Civil Procedure: Summary of examinable content

CIVIL PROCEDURE 371
1. GENERAL INTRODUCTION




W de Vos “South African Civil Procedural Law in Historical and Social Context” Stell
LR (2002) 2 236

- Traditional Courts Bill

- 1652-1795

- British colonial rule from 1795-1910

- After 1910

Examples of constitutional impact on civil procedural law
 Debt collection procedures : Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 4 SA
631 (CC)
 Litigation involving organs of state: before/after constitutional dispensation
 Access to courts : S 34 of Constitution.
 Right to equality : Nedcor Bank Ltd v Hennop and Another 2003 3 SA 622 (T)
 Common law rule requiring arrest of foreign peregrini to found/confirm jurisdiction: Bid
Industrial Holdings (Pty) Ltd v Strang and another (Minister of Justice and Constitutional
Development, Third Party 2008 (3) SA 355 (SCA)

,  Arrest tanquam suspectus de fuga


SOURCES
 Constituion
 Magistrates Court Act 32 of 1944
 Superior Courts Act 10 of 2013
 Small Claims Court Act 61 of 1984
 Different sets of rules for each division of HC and uniform court rules (HC Rules)
 Set of forms attached to each set of rules: precedents


Different Mechanisms
 Not limited to civil litigation
 Applies to ADR too
 Different characteristics




2. STRUCTURE OF THE COURTS
 Impact of the Constitution
o Debt collection procedures: Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer, Port Elizabeth Prison and Others
o Litigation involving organs of state: before/after constitutional dispensation
o Access to courts: s34 and 38 of Constitution
o Right to equality: Nedcor Bank Ltd v Hennop and Another
o Common Law Rule requiring arrest of foreign peregrini to found/confirm jurisdiction: Bid
Industrial Holdings v Strang and another
o Arrest tanquam suspectus de fuga.
 HIERARCHY
o CC
o SCA
o Our focus: HC, MC and SCC
o HC
 Court of first instance and court of appeal
o MC
 Creature of statute
 District and Regional Court
o Small Claims Court
o Specialist Courts


3. CONSULTATION, LEGAL REPRESENTATION, DEMAND,
PRESCRIPTION AND MEDIATION.
 Consultation
o Holistic understanding of civil procedure

, o Cause of action, locus standi, Jurisdiction, service, calculation of time periods, demand,
action/application etc
o Textbook detail
 Legal Representation
o General
o Representation in HC
o Representation in MC
 Demand
o What it is
o What it should look like
o When it needs to be made
 Complete a cause of action
 Statutory Notice
o Drafting examples
 Prescription
o General
o Prescription Act
o Superannuation of judgements and summonses
o Calculation of time periods
 Mediation
o Para 15.10 on page 307-318
o HCR 41A and MCR 70-84
o Voluntary
o Court-annexed
o Purpose
o Pro’s and Con’s




4. GENERAL PRINCIPLES OF JURISDICTION
 What is jurisdiction?
o The power or competence which a particular court has to hear and determine an
issue between parties brought before it.
o Actor sequitur forum rei
o Principles of:
 Effectiveness
 Convenience
 Consent
o Terminology:
 Incola
 Peregrinus
 Arrest ad fundandam jurisdictionem
 Arrest ad confirmandam jurisdictionem
 When is jurisdiction determined?
o At time proceedings instituted
o Proceedings instituted once papers initiating proceedings served on other party
o Jurisdiction existing at start of proceedings, continues to exist until proceedings end,
even if grounds/basis for jurisdiction falls away during proceedings.
 Formula
o Determine
 General type of court competent to hear matter?

,  Whether matter belongs in HC, MC
 To determine
o Monetary value of claim?
o Nature of matter?
 Division/seat of court may hear matter?
o Link matter to geographical jurisdiction area of courts.




5. JURISDICTION OF THE HIGH COURT

 Inherent Jurisdiction
o Comprises statutory, common law and inherent jurisdiction
o Inherent jurisdiction: high court may make any order or undertake any procedural
step as long as the law does not prohibit it.
o Section 173 of the constitution
o Power to regulate own procedure:
 HC is not constrained by the rules of court
 If something is not prescribed by the rules, the HC may as far as the rules are
deficient, grant orders which further the administration of justice.
 Value of claim
o No limitation
o Strictly speaking, there is no lower limit either
o Standard Credit Corporation Ltd v Bester
o Nedbank v Thobejane
o Also: HC discourages through costs
 Nature of claim
o Any type of matter
o Unless, for example
 Jurisdiction RE Territory
o S 21 of the superior courts act
o Effect
o To determine whether a specific HC has jurisdiction, turn to the common law
 A) Is there one or more ratio jurisdictionis that applies on the facts that could
enable a link to the specific court?
 B) Would the order be effective?
o Ratio jurisdictionis:
 1) Ratione domicilli: actor sequitur forum rei – following the defendant to her
place of residence/domicile and institute proceedings there
 2) Ratione rei gestae: forum rei gestae where cause of action occurred
 3) Ratione rei sitae: property which is subject matter of the dispute, is situated
within jurisdiction.
 Type of claims
o For divorce
o Relating to property
o Sounding in money
 Divorce
o Actions