lOMoARcPSD|8439740
Civil Procedure Notes
Civil Procedure (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Reitumetse Modisa ()
, lOMoARcPSD|8439740
CHAPTER 1
~Not really relevant in the grand scheme of things, but some intro stuff should be mentioned.
NOTE: numbering in here is not always the same as in the textbook!
1.1 What is the law of civil procedure?
Civil procedure falls under ‘procedural law”, which indicates how rights, remedies and duties may be enforced.
1.2 Principles underlying the law of civil procedure (x8)
(a) All persons must have equal and effective access to an independent and impartial judiciary, with
reasonable costs to litigation.
(b) Throughout the proceedings both parties must be afforded an equal opportunity to present their respective
cases to the court (audi et alteram partem principle). This includes:
a. That the defendant must be notified of the proceedings.
b. That both parties must be informed of the nature of the opposing party’s case and the grounds on
which it is based.
(c) “Party control” – the decision to institute or defend an action and to determine the scope of the dispute
rests with the parties. The parties also decide on the evidentiary material to be presented as proof of their
respective cases.
(d) Provisions must be made for direct oral viva voce communication between the parties and the court during
presentation of their respective cases. This does not exclude written evidentiary material.
(e) The main proceeding (trial or argument of an application) must, in principle, take place in public.
(f) The court must consider the evidentiary material on objective and rational grounds.
(g) The court must give a reasoned and legally motivated judgement.
(h) The decision of the court is final and binding, but provisions exist for appeal or review.
1.3 Sources of the law of civil procedure
The most NB sources in SA are:
(1) The final Constitution of the Republic of South Africa of 1996.
(2) The Constitutional Court Complimentary Act 13 of 1995.
(3) The Rules of the Constitutional Court (CCR).
(4) The Supreme Court Act 59 of 1959.
(5) The Rules of the Supreme Court of Appeal.
(6) The Uniform Rules of Court applicable in all High Courts (HCR).
(7) The Magistrates’ Courts Act 32 of 1944.
(8) The Magistrates Court Rules (MCR).
(9) The Small Claims Court Act 61 of 1984.
(10)The common law underlying the rules of procedure and jurisdiction in the High Court.
(11)Other legislation and regulations relevant to specialised courts.
(12)Practice arrangements and directions applicable in the respective divisions of the High Court.
(13)Case law.
1.4 Mechanisms to solve civil disputes
- Disputes can be solved either throught the civil court structures or through alternative dispute resolution
(ADR) structures.
- A number of forms of ADR exist such as negotiation, mediation and arbitration.
o Negotiation involves a structured form of bargaining and debate.
o Mediation involves the assistance of an impartial third party.
o Arbitration involves an impartial third party adjudicating the dispute between the parties after taking
evidence and hearing the parties’ arguments. This may be agreed to in a contract (if written, the
Arbitration Act 42 of 1965 regulates the agreement). A formal national or international arbitration
body usually conducts arbitration.
- When taking instructions a legal representative must consider the various alternative modes available to
deal with the dispute at hand and select an appropriate method.
- Note that ADR is not suitable for all types of disputes.
1
Downloaded by Reitumetse Modisa ()
, lOMoARcPSD|8439740
CHAPTER 2
Structure of the Courts and Officers of the Courts
2.1 Introduction
The Constitution has had the following effect on the law of civil procedure:
(a) Locus standi
a. ITO common law, any party wishing to institute or defend legal proceedings must have a “direct
and substantial interest” in the right which forms the subject matter of the litigation.
(b) Litigation involving State organs
a. Notice requirements and prescriptive periods are now aligned with the Constitution.
(c) HCR 17(4)
a. ITO this rule every summons must state the names of the parties, their sex and marital status (if
female). Nedcor Bank v Hennop 2003 held that this was an infringement of s 9(1) and s 9(3) of the
equality clause of the Constitution.
(d) Section 65 Magistrates Court Act (debt collection procedure)
a. In Coetzee v Government of RSA 1995 it was held that the provision that a civil debtor could be
imprisoned for failure to pay a debt was unconstitutional.
2.2 Hierarchy of the South African Courts
Section 166 of the Constitution:
(a) The Constitutional Court.
(b) The Supreme Court of Appeal.
(c) The High Courts.
(d) The Magistrates’ Courts.
(e) Any other court established or recognised by an Act of Parliament.
a. Traditional Leaders Courts.
b. Small Claims Courts.
4.2 Specialised Courts:
- Labour Courts.
- Land Claims Court.
- Special Income Tax Court.
- Competition Appeal Court.
- Electoral Court.
- Special Consumer Court.
- Divorce Court.
- Children’s Court.
- Maintenance Court.
- Equality Court.
4.2 Officers of the Court
- Judges.
- Magistrates.
- Registrars of the High Court.
- Clerks of the Magistrates’Courts.
- The Sheriff.
- The Master of the HC.
- Legal practitioners.
~Now, NB stuff for exam!
2
Downloaded by Reitumetse Modisa ()
, lOMoARcPSD|8439740
CHAPTER 3
Consultation, Legal Representation, demand and Prescription
3.1 The initial consultation
In deciding whether to represent a prospective litigant, the attorney must consider a number of circumstances
including:
- Whether he or she may act on behalf of the client.
- Whether to proceed by action or application.
- Whether to appoint an advocate in the matter.
- The cost implications of the proceedings.
Apart from taking proper instructions during the initial consultation, the attorney will also have to make a number of
administrative arrangements.
- Firstly, a file must be opened on behalf of the client.
o The names of the parties must be clearly indicated on the outside of the file.
o Columns should be drawn on the inside and outside of the file to keep a chronological record of
pleadings and notices received, as well as those drafted and served and filed by the attorney.
o Also advisable to draw up a column to note telephone calls made and received (NB to draft a bill of
costs).
Attorney should note the date and time of the call, to whom the call was made or from
whom it was received, and duration and main points of discussion.
o It is NB to indicate all relevant dates (prescription and trial dates) on the outside of the file, which
must be diarised promptly.
- An account number should be allocated to the client so that the client can be debited with fees and
disbursements in respect of services rendered.
o Attorney must discuss cost implications during first consultation.
Also customary to obtain a deposit from the client to cover initial expenses.
- After consultation the attorney should address a letter to the client in which the attorney’s mandate is
clearly confirmed.
- It is essential to keep the client informed of any and all progress with regard to the matter.
If the attorney is unable to contact the client for lengthy period of time, thus making him unable to receive
instructions, he/she should withdraw as the attorney of record.
- But attorney remains responsible for the management of the case until the matter is finalised by means of a
settlement or a court order, or until his or her mandate is withdrawn.
3.2 The representation of parties
The right to legal representation is entrenched in s 35(2) and (3) of the Constitution.
The attorney-client relationship is one of representation by agency (ITO law of agency).
- A specific power of attorney (PoA) authorises an attorney to institute or defend a specific legal proceeding
on behalf of the client and to conduct any other function which is incidental to such a legal proceeding.
3.2.1 Representation in the HC
HCR 7 provides for legal representation without the need to file a PoA.
- If the attorney’s authority to represent a client is disputed, the attorney must satisfy the court of a mandate
to act on behalf of the client.
- BUT is appeal cases, the attorney needs a PoA to represent a client.
o HCR 7(3) and HCR 5: the PoA must be filed when the legal representative applies for an appeal
date.
o Each PoA must be signed by the client (or a third party on his behalf with proof) and comply with
specific legal requirements.
3
Downloaded by Reitumetse Modisa ()
Civil Procedure Notes
Civil Procedure (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Reitumetse Modisa ()
, lOMoARcPSD|8439740
CHAPTER 1
~Not really relevant in the grand scheme of things, but some intro stuff should be mentioned.
NOTE: numbering in here is not always the same as in the textbook!
1.1 What is the law of civil procedure?
Civil procedure falls under ‘procedural law”, which indicates how rights, remedies and duties may be enforced.
1.2 Principles underlying the law of civil procedure (x8)
(a) All persons must have equal and effective access to an independent and impartial judiciary, with
reasonable costs to litigation.
(b) Throughout the proceedings both parties must be afforded an equal opportunity to present their respective
cases to the court (audi et alteram partem principle). This includes:
a. That the defendant must be notified of the proceedings.
b. That both parties must be informed of the nature of the opposing party’s case and the grounds on
which it is based.
(c) “Party control” – the decision to institute or defend an action and to determine the scope of the dispute
rests with the parties. The parties also decide on the evidentiary material to be presented as proof of their
respective cases.
(d) Provisions must be made for direct oral viva voce communication between the parties and the court during
presentation of their respective cases. This does not exclude written evidentiary material.
(e) The main proceeding (trial or argument of an application) must, in principle, take place in public.
(f) The court must consider the evidentiary material on objective and rational grounds.
(g) The court must give a reasoned and legally motivated judgement.
(h) The decision of the court is final and binding, but provisions exist for appeal or review.
1.3 Sources of the law of civil procedure
The most NB sources in SA are:
(1) The final Constitution of the Republic of South Africa of 1996.
(2) The Constitutional Court Complimentary Act 13 of 1995.
(3) The Rules of the Constitutional Court (CCR).
(4) The Supreme Court Act 59 of 1959.
(5) The Rules of the Supreme Court of Appeal.
(6) The Uniform Rules of Court applicable in all High Courts (HCR).
(7) The Magistrates’ Courts Act 32 of 1944.
(8) The Magistrates Court Rules (MCR).
(9) The Small Claims Court Act 61 of 1984.
(10)The common law underlying the rules of procedure and jurisdiction in the High Court.
(11)Other legislation and regulations relevant to specialised courts.
(12)Practice arrangements and directions applicable in the respective divisions of the High Court.
(13)Case law.
1.4 Mechanisms to solve civil disputes
- Disputes can be solved either throught the civil court structures or through alternative dispute resolution
(ADR) structures.
- A number of forms of ADR exist such as negotiation, mediation and arbitration.
o Negotiation involves a structured form of bargaining and debate.
o Mediation involves the assistance of an impartial third party.
o Arbitration involves an impartial third party adjudicating the dispute between the parties after taking
evidence and hearing the parties’ arguments. This may be agreed to in a contract (if written, the
Arbitration Act 42 of 1965 regulates the agreement). A formal national or international arbitration
body usually conducts arbitration.
- When taking instructions a legal representative must consider the various alternative modes available to
deal with the dispute at hand and select an appropriate method.
- Note that ADR is not suitable for all types of disputes.
1
Downloaded by Reitumetse Modisa ()
, lOMoARcPSD|8439740
CHAPTER 2
Structure of the Courts and Officers of the Courts
2.1 Introduction
The Constitution has had the following effect on the law of civil procedure:
(a) Locus standi
a. ITO common law, any party wishing to institute or defend legal proceedings must have a “direct
and substantial interest” in the right which forms the subject matter of the litigation.
(b) Litigation involving State organs
a. Notice requirements and prescriptive periods are now aligned with the Constitution.
(c) HCR 17(4)
a. ITO this rule every summons must state the names of the parties, their sex and marital status (if
female). Nedcor Bank v Hennop 2003 held that this was an infringement of s 9(1) and s 9(3) of the
equality clause of the Constitution.
(d) Section 65 Magistrates Court Act (debt collection procedure)
a. In Coetzee v Government of RSA 1995 it was held that the provision that a civil debtor could be
imprisoned for failure to pay a debt was unconstitutional.
2.2 Hierarchy of the South African Courts
Section 166 of the Constitution:
(a) The Constitutional Court.
(b) The Supreme Court of Appeal.
(c) The High Courts.
(d) The Magistrates’ Courts.
(e) Any other court established or recognised by an Act of Parliament.
a. Traditional Leaders Courts.
b. Small Claims Courts.
4.2 Specialised Courts:
- Labour Courts.
- Land Claims Court.
- Special Income Tax Court.
- Competition Appeal Court.
- Electoral Court.
- Special Consumer Court.
- Divorce Court.
- Children’s Court.
- Maintenance Court.
- Equality Court.
4.2 Officers of the Court
- Judges.
- Magistrates.
- Registrars of the High Court.
- Clerks of the Magistrates’Courts.
- The Sheriff.
- The Master of the HC.
- Legal practitioners.
~Now, NB stuff for exam!
2
Downloaded by Reitumetse Modisa ()
, lOMoARcPSD|8439740
CHAPTER 3
Consultation, Legal Representation, demand and Prescription
3.1 The initial consultation
In deciding whether to represent a prospective litigant, the attorney must consider a number of circumstances
including:
- Whether he or she may act on behalf of the client.
- Whether to proceed by action or application.
- Whether to appoint an advocate in the matter.
- The cost implications of the proceedings.
Apart from taking proper instructions during the initial consultation, the attorney will also have to make a number of
administrative arrangements.
- Firstly, a file must be opened on behalf of the client.
o The names of the parties must be clearly indicated on the outside of the file.
o Columns should be drawn on the inside and outside of the file to keep a chronological record of
pleadings and notices received, as well as those drafted and served and filed by the attorney.
o Also advisable to draw up a column to note telephone calls made and received (NB to draft a bill of
costs).
Attorney should note the date and time of the call, to whom the call was made or from
whom it was received, and duration and main points of discussion.
o It is NB to indicate all relevant dates (prescription and trial dates) on the outside of the file, which
must be diarised promptly.
- An account number should be allocated to the client so that the client can be debited with fees and
disbursements in respect of services rendered.
o Attorney must discuss cost implications during first consultation.
Also customary to obtain a deposit from the client to cover initial expenses.
- After consultation the attorney should address a letter to the client in which the attorney’s mandate is
clearly confirmed.
- It is essential to keep the client informed of any and all progress with regard to the matter.
If the attorney is unable to contact the client for lengthy period of time, thus making him unable to receive
instructions, he/she should withdraw as the attorney of record.
- But attorney remains responsible for the management of the case until the matter is finalised by means of a
settlement or a court order, or until his or her mandate is withdrawn.
3.2 The representation of parties
The right to legal representation is entrenched in s 35(2) and (3) of the Constitution.
The attorney-client relationship is one of representation by agency (ITO law of agency).
- A specific power of attorney (PoA) authorises an attorney to institute or defend a specific legal proceeding
on behalf of the client and to conduct any other function which is incidental to such a legal proceeding.
3.2.1 Representation in the HC
HCR 7 provides for legal representation without the need to file a PoA.
- If the attorney’s authority to represent a client is disputed, the attorney must satisfy the court of a mandate
to act on behalf of the client.
- BUT is appeal cases, the attorney needs a PoA to represent a client.
o HCR 7(3) and HCR 5: the PoA must be filed when the legal representative applies for an appeal
date.
o Each PoA must be signed by the client (or a third party on his behalf with proof) and comply with
specific legal requirements.
3
Downloaded by Reitumetse Modisa ()
