CIVIL PROCEDURE
REVISION STUDY PACK
Joseph
078468317
, 1
INTRODUCTORY STUDIES : STUDY UNIT 1-4
QUESTION 1
Answer the following questions. Write in your own words.
a) Herbstein and Van Winsen (The Civil Practice of the Superior Courts in South Africa 49)
“…whereas inferior courts may do nothing which the law does not permit, superior
courts may do anything that the law does not forbid”
Discuss critically the above statement in regard to the following courts :
(i) Small Claims Courts (2)
(ii) Labour Court (2)
(iii) Equality Court (2)
(i) Small claims courts do not have inherent jurisdiction in the sense that they are created by the
statute whence they derive their power from the statute. Small claims courts are created by the Small
Claims Act 61 of 1984.This explicitly means that as the small claims court are regulated by the Small
Claims Court Act 61 of 1984 they can only do what is permitted in this Act that is the small claims
court must operate in accordance with the particular statute.
(ii) Labour Court is regarded as creatures of statute in the sense that it is created by the Labour
Relations Act (LRA) 66 of 1995.This clearly means that the Labour Court is regulated by the LRA and
it can only hear matters which are provided by the Labour Relations Act that it cannot hear matters
which do not fall within its jurisdiction although it has the same status as that of High Court in terms of
Section 151 of the Labour Court Act.The Labour Court has its own procedural rules which it must
adhere to.
“The expert in anything was once a beginner”
, 2
(iii) Equality Courts are also regarded as creatures of statute in the sense that they were created in
accordance to Section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000.Equality courts are permitted by the statute to hear matter dealing with unfair discrimination.
This simply means that courts that are created by the legislation do what legislation permits.
ALTERNATIVE MODELS OF DISPUTE RESOLUTION.
Question 2
Critically discuss whether court-annexed mediation is a better option to resolve disputes
than the process of litigation
Mediation can be defined as a private voluntary and consensual process whereby two or more
disputants agree to resolve their dispute through its intervention of a third party known as a
mediator ,who will be impartial and accepted by both disputants. Mediation resolve disputes in an
amicable and pragmatic manner which is regarded as best on the disputant’s interests not legal
rights. In contrast litigation refers to a process of bringing about and engaging in a lawsuit in a trial
court practice in order to enforce a particular right. The Rules Board for the courts have to
introduce an alternative dispute resolution into the court system namely court annexed mediation
by which the process of mediation is introduced into all litigation matters.
Court annexed mediation is a better option to resolve disputes than the process of litigation in the
sense that parties in the pilot centres have an option to refer a civil dispute to mediation through
agreement that is with the use of mediation the parties in a dispute will reach a mutually
acceptable resolution to the dispute. Unlike in the process of litigation the parties to a dispute will
end up being in bad relations because the court will enforce a particular right on the other part and
parties to a dispute cannot mutually agree to it. According to Pete and Sibanda Civil Procedure “A
Practical Guide” a mediator assists the parties to reach a mutually acceptable resolution to their
disputes.
In addition, court annexed mediation is better than litigation because mediation is a cost effective
resolution of disputes between litigants and it phase out bad claims from the court system which is
litigation. Court annexed mediation as an alternative model of dispute resolution reduces cost for
“The expert in anything was once a beginner”
, 3
instance the parties in dispute do not need legal representatives (lawyers) which is costly, only a
mediator is needed to control the process of mediation whence the costs are reduced. This
explicitly means that mediation is considerably cheaper that litigation.
Moreover, court annexed mediation is better than litigation in the sense that mediation facilitates
expeditiously and it is a voluntary process. The mediator does not decide how the dispute must be
resolved but the parties themselves. Court annexed mediation utilizes a dialogue based approach
to disputes which makes mediation a better alternative model of dispute resolution.
Mediation involves voluntariness and party autonomy. Parties in a dispute have autonomy and a
chance to exercise control over the manner in which their dispute is resolved than would be the
case if the dispute is resolved by means of litigation should be the last resort if mediation have
failed. This clearly shows that mediation allows parties to attain a solution while maintaining
confidentiality of the proceedings and outcome.
Court annexed mediation is an appropriate way to dispute resolution in the sense that it enables
parties to maintain their relationship for instances business in a dispute .Normally litigation results
in bad relationships with clients. This explicitly shows that mediation maintains good business
relationships in the sense that it builds mutual trust and respect.
Conclusively ,court annexed mediation is better than litigation because it enables access to justice,
saves time and cost.lt should be noted that the advantage of court annexed mediation is that
disputes can be submitted to mediation prior to and after the commencement of litigation provided
that a judgment or order has not been made in the matter.
(a) Explain the differences between a consensual process and a command process. (4)
A consensual process is where the outcome is based on the parties’ agreement which is
sometimes written down. The outcome in the consensual process is not imposed but it is achieved
by agreement between the parties and it is not enforced under the sanction of the state.
Negotiation and mediation are examples of the consensual processes in alternative dispute
resolution system.
A command process is where the outcome is in a form of judgment that is imposed on the parties
or litigants by the judicial officer. The parties are not involved in the outcome of the matter as they
get an independent person to listen to their dispute and give judgment.
The decision (outcome) is enforced on the parties by sanctions of the state (Judgment is enforced
by execution proceedings).
“The expert in anything was once a beginner”
REVISION STUDY PACK
Joseph
078468317
, 1
INTRODUCTORY STUDIES : STUDY UNIT 1-4
QUESTION 1
Answer the following questions. Write in your own words.
a) Herbstein and Van Winsen (The Civil Practice of the Superior Courts in South Africa 49)
“…whereas inferior courts may do nothing which the law does not permit, superior
courts may do anything that the law does not forbid”
Discuss critically the above statement in regard to the following courts :
(i) Small Claims Courts (2)
(ii) Labour Court (2)
(iii) Equality Court (2)
(i) Small claims courts do not have inherent jurisdiction in the sense that they are created by the
statute whence they derive their power from the statute. Small claims courts are created by the Small
Claims Act 61 of 1984.This explicitly means that as the small claims court are regulated by the Small
Claims Court Act 61 of 1984 they can only do what is permitted in this Act that is the small claims
court must operate in accordance with the particular statute.
(ii) Labour Court is regarded as creatures of statute in the sense that it is created by the Labour
Relations Act (LRA) 66 of 1995.This clearly means that the Labour Court is regulated by the LRA and
it can only hear matters which are provided by the Labour Relations Act that it cannot hear matters
which do not fall within its jurisdiction although it has the same status as that of High Court in terms of
Section 151 of the Labour Court Act.The Labour Court has its own procedural rules which it must
adhere to.
“The expert in anything was once a beginner”
, 2
(iii) Equality Courts are also regarded as creatures of statute in the sense that they were created in
accordance to Section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000.Equality courts are permitted by the statute to hear matter dealing with unfair discrimination.
This simply means that courts that are created by the legislation do what legislation permits.
ALTERNATIVE MODELS OF DISPUTE RESOLUTION.
Question 2
Critically discuss whether court-annexed mediation is a better option to resolve disputes
than the process of litigation
Mediation can be defined as a private voluntary and consensual process whereby two or more
disputants agree to resolve their dispute through its intervention of a third party known as a
mediator ,who will be impartial and accepted by both disputants. Mediation resolve disputes in an
amicable and pragmatic manner which is regarded as best on the disputant’s interests not legal
rights. In contrast litigation refers to a process of bringing about and engaging in a lawsuit in a trial
court practice in order to enforce a particular right. The Rules Board for the courts have to
introduce an alternative dispute resolution into the court system namely court annexed mediation
by which the process of mediation is introduced into all litigation matters.
Court annexed mediation is a better option to resolve disputes than the process of litigation in the
sense that parties in the pilot centres have an option to refer a civil dispute to mediation through
agreement that is with the use of mediation the parties in a dispute will reach a mutually
acceptable resolution to the dispute. Unlike in the process of litigation the parties to a dispute will
end up being in bad relations because the court will enforce a particular right on the other part and
parties to a dispute cannot mutually agree to it. According to Pete and Sibanda Civil Procedure “A
Practical Guide” a mediator assists the parties to reach a mutually acceptable resolution to their
disputes.
In addition, court annexed mediation is better than litigation because mediation is a cost effective
resolution of disputes between litigants and it phase out bad claims from the court system which is
litigation. Court annexed mediation as an alternative model of dispute resolution reduces cost for
“The expert in anything was once a beginner”
, 3
instance the parties in dispute do not need legal representatives (lawyers) which is costly, only a
mediator is needed to control the process of mediation whence the costs are reduced. This
explicitly means that mediation is considerably cheaper that litigation.
Moreover, court annexed mediation is better than litigation in the sense that mediation facilitates
expeditiously and it is a voluntary process. The mediator does not decide how the dispute must be
resolved but the parties themselves. Court annexed mediation utilizes a dialogue based approach
to disputes which makes mediation a better alternative model of dispute resolution.
Mediation involves voluntariness and party autonomy. Parties in a dispute have autonomy and a
chance to exercise control over the manner in which their dispute is resolved than would be the
case if the dispute is resolved by means of litigation should be the last resort if mediation have
failed. This clearly shows that mediation allows parties to attain a solution while maintaining
confidentiality of the proceedings and outcome.
Court annexed mediation is an appropriate way to dispute resolution in the sense that it enables
parties to maintain their relationship for instances business in a dispute .Normally litigation results
in bad relationships with clients. This explicitly shows that mediation maintains good business
relationships in the sense that it builds mutual trust and respect.
Conclusively ,court annexed mediation is better than litigation because it enables access to justice,
saves time and cost.lt should be noted that the advantage of court annexed mediation is that
disputes can be submitted to mediation prior to and after the commencement of litigation provided
that a judgment or order has not been made in the matter.
(a) Explain the differences between a consensual process and a command process. (4)
A consensual process is where the outcome is based on the parties’ agreement which is
sometimes written down. The outcome in the consensual process is not imposed but it is achieved
by agreement between the parties and it is not enforced under the sanction of the state.
Negotiation and mediation are examples of the consensual processes in alternative dispute
resolution system.
A command process is where the outcome is in a form of judgment that is imposed on the parties
or litigants by the judicial officer. The parties are not involved in the outcome of the matter as they
get an independent person to listen to their dispute and give judgment.
The decision (outcome) is enforced on the parties by sanctions of the state (Judgment is enforced
by execution proceedings).
“The expert in anything was once a beginner”
