IURI376 summary of study units 1-5

SU 1- INTRODUCTION
LAW OF CIVIL PROCEDURE
Civil procedure falls under procedural law
 Private law claims
 Legal mechanism to give effect to the damages claim
 It is the law in action which breathes life into substantive law- McQuoid-Mason

DIFFERENCE BETWEEN LAW OF CIVIL PROCEDURE AND LAW OF CRIMINAL
LAW
CIVIL PROCEDURE CRIMINAL LAW
Plaintiff versus Defendant (civil action) State versus Accused
Applicant versus Respondent (civil
application)
Private in nature Public in nature
Whether or not defendant or respondent is Whether or not accused is guilty of a crime
liable for the plaintiff’s or applicant’s claim or an offence
Balance of probabilities Beyond reasonable doubt
Pay damages (money) or perform such Punished by a fine or imprisonment or both
service for the plaintiff or applicant
Main aim- Main aims-
Payment of money Retribution, deterrence, rehabilitation and
incapacitation
Parties themselves must initiate and pursue Crime has been reported- criminal justice
matters system set in motion


LAW OF CIVIL PROCEDURE DEALS WITH ISSUES SUCH AS:
 Jurisdiction of the court to hear civil disputes
 Different ways in which disputes can be lodged and conducted
 Way in which court documents are served
 Way in which civil proceedings are conducted in court
 Ways in which a court order can be enforced
 Appeals and/or reviews against sentences/court orders

HOW PROCEDURAL LAW GIVES EFFECT TO SUBSTANTIVE LAW
Substantive law- Describes what a person’s right duties and remedies are
- Determines the content and scope of a natural and juristic person’s rights
Procedural law- Indicates how these rights, remedies and duties may be enforces
- Procedure for enforcement of these rights, remedies and duties

,Procedural law enables a party to approach a court for legal relief on the basis of the
infringement of a party’s right- therefore furnishes the mechanism for the enforcement of
substantive law

RESPECTIVE OFFICERS IN HIGH COURT AND MAGISTRATES’ COURT
MAGISTRATES’ COURT
 Situated in each of the magisterial districts which carve up SA
 Creature of Statute
 Court officials-
o Chief Magistrate and Magistrates
 Monetary value-
o District- 0-200 000
o Regional- 200 001-400 000
 Magistrates
 Clerk of the Court/ Assistant Registrar
 Sheriff of the Magistrate’s Court
 Taxing Master
 Family Advocate
 Interpreters
 Court Orderly
 Stenographers
 Attorneys
 Advocates
 Master of the High Court (estates)
HIGH COURT
 Each province has a division and sometimes also a local division
 Inherent powers
 Court officials-
o President of Provincial Division of High Court
 Judges
 Registrar
 Sheriff of the High Court
 Taxing Master
 Family Advocate
 Interpreters
 Court Orderly
 Judges Clerks
 Stenographers
 Attorneys
 Advocates

,DIVISIONS IN THE HIGH COURT
 Eastern Cape HC
o Grahamstown- ECG
o Bisho- ECB
o Mthatha- ECM
o Port Elizabeth- ECP
 Free State HC
o Bloemfontein- FB
 North Gauteng HC
o Pretoria- GP
 South Gauteng HC
o Johannesburg- GJ
 KwaZulu-Natal HC
o Pietermaritzburg- KZP
o Durban- KZD
 Limpopo HC
o Polokwane- LP
o Thohoyandou- LT
 Mpumalanga HC
o Nelspruit- MN
 Northern Cape HC
o Kimberley- NCK
 North-West HC
o Mafikeng- NWM
 Western Cape HC
o Cape Town- WCC

PROCESS AND PLEADINGS, APPLICATIONS AND NOTICES
PROCESS-
 Proceedings in any action or prosecution
PLEADINGS-
 Documents made by and exchanged between the parties to an action
 Contain brief summaries of the material facts on which the plaintiff relies for his
cause of action and the defendant for his defence
 Purpose is to limit and define the issues to be adjudicated upon by the court at trial
APPLICATIONS-
 Term used for court proceedings brought by a notice of motion supported by
affidavits
 Oral applications can also be made

, NOTICES-
 Official court document which a litigant uses to inform his opponent of an action he
is intending to take ito the Rules of Court or ito any other statute

SOURCES OF LAW OF CIVIL PROCEDURE
a) Superior Courts Act 10 Of 2013
b) Uniform Rules of the High Court
c) Magistrates’ Court Act 32 of 1944
d) Magistrates’ Court Rules
e) Small Claims Court Act 61 of 1984
f) Constitution of the Republic of South Africa 1996
 Section 165- judicial authority
 Section 166- structure of courts
 Section 169- powers of HC
 Section 171- courts must function ito legislation
 Section 173- Superior Courts have inherent jurisdiction
 Section 174- how are judges appointed
g) Divorce Act
h) National Credit Act 34 of 2005
i) Consumer Protection Act 68 of 2008
j) Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002
k) Prescription Act 68 of 1969

FUNDAMENTAL PRINCIPLES OF LAW OF CIVIL PROCEDURE
 Fair legal processes
 Independent and impartial bench
 All people have equal access to the bench
 All people have equal opportunity to state a case before the court
 Audi alteram partem
o Defendant must be notified of proceedings instituted against him/ parties
must be informed of the other party’s case
o Nature- claim/defence and its grounds
 Duration and cost of litigation must be reasonable
o The presentation of evidence material should be controlled in order to
achieve the purpose
 Court proceedings (final trial) must take place in public
 Courts must determine whether the factual allegations in the pleas are substantiated
by evidence (oral/writing)
 Judgement must be final and binding with an opportunity for appeal and review if
grounds are justified


PRINCIPLE OF STARE DECISIS