This document is a summary of everything that you need to know for the module Civil Prodecure. From ADR to evidence, we got you covered! Be ready to ace your exams with our assitance, saving your time to study even harder for that test.
Quelques exemples de cette série de questions pratiques
1.
Interdict
Réponse: An interdict is a court order in terms of which a person is ordered either to perfom or not to perform a specific act.
Prohibitory interdict - order that someone must not perform an act.
Mandatory interdict - order that someone must perform an act.
Magistartes Courts may grant both final and temporary interdicts.
2.
Rule Nisi
Réponse: The rule nisi is an order calling upon the respondent, or on all interested parties, to show cause on a day fixed in the rule (known as the \"return day fo the rule nisi\", and being the day upon which these parties may oppose the application) why the relief specified in the rule nisi should not be finally granted.
3.
Party presentation
Réponse: Party presentation refers to the competence of a litigant to investigate his own cause or defence, to formulate the issues in dispute, as well as to present the material facts concerned, and to prove these facts and raise legal argument in support of these facts before a court.
4.
Party Prosecution
Réponse: Party prosecution refers to the competence of a litigant either to commence (begin) or defend proceedings and to move (prosecute) the case forward through all its procedural stages. This principle reinforces the notion that litigation is a private matter that is conducted by both litigants without any interference from the court, except where its intervention is requested by litigants.
5.
Liquid document or mortgage bond
Réponse: A liquid document is a document in which a debtor, above his signature or that of his agent, admits that he is liable for a fixed or ascertainable sum of money. Note that the financial limitation relates to the amount that may be claimed in the summons, not to the amount of the liquid document or bond.
6.
Rationes jurisdictionis
Réponse: The rules of jurisdiction provde that there must be some link (nexus) between the court\'s jurisdictional area and the defendant, or the facts from which the dispute arose. These links are called \"jurisdictional connecting factors\" or rationes jurisdictionis.
7.
Ratione domcilii
Réponse: Under common law, the court where the defendant is either domiciled or resident always has jurisdiction to hear a claim sounding in money.
Aperçu du contenu
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CIV3701 Study unit 3
ADR – Alternative Dispute Resolution
Civil Procedure
Primary objectives of
ADR
Cooperative and Facilitate access to Releive court
Cost-cutting measure
participatory dispute justice conjestion
Civil procedure is concerned with the rules and procedures for
bringing disputes before the High Court and Magistrates Courts.
SA civil justice system is adversarial in nature.
Civil claims use ADR mechanisms to promote access to justice.
This is in line with our Constitutional values. Best example of this:
Court-annexed mediation (Magistrate courts).
What is the objective of court-annexed mediation?
To assist litigants to determine at an early stage of litigation
whether proceeding with a trial is in their best interest. Where it is
not, it aims to find alternative solutions to the dispute.
Textbook summary With this process, a mediator is appointed to facilitate discussions
between the parties, assisting them in identifying issues, clarifying
Civil procedure: a practical guide, 3rd priorities and exploring areas of compromise. This mediation is a
edition 2017 voluntary process. If parties elect to proceed to mediation, a
written agreement is concluded and filed at court and the parties
Pete S, Hulme D etc lodge statements of claim which the mediator relies on to resolve
the dispute between the parties. Parties may choose to be legally
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represented in this process but may also be unrepresented. The Study unit 11
mediator is entitled to charge a fee for his services at a fixed tariff. The value of the claim – section 29 (of the Magistrates Court Act)
1. ADR as a cost-cutting measure If the claim or value of the claim of the matter in dispute is
Negotiation and mediation may be more cost effective than R200 000 or less, the matter falls within the jurisdiction of the
arbitration and arbitration is usually cheaper than litigation. District Magistrates Court.
2. ADR results in cooperative and participatory dispute settlement If the claim or value of the matter is over R200 000, but not over
ADR promotes dialogue-based resolution where parties involved R400 000, the matter falls within the jurisdiction of the Regional
work together with a neutral party to resolve issues. Magistrates Court.
3. ADR helps facilitate access to justice If the claim or the value of the matter in dispute is over R400 000,
the matter falls within the jurisdiction of the HC.
Effective use of ADR processes by legal practitioners can offer
affordable solutions to parties and expedite the resolution of Thus: R200 000 or less – District MC
disputes. R200 001 until R399 999 – Regional MC
4. ADR helps relieve court congestion R400 000 and over – HC.
Sec 29(1)(a) – delivery or transfer of property
Study unit 5 District Magistrates’ Courts possess jurisdiction in respect of
Jurisdiction is determined at the time that the proceedings are actions in which is claimed the delivery or transfer of any property,
instituted. movable or immovable, not exceeding R200 000 in value.
Proceedings are only deemed to have been instituted once the Regional Magistrates’ Courts possess jurisdiction in respect of
papers initiating those proceedings have been served on the other actions in which is claimed the delivery or transfer of any property,
party. movable or immovable, exceeding R200 000 but not exceeding
R400 000 in value.
As long as jurisdiction exists at the start of the proceedings, it will
continue to exist util the proceedings end, even should the ‘Value’ means the actual market value of the property.
particular grounds or basis upon which jurisdiction was founded,
fall away during the proceedings. Sec 29(1)(b) – ejectment
District Magistrates’ Courts possess jurisdiction in respect of
actions of ejectment against the occupier of any premises or land
within the relevant district, provided that where the right of
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occupation of any such premises or land is in dispute between the Study unit 12
parties, such right does not exceed the amount of R200 000 in A person who has a right to sue or be sued in a particular matter is
clear value to the occupier. said to possess locus standi in iudicio (i.e. legal standing) in that
Regional Magistrates’ Courts possess jurisdiction in respect of matter. There are two tests to determine the locus standi of a party
actions of ejectment against the occupier of any premises or land – firstly, whether or not the party concerned has a direct and
within the relevant regional division; provided that where the right substantial interest in the matter and, secondly, whether or not
of occupation of any such premises or land is in dispute between that party has legal capacity to litigate in the matter.
the parties, such right exceeds the amount of R200 000 but does
not exceed the amount of R400 000 in clear value to the occupier.
Requirements for a direct and substantial interest:
Clear value = the value over and above the rent payable.
a) the plaintiff/applicant for relief must have an adequate interest
in the subject matter of the litigation, which is not a technical
Sec 29(1)(d) – liquid document or mortgage bond concept but is usually described as a direct interest in the relief
District Magistrates’ Courts possess jurisdiction in respect of sought
actions on or arising out of a liquid document or a mortgage bond b) the interest must not be too far removed
where the claim does not exceed R200 000. c) the interest must be actual, not abstract or academic
Regional Magistrates’ Courts possess jurisdiction in respect of d) the interest must be a current interest and not a hypothetical
actions on or arising out of a liquid document or a mortgage bond one
where the claim exceeds R200 000 but does not exceed R400
000.
Broken down in formal terms, a liquid document is one that Capacity to litigate
indicates, without the need to resort to extrinsic evidence: Both natural persons and corporate persons possess the capacity
(1) an acknowledgement of indebtedness; to sue and be sued. However, some persons cannot sue or be
sued unless they are represented or assisted by his guardian.
(2) in an ascertained amount of money; (example – children).
(3) the payment of which is due to the creditor.
Power of attorney
A power of attorney is a written document which confers authority
upon an agent to act for his principal.
Two kinds of power of attorney:
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