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Civil Procedure study notes chp 1-7 $11.21
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Civil Procedure study notes chp 1-7

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Civil Procedure notes for study purposes based on chapter 1-7

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  • May 15, 2022
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Civil Procedure Notes Part 1
Chapter 1 – Intro to Law of Civil Procedure........................................................................................................................2
Chapter 2 – Court Structure..................................................................................................................................................7
Chapter 3 – Consultation, Legal Representation, Demand and Prescription.....................................................................13
Chapter 4 – Jurisdiction......................................................................................................................................................20
Chapter 5 – Jurisdiction of the High Court.........................................................................................................................25
Chapter 6 – Jurisdiction of the Magistrates Court..............................................................................................................32
Chapter 7 – Parties to Litigation & Citation.......................................................................................................................38




1

, Chapter 1 – Intro to Law of Civil Procedure

SUBSTANTIVE LAW VS PROCEDURAL LAW

o Substantive law (the what)
Ø Content & meaning of legal rules
Ø Person’s rights, duties, remedies – content & scope Two concepts are
interdependent
o Procedural law (the how)
Ø Enforcement of rights, duties, obligations
Ø How enforcement of rights, duties, & remedies should be practically handled – before trial, during trial, post-trial

CRIMINAL VS CIVIL

o Civil law
Ø Enables parties to take action to enforce rights, claim remedies & defend actions

o Criminal law One set of facts can give rise
Ø Enables State to prosecute wrongdoer on behalf of general public to both civil matter &
criminal matter
Ø In order to promote & protect health & safety of general public

Civil Criminal
Area of law Private Public
Aim Compensation/interdict Protect health & safety of public + punish wrongdoers
Quantum of proof Balance of probabilities Beyond reasonable doubt
Parties Normally individuals – A v B Always State v Accused – S v X
Role of state State not always a party State always a party
Dominus litis Plaintiff/applicant State
Burden of proof Rests on plaintiff/applicant Rests on State
Interests affected Private – one person Public – General public
Voluntary? Voluntary State decides
Outcome of case Relief granted/dismissed Accused convicted/acquitted
Forum Some courts deal exclusively with civil Some courts deal exclusively with criminal matters
matters + ADR

ACTION VS APPLICATION PROCEDURE

o Choosing between action & application Material =
Ø Whether there is a material dispute of fact substantial dispute
Ø Material dispute – action
F Due to need for oral evidence
Ø No material dispute – use application
F Due to lack of need for oral evidence – matter decided merely on the papers

o MC mostly hears action procedures
Ø Applications are exception rather than rule – can only bring application if authorised by statute & regulations

Action procedure
Action procedure
Parties Plaintiff & defendant
Basis for claim Delict, contract, unjustified enrichment
Want to claim o Compensation (contractual/delictual damages)
o Specific performance
Used when o Material dispute of fact
o Application inappropriate
o Action prescribed by statute (e.g. divorce)
Commences with Issuing of summons by plaintiff
How matter is resolved o Pleading exchanged between parties
Ø Defendant’s plea & counterclaim
Ø Plaintiff’s reply to defendant’s plea
Ø Plaintiff’s plea to defendant’s counterclaim
Oral evidence? Action trial where oral evidence is presented
2

, Court judgment Grants in favour of plaintiff or dismisses (in favour of defendant)
Examples o Divorce
o Claim for damages (contract/delict)
Costs Takes longer & is more expensive

Application procedure Also known as “motion” procedure Insolvency
Natural person – sequestration
Juristic person – liquidation
Application procedure
Parties Applicant & respondent
Want to claim o Other forms of relief (not compensation) Application
Ø Interdict, ejectment, insolvency prescribed for
Used when insolvency by both
o No material dispute of fact HC & MC
o Prescribed by statute (e.g. insolvency)
o Not prohibited (e.g. not permissible for claiming damages)
o Disputes of law
Commences with Issuing of notice of motion & supporting founding affidavit by applicant
How matter is resolved Arguing on papers by legal representatives
Oral evidence? Oral evidence & witnesses not allowed
Court judgment (outcome) Granted (applicant) or dismissed (respondent)
Examples o Admission as an attorney
o Sequestration/liquidation
o Interdict
Two types o 1. With notice – more than one party (opposition to application)
o 2. Without notice – only one party before court (ex parte)

With notice Affidavit
Sworn statement signed in presence of
o With notice commissioner of oaths
Ø More than one party (opposition to application)
Ø Commences with – notice of motion + founding affidavit

o 3 sets of affidavits (NOT pleadings) in application with notice
Ø 1. Founding affidavit (applicant’s case) Application without notice
Applicant issues only a notice of motion
Ø 2. Answering affidavit (respondent’s answer) & founding affidavit
Ø 3. Replying affidavit (applicants reply)

o No trial
Ø Argument in court made by legal representatives

ACTION APPLICATION
Parties Plaintiff & defendant Applicant & respondent
Basis Material dispute of facts No material dispute of facts or prescribed/prohibited
How to resolve Decided following oral (& other) evidence by Decided on the papers before court – general rule:
parties & witnesses no evidence allowed
Commencement Plaintiff issues summons Applicant issues notice of motion & supporting
founding affidavit
Dominus litis Plaintiff Applicant
Further Further pleadings exchanged: Further affidavits are exchanged:
documents 1. Defendant’s plea & counterclaim 1. Opposing affidavit
2. Plaintiff’s reply to defendant’s plea 2. Replying affidavit
(replication)
3. Plaintiff’s plea to defendant’s counterclaim

Summons Notice of motion & founding affidavit
Plea Answering affidavit
Replication Replying affidavit
Trial After exchange of pleadings  preparation for No written preparation for trial stage
trial
Evidence Oral evidence Normally no oral evidence
End Ends in trial court – where oral evidence & Ends in motion court – no oral evidence, parties do
witnesses are presented not testify, argued on papers by legal representatives
Nature o More expensive & time-consuming o Less expensive & quicker
o Takes longer thus involves more costs o Can be done in a shorter space of time & legal
3

, costs are therefore less
Remedies? Damages Cannot be used for damages, used for
interdicts/declarations/ejectments/insolvency
Court order Judgment in favour of plaintiff/defendant Application granted or dismissed

Choosing between action and application

o For purposes of choosing between action & application:
Ø 5 categories of cases must be considered

o 1. Action/application directed by statute
Ø Type of procedure laid down in statute must be followed
F Companies Act – winding-up of company takes place using application Procedure applicable prescribed
by rules of court which prescribe
F Divorce Act – proceedings must be instituted using action action

o 2. Unliquidated claim for damages
Unliquidated = amount has
Ø Action procedure compulsory not been agreed beforehand

o 3. Cases in which urgent relief is sought
Ø Litigant must use urgent application (no mechanism for granting of urgent relief to plaintiff in action
proceedings)
Ø Even if matter requires action procedure to properly settle it, to acquire urgent relief – application procedure
must be used

o 4. Cases in which no relief is sought against any other person
Ø Can only use application procedure (ex parte) – e.g. application for admission as attorney

o 5. Cases outside the above categories where choice between procedures is available
Ø Depends on whether material dispute of fact exists or is likely to arise during litigation
F Material dispute of fact – action ; no material dispute of fact – application

o Finding on a material dispute of facts
Ø Can only be made after having opportunity to observe demeanour of parties &/or their witnesses, in particular
under cross-examination
F Opportunity not available in application proceedings
Deponents –
Ways in which material dispute of fact may arise – Room Hire case statement under oath

o 1. Respondent may deny material allegations made by applicant &/or deponents of applicant’s behalf
Ø & produce evidence by deponents to the contrary

o 2. Respondent may plead new allegations (not contained in applicant’s founding affidavit) in confession &
avoidance of applicant
Ø Allegations may be disputed by applicant

o 3. Respondent may concede that he has no knowledge of material facts averred by applicant but may deny them,
putting the applicant to the proof of them
Ø May give evidence to show applicant & their deponents are untruthful or unreliable
Ø May give evidence that certain facts (facta probantia) on which applicant relies in order to prove main facts
(facta probanda) are untrue

o Respondent must raise real/genuine/bona fide disputes of facts
Ø SCA: Bare denials not acceptable where the facts deposed [testified] to lie purely in knowledge of litigant
deposing to answering affidavit
F Unless facts in question are peculiarly in knowledge of applicant & respondent has no knowledge of them
Ø Disputes must not be too vague & general
F Each material averment must be met & answered appropriately, not enveloped in fog that hides reality

o In order to argue that disputes of fact were reasonably foreseeable
Ø Those disputes must be set out in answering affidavit
F Which must set out basis on which it is alleged that disputes were reasonably foreseeable


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