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Civil Procedure: Summary of examinable content
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Civil Procedure 371 semester 2: lecture notes and drafting
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Civil Procedure 371: Semester 1 notes and cases
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Fundamental principles of civil Procedure
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CIVIL PROCEDURE 3711. GENERAL INTRODUCTION
W de Vos “South African Civil Procedural Law in Historical and Social Context” Stell
LR (2002) 2 236
- Traditional Courts Bill
- 1652-1795
- British colonial rule from 1795-1910
- After 1910
Examples of constitutional impact on civil procedural law
Debt collection procedures : Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 4 SA
631 (CC)
Litigation involving organs of state: before/after constitutional dispensation
Access to courts : S 34 of Constitution.
Right to equality : Nedcor Bank Ltd v Hennop and Another 2003 3 SA 622 (T)
Common law rule requiring arrest of foreign peregrini to found/confirm jurisdiction: Bid
Industrial Holdings (Pty) Ltd v Strang and another (Minister of Justice and Constitutional
Development, Third Party 2008 (3) SA 355 (SCA)
, Arrest tanquam suspectus de fuga
SOURCES
Constituion
Magistrates Court Act 32 of 1944
Superior Courts Act 10 of 2013
Small Claims Court Act 61 of 1984
Different sets of rules for each division of HC and uniform court rules (HC Rules)
Set of forms attached to each set of rules: precedents
Different Mechanisms
Not limited to civil litigation
Applies to ADR too
Different characteristics
2. STRUCTURE OF THE COURTS
Impact of the Constitution
o Debt collection procedures: Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer, Port Elizabeth Prison and Others
o Litigation involving organs of state: before/after constitutional dispensation
o Access to courts: s34 and 38 of Constitution
o Right to equality: Nedcor Bank Ltd v Hennop and Another
o Common Law Rule requiring arrest of foreign peregrini to found/confirm jurisdiction: Bid
Industrial Holdings v Strang and another
o Arrest tanquam suspectus de fuga.
HIERARCHY
o CC
o SCA
o Our focus: HC, MC and SCC
o HC
Court of first instance and court of appeal
o MC
Creature of statute
District and Regional Court
o Small Claims Court
o Specialist Courts
3. CONSULTATION, LEGAL REPRESENTATION, DEMAND,
PRESCRIPTION AND MEDIATION.
Consultation
o Holistic understanding of civil procedure
, o Cause of action, locus standi, Jurisdiction, service, calculation of time periods, demand,
action/application etc
o Textbook detail
Legal Representation
o General
o Representation in HC
o Representation in MC
Demand
o What it is
o What it should look like
o When it needs to be made
Complete a cause of action
Statutory Notice
o Drafting examples
Prescription
o General
o Prescription Act
o Superannuation of judgements and summonses
o Calculation of time periods
Mediation
o Para 15.10 on page 307-318
o HCR 41A and MCR 70-84
o Voluntary
o Court-annexed
o Purpose
o Pro’s and Con’s
4. GENERAL PRINCIPLES OF JURISDICTION
What is jurisdiction?
o The power or competence which a particular court has to hear and determine an
issue between parties brought before it.
o Actor sequitur forum rei
o Principles of:
Effectiveness
Convenience
Consent
o Terminology:
Incola
Peregrinus
Arrest ad fundandam jurisdictionem
Arrest ad confirmandam jurisdictionem
When is jurisdiction determined?
o At time proceedings instituted
o Proceedings instituted once papers initiating proceedings served on other party
o Jurisdiction existing at start of proceedings, continues to exist until proceedings end,
even if grounds/basis for jurisdiction falls away during proceedings.
Formula
o Determine
General type of court competent to hear matter?
, Whether matter belongs in HC, MC
To determine
o Monetary value of claim?
o Nature of matter?
Division/seat of court may hear matter?
o Link matter to geographical jurisdiction area of courts.
5. JURISDICTION OF THE HIGH COURT
Inherent Jurisdiction
o Comprises statutory, common law and inherent jurisdiction
o Inherent jurisdiction: high court may make any order or undertake any procedural
step as long as the law does not prohibit it.
o Section 173 of the constitution
o Power to regulate own procedure:
HC is not constrained by the rules of court
If something is not prescribed by the rules, the HC may as far as the rules are
deficient, grant orders which further the administration of justice.
Value of claim
o No limitation
o Strictly speaking, there is no lower limit either
o Standard Credit Corporation Ltd v Bester
o Nedbank v Thobejane
o Also: HC discourages through costs
Nature of claim
o Any type of matter
o Unless, for example
Jurisdiction RE Territory
o S 21 of the superior courts act
o Effect
o To determine whether a specific HC has jurisdiction, turn to the common law
A) Is there one or more ratio jurisdictionis that applies on the facts that could
enable a link to the specific court?
B) Would the order be effective?
o Ratio jurisdictionis:
1) Ratione domicilli: actor sequitur forum rei – following the defendant to her
place of residence/domicile and institute proceedings there
2) Ratione rei gestae: forum rei gestae where cause of action occurred
3) Ratione rei sitae: property which is subject matter of the dispute, is situated
within jurisdiction.
Type of claims
o For divorce
o Relating to property
o Sounding in money
Divorce
o Actions
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