The following mindmaps is included:
STUDY THEME 1 – Introduction to the law of civil procedure
STUDY THEME 2 – Structure of the courts
STUDY THEME 3 – Consultation, representation, demand & prescription
STUDY THEME 4 – Jurisdiction
STUDY THEME 5 – Jurisdiction of the High Court
ST...
Civil Procedure 371 semester 2: lecture notes and drafting
Civil Procedure 371: Semester 1 notes and cases
Fundamental principles of civil Procedure
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University of Pretoria (UP)
SIP 412 - CIVIL PROCEDURE
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STUDY THEME 1 – INTRO TO THE LAW OF 1. PRINCIPLES THAT UNDERLIE CIVIL PROCEDURE:
• S34 of the Cons: everyone has the right to have any dispute that can be resolved by the
CIVIL PROCEDURE: application of law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.
2. WHAT IS CIVIL PROCEDURE:
• Principles:
• Substantive law:
(i) Equal Access to an independent & impartial judicial system that is cost effective & not time
o what a person’s rights, duties and remedies are in a given
consuming.
situation.
(ii) Audi et alteram principle - everyone must have equal standing before the court.
• Procedural law: ▪ Defendant is notified of the proceedings;
o of which the law of civil procedure is a part, indicates how ▪ Both parties are informed of the nature of the opposing party’s case, as well as the
these rights, remedies and duties may be enforced. grounds on which it is based;
▪ Both parties are afforded the opportunity to present their respective cases to the court.
• Substantive law thus determines the content and scope of a
(iii) Party control – the decision to institute/defend an action and to determine the scope of the
natural and juristic person’s rights, duties and remedies, while
dispute rests with the parties, and the parties decide on the evidentiary material to be
procedural law provides the procedure for the enforcement of
presented as proof of their respective cases.
these rights, remedies and duties.
(iv) During the presentation of the parties’ respective cases, provision must be made for direct
oral communication between the parties and the court. However, there are provision
3. DIFF BTWN CIVIL & CRIMINAL: made for written evidence that can be presented to the court.
• Civil law and civil procedure: (v) The main proceedings (trial/the argument of an application) must take place in public.
o enables parties to take action to enforce rights and claim (vi) The court must consider the evidentiary material on objective and rational grounds.
remedies or to defend actions brought against them. (vii) The court must give a reasoned and legally motivated judgment and furnish it
▪ Parties act on their own behalf. expeditiously.
• Criminal procedure: (viii) The decision of the court is final and binding, but provision exists for appeal or review. A
o enables the state, acting on behalf of the general public, to recession judgment is also possible in certain specific circumstances.
take action against persons who infringe rules of criminal
law (parties = state & accused). 4. SOURCES OF CIVIL PROCEDURE:
• In South Africa, the most important legislative sources of civil procedure are:
• The proceedings in civil litigation generally take 2 forms: an
o Constitution;
action procedure and an application procedure.
o The Constitutional Court Complementary Act and the Rules of the Constitutional Court;
(i) Action procedure: the plaintiff (the person who institutes
o The Superior Courts Act;
the claim) & the defendant (the person against whom action
o The Rules of the Supreme Court of Appeal;
proceedings are instituted).
o The Uniform Rules of Court applicable in the High Court;
(ii) Application procedure: the applicant (the person who o The Magistrates’ Courts Act;
brings the application) & the respondent (the person against o The Magistrates’ Courts Rules;
whom application proceedings are instituted). o The Small Claims Court Act.
, 1. CONSTITUTIONAL COURT:
• Presided over by the Chief Justice, the Deputy Chief Justice, and 9 other judges and
STUDY THEME 2 – STRUCTURE OF THE COURTS:
has its seat in Johannesburg.
• Section 167(3) of the Constitution provides that the Constitutional Court: 2. HIGH COURTS:
(i) Is the highest court in all matters; • Single High Court that is administratively and jurisdictionally separated
into a number of divisions and in some instances into local seats of a
(ii) May adjudicate on constitutional matters, as well as on any other matter, if the division.
Constitutional Court grants leave to appeal on the grounds that such other matter
raises an arguable point of law of general public importance that ought to be • The HC is a court of first instance, which means that a matter can be
considered by that Court; commenced in the HC, but it also operates as a court of appeal and
review for the Magistrates’ Courts within its area of jurisdiction.
(iii) Is the final decision-maker on whether a matter is within its jurisdiction.
• A division of the HC consists of a judge president and as many judges
as the President of South Africa may appoint on the advice of the
3. SUPREME COURT OF APPEAL: Judicial Service Commission.
• The SCA sits in Bloemfontein and consists of a President, a Deputy President and a
number of judges of appeal.
4. MAGISTRATES’ COURT:
• The SCA is therefore purely a court of appeal and not a court of first instance, and it • Magistrates’ Courts consists of: District Courts and Regional Courts.
has appeal jurisdiction over the whole of South Africa.
• In terms of S13 of the Superior Courts Act, the quorum of judges for both civil and 5. SPECIFIED COURTS:
criminal appeals in the SCA is generally five (5) judges, and the judgment of the • Labour court
majority is the judgment passed by the court. • Land Claims Court
• Special Income Tax Court
• If at any time during the hearing of an appeal, one or more of the judges dies, retires • Competition Appeal Court
or otherwise becomes incompetent to preside or is absent, the trial proceeds before • Elections Court
the remaining judges, and the majority judgment of the remaining judges will • Special Consumer Court
constitute the judgment of the court. • Divorce Courts
• Children’s Court
• When a majority of judges cannot reach agreement on a specific judgment, the matter • Maintenance Court
is adjourned and commenced de novo before a new court as composed and • Equality Court
determined by the President of the Court.
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