Summary CIV 3701 CIVIL PROCEDURE CIV3701 PART 1: INTRODUCTORY STUDIES STUDY UNIT 1: INTRODUCTION TO CIVIL PROCEDURE
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CIV 3701
Institution
University Of South Africa (Unisa)
Summary CIV 3701 CIVIL PROCEDURE CIV3701 PART 1: INTRODUCTORY STUDIES STUDY UNIT 1: INTRODUCTION TO CIVIL PROCEDURE
CLASSIFICATION OF CIVIL PROCEDURE AND ITS PLACE WITHIN THE LEGAL SYSTEM
STUDY UNIT 2: SOURCES OF CIVIL PROCEDURAL LAW
classification of civil procedure and its place within the legal system
study unit 2 sources of civil procedural law
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CIV 3701
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Assignment 1: 23rd March 2020
Assignment 2: 8 May 2020
Exam: 24th June 2020 @ 14:30
CIVIL PROCEDURE
CIV3701
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,PART 1: INTRODUCTORY STUDIES
STUDY UNIT 1: INTRODUCTION TO CIVIL PROCEDURE
1. CLASSIFICATION OF CIVIL PROCEDURE AND ITS PLACE WITHIN THE LEGAL SYSTEM
Civil procedure forms part of adjective law. Adjective law/law of procedure enforces the rule and
provisions of subjective law.
2. ENFORCING THE LAW
2.1. Function of the courts
The function of the courts is to resolve disputes between legal subjects or between legal subjects
and the state (includes both criminal and civil proceedings).
2.2. Subject matter
The subject matter of court proceedings can either be criminal or civil in nature. Civil proceedings
relate to a dispute between legal subjects. Criminal proceedings are between the state and an
ordinary citizen.
2.3. Parties
Criminal proceedings, the parties are the state and the accused. The victim is called the
complainant.
In civil proceedings where matters commenced by way of summons, the parties are the plaintiff
and defendant. If it is brought by way of application, the parties are known as the applicant and
respondent. It the matter goes on appeal, the parties are the appellant and respondent.
2.4. Onus of proof
In civil proceedings, the burden of proof is on a balance of probabilities. This means that the
court must be satisfied that the version put forward by the plaintiff/applicant is more probable
than that put forward by the defendant/respondent.
The burden of proof in criminal proceedings is far more stringent than in civil proceedings. The
onus is on the state to prove beyond all reasonable doubt that the accused committed the offence
as charged
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,STUDY UNIT 2: SOURCES OF CIVIL PROCEDURAL LAW
1. INTRODUCTION
Unlike the magistrates’ courts, the civil procedure of the High Court does not consist solely of statutory
provisions and rules of court; a substantial part of it consists of common-law rules.
2. STATUTORY LAW
Much of the law relating to civil procedure is derived from various Acts, the rules of court and the
jurisprudence that has been built up around their interpretation.
The following statutes are the main statutory sources for purposes of civil procedure:
• The Superior Courts Act 10 of 2013 (which replaced the Supreme Court Act 59 of 1959)
• The Magistrates’ Courts Act 32 of 1944
• The Constitution of the Republic of South Africa, 1996
Apart from the Acts mentioned above (also referred to as “primary legislation”), court rules that
regulate the conduct of proceedings in the various courts have also been promulgated (so-called
subordinate legislation). These rules must, therefore, be read in conjunction with their particular Act.
3. RULES OF COURT
3.1. Competence to make the rules
since 1965, proceedings have been conducted uniformly in all the divisions of the then Supreme
Court – now the High Courts – under a common set of Rules, which are still known as the
Uniform Rules of Court.
Section 25 of the Magistrates’ Courts Act of 1944 similarly provided for the making, amendment
and repeal of rules for the magistrates’ courts. The present magistrates’ courts rules came into
operation on 30 August 1968.
Rules regulating the proceedings of the Appellate Division (now the Supreme Court of Appeal)
could be promulgated under section 43(1) of the Supreme Court Act of 1959. The present
Supreme Court of Appeal Rules were promulgated on 15 December 1961.
In 1985 the power to make rules for the Supreme Court of Appeal, as well as for the various High
Courts, was conferred upon the Rules Board for Courts of Law, in terms of the provisions of the
Rules Board for Courts of Law Act 107 of 1985. This also applied in respect of the rules for
magistrates’ courts.
Section 6 specifies the powers of the Rules Board to make, amend or repeal rules “for the
efficient, expeditious and uniform administration of justice” in the Supreme Court of Appeal, the
High Courts and the magistrates’ courts (aka the lower courts). As far as the Constitutional Court
is concerned, the President of the Constitutional Court, in consultation with the Chief Justice,
may make rules relating to the manner in which this court may be engaged and for all matters
relating to the proceedings of and before that court. The present Rules of the Constitutional Court
came into operation on 23 October 1998.
3.2. Nature of the rules
The rules are delegated legislation, the rules of court have statutory force and are therefore
binding on a court.
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, However, the very purpose of the rules is to facilitate inexpensive and efficient litigation, not to
obstruct the administration of justice. This means that a court, subject to its competence to do
so, may condone non-compliance with procedure that would lead to substantial injustice to a
litigant. A superior court may also exercise its inherent jurisdiction (see Part 2 below) to grant
relief in circumstances where the rules do not cover a particular matter or where strict compliance
with a rule would result in substantial prejudice to a litigant.
4. COMMON LAW
The civil procedure of the High Court does not, however, consist exclusively of statutory provisions
and rules of court. A considerable portion of it comprises rules of common law. Especially in the
matter of provisional sentence (namptissement), the appropriate rules are found in the common law,
with the rules of court themselves affecting only a small part of namptissement.
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