Law of Civil Procedure 371 Lectures
Term 1:
Chapter 1: Introduction
Lecturer: Ms Rukshana Parker
● Introduction:
○ In SA a basic distinction is made between substantive law and procedural law, which
are interactive.
■ Substantive law determines the content and scope of a natural or juristic
person’s rights, duties and remedies in a given situation.
■ Procedural law indicates how these rights, remedies and duties may be
enforced.
■ E.g. substantive law determines whether a person has a legal claim for
damages arising from a motor vehicle accident, while procedural law
prescribes the procedure for claiming damages.
○ Civil procedural law is that part of the law that regulates civil litigation. It is, therefore,
the mechanism by means of which rights derived from substantive law are enforced.
● Distinction between civil and criminal law:
Civil Criminal
Plaintiff v defendant (action) State v accused
Applicant v respondent (application) (note: state may litigate as a party on its own
(note: application = war on paper and action = behalf e.g. as a party to a contract or when a
fighting in court) constitutional right is enforced against the state)
Liable for another’s damages Guilty of crime
(note: in civils we are not interested in whether
someone is guilty of a crime; just concerned
with whether someone is liable (e.g. in a delict -
did someone cause harm, therefore are they
liable?)
Compensation Punishment/rehabilitation
Balance of probabilities Beyond reasonable doubt
Private interest Public interest
Voluntary Involuntary
(i.e. plaintiff can choose whether to bring the
case)
● General principles/guarantees of civil procedure: NB de vos reading
○ I.e. what values underpin civil procedure, some of which are also guarantees.
,○ 1. Audi et alteram partem:
■ “To hear the other side”
■ “The overriding principle is that both parties must be afforded the opportunity
of placing their cases before the court as thoroughly as possible. The audi
rule is the basis of the entire law of civil procedure.” (Eckardt)
■ 1.1. The defendant will be notified of proceedings.
■ 1.2. Both parties need to mutually be kept informed of the nature and
grounds of the opponent’s case (e.g. any document drafted that will be part of
the court files needs to be served to the other party too).
■ 1.3. Both parties must be afforded the opportunity to present their case in
court.
● With exceptions of: ex parte applications; presumption of death
applications; no other party involved; interdict; there is another party
but to inform them would be to defeat the purpose of the application,
e.g. if someone can run away or would destroy necessary evidence
(Anton Piller order).
○ 2. Access to an independent, impartial and competent judiciary (i.e. access to court).
■ Primary aim of civil procedure = assisting litigants in enforcing and protecting
rights; therefore there are criticisms of the inefficiencies in the legal system
that exclude many from proper legal recourse because it is time-consuming
and expensive.
■ Doctrine of judicial immunity (cannot instate proceedings against judges if
they make a mistake in the judgement).
● S 165: principle of judicial independence, promotes the ability of the
judiciary to administer the law without fear, favour, or prejudice.
■ Motivate decisions on a rational basis (when a judge delivers their
judgement, they need to provide reasons).
○ 3. Party control:
■ Parties control proceedings; decision to institute or defend action & determine
scope of dispute.
■ Two types of proceedings in court: adversarial (SA) vs inquisitorial (Euro
countries) systems.
■ Adversarial = as though parties are pitted against each other with the judge
as a mutual empire and make a judgement based on the evidence put before
them.
■ Inquisitorial = presiding officers are more involved and an investigator is often
assigned.
○ 4. Direct oral communication:
■ Each party has the opportunity to question the opposing party.
■ Unless e.g. in rape cases, if a witness is a minor, mentally incapable persons.
, ○ 5. Public hearing:
■ Proceedings are usually open to the public; enables people to trust the justice
system.
○ 6. Judgement of the court:
■ Must be a judgement after court proceedings after evidentiary material is
considered on objective & rational grounds.
■ Reasoned and legally motivated judgment.
○ 7. Finality of judgement:
■ Judgement must be final and binding.
○ 8. Higher recourse:
■ Able to appeal judgement.
● How are these values guaranteed / theoretical basis recognised in our legal system?
○ These basic principles were part of procedural law before our current constitutional
dispensation, but now they are granted constitutional recognition in the BOR.
○ Traditional:
■ De Vos: traditionally, one had to go through a process of abstraction (in order
to find a value, you had to go through different legislation - they weren’t
packaged neatly in one Act).
■ This is based on the history of colonialism: when the British occupied the
Cape Colony, they did not have a Constitution; all laws were contained in diff
legislation.
○ Constitutional era:
■ S 34: access to courts: “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 appropriate, another independent and impartial tribunal or
forum.”
■ The Constitution and esp the BoR has impacted the law of civil procedure.
■ Coetzee v Government of the RSA 1995 (4) SA 631 (CC):
● During the interim Constitution.
● Back then ito the Magistrates’ Courts Act, if you were a debtor and
could not pay, you could be sent to jail.
● This Act came before the court, esp the provision that allowed this to
take place, and it was declared unconstitutional to imprison someone
because they could not pay their debt.
■ Bid Industrial Holdings (Pty) Ltd v Strand and Another 2008 (3) SA
355(SCA):
● Ito the common law, if you enter into an agreement or arrangement
with a foreign peregrinus (not resident/citizen of the country) and had
any issue you want to take to court/institute legal proceedings, the
SA courts would not have jurisdiction over that person.
, ● In order to have jurisdiction (esp HC), the foreign peregrinus would
have to be arrested.
● This common law principle came before the court where it was held
that it is unconstitutional to arrest someone simply to establish
jurisdiction.
■ Malachi v Cape Dance Academy International (Pty) Ltd and Others 2010
(6) SA 1(CC):
● This case centres on suspectus de fuga: if you suspect that someone
is going to flee when legal proceedings have been or are about to be
instituted, they can be arrested.
● This concept was often abused; it became difficult for courts to
determine what this suspicion of fleeing meant and establishing
proof.
● It was ordered by the court that this concept is unconstitutional and in
conflict with the BoR.
● Currently if there is proof a suspect might flee, you can apply for an
interdict to stop them.
■ University of Stellenbosch Legal Aid Clinic v Minister of Justice and
Correctional Services and Others [2016] ZACC 32:
● This case concerned emolument orders (salary/wages).
● Ito the Magistrates’ Court Act, if someone owed you money, you
could go to court and have part of their salary attached every month
to pay your debt; an arrangement is made with the creditor and
employer.
● When these applications came to the Magistrates’ Court, the clerks
were authorising the orders and would not consider the amounts,
reasons, factors, or whether or not the person could afford to pay this
percentage every month.
● This was taken to court and it was decided that the clerks were no
longer able to authorise the orders; it had to be done by a
magistrate / with judicial oversight. The magistrate needs to consider
the facts - looking at the salary they earn, what the debt is, and
whether or not the debtor can afford that percentage.
● Sources of civil procedure:
○ Statutes: (focus on HC and Magistrates’ Courts)
■ Constitution and Rules of the Constitutional Court
■ Superior Courts Act (rules & precedent)
■ Magistrates Courts Act (rules & precedent)
■ Uniform Rules of High Court and the Rules of the Magistrate Court
● Practice Manuals / Directives (each HC will have their own)
Term 1:
Chapter 1: Introduction
Lecturer: Ms Rukshana Parker
● Introduction:
○ In SA a basic distinction is made between substantive law and procedural law, which
are interactive.
■ Substantive law determines the content and scope of a natural or juristic
person’s rights, duties and remedies in a given situation.
■ Procedural law indicates how these rights, remedies and duties may be
enforced.
■ E.g. substantive law determines whether a person has a legal claim for
damages arising from a motor vehicle accident, while procedural law
prescribes the procedure for claiming damages.
○ Civil procedural law is that part of the law that regulates civil litigation. It is, therefore,
the mechanism by means of which rights derived from substantive law are enforced.
● Distinction between civil and criminal law:
Civil Criminal
Plaintiff v defendant (action) State v accused
Applicant v respondent (application) (note: state may litigate as a party on its own
(note: application = war on paper and action = behalf e.g. as a party to a contract or when a
fighting in court) constitutional right is enforced against the state)
Liable for another’s damages Guilty of crime
(note: in civils we are not interested in whether
someone is guilty of a crime; just concerned
with whether someone is liable (e.g. in a delict -
did someone cause harm, therefore are they
liable?)
Compensation Punishment/rehabilitation
Balance of probabilities Beyond reasonable doubt
Private interest Public interest
Voluntary Involuntary
(i.e. plaintiff can choose whether to bring the
case)
● General principles/guarantees of civil procedure: NB de vos reading
○ I.e. what values underpin civil procedure, some of which are also guarantees.
,○ 1. Audi et alteram partem:
■ “To hear the other side”
■ “The overriding principle is that both parties must be afforded the opportunity
of placing their cases before the court as thoroughly as possible. The audi
rule is the basis of the entire law of civil procedure.” (Eckardt)
■ 1.1. The defendant will be notified of proceedings.
■ 1.2. Both parties need to mutually be kept informed of the nature and
grounds of the opponent’s case (e.g. any document drafted that will be part of
the court files needs to be served to the other party too).
■ 1.3. Both parties must be afforded the opportunity to present their case in
court.
● With exceptions of: ex parte applications; presumption of death
applications; no other party involved; interdict; there is another party
but to inform them would be to defeat the purpose of the application,
e.g. if someone can run away or would destroy necessary evidence
(Anton Piller order).
○ 2. Access to an independent, impartial and competent judiciary (i.e. access to court).
■ Primary aim of civil procedure = assisting litigants in enforcing and protecting
rights; therefore there are criticisms of the inefficiencies in the legal system
that exclude many from proper legal recourse because it is time-consuming
and expensive.
■ Doctrine of judicial immunity (cannot instate proceedings against judges if
they make a mistake in the judgement).
● S 165: principle of judicial independence, promotes the ability of the
judiciary to administer the law without fear, favour, or prejudice.
■ Motivate decisions on a rational basis (when a judge delivers their
judgement, they need to provide reasons).
○ 3. Party control:
■ Parties control proceedings; decision to institute or defend action & determine
scope of dispute.
■ Two types of proceedings in court: adversarial (SA) vs inquisitorial (Euro
countries) systems.
■ Adversarial = as though parties are pitted against each other with the judge
as a mutual empire and make a judgement based on the evidence put before
them.
■ Inquisitorial = presiding officers are more involved and an investigator is often
assigned.
○ 4. Direct oral communication:
■ Each party has the opportunity to question the opposing party.
■ Unless e.g. in rape cases, if a witness is a minor, mentally incapable persons.
, ○ 5. Public hearing:
■ Proceedings are usually open to the public; enables people to trust the justice
system.
○ 6. Judgement of the court:
■ Must be a judgement after court proceedings after evidentiary material is
considered on objective & rational grounds.
■ Reasoned and legally motivated judgment.
○ 7. Finality of judgement:
■ Judgement must be final and binding.
○ 8. Higher recourse:
■ Able to appeal judgement.
● How are these values guaranteed / theoretical basis recognised in our legal system?
○ These basic principles were part of procedural law before our current constitutional
dispensation, but now they are granted constitutional recognition in the BOR.
○ Traditional:
■ De Vos: traditionally, one had to go through a process of abstraction (in order
to find a value, you had to go through different legislation - they weren’t
packaged neatly in one Act).
■ This is based on the history of colonialism: when the British occupied the
Cape Colony, they did not have a Constitution; all laws were contained in diff
legislation.
○ Constitutional era:
■ S 34: access to courts: “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 appropriate, another independent and impartial tribunal or
forum.”
■ The Constitution and esp the BoR has impacted the law of civil procedure.
■ Coetzee v Government of the RSA 1995 (4) SA 631 (CC):
● During the interim Constitution.
● Back then ito the Magistrates’ Courts Act, if you were a debtor and
could not pay, you could be sent to jail.
● This Act came before the court, esp the provision that allowed this to
take place, and it was declared unconstitutional to imprison someone
because they could not pay their debt.
■ Bid Industrial Holdings (Pty) Ltd v Strand and Another 2008 (3) SA
355(SCA):
● Ito the common law, if you enter into an agreement or arrangement
with a foreign peregrinus (not resident/citizen of the country) and had
any issue you want to take to court/institute legal proceedings, the
SA courts would not have jurisdiction over that person.
, ● In order to have jurisdiction (esp HC), the foreign peregrinus would
have to be arrested.
● This common law principle came before the court where it was held
that it is unconstitutional to arrest someone simply to establish
jurisdiction.
■ Malachi v Cape Dance Academy International (Pty) Ltd and Others 2010
(6) SA 1(CC):
● This case centres on suspectus de fuga: if you suspect that someone
is going to flee when legal proceedings have been or are about to be
instituted, they can be arrested.
● This concept was often abused; it became difficult for courts to
determine what this suspicion of fleeing meant and establishing
proof.
● It was ordered by the court that this concept is unconstitutional and in
conflict with the BoR.
● Currently if there is proof a suspect might flee, you can apply for an
interdict to stop them.
■ University of Stellenbosch Legal Aid Clinic v Minister of Justice and
Correctional Services and Others [2016] ZACC 32:
● This case concerned emolument orders (salary/wages).
● Ito the Magistrates’ Court Act, if someone owed you money, you
could go to court and have part of their salary attached every month
to pay your debt; an arrangement is made with the creditor and
employer.
● When these applications came to the Magistrates’ Court, the clerks
were authorising the orders and would not consider the amounts,
reasons, factors, or whether or not the person could afford to pay this
percentage every month.
● This was taken to court and it was decided that the clerks were no
longer able to authorise the orders; it had to be done by a
magistrate / with judicial oversight. The magistrate needs to consider
the facts - looking at the salary they earn, what the debt is, and
whether or not the debtor can afford that percentage.
● Sources of civil procedure:
○ Statutes: (focus on HC and Magistrates’ Courts)
■ Constitution and Rules of the Constitutional Court
■ Superior Courts Act (rules & precedent)
■ Magistrates Courts Act (rules & precedent)
■ Uniform Rules of High Court and the Rules of the Magistrate Court
● Practice Manuals / Directives (each HC will have their own)
