Kaya Borkowski
Civil Procedure
Whole year notes
Segment outline
1: ethics
2: history
3: alternative dispute resolution
4: pleadings
5: locus standi and joinder
6: letters of demand
7: MC jurisdiction
8: HC jurisdiction
9: service
10: applications
11: actions
Segment 1
Ethics
Readings
- South African Legal Practice Council Code of Conduct
- https://lpc.org.za/wp-content/uploads/2020/10/CODE-OF-CONDUCT.pdf\
Ethics
- As a lawyer, you owe a duty to clients, the firm, court, the public and the legal profession
- Refer to the South African Legal Practice Council Code of Conduct when answering these questions
Note ⭐
- You do not have to remember the clauses of the Code of Conduct (such as 29.2 etc). In a test or exam, you
must be able to explain to me the ethical answer relying on the Code of Conduct in your own words. For
example: “According to the Code of Conduct, lawyers must not be overly litigious. Furthermore, a court can
impose a costs order on an attorney who abuses the court process by being overly belligerent.”
- During an exam, any scenario I present will always fall within the framework of the questions discussed in
class.
- As you can see from the examples above, the answers are clear and concise. If you write incoherent or
irrelevant information, I will assume you have not read the Code.
Scenario Questions
Distribution of this document is illegal
, Kaya Borkowski
1. Your client receives a summons. After consulting with your client, you discover he has no defence to the
plaintiff’s claim. However, your client tells you that he wants you to buy time. He tells you that he wants you
to defend the matter and that he wants you to litigate the case, nonetheless.
- Provision 9.9: A legal practitioner shall, in giving any advice about the prospects of success in any matter,
give a true account of his or her opinion and shall not pander to a client’s whims or desires. However, in any
matter in which the legal practitioner’s opinion is adverse to the prospects of success, the legal practitioner
may upon client’s insistence place before a court the client’s case for the adjudicating officer to decide the
matter and the legal practitioner shall advance that case as best as
- You take instructions but do need need to pander to a client’s desire
- Provision 60.1 A legal practitioner shall not abuse or permit abuse of the process of court or tribunal and
shall act in a manner that shall promote and advance the efficacy of the legal process.
- If you find that your client has no defence, should you defend them to satisfy their wishes? No, you must
advance efficacy. If their instructions are unethical, not obliged to follow them
- Can still assist the client in damage control
2. You are representing a client in a divorce matter. You discover some bitterness because your client caught
the other spouse cheating. The spouse sends your client a reasonable divorce settlement. Your client
instructs you to reject the settlement, litigate the matter, and take the other spouse to ‘the cleaners’. There
are minor children involved.
- Provision 59.2: A legal practitioner may act for two or more adversaries in drawing a settlement agreement
to capture their agreement, but must advise the parties of their rights to independent legal advice. Moreover,
in any matter involving a settlement of a matrimonial dispute or a matter involving the regulation of care and
residence of children, the legal practitioner shall take active steps to ensure that all aspects of any
contemplated settlement is equitable to all parties and in the best interests of the children.
- Ethical responsibility to represent the best interests of the children
- Clemson v Clemson (2000): court mentioned the name of the attorney and said that they treated the divorce
matter as if it was a battle between the parties and used the children as pawns. De bonis propriis (‘straight
out of the pocket’): punitive cost order made against that legal representative, they must pay the cost of the
opposing party and not be able to receive payment from their client
3. Your client instructs you to bring an application for the presumption of death of her husband. Her husband
mysteriously disappeared six years ago with no trace. Your client informs you that she met a new person
she intends to marry. The person happens to be her missing husband’s physician. In the ex parte
application for the presumption of death, the physician deposes an affidavit discussing the husband’s sound
health condition at the time of his disappearance. In your client’s affidavit, you do not mention the love affair.
- Provision 54.7: A legal practitioner shall, in any ex parte proceedings, disclose to a court every fact (save
those covered by professional privilege or client confidentiality) known to the legal practitioner that might
reasonably have a material bearing on the decision the court is required to make.
- It is an ex parte application because there is no respondent (because the respondent is missing, here it
would be the respondent)
- Schlesinger 1979(4)SA: sets out test for utmost good faith and is about providing material information
Distribution of this document is illegal
, Kaya Borkowski
4. You suffer from a mental health condition. This requires you to take medication. The mental health
condition, together with the medication, causes you to experience impaired judgement, making it difficult to
concentrate and feel irritable. You are involved in a litigation matter set down for trial.
- Provision 20.3: If, after an attorney has accepted an instruction to appear in court on behalf of a client, any
circumstances arise that imperil the proper discharge of his or her duties of diligence, he or she shall, once
such eventuality is apparent, especially in relating to trials, report such circumstances to the client to
facilitate timeous steps to inhibit prejudice to the client and facilitate a successor to be instructed in time to
take over the instructions.
- Disclose matters to the client. It depends on how client perceives the situation and whether they are
empathetic or not
5. You are involved in a litigation matter for a wealthy client who brings in a lot of work and money for your law
firm. You discover that your client has been fiddling with contracts by adding in terms after the contract has
been signed. You are reasonably sure that he did the same thing to the defendant. You bring this to the
attention of your senior partner, but she tells you that you must act like you know nothing.
- Provision 9.2: A legal practitioner shall not, in giving advice to a client, advise conduct that would
contravene any law; more particularly, a legal practitioner shall not devise any scheme which involves the
commission of any offence.
- Provision 9.5: Whenever a client charged with an offence confesses at any time to a legal practitioner that
the client is guilty of the offence, the legal practitioner must at once explain to that client that the future
conduct of the matter shall be subject to these strictures:
- In the case with the senior partner hushing you, you would go to someone else in the firm and disclose what
has happened
- You are obliged not to follow the view of the senior partner and contact the Council
6. You are a candidate legal practitioner. Your principal asks you to accompany your firm’s client to an attorney
so the client can commission an affidavit. The commissioning attorney turns out to be your father’s cousin.
- No because an affidavit is evidence on paper. It has to be a person not associated with you or the firm, has
to be someone completely independent
7. You are due to be in court for a trial. You have not prepared adequately. On the trial day, you ask a doctor
who is your friend to give you a sick note for three days so that you can get the trial date postponed. You do
not want to prejudice the client.
- Provision 60.4: A legal practitioner who is expected to appear in a court or before a tribunal at a given time
shall honour that commitment and shall organise other commitments to prevent interference with the
scheduled court hearings. In particular, the legal practitioner shall not endeavour to seek or arrange a
postponement of the matter or a change to a different time to suit his or her convenience, except when the
instructing attorney (where appointed) and the client, having been fully and accurately informed of the
reasons relied upon by the legal practitioner, have agreed, and
Distribution of this document is illegal
, Kaya Borkowski
-when an opposing party is affected, the opposition legal representatives, if any, having been
fully and accurately informed, have agreed, and
- the business of the court or tribunal is not materially compromised
- When a time has been set down for court, you must be there
8. You are involved in a trial. You know the magistrate as you are in the same dance club.
- Provision 26.6: Counsel shall, once alerted to the fact that the court or other adjudicative body is to be
presided over by a member of counsel’s family or other person with a close personal relationship with
counsel, disclose that fact to the instructing attorney and to opposing counsel.
- Disclose it in private to the attorney and council on the other side. If they think it is a problem, one goes to
see the magistrate in the chambers (not in open court, do not embarrass a judicial officer in court)
9. During a mediation session, you discover a treasure trove of information about all the relevant parties. After
taking recreational marijuana at a Tupperware party, you feel pretty chatty and decide to be the life of the
party. You regale the guests with the information that you heard at the mediation.
- Provision 57.2: A legal practitioner shall scrupulously preserve the personal and confidential information of
a client communicated to him or her, unless the information is not privileged and disclosure is required by
law.
- Uniform rule of court 41A: the mediation rules. Everything that happens at the mediation is confidential
10.When researching to draft your client’s heads of argument, you come across an unreported judgement that
goes against the argument you are trying to make. You decide not to mention it in the heads of argument
because why should you assist the opposing party? They should do their own research
- You are obliged to disclose it
- Provision 57.5: A legal practitioner shall, in all proceedings, disclose to a court or a tribunal all
relevant authorities of which the legal practitioner is aware that might reasonably have a material
bearing on the decision the court or tribunal is required to make.
- You cannot ever mislead the court
- You are an officer of the court first, then the lawyer of the client
11.When applying for a job as a candidate attorney, they are impressed by your transcript because you have
good marks. Little do they know you have hardly attended lectures, borrowed other people’s notes, asked
third parties to do work for you, crammed and spotted for exams, and regularly sought exemptions for tests
and assignments. You know that your knowledge of the law is negligible in most areas.
- Provision 3.13: remain reasonably abreast of legal developments, applicable laws and regulations,
legal theory and the common law, and legal practice in the fields in which they practise;
- Provision 3.11: use their best efforts to carry out work in a competent and timely manner and not
take on work which they do not reasonably believe they will be able to carry out in that manner;
- Provision 26.4: Counsel may decline offers of briefs in matters in which they believe they are not
competent to render professional services at the appropriate standard reasonably expected of a
Distribution of this document is illegal
Civil Procedure
Whole year notes
Segment outline
1: ethics
2: history
3: alternative dispute resolution
4: pleadings
5: locus standi and joinder
6: letters of demand
7: MC jurisdiction
8: HC jurisdiction
9: service
10: applications
11: actions
Segment 1
Ethics
Readings
- South African Legal Practice Council Code of Conduct
- https://lpc.org.za/wp-content/uploads/2020/10/CODE-OF-CONDUCT.pdf\
Ethics
- As a lawyer, you owe a duty to clients, the firm, court, the public and the legal profession
- Refer to the South African Legal Practice Council Code of Conduct when answering these questions
Note ⭐
- You do not have to remember the clauses of the Code of Conduct (such as 29.2 etc). In a test or exam, you
must be able to explain to me the ethical answer relying on the Code of Conduct in your own words. For
example: “According to the Code of Conduct, lawyers must not be overly litigious. Furthermore, a court can
impose a costs order on an attorney who abuses the court process by being overly belligerent.”
- During an exam, any scenario I present will always fall within the framework of the questions discussed in
class.
- As you can see from the examples above, the answers are clear and concise. If you write incoherent or
irrelevant information, I will assume you have not read the Code.
Scenario Questions
Distribution of this document is illegal
, Kaya Borkowski
1. Your client receives a summons. After consulting with your client, you discover he has no defence to the
plaintiff’s claim. However, your client tells you that he wants you to buy time. He tells you that he wants you
to defend the matter and that he wants you to litigate the case, nonetheless.
- Provision 9.9: A legal practitioner shall, in giving any advice about the prospects of success in any matter,
give a true account of his or her opinion and shall not pander to a client’s whims or desires. However, in any
matter in which the legal practitioner’s opinion is adverse to the prospects of success, the legal practitioner
may upon client’s insistence place before a court the client’s case for the adjudicating officer to decide the
matter and the legal practitioner shall advance that case as best as
- You take instructions but do need need to pander to a client’s desire
- Provision 60.1 A legal practitioner shall not abuse or permit abuse of the process of court or tribunal and
shall act in a manner that shall promote and advance the efficacy of the legal process.
- If you find that your client has no defence, should you defend them to satisfy their wishes? No, you must
advance efficacy. If their instructions are unethical, not obliged to follow them
- Can still assist the client in damage control
2. You are representing a client in a divorce matter. You discover some bitterness because your client caught
the other spouse cheating. The spouse sends your client a reasonable divorce settlement. Your client
instructs you to reject the settlement, litigate the matter, and take the other spouse to ‘the cleaners’. There
are minor children involved.
- Provision 59.2: A legal practitioner may act for two or more adversaries in drawing a settlement agreement
to capture their agreement, but must advise the parties of their rights to independent legal advice. Moreover,
in any matter involving a settlement of a matrimonial dispute or a matter involving the regulation of care and
residence of children, the legal practitioner shall take active steps to ensure that all aspects of any
contemplated settlement is equitable to all parties and in the best interests of the children.
- Ethical responsibility to represent the best interests of the children
- Clemson v Clemson (2000): court mentioned the name of the attorney and said that they treated the divorce
matter as if it was a battle between the parties and used the children as pawns. De bonis propriis (‘straight
out of the pocket’): punitive cost order made against that legal representative, they must pay the cost of the
opposing party and not be able to receive payment from their client
3. Your client instructs you to bring an application for the presumption of death of her husband. Her husband
mysteriously disappeared six years ago with no trace. Your client informs you that she met a new person
she intends to marry. The person happens to be her missing husband’s physician. In the ex parte
application for the presumption of death, the physician deposes an affidavit discussing the husband’s sound
health condition at the time of his disappearance. In your client’s affidavit, you do not mention the love affair.
- Provision 54.7: A legal practitioner shall, in any ex parte proceedings, disclose to a court every fact (save
those covered by professional privilege or client confidentiality) known to the legal practitioner that might
reasonably have a material bearing on the decision the court is required to make.
- It is an ex parte application because there is no respondent (because the respondent is missing, here it
would be the respondent)
- Schlesinger 1979(4)SA: sets out test for utmost good faith and is about providing material information
Distribution of this document is illegal
, Kaya Borkowski
4. You suffer from a mental health condition. This requires you to take medication. The mental health
condition, together with the medication, causes you to experience impaired judgement, making it difficult to
concentrate and feel irritable. You are involved in a litigation matter set down for trial.
- Provision 20.3: If, after an attorney has accepted an instruction to appear in court on behalf of a client, any
circumstances arise that imperil the proper discharge of his or her duties of diligence, he or she shall, once
such eventuality is apparent, especially in relating to trials, report such circumstances to the client to
facilitate timeous steps to inhibit prejudice to the client and facilitate a successor to be instructed in time to
take over the instructions.
- Disclose matters to the client. It depends on how client perceives the situation and whether they are
empathetic or not
5. You are involved in a litigation matter for a wealthy client who brings in a lot of work and money for your law
firm. You discover that your client has been fiddling with contracts by adding in terms after the contract has
been signed. You are reasonably sure that he did the same thing to the defendant. You bring this to the
attention of your senior partner, but she tells you that you must act like you know nothing.
- Provision 9.2: A legal practitioner shall not, in giving advice to a client, advise conduct that would
contravene any law; more particularly, a legal practitioner shall not devise any scheme which involves the
commission of any offence.
- Provision 9.5: Whenever a client charged with an offence confesses at any time to a legal practitioner that
the client is guilty of the offence, the legal practitioner must at once explain to that client that the future
conduct of the matter shall be subject to these strictures:
- In the case with the senior partner hushing you, you would go to someone else in the firm and disclose what
has happened
- You are obliged not to follow the view of the senior partner and contact the Council
6. You are a candidate legal practitioner. Your principal asks you to accompany your firm’s client to an attorney
so the client can commission an affidavit. The commissioning attorney turns out to be your father’s cousin.
- No because an affidavit is evidence on paper. It has to be a person not associated with you or the firm, has
to be someone completely independent
7. You are due to be in court for a trial. You have not prepared adequately. On the trial day, you ask a doctor
who is your friend to give you a sick note for three days so that you can get the trial date postponed. You do
not want to prejudice the client.
- Provision 60.4: A legal practitioner who is expected to appear in a court or before a tribunal at a given time
shall honour that commitment and shall organise other commitments to prevent interference with the
scheduled court hearings. In particular, the legal practitioner shall not endeavour to seek or arrange a
postponement of the matter or a change to a different time to suit his or her convenience, except when the
instructing attorney (where appointed) and the client, having been fully and accurately informed of the
reasons relied upon by the legal practitioner, have agreed, and
Distribution of this document is illegal
, Kaya Borkowski
-when an opposing party is affected, the opposition legal representatives, if any, having been
fully and accurately informed, have agreed, and
- the business of the court or tribunal is not materially compromised
- When a time has been set down for court, you must be there
8. You are involved in a trial. You know the magistrate as you are in the same dance club.
- Provision 26.6: Counsel shall, once alerted to the fact that the court or other adjudicative body is to be
presided over by a member of counsel’s family or other person with a close personal relationship with
counsel, disclose that fact to the instructing attorney and to opposing counsel.
- Disclose it in private to the attorney and council on the other side. If they think it is a problem, one goes to
see the magistrate in the chambers (not in open court, do not embarrass a judicial officer in court)
9. During a mediation session, you discover a treasure trove of information about all the relevant parties. After
taking recreational marijuana at a Tupperware party, you feel pretty chatty and decide to be the life of the
party. You regale the guests with the information that you heard at the mediation.
- Provision 57.2: A legal practitioner shall scrupulously preserve the personal and confidential information of
a client communicated to him or her, unless the information is not privileged and disclosure is required by
law.
- Uniform rule of court 41A: the mediation rules. Everything that happens at the mediation is confidential
10.When researching to draft your client’s heads of argument, you come across an unreported judgement that
goes against the argument you are trying to make. You decide not to mention it in the heads of argument
because why should you assist the opposing party? They should do their own research
- You are obliged to disclose it
- Provision 57.5: A legal practitioner shall, in all proceedings, disclose to a court or a tribunal all
relevant authorities of which the legal practitioner is aware that might reasonably have a material
bearing on the decision the court or tribunal is required to make.
- You cannot ever mislead the court
- You are an officer of the court first, then the lawyer of the client
11.When applying for a job as a candidate attorney, they are impressed by your transcript because you have
good marks. Little do they know you have hardly attended lectures, borrowed other people’s notes, asked
third parties to do work for you, crammed and spotted for exams, and regularly sought exemptions for tests
and assignments. You know that your knowledge of the law is negligible in most areas.
- Provision 3.13: remain reasonably abreast of legal developments, applicable laws and regulations,
legal theory and the common law, and legal practice in the fields in which they practise;
- Provision 3.11: use their best efforts to carry out work in a competent and timely manner and not
take on work which they do not reasonably believe they will be able to carry out in that manner;
- Provision 26.4: Counsel may decline offers of briefs in matters in which they believe they are not
competent to render professional services at the appropriate standard reasonably expected of a
Distribution of this document is illegal
