Ch 1 & 2 - General Introduction
Ch 1 - Introduction to the law of civil procedure
The law of civil procedure regulates how a person's rights, remedies and duties (substantive
law) may be enforced. Procedural law enables a party to approach a court for legal relief on
the basis of an infringement of rights, and is thus a mechanism for the enforcement of
substantive law.
Action proceedings = commences through summons, Plaintiff v Defendant.
Application proceedings = commences through notice of motion supported by
affidavit, Applicant v Respondent.
Ex parte application = no notice of motion or respondent (eg. applying to be admitted
as an attorney)
Civil proceedings Criminal proceedings
Plaintiff v Defendant (action) or State v Accused
Applicant v Respondent (application)
Question of liability Question of guilt
Balance of probabilities Beyond reasonable doubt
Outcome: damages or specific Punishment: fine and/or imprisonment
performance
Principles underlying the law of civil procedure
○ Audi et alteram partem = parties must be afforded an equal opportunity to present
their case to the court. Defendant must be notified of proceedings and both parties
must be informed of the nature and grounds of the opposing case (right to notice).
○ Equal & effective access to an independent, impartial and competent judiciary. This
includes the requirement that costs and duration must be reasonable. (S34 of the
Constitution)
○ Party control = decision to litigate, scope of dispute and evidence presented rests with
the parties.
○ Direct oral communication between parties and court during the presentation of
cases.
○ Public hearing.
○ Court must consider evidence on objective and rational grounds, and give a reasoned
and legally motivated judgement.
○ Judgement is final and binding, but there is provision for higher recourse (appeal or
review).
Mediation
A more affordable alternative to civil litigation, can take the form of private mediation or
court-annexed mediation
▪ MCR are very comprehensive in this regard, however court-annexed
mediation was suspended indefinitely by Dept. of Justice in 2022 so there is
a disconnect.
▪ Conversely, HCR are very vague and doesn't properly regulate the
mediation process. Unclear whether it envisages court-annexed mediation,
but rules provide that there may be adverse cost implications for not
seeking mediation without good reason.
Erica Vegter Civil Proc 244 Page 1
,Sources of civil procedural law
• Magistrates' Courts Act 32 of 1944
• Superior Courts Act 10 of 2013
• Constitution Seventeenth Amendment Act 2012
• Small Claims Court Act 61 of 1984
Each Act has a complementary set of rules which must be read together. Rules may be
amended by the Rules Board.
Stages of the civil litigation process
Stage 1 - Before litigation
Stage 2 - Litigation
Stage 3 - After litigation
Stage 4 - Additional procedures
Digitalization of courts
Pilot program called Court Online was introduced to make judiciary more accessible, cases
less time consuming and to reduce costs. However, the system seldomly works, is not user
friendly, and has unaddressed security concerns.
Ch 2 - Structure and officers of the court
Court system
• Small Claims Court = claims not exceeding R20k, litigation is preceded by letter of
demand, no legal representation, state cannot be a party.
• Magistrate's Court = divided into district courts (claims not exceeding R200k) eg.
Stellenbosch district court, but may include more than one municipal area, and
regional courts (claims between R200k and R400k). Created and functions within the
Magistrates' Court Act (creatures of statute).
• High Court = 14 provincial divisions, regulated by Superior Courts Act. Eg. Western
Cape division has its seat in Cape Town and is cited as WCC.
• Supreme Court of Appeal
• Constitutional Court
Stare decisis = lower ranking courts are bound by higher courts decisions to ensure
uniformity in decision-making (doctrine of precedent).
Court officials
High Court Magistrate's Court
- Judges - Magistrates
- Admin work done by Registrar - Admin work done by Clerk (district)
- Delivery of legal documents by or Registrar (regional)
Sheriff - Delivery of legal documents by
- Bill of costs by Taxing master Sheriff
- Bill of costs by taxing master
Erica Vegter Civil Proc 244 Page 2
, Ch 3 - Consultation, Legal Representation, Demand and
Prescription
The initial consultation
○ Prior indication of facts - Ask the client to prepare relevant documentation prior to the first meeting. You
need to figure out of you can take on the case asap. Unless it amounts to unfair discrimination, you can
refuse to accept a mandate if prospects of success are low. Once you accept the mandate it is difficult to get
out of.
○ Prior indication of fees - To establish whether client can afford your services.
○ Conflict check - Is there a potential conflict of interest? The entire firm will be asked, can navigate around
this with existing and new clients, eg. Chinese wall where teams work in complete isolation with consent of
both clients. You may not be able to take on all new clients due to possible conflicts.
○ Determine the cause of action.
○ Determine locus standi - The right or capacity to bring an action to court.
○ Determine jurisdiction.
○ Terms of engagement - Send a letter of engagement after the consultation which elaborates on the firm's
authority and obligations, client's obligation to firm, how the firm will engage in client's mandate etc.
○ Undertakings regarding feedback - Keep the client updated, both on the matter and financially.
○ Action or application?
○ Should you appoint an advocate?
Take comprehensive notes during the consultation. Make sure the evidence supports the instructions. Have firm
and clear instructions, leave no room for doubt. Instructions must be complete, directly from the client and
confirmed in writing. Attorney must be reasonably satisfied about the client's identity and capacity to instruct.
Ensure that you have all the evidence before issuing court papers.
The legal practitioner should decline the mandate if:
1. They have a lack of expertise for a particular case.
2. There is an unavoidable conflict of interest.
3. The client gives unethical, unreasonable, conflicting or fraudulent instructions.
4. There is not enough time available to commit to the case given the current workload.
5. The client does not have the financial means to cover the fees.
Representation
General power of attorney = Written authorisation to represent/act on another's behalf in legal agency.
Special power of attorney = Authorises attorney to institute or defend special legal proceedings on client's behalf
and to conduct any other function that is incidental to such proceedings. For example, special power of attorney is
needed for appeal cases.
Representation in the High Court
• Can self-represent / instruct attorney with right of appearance / instruct attorney & advocate (an advocate
will likely be used if council specialises in that field or has relationship with court).
• HCR 7 provides for legal representation without needing to file for power of attorney.
• HCR 16 provides that the attorney must notify all other parties of their representation and supply an address
within 25km of court building for the delivery of documents (can use a correspondent if own address is too
far away).
• Opposing party can dispute your authority for acting on behalf of client within 10 days, you must then
produce written mandate from client before acting.
• Special power of attorney is needed for appeal cases and must be filed when applying for appeal date. Third
party can sign on client's behalf if unavailable.
• A party may terminate the attorney's mandate at any point. If the attorney withdraws, they must notify all
parties. It is good practice to withdraw at an early stage.
• An attorney requires 3 years post qualification experience to obtain right of appearance in the HC.
Representation in the Magistrate's Court
Erica Vegter Civil Proc 244 Page 3
Ch 1 - Introduction to the law of civil procedure
The law of civil procedure regulates how a person's rights, remedies and duties (substantive
law) may be enforced. Procedural law enables a party to approach a court for legal relief on
the basis of an infringement of rights, and is thus a mechanism for the enforcement of
substantive law.
Action proceedings = commences through summons, Plaintiff v Defendant.
Application proceedings = commences through notice of motion supported by
affidavit, Applicant v Respondent.
Ex parte application = no notice of motion or respondent (eg. applying to be admitted
as an attorney)
Civil proceedings Criminal proceedings
Plaintiff v Defendant (action) or State v Accused
Applicant v Respondent (application)
Question of liability Question of guilt
Balance of probabilities Beyond reasonable doubt
Outcome: damages or specific Punishment: fine and/or imprisonment
performance
Principles underlying the law of civil procedure
○ Audi et alteram partem = parties must be afforded an equal opportunity to present
their case to the court. Defendant must be notified of proceedings and both parties
must be informed of the nature and grounds of the opposing case (right to notice).
○ Equal & effective access to an independent, impartial and competent judiciary. This
includes the requirement that costs and duration must be reasonable. (S34 of the
Constitution)
○ Party control = decision to litigate, scope of dispute and evidence presented rests with
the parties.
○ Direct oral communication between parties and court during the presentation of
cases.
○ Public hearing.
○ Court must consider evidence on objective and rational grounds, and give a reasoned
and legally motivated judgement.
○ Judgement is final and binding, but there is provision for higher recourse (appeal or
review).
Mediation
A more affordable alternative to civil litigation, can take the form of private mediation or
court-annexed mediation
▪ MCR are very comprehensive in this regard, however court-annexed
mediation was suspended indefinitely by Dept. of Justice in 2022 so there is
a disconnect.
▪ Conversely, HCR are very vague and doesn't properly regulate the
mediation process. Unclear whether it envisages court-annexed mediation,
but rules provide that there may be adverse cost implications for not
seeking mediation without good reason.
Erica Vegter Civil Proc 244 Page 1
,Sources of civil procedural law
• Magistrates' Courts Act 32 of 1944
• Superior Courts Act 10 of 2013
• Constitution Seventeenth Amendment Act 2012
• Small Claims Court Act 61 of 1984
Each Act has a complementary set of rules which must be read together. Rules may be
amended by the Rules Board.
Stages of the civil litigation process
Stage 1 - Before litigation
Stage 2 - Litigation
Stage 3 - After litigation
Stage 4 - Additional procedures
Digitalization of courts
Pilot program called Court Online was introduced to make judiciary more accessible, cases
less time consuming and to reduce costs. However, the system seldomly works, is not user
friendly, and has unaddressed security concerns.
Ch 2 - Structure and officers of the court
Court system
• Small Claims Court = claims not exceeding R20k, litigation is preceded by letter of
demand, no legal representation, state cannot be a party.
• Magistrate's Court = divided into district courts (claims not exceeding R200k) eg.
Stellenbosch district court, but may include more than one municipal area, and
regional courts (claims between R200k and R400k). Created and functions within the
Magistrates' Court Act (creatures of statute).
• High Court = 14 provincial divisions, regulated by Superior Courts Act. Eg. Western
Cape division has its seat in Cape Town and is cited as WCC.
• Supreme Court of Appeal
• Constitutional Court
Stare decisis = lower ranking courts are bound by higher courts decisions to ensure
uniformity in decision-making (doctrine of precedent).
Court officials
High Court Magistrate's Court
- Judges - Magistrates
- Admin work done by Registrar - Admin work done by Clerk (district)
- Delivery of legal documents by or Registrar (regional)
Sheriff - Delivery of legal documents by
- Bill of costs by Taxing master Sheriff
- Bill of costs by taxing master
Erica Vegter Civil Proc 244 Page 2
, Ch 3 - Consultation, Legal Representation, Demand and
Prescription
The initial consultation
○ Prior indication of facts - Ask the client to prepare relevant documentation prior to the first meeting. You
need to figure out of you can take on the case asap. Unless it amounts to unfair discrimination, you can
refuse to accept a mandate if prospects of success are low. Once you accept the mandate it is difficult to get
out of.
○ Prior indication of fees - To establish whether client can afford your services.
○ Conflict check - Is there a potential conflict of interest? The entire firm will be asked, can navigate around
this with existing and new clients, eg. Chinese wall where teams work in complete isolation with consent of
both clients. You may not be able to take on all new clients due to possible conflicts.
○ Determine the cause of action.
○ Determine locus standi - The right or capacity to bring an action to court.
○ Determine jurisdiction.
○ Terms of engagement - Send a letter of engagement after the consultation which elaborates on the firm's
authority and obligations, client's obligation to firm, how the firm will engage in client's mandate etc.
○ Undertakings regarding feedback - Keep the client updated, both on the matter and financially.
○ Action or application?
○ Should you appoint an advocate?
Take comprehensive notes during the consultation. Make sure the evidence supports the instructions. Have firm
and clear instructions, leave no room for doubt. Instructions must be complete, directly from the client and
confirmed in writing. Attorney must be reasonably satisfied about the client's identity and capacity to instruct.
Ensure that you have all the evidence before issuing court papers.
The legal practitioner should decline the mandate if:
1. They have a lack of expertise for a particular case.
2. There is an unavoidable conflict of interest.
3. The client gives unethical, unreasonable, conflicting or fraudulent instructions.
4. There is not enough time available to commit to the case given the current workload.
5. The client does not have the financial means to cover the fees.
Representation
General power of attorney = Written authorisation to represent/act on another's behalf in legal agency.
Special power of attorney = Authorises attorney to institute or defend special legal proceedings on client's behalf
and to conduct any other function that is incidental to such proceedings. For example, special power of attorney is
needed for appeal cases.
Representation in the High Court
• Can self-represent / instruct attorney with right of appearance / instruct attorney & advocate (an advocate
will likely be used if council specialises in that field or has relationship with court).
• HCR 7 provides for legal representation without needing to file for power of attorney.
• HCR 16 provides that the attorney must notify all other parties of their representation and supply an address
within 25km of court building for the delivery of documents (can use a correspondent if own address is too
far away).
• Opposing party can dispute your authority for acting on behalf of client within 10 days, you must then
produce written mandate from client before acting.
• Special power of attorney is needed for appeal cases and must be filed when applying for appeal date. Third
party can sign on client's behalf if unavailable.
• A party may terminate the attorney's mandate at any point. If the attorney withdraws, they must notify all
parties. It is good practice to withdraw at an early stage.
• An attorney requires 3 years post qualification experience to obtain right of appearance in the HC.
Representation in the Magistrate's Court
Erica Vegter Civil Proc 244 Page 3
