having opportunity to observe demeanour of parties &/or their witnesses, in particular
under cross-examination
F Opportunity not available in application proceedings
Deponents –
Ways in which material dispute of fact may arise – Room Hire case statement under oath
o 1. Respondent may deny material allegations made by applicant &/or deponents of applicant’s behalf
Ø & produce evidence by deponents to the contrary
o 2. Respondent may plead new allegations (not contained in applicant’s founding affidavit) in confession &
avoidance of applicant
Ø Allegations may be disputed by applicant
o 3. Respondent may concede that he has no knowledge of material facts averred by applicant but may deny them,
putting the applicant to the proof of them
Ø May give evidence to show applicant & their deponents are untruthful or unreliable
Ø May give evidence that certain facts (facta probantia) on which applicant relies in order to prove main facts
(facta probanda) are untrue
o Respondent must raise real/genuine/bona fide disputes of facts
Ø SCA: Bare denials not acceptable where the facts deposed [testified] to lie purely in knowledge of litigant
deposing to answering affidavit
F Unless facts in question are peculiarly in knowledge of applicant & respondent has no knowledge of them
Ø Disputes must not be too vague & general
F Each material averment must be met & answered appropriately, not enveloped in fog that hides reality
o In order to argue that disputes of fact were reasonably foreseeable
Ø Those disputes must be set out in answering affidavit
F Which must set out basis on which it is alleged that disputes were reasonably foreseeable
4
