LAW OF CIVIL PROCEDURE
STADIO LCP500
,TOPIC 1: INTRODUCTION AND STRUCTURE OF COURTS
INTRODUCTION TO CIVIL PROCEDURE
CIVIL PROCEDURE V CRIMINAL PROCEDURE
Civil Criminal
Parties Action: plaintiff Application: State v Accused
v defendant Applicant v
respondent
Liability Liability for another’s damages Guilty of crime
Remedy Compensation Punishment or rehabilitation
Onus Balance of probabilities; he who Beyond reasonable doubt; onus
alleges must prove rests on state
Interest Private interest Public interest (state acts on
behalf of public)
Participation Voluntary – large degree of Involuntary – state is dominis
party control litis
SUBSTANTIVE V ADJECTIVAL LAW
SUBSTANTIVE LAW
Describes a person's rights, How these rights, remedies
duties and remedies in a and duties may be enforced
situation Procedural law provides the
Content and scope of procedure for the
person's rights, duties and enforcemeant of these rights,
PROCEDURAL LAW
remedies remedies and duties
Enables a party to approach a
court for legal relief
Mechanism for enforcemeant
of substantive law
PRINCIPLES UNDERLYING THE LAW OF CIVIL PROCEDURE AND
ACCESS TO JUSTICE
1
, • Section 34 of the Constitution: 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
• Access to justice principles:
Equal and effective access to an Audi et alteram partem
independent and impartial judiciary •Defendant is notified of proceedings
•Cost and duration of litigation kept •Both parties informed of nature of opposing
reasonable party's case
•Both parties have opportunity to present
respective cases to the court
Party control Direct oral communication
•Decision to institute/defend •Does not exclude possibility of important
•Parties decide on evidentiary material elements of presentation
Court considers material on
Public hearing
objective and rational grounds
Decision is final and binding
Court must give a reasoned and •Provisions exist for appeal and review, or
recission of judgement
legally motivated judgement
SOURCES OF CIVIL PROCEDURE
2
, Constitution &
Rules of ConCourt
Superior Courts Act
Statutes
Magistrate's Court
Act
Civil Procedure Common Law
Practice
Uniform Rules
manuals/directives
Case Law
Uniform Rules
• Promotes uniformity and consistency
• Sets out formal structure of the various types of pleadings and documents
necessary to for litigation
• High courts have power to protect and regulate their own procedure and to
develop the common law in this regard
MECHANISMS FOR SOLVING CIVIL DISPUTES
• Rules of civil procedure are geared to reaching a solution in court
• However, there has been a push towards using ADR
o Or really, any other mechanism than courts
• Why?
o Finances
o Time
• However, ADR is not always the answer
o Both parties need to be willing
NEGOTIATION
3
,MEDIATION
ARBITRATION
4
,5
,TOPIC 2: JURISDICTION
GENERAL PRINCIPLES OF JURISDICTION
INTRODUCTION
Jurisdiction refers to the authority or the competency of a particular court to
hear a matter that has been brought before it and to grant relief in respect of that
matter.
No court has an all
encompassing
jurisdiction
Court can refuse to
ajdudicate and dismiss
Importance
the matter
Judgement nullity
Cost implications
Prescription
Professional negligence
6
, • Jurisdiction must be determined at the time when legal action is commenced,
and exists until the end of proceedings
• Two underlying requirements
o Nexus = relationship between court + parties or case
o Effectiveness = enforce judgements
▪ Defendant needs to be in jurisdiction in order for judgement to be
enforced
▪ Territoriality / Geographical area
INHERENT AND PRESCRIBED JURISDICTION
High Court Magistrate's Court
•Inherent jurisdiction •Prescribed jurisdiction
•Doesn't derive powers and capacities only •Creatures of statute
from statutes
•May hear any matter that isn't excluded by
statute from its jurisdiction
GENERAL PRINCIPLES
• Determining an issue of jurisdiction turns to the specific grounds of jurisdiction,
as established via the type of claim
• Grounds of jurisdiction = jurisdictional rules which have emerged
o Either through binding precedent
o Or statutory enactment
7
, Actor
Sequitur
Forum Rei
Principles
of
Jurisdiction
Convenience Effectiveness
ACTOR SEQUITUR FORUM REI
• Follow the defendant / respondent to their forum and institute proceedings there
• What rule does this follow?
o Court should exercise jurisdiction only i.r.o. matters in which it can give
effect to tis judgement
o Court can do so where a plaintiff claims relief against a defendant who
is resident within the court’s area
• Mayne v Main 2001
PRINCIPLE OF EFFECTIVENESS
• Court must assume jurisdiction only in those cases where it is able to give effect
to the order that I t makes to make that order meaningful
• Court will so readily assume jurisdiction over a defendant or property located
within its area of jurisdiction
• Court won’t adjudicate a matter against a foreigner unless they have been
o Arrested
8
, o Their property has been attached
• Doesn’t require that a court be fully able to enforce its judgement
o POTENTIAL to be enforced
o Courts will be prepared to allow an attachment of goods belonging to a
foreigner
• Not decisive
• Thermo Radiant Oven Sales v Nelspruit Bakeries
PRINCIPLE OF CONVENIENCE
• Assume jurisdiction that is most convenient
• Cause of action arose within its area of jurisdiction
o Area where material facts on which claim is based arose
o Most of evidence arise from that area
o Most witnesses are resident in the jurisdiction
• Pollak:
o Jurisdiction cannot be found purely on convenience
o Convenience is not always a basis upon which, without some other
jursidictionally connecting factor, a court can asume jurisdiction
o Can never on own be a ground of jurisdiction
PRINCIPLE OF CONSENT
• Exercise jurisdiction over that defendant if consents or submits
• Expressly or tacitly
o Depend on facts and circumstances of the case
o Onus on plaintiff to prove such consent or submission
9
STADIO LCP500
,TOPIC 1: INTRODUCTION AND STRUCTURE OF COURTS
INTRODUCTION TO CIVIL PROCEDURE
CIVIL PROCEDURE V CRIMINAL PROCEDURE
Civil Criminal
Parties Action: plaintiff Application: State v Accused
v defendant Applicant v
respondent
Liability Liability for another’s damages Guilty of crime
Remedy Compensation Punishment or rehabilitation
Onus Balance of probabilities; he who Beyond reasonable doubt; onus
alleges must prove rests on state
Interest Private interest Public interest (state acts on
behalf of public)
Participation Voluntary – large degree of Involuntary – state is dominis
party control litis
SUBSTANTIVE V ADJECTIVAL LAW
SUBSTANTIVE LAW
Describes a person's rights, How these rights, remedies
duties and remedies in a and duties may be enforced
situation Procedural law provides the
Content and scope of procedure for the
person's rights, duties and enforcemeant of these rights,
PROCEDURAL LAW
remedies remedies and duties
Enables a party to approach a
court for legal relief
Mechanism for enforcemeant
of substantive law
PRINCIPLES UNDERLYING THE LAW OF CIVIL PROCEDURE AND
ACCESS TO JUSTICE
1
, • Section 34 of the Constitution: 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
• Access to justice principles:
Equal and effective access to an Audi et alteram partem
independent and impartial judiciary •Defendant is notified of proceedings
•Cost and duration of litigation kept •Both parties informed of nature of opposing
reasonable party's case
•Both parties have opportunity to present
respective cases to the court
Party control Direct oral communication
•Decision to institute/defend •Does not exclude possibility of important
•Parties decide on evidentiary material elements of presentation
Court considers material on
Public hearing
objective and rational grounds
Decision is final and binding
Court must give a reasoned and •Provisions exist for appeal and review, or
recission of judgement
legally motivated judgement
SOURCES OF CIVIL PROCEDURE
2
, Constitution &
Rules of ConCourt
Superior Courts Act
Statutes
Magistrate's Court
Act
Civil Procedure Common Law
Practice
Uniform Rules
manuals/directives
Case Law
Uniform Rules
• Promotes uniformity and consistency
• Sets out formal structure of the various types of pleadings and documents
necessary to for litigation
• High courts have power to protect and regulate their own procedure and to
develop the common law in this regard
MECHANISMS FOR SOLVING CIVIL DISPUTES
• Rules of civil procedure are geared to reaching a solution in court
• However, there has been a push towards using ADR
o Or really, any other mechanism than courts
• Why?
o Finances
o Time
• However, ADR is not always the answer
o Both parties need to be willing
NEGOTIATION
3
,MEDIATION
ARBITRATION
4
,5
,TOPIC 2: JURISDICTION
GENERAL PRINCIPLES OF JURISDICTION
INTRODUCTION
Jurisdiction refers to the authority or the competency of a particular court to
hear a matter that has been brought before it and to grant relief in respect of that
matter.
No court has an all
encompassing
jurisdiction
Court can refuse to
ajdudicate and dismiss
Importance
the matter
Judgement nullity
Cost implications
Prescription
Professional negligence
6
, • Jurisdiction must be determined at the time when legal action is commenced,
and exists until the end of proceedings
• Two underlying requirements
o Nexus = relationship between court + parties or case
o Effectiveness = enforce judgements
▪ Defendant needs to be in jurisdiction in order for judgement to be
enforced
▪ Territoriality / Geographical area
INHERENT AND PRESCRIBED JURISDICTION
High Court Magistrate's Court
•Inherent jurisdiction •Prescribed jurisdiction
•Doesn't derive powers and capacities only •Creatures of statute
from statutes
•May hear any matter that isn't excluded by
statute from its jurisdiction
GENERAL PRINCIPLES
• Determining an issue of jurisdiction turns to the specific grounds of jurisdiction,
as established via the type of claim
• Grounds of jurisdiction = jurisdictional rules which have emerged
o Either through binding precedent
o Or statutory enactment
7
, Actor
Sequitur
Forum Rei
Principles
of
Jurisdiction
Convenience Effectiveness
ACTOR SEQUITUR FORUM REI
• Follow the defendant / respondent to their forum and institute proceedings there
• What rule does this follow?
o Court should exercise jurisdiction only i.r.o. matters in which it can give
effect to tis judgement
o Court can do so where a plaintiff claims relief against a defendant who
is resident within the court’s area
• Mayne v Main 2001
PRINCIPLE OF EFFECTIVENESS
• Court must assume jurisdiction only in those cases where it is able to give effect
to the order that I t makes to make that order meaningful
• Court will so readily assume jurisdiction over a defendant or property located
within its area of jurisdiction
• Court won’t adjudicate a matter against a foreigner unless they have been
o Arrested
8
, o Their property has been attached
• Doesn’t require that a court be fully able to enforce its judgement
o POTENTIAL to be enforced
o Courts will be prepared to allow an attachment of goods belonging to a
foreigner
• Not decisive
• Thermo Radiant Oven Sales v Nelspruit Bakeries
PRINCIPLE OF CONVENIENCE
• Assume jurisdiction that is most convenient
• Cause of action arose within its area of jurisdiction
o Area where material facts on which claim is based arose
o Most of evidence arise from that area
o Most witnesses are resident in the jurisdiction
• Pollak:
o Jurisdiction cannot be found purely on convenience
o Convenience is not always a basis upon which, without some other
jursidictionally connecting factor, a court can asume jurisdiction
o Can never on own be a ground of jurisdiction
PRINCIPLE OF CONSENT
• Exercise jurisdiction over that defendant if consents or submits
• Expressly or tacitly
o Depend on facts and circumstances of the case
o Onus on plaintiff to prove such consent or submission
9
