, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
QUESTION 1
(a) Briefly explain in general terms in what respect has the Constitution, 1996 affected the
Law of Civil Procedure in South Africa.
The Constitution, 1996, particularly the Bill of Rights (Chapter 2), has had a significant impact on
the law of civil procedure by requiring that procedural rules and practices align with fundamental
rights¹. Section 8 provides that the Bill of Rights applies to "all law," including civil procedure². This
has led to the amendment or invalidation of certain procedural rules that were found to be
unconstitutional and has influenced the development of new rules and practices to promote access to
justice and fairness³. Examples include changes to debt collection procedures to prevent the
imprisonment of debtors⁴, revision of notice and prescription periods for litigation against the state⁵,
and the requirement for judicial oversight before a person's home can be sold in execution⁶.
(b) Briefly explain in what respects the small claims courts have been made more accessible
and user-friendly to litigants than other courts.
Small claims courts have been designed to be more accessible and user-friendly in the following
respects:⁷
Self-Representation: Legal representation by a member of the legal profession is forbidden in
small claims courts, which keeps legal costs to a minimum and requires litigants to represent
themselves⁸.
Simplified Procedures: Pre-trial formalities have been simplified and reduced to the barest
essentials; for example, no formal pleadings are required, only a letter of demand and a
summons⁹.
Active Role of the Judicial Officer: The commissioner in a small claims court plays an active,
inquisitorial role in assisting the litigants to present their cases, in contrast to the passive role of
judicial officers in other courts¹⁰.
¹ CIV3701 Study Guide, p. 17; Pete et al., 2024, p. 13.
² CIV3701 Study Guide, p. 17.
³ Pete et al., 2024, p. 13-15.
⁴ Pete et al., 2024, p. 13.
⁵ CIV3701 Study Guide, p. 17; Pete et al., 2024, p. 14.
⁶ Pete et al., 2024, p. 15.
⁷ CIV3701 Study Guide, p. 24.
⁸ CIV3701 Study Guide, p. 24; Pete et al., 2024, p. 485.
⁹ CIV3701 Study Guide, p. 24; Pete et al., 2024, p. 486.
¹⁰ CIV3701 Study Guide, p. 24; Pete et al., 2024, p. 487.
QUESTION 1
(a) Briefly explain in general terms in what respect has the Constitution, 1996 affected the
Law of Civil Procedure in South Africa.
The Constitution, 1996, particularly the Bill of Rights (Chapter 2), has had a significant impact on
the law of civil procedure by requiring that procedural rules and practices align with fundamental
rights¹. Section 8 provides that the Bill of Rights applies to "all law," including civil procedure². This
has led to the amendment or invalidation of certain procedural rules that were found to be
unconstitutional and has influenced the development of new rules and practices to promote access to
justice and fairness³. Examples include changes to debt collection procedures to prevent the
imprisonment of debtors⁴, revision of notice and prescription periods for litigation against the state⁵,
and the requirement for judicial oversight before a person's home can be sold in execution⁶.
(b) Briefly explain in what respects the small claims courts have been made more accessible
and user-friendly to litigants than other courts.
Small claims courts have been designed to be more accessible and user-friendly in the following
respects:⁷
Self-Representation: Legal representation by a member of the legal profession is forbidden in
small claims courts, which keeps legal costs to a minimum and requires litigants to represent
themselves⁸.
Simplified Procedures: Pre-trial formalities have been simplified and reduced to the barest
essentials; for example, no formal pleadings are required, only a letter of demand and a
summons⁹.
Active Role of the Judicial Officer: The commissioner in a small claims court plays an active,
inquisitorial role in assisting the litigants to present their cases, in contrast to the passive role of
judicial officers in other courts¹⁰.
¹ CIV3701 Study Guide, p. 17; Pete et al., 2024, p. 13.
² CIV3701 Study Guide, p. 17.
³ Pete et al., 2024, p. 13-15.
⁴ Pete et al., 2024, p. 13.
⁵ CIV3701 Study Guide, p. 17; Pete et al., 2024, p. 14.
⁶ Pete et al., 2024, p. 15.
⁷ CIV3701 Study Guide, p. 24.
⁸ CIV3701 Study Guide, p. 24; Pete et al., 2024, p. 485.
⁹ CIV3701 Study Guide, p. 24; Pete et al., 2024, p. 486.
¹⁰ CIV3701 Study Guide, p. 24; Pete et al., 2024, p. 487.
