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LAW OF CIVILPROCEDURE 371
Civil procedural law is that part of the adjective law that regulates civil litigation. It is,
therefore, the mechanism by means of which rights derived from substantive law are
enforced.
PART 1: INTRODUCTION (HISTORICAL
AND THEORETICAL BACKGROUND)
STUDY UNIT 1: GENERAL INTRODUCTION
Peté: General Introduction
De Vos 1997 TSAR 444 Civil Procedural Law and the Constitution of 1996.
Legislation and Court Rules:
o Sections 38, 166, 167 and 168 of the Constitution of the Republic of South
Africa, 1996.
o Preamble, sections 4-7 of the Superior Courts Act 10 of 2013.
o Sections 13, 13A, 65 of the Magistrates’ Court Act 32 of 1944.
o Constitution Seventeenth Amendment Act, 2012.
HISTORICAL OVERVIEW AND SOCIAL CONTEXT:
Introduction to the role of civil procedural law in society:
o Traditional approach/attitude of academics and students:
Very technical branch
Rarely its ideological foundations, philosophical background or socio-
political impact is analyzed
No reference to general principles underlying this branch of law
No attempt to expound a “science of procedure”, rather “practical
commentaries”
Is a very important discipline in practice
o Traditional approach has been challenged by eminent proceduralists
Not merely a technique without any theoretical foundations.
All technical rules of practice owe their very existence to certain
fundamental rights or guarantees of the parties, which have
developed over millennia in a quest for procedural justice
Also a close link with the socio-political characteristics of a society
Substantive law: Defines an individual’s rights, obligations, duties and responsibilities
o Adjective law: accessory to substantive law
Civil procedure law is a mechanism for enforcement of rights, duties, responsibilities
and obligations [Approach court of law and enforce rights]
Roman Dutch origins of South African civil procedure:
Period of 1652:
,o Jan van Riebeeck was sent to the Cape of Good Hope by the Dutch East
Indian Company to establish a refreshment station to facilitate the shipping
trade with the Far east
o This station developed into a Dutch settlement
o The Dutch East Indian Company administered and controlled the Cape at the
time on behalf of the Netherlands
o Roman-Dutch Law was automatically accepted as the law of the Cape
Roman-Dutch Law: substantive law and procedural law was applied
Thus civil procedure law based on Roman Dutch Law
o Ordinance on Civil Procedure of 1580 governed civil procedure
Also relied heavily on works of Roman Dutch jurists
o Council of justice established in 1656 as the highest court in the Cape
Effectively a HC, highest court of law and only court at the time
Consisted of a president and an equal number of officials and citizens.
o Did not promulgate legislation
o Broad Features:
Continental system
Court and Judges were inquisitorial (governed by judicial control)
Played an active role
Parties and their legal representatives had a passive function in
proceedings (no party control)
Indirect presentation of evidence and dominance of the written
element
Received evidence of witnesses in written documentation form
through the assistance of an intermediary
Commissioner was charged with examining the witnesses and
submitting a written documentation thereof
Proceedings were characterized by secrecy and no transparency
Trial occurred behind closed doors
o Phases of civil proceedings:
[1] Before summons
Plaintiff initiated process by applying to the court to issue a
summons against the defendant
Application was referred to a judge, who had to attempt a
settlement
In the absence of a settlement, permission was granted for the
issuing of a summons
An official had the duty to summon the defendant to appear in
court on a return day to answer the plaintiff’s claim
The plaintiff then had to deliver a document to the court in
which particulars were set out regarding the parties and their
legal representatives & the court roll on which the case had
been set down
[2] Pleading
The plaintiff had to deliver his particulars of claim to the
defendant
On the return day the defendant applied for a postponement to
provide him a period to consider his position
In order to prepare properly the defendant could apply for the
discovery of documents upon which the plaintiff’s claim was
based and further particulars to clear up ambiguity in the
plaintiff’s claim
He could also raise an exception on various grounds or deliver
a plea on merits
, The plaintiff filed a replication, which called for a duplication
from the defendant
[3] Proof and argument (largely in writing)
Court decided if arguments were to be presented in oral or
written format
Court did not itself hear any evidence
Commissioners were charged with the duty to hear the
testimony of the witnesses, to record it and then to report to
the court in this regard
At the final proceedings (exclusion of the public) legal
representatives presented their arguments
[4] Deliberation and judgment by court
No strict rules regarding the admissibility of evidence and the
court could take all relevant evidence into consideration, in
accordance with certain requirements
Members of the court came to a decision by means of a
majority vote
Judgment was made public, but the grounds therefore was not
o Criticism:
Judges were laymen chosen from the ranks of the community who
had little, if any, legal knowledge [No proper instructions]
The attorneys had no requirement to obtain legal qualification to
appear before the court (limited law background)
Law cannot be applied fairly and justly as the parties had a lack of
legal expertise
English influence upon South African civil procedure:
1795-1910: British Occupation of the Cape
o 1803-1806: Interruption of British control by Dutch occupation No change
on civil procedure
o Initially: Roman-Dutch law of civil procedure remained in place/force, except
in so far as it was changed by legislation enacted by British rulers
In accordance with the English constitutional principle that the law of
the conquered country remains in place/force unless the conquering
country enacts legislation to change it
o Substantive law remained largely untouched
o BUT the British found that the Roman-Dutch civil procedure law was
inadequate and created a commission of enquiry into the judicial system
Recommendations of the commission: to do away with the Roman-
Dutch civil procedure law and incorporate the British civil procedure as
it regarded the existing process as highly unsatisfactory
1st – makes the recommendation; 2nd confirms the
recommendation
Also recommended that the court structure should be based on
the English system and a jury should be established in the
Cape
o Procedural Law was greatly affected by British Occupation
o The recommendations gave rise to several legislative measures that replaced
the Roman-Dutch procedural system with an English orientated model
Charters of Justices gave effect to a new high court structure and
procedure that was in accordance with the English system
Council of Justice falls away and the Single Supreme Court of
Cape of Good Hope was established
Established Magistrates courts – legal professionals occupied the
position of presiding officer
, English law of evidence was imported wholly
Provision was made for a jury trial (which however later failed as juries
seemed unable to find in favour of the state, they gave excessive
damages against the state and wealthy corporations and were often
bias, prejudicial and emotional)
English principle applied that court proceedings must be open to the
public
Rigid division between professions of advocates and attorneys
English tradition: Judges were appointed exclusively from the ranks of
advocates, who were mainly schooled in English law
Characteristics:
Party control (no longer judicial control)
o Adversarial System of Civil Procedure
o Parties and their legal representative had an active
role, while judges had a passive role
o Parties and their legal representatives are in control of
the legal process (leading role)
o Parties had to take all the necessary steps to initiate
the action and to prepare the case for trial
o During the trial they have to determine what evidence
(written or oral) is to be presented to the court and
conduct the examination of witnesses
o The function of the court is to see to it that the
proceedings are conducted according to the prescribed
procedure and to deliver judgment at the conclusion
thereof
Principle of Orality: Witness delivering evidence verbally in
court
o Judge evaluates the demeanor and character of the
witness
No secrecy – open to the public = Transparency
o 3rd parties can attend the proceedings and witness the
legal process
o Differences between the Cape Model and English Procedure:
English law distinguished between law and equity (applied
respectively in the common law courts and the Court of Chancery)
Civil litigation characterized by technicality and complexity
In the Cape, as Roman-Dutch substantive law remained, there was no
need for two separate courts.
More streamlined and less complicated procedural system
o Roman Dutch elements that survived the reforms:
Civil procedural system lost its continental character and
became part of the common law family
BUT some significant Roman-Dutch remedies survived the process of
reform (modified to fit in with the new structure
Namtissement: procedure of provisional sentence
Mandament van spolie: spoliation order
Attachment & arrest ad fundandam/ad confirmandam
iurisdictionem
Arrest suspectus de fuga: Creditor suspects that a debtor will
flee the country and wants to enforce the debt by attaching the
individual (taken to prison until the court appearance)
o Now unconstitutional
o CLEARLY: Hybrid legal system: SA system is unique
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