CIV3701 Civil procedure notes 2022.

CIV3701 Civil procedure notes 2022. MUST READ!!! Civil Proc Notes General introduction: What is the Law of Civil Procedure?  Civil procedure forms part of the formal adjectival law of South Africa, that regulates civil litigation and the enforcement of substantive rights  It is a mechanism used to enforce the rights that are derived from the substantive private law. Differences between Civil Procedure and Criminal Procedure: Basis Civil (Private) Criminal (Public) PARTIES Application: Applicant and Respondent (brings application vs. opposes) Action: Plaintiff and Defendant (institutes action vs. defends) State and Defendant VOLUNTARY/COMPULSORY Voluntary Compulsory (state decides whether to prosecute) DECISION: Respondent/Defendant liable for Applicant/Plaintiff’s claim Accused guilty of crime or offense. BURDEN OF PROOF Balance of Probabilities Beyond a Reasonable doubt RECOURSE BETWEEN PARTIES Punishment:  Damages  Specific Performance Punishment:  Fine  Imprisonment AIM OF PUNISHMENT Monetary compensation for loss suffered or to compel/prevent a party to do/from doing something. Retribution, Deterrence, Rehabilitation  Civil procedure is broader than criminal procedure due to the burden of proof in civil cases being much easier to prove, and because criminal cases function mainly between the State and the accused, it is limited to the criminal environment, whereas civil procedure is not just between individuals but also groups of people, applications brought in the public interest etc.  Material (substantive law): private law and criminal law  Formal Law: Civil procedure, criminal procedure and law of evidence.  Law of evidence is NB to CPL because it dictates what evidence must be brought forward to court in order to prove your claim and enforce your rights. General principles of the Law of Civil Procedure (guarantees):  Fundamental rights or guarantees that the parties to a civil action may claim/protect. Nature:  These guarantees are the basic requirements have to be met in order to effectuate procedural justice.  These guarantees are the foundation that all the procedural law must be built on, if the foundation is absent, then one cannot bring about procedural justice.  General principles are general in their scope, but flexible in nature, and they never constitute an absolute requirement in all circumstances. Flexible Nature:  Must be able to bend where necessary; must be subject to reasonable limits. Importance of the general principles:  With the above in mind the following are very NB:  If you understand the NB of principles, you will have a better understanding of the rules.  Meaningful reform: these principles bring about or help to insure meaningful reform of our civil procedural system can be done.  Meaningful reform of the system will only be possible if these general principles are kept in mind  the danger is that streamlined, efficient procedures will abandon the fundamental guarantees of civil procedure.  Comparative study: a meaningful comparative study of two countries can only be done when the general principles of the two countries are the same.  ∴. Can only do a successful comparative study if you understand the guarantees of both countries. Particular guarantees include: a) Everyone must have equal and effective access to an independent, impartial and competent judiciary.  Costs and duration of the lawsuit should be reasonable.  Separation of Powers: the state should not be able to influence the courts, the 2 should be independent of one another. b) Audi alteram partem:  Eckhart: “both parties must be allowed the opportunity to give their case”  This is the overriding principle of law of criminal procedure, it ensures that: i) The defendant is informed of the proceedings ii) Both parties are mutually kept informed of the nature of the opponent’s case, as well as the grounds of the case. iii) Both parties are offered the opportunity to present their respective cases before the court.  Limitation of the audi alteram partem guarantee: lessor’s tacit hypothec – if the tenant does not pay rent, the lessor may claim movables from the dwelling to recover the rent (attachment and sale in execution). c) Competent legal representation:  Parties must have access to competent legal representation ∴. Do not have to represent oneself.  Objective test is used. d) Public hearing:  It is a guarantee but must not be seen as inflexible. e) Judgement:  The final hearing must be done in open court, and the court has to motivate its judgement (i.e. give reasons). The court’s ruling will have final legal force, provided that provision is made for higher recourse (appeal), the principle of finality must be qualified by this right of recourse. f) Higher recourse:  Res judicata – if the court has determined an issue they may not consider the issue again.  If there is a mistake in the judgement, there must be provision for higher recourse (appeal or review). g) Role of the court:  It rests with the parties to institute/defend an action. The evidentiary material to be presented to the courts should also rest with the parties. However, the principle can be qualified by allocating an active and controlling role to the court (esp with w.r.t. evidentiary material and continuance of the proceedings).  READ: De Vos’s article Approaches to application of guarantees: Anglo-American Process Continental CPL System 1. Adversarial character – the proceedings are controlled by the parties – they decide to institute proceedings and what evidence they are going to put before the court or to cross- examine witnesses etc. Presiding judge plays an umpire-type role. 1. Inquisitorial character – Presiding officer plays a more active role, whereas the parties play a more passive one. The court decides what evidence will be put before the court and which witnesses will be called etc. The judicial officer works with the police in gathering evidence. 2. Viva Voce – witnesses are brought forward orally at the trial itself. 2. Dossier – all documents are brought together in a written document. 3. Cross-examination is permitted. 3. During the hearing, the judge asks questions and all the legal representatives can do is make arguments based on the statements in the dossier. 4. Continuous process – the matter is placed on a continuous role. 4. Interrupted process because the presiding judge often wants to keep doing further investigations ∴. Very stop-start. 5. e.g. ‘common law’ countries such as America, England, Australia and SA 5. e.g. France, Switzerland, Holland.  This was originally the system used in South Africa. Evaluation of systems:  SA Enterprise Development Fund v Industrial Credit Corporation Africa Ltd 2008 (6) SA 468 (W) – NB remark of judge.  PROBLEM: when a party does not have the financial ability to come to court or obtain legal representation.  Look at the needs of the community – does the system fit the needs of the community as a whole?  Objective (formal) truth: which of the systems will be better to find objective truth? It will be argued that an Anglo-American system in a country run on a capitalistic system will make it more difficult for a poorer person to get fair legal justice... because the richer you are the better equipped you are to afford more expensive (better) legal representation.  Judges need to look at the abilities of parties and keep in mind the audi alteram partem (flexibility).  Impartiality – which one of the systems is best to ensure an impartial judiciary?  Where does SA stand in the scheme of the two systems? Where are we in terms of our system and how would you evaluate our system against the above?  Judge:  “Against this background I consider it appropriate and necessary to briefly comment on the court’s power to deal with issues mero moto raised by it. I cannot accept the notion of the Judge merely acting as an umpire in the adjudication of disputes between parties. It is also the judge’s duty to ensure that justice is done. If during the consideration of a matter, a fundamental issue arises, which the parties have overlooked or failed to recognise, and it is in the opinion of the judge in the interests of justice, necessary and convenient to determine that issue, I can see no reason why this cannot be achieved through a process of fairness to all the parties concerned. Fairness, I need hardly reiterate, would embrace inter alia that proper notice of the issue and its proposed determination be given to all parties and further that the principles of audi alteram partem be observed. The possibility of prejudice always remains an important consideration.”  ∴. Instead of looking at the two systems separately, we should take the favourable points out of out of the both of them and combine them. Recognition of Guarantees: 1. English Approach:  UK law is unwritten and flexible, the country does not have a written Constitution or parliament; nor a Bill of Rights entrenching certain basic HR’s  They governed their process largely by using a number of rules  The legislative measures, until recently, did not contain any statement regarding fundamental guarantees as such.  The Human Rights Act was passed (1998), ito which the ‘European convention for the Protection of Human Rights and Fundamental Freedoms of 1950’ was incorporated into law. 2. French Approach:  French Constitution of 1958 is inflexible, and does not make provision for judicial review of legislation by the CC.  The guarantees are not specifically included in the Constitution, but you can read the civil procedure’s guarantees into the basic human rights, as entrenched in their Const. 3. USA and Germany’s Approach:  Much the same as SA.  Both acknowledge the principle of constitutional protection of procedural guarantees.  Both have inflexible constitutions that entrench these guarantees, as well as a system of judicial review i.r.o. legislation. 4. South Africa: a. Traditional Approach (pre 1993) (English and Dutch influence)  Most important characteristics:  SA legal system has a hybrid character (influenced by Dutch and English law)  We have an English oriented judicial and procedural framework, which serves as the mechanism for the enforcement of substantive rules of law.  Nature of the Const. dispensation and the role of the courts:  The Const. preceding the new dispensation did not contain a Bill of Rights and did not allow the judicial review of legislation duly enacted by parliament  the only meaningful method of control was judicial review of Anglo-American system by the Supreme Court of Appeal.  Parliamentary supremacy – Parliament was sovereign – no one could question it.  Recognition of civil procedure guarantees – onus on parties:  Full recognition to the principle of party control, the judge takes a passive role whilst the parties take an active role (represented by their legal representatives).  It is up to the parties to initiate the action and prepare the case for trial.  Parties play a leading role, they determine what evidence is to be presented to the court and they control the examination of the witnesses. b. Interim Const. 1993  Nature of the Const. dispensation and the role of the courts:  The IC was the culmination of a totally new political order, which came into being upon the demise of apartheid – it focussed on Const. supremacy and equality of all.  Recognition of civil procedure guarantees:  Fundamental rights and the principle of judicial control of legislation and other forms of state action were recognised by the IC.  PROBLEM: although the interim Bill of Rights made elaborate provision for the protection of procedural guarantees in the context of criminal proceedings, it paid very little attention to the rights of civil litigants.  Some civil procedural guarantees are recognised:  Access to court  Right to equality before the law  Freedom and security of person  The right to privacy  Access to information held by the state  The interim Bill of Rights did not guarantee the right to a fair and public hearing in the context of civil litigants. c. Final Const. 1996  Nature of the Const. dispensation and the role of the courts:  The final Const. breaks from tradition by giving a more comprehensive protection to the rights of civil litigants than they were given before  The essential features of the IC dispensation, concerning the recognition of fundamental rights was maintained in the FC.  Innovations w.r.t. the structure of judicial authority:  CC retained its name and remained the highest court for all Const. matters.  Supreme court was restructured , the provincial and local divisions of the supreme court became HC’s and there is now a SCA  SCA  may decide any appeals in any matter, highest court of appeal, except in Const. matters.  MC  are not allowed to enquire into or rule on the constitutionality of any legislation or conduct of the president.  Recognition of civil procedural guarantees:  The right of access to courts forms the basis of the Const. protection offered to civil litigants  Section 34 Const.  This broad provision gives recognition to 4 guarantees: 1. Access to justice 2. Fair hearing (trial)  foundation of the entire civil process 3. Public hearing (trial)  purpose is to safeguard the administration of justice by means of public scrutiny. 4. Independence and impartiality of the judge  inherent requirement  The more specific guarantees that sec 34 includes = equal treatment of the parties; legal representation; party control; an oral hearing ; exclusion of unlawfully obtained evidence; reasons for judgement and appeal.  There is a problem w.r.t. financial implications of litigation and legal representation being obtained. De Vos: Civil procedural law and the Const. of 1996: an appraisal of procedural guarantees in civil proceedings. 1. Introduction:  Focus of the article: how the FC contained the recognition of procedural guarantees for civil litigants.  Previous dispensation (before the IC of 1993), SA law followed the English model of civil procedural law (its origin):  The fundamental rights or guarantees weren’t afforded Const. protection and parliament had the final say in this matter.  These fundamental rights and guarantees could only be identified by a process of abstraction from specific statutory provisions and court decisions interpreting these regulations.  IC constituted a dramatic break with the past: A constitutional supremacy in terms of which a rigid Constitution was adopted, containing a chapter on fundamental rights, and the recognition of the principle of judicial control of legislation and other forms of state action.  Problem with the IC Bill of Rights: there was little protection afforded to procedural guarantees for civil litigants, unlike there was in the context of criminal proceedings.  However, it was the first constitutional recognition given to civil procedural guarantees, the most NB of which were:  ‘access to court’,  ‘equality before the law’,  ‘freedom and security of person’,  ‘right to access information held by the state’, and  Recognised principles of independence and impartiality of the courts  FC gave more comprehensive protection to the rights of the civil litigant, and the essential features of the IC concerning the fundamental rights and the structure of judicial authority are maintained in the FC.  FC brought about certain innovations, such as its effect on the application of the Bill of Rights as well as the structure of judicial authority. For example: the Appellate division of the Supreme Court made way for the SCA.  Civil procedure is the mechanism by means of which substantive rights are enforced.  The traditional view was that the role of civil procedure was confined to the private law domain – in other words, rights derived from substantive private law.  Modern society’s civil litigation no longer fits the traditional mould. This resulted in civil procedure being an instrument to enforce rights in the public domain, as is evidenced in actions against state administration etc.  FC broadened the scope of civil procedure by providing for a vertical as well as a full horizontal operation of the Bill of Rights  ∴.Civil procedure is as a means to enforce the BoR in the wide spectrum of matters in the private/public law domain, but outside the area of criminal justice. 2. Rights with a bearing on civil litigation:  The fundamental rights with a bearing on civil procedure, which achieved recognition under the IC, are endorsed by the FC, which, in addition, gives a new dimension to the right of access to court by providing for ‘a fair public hearing’. The FC retains the essence of these rights, albeit in a different wording. 3. Equality:  Section 9(1) reiterates the gist of this principle, by providing as follows: “Everyone is equal before the law and has the right to equal protection and benefit from the law”. The new element is “benefit of the law” 4. Freedom and Security of the Person:  Section 12(1) – the provision continues to spell out the different elements of the right: “Everyone has the right to freedom and security of the person, which includes the right [inter alia] not to be deprived of freedom unnecessarily and without just cause”. Unlike the IC, it also entrenches the right to bodily and psychological integrity. 5. Privacy:  Section 14: “Everyone has the right to privacy which includes the right to not have ‘their’ person, home or property searched, possessions seized or the privacy of their communications infringed” – contains nothing new. The only difference is the wording of the section. 6. Access to Information:  Section 32(1) is wider in scope than its predecessor: “Everyone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights”. The new element is that the provision does not only apply to information held by the state, but also to information held by anyone, IF such information is required for the exercise or protection of any rights. The purpose of this provision is to facilitate the extended horizontal application of the Bill of Rights. 7. Enforcement:  Section 38: confirms the essential terms of IC provision on locus standi. The wording differs, but the category of persons who are authorised to approach the court to enforce the Bill of Rights is the same. 8. Limitation of Rights:  Section 36 – differs significantly. A limitation must now be “reasonable and justifiable in an open and democratic society based on the values of human dignity, equality and freedom”. Relevant factors need to be taken into account in terms of which new innovations were brought about by the new provision. In essence, new provision defines the essential requirements for a limitation with greater clarity. 9. Access to Court:  “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where more appropriate, another independent and impartial tribunal or forum”. FC gave new meaning to this principle. a. Access to Justice:  The wording of section 34 is different, but the position remains essentially unchanged. Everyone retains the right to approach a court to settle a justiciable dispute. The right can only have real meaning if everyone can exercise his/her related right to legal representation. The effectiveness of the ri