Summary
Summary Unit 1 LCVP
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CIVIL PROCEDURE AND ITS PLACE WITHIN THE LEGAL SYSTEM1. LAW in essence is about the creation and enforcement of rights to broadly ensure harmonious co-existence of humans within society.
2. So while substantive law creates the rights and prescribes the remedies, the law of Civil Procedure tells us what procedure to use when we
approach court formally to seek a remedy for an infringement of rights.
3. Civil procedure, with criminal procedure, evidence and statutory interpretation is referred to as formal or adjectival law.
4. The nature of the civil process we follow in SA, is adversarial meaning two parties who “fight” a case before an impartial judge or judges or magistrate.
The court does not get involved and tell the parties how to fight the battle; it merely acts like an impartial umpire.
5. Civil procedure is therefore part of civil law as criminal procedure is part of criminal law
6. CIVIL PROCEDURE CRIMINAL PROCEDURE
Plaintiff v defendant or State v Accused
applicant v respondent
Private nature Public nature
Liability Guilt
Balance of probabilities Beyond a reasonable doubt
Damages Punishment
Orders for payment of money Retribution, deterrence
7. Criminal law has a public dimension meaning in short that the public has a real interest in criminality-the reason obviously that a crime-free
society is ideal. Thereto, civil law generally AND PRIMARILY concerns itself with private disputes. Be cautioned however, that particularly in a
constitutional state, civil law cases may often involve disputes that attract huge public interest. Think for example about the recent case between
certain SA political parties and the president of the RSA. Even though this civil case was between the litigants, it attracted and is of huge public
interest. Public interest litigation has become a feature of SA jurisprudence; often associated with poor public administration.
8. Never in civil law or civil procedure talk about “finding someone guilty” but rather finding someone “liable”.
9. Civil procedure is referred to as the “nuts and bolts” of law meaning that whereas certain parts of substantive civil law tells us about the existence of
rights and remedies such as the law of persons, contract, family law, delict, constitutional law, civil procedure tells us about the
method/manner/process with which to enforce these rights in court.
10. No right outside that of criminal law can be enforced without the law of civil procedure .
11. Take note that the law of evidence plays a substantial part in both civil and criminal law.
© Alda Vorster
,THE COURT SYSTEM Outside certain specialist or special courts-like SMALL CLAIMS, LABOUR COURT, COMPETIOTION
APPEALS COURT, TAX COURTS, THE LAND CLAIMS COURT, THE ELECTORAL COURT, our system has,
AND THE OFFICIALS our courts consists of the Magistrates’ Courts, High Courts, Supreme Court of Appeal and
Constitutional Court.
1.
Magistrates’ Courts:
District and Regional
Courts
Magisterial districts in SA are served by
2.
The High Court(s)
Currently and i.t.o. the Constitution Seventeenth Amendment Act of 2012 and the Superior
Courts Act 10/2013, brought about a single High Court with different divisions.
1. EC Division – Grahamstown
2. Free State Division – Bloemfontein
Magistrates’ Courts at district level.
3. KZN Division – Pietermaritzburg
Each so many number of those district 4. Limpopo Division – Polokwane
courts are served by regional courts. 5. Mpumalanga Division – Nelspruit
In practice we use legal diaries such as 6. NC Division – Kimberley
HORTERS which indicate the various 7. Gauteng Division – Pretoria
magistrates’ courts. They also contain 8. North West Division – Mahikeng
the names of the law firms, listing the 9. WC Division – Cape Town
attorneys that arte practicing within In addition the Superior Courts Act provides for the setting up of local divisions of
those districts. You may be practicing existing divisions and there are currently 6 of these local divisions, notably 3 Eastern Cape
in Bloemfontein and may need a Divisions situated at Bisho, Mthatha and PE, and Limpopo at Thohoyandou.
3.
“correspondent” in another town to
represent your client there. You would The Supreme Court of Appeal
therefore use Horters to locate such a
correspondent law firm.
Consists of president, deputy and a number of judges and acting judges of appeal.
Take note that there currently is a
Sits in Bloem and has jurisdiction over the whole of SA.
rationalization process of SA
It is an appellate court-meaning cases are argued on appeal on the court documents. It also
Magistrates’ courts on the go in SA,
means that this court is never a court of first instance.
including establishing uniform rules for
The Seventeenth Amendment Act of the Constitution of 2012 brought about important
both higher and lower courts. This has hierarchical changes: the CC is now the highest courts of ALL matters, constitutional and non-
been partially achieved and reference constitutional. The SCA has become an intermediate appeal court. Furthermore the SCA now
to such instances is made in this can hear all appeals from a High Court or of any court of the status of a high court except in
© Alda Vorster
course. respect of certain labour and competition matters. These matters go on appeal first to special
appeal courts which have been established.
,4.
The Constitutional Court
Consists of chief justice, deputy chief justice and 9
5.
The officials that form part of our judicial
system
Chief Justice=Moeng-Moeng, quoted as “CJ” in case law.
Deputy Chief Justice-“DCJ” in case law.
Constitutional Court judges. Addressing individual judge in CC:” Justice so and so…” “ [Regter so en so…”]
Sits in JHB. Can be a court of first instance in certain Addressing them all: “ The court is referred to ….” [“ Die hof word verwys na….”]
matters i.t.o. Constitution-exclusive jurisdiction. In the SCA-President SCA carries “P” after his name in case law. Deputy President carries
After seventeenth amendment it is now highest court “DP” after his name. Others: “JA”. Mode of address-the same as in CC.
of appeal in all matters; constitutional and others. Division of High Court headed by Judge President-carries “JP” after his name; others “J”.
It is required that CC confirms any constitutional These are still addressed as “my lord/lady” and “your lord/ladyship”. [“ u EDELE, OF
invalidity declaration made by SCA or a High Court. EDELES”]
Also in terms of the 17th amendment: chief justice now is In the Magistrates’s Court Presiding officers in MC’s are magistrates and are addressed as
head of the administration of the judiciary in SA. (All “your worship”. “Edelagbare…”
Each division has a registrar of the court. Equivalent of this person in MC= a “clerk of the
courts); Office of Chief Justice was established as a
court” if it is the district court. In the regional court they are registrars of the court.
national government department.
Sheriff of the court: these persons and their deputies are responsible for service of legal
Take note than in 2014 the CJ published a document
documents and other services such as arrests and the attachment of property.
called NORMS and STANDARDS for the
PERFORMANCE of JUDICIAL Functions, binding on all
judicial officers and applicable in all SA courts.
STATUTES:
1. The Superior Courts Act 10/2013
2. The Magistrates’ Courts Act 32/1944
Where you will find the 3. The Small Claims Courts Act 61/1984
relevant law-sources of
CASE LAW
the Law of Civil Procedure
© Alda Vorster
, SUPERIOR COURTS ACT
NO. 10 OF 2013
ACT
To rationalise, consolidate and amend the laws relating to the Constitutional Court, the Supreme Court of Appeal and
the High Court of South Africa; to make provision for the administration of the judicial functions of all courts; to make
provision for administrative and budgetary matters relating to the Superior Courts; and to provide for matters incidental In each division of the High Court, there are
thereto.
Preamble further Practice Directions which supplement
NOTING THAT section 1 of the Constitution of the Republic of South Africa, 1996, provides that the supremacy of the Constitution the rules and has to do with the practical
and the rule of law form part of the founding values of the Republic; administration of the courts.
AND section 165 of the Constitution provides that—
(a) the judicial authority of the Republic is vested in the courts;
(b) the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without
fear, favour or prejudice;
(c) no person or organ of state may interfere with the functioning of the courts;
(d) organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence,
impartiality, dignity, accessibility and effectiveness of the courts
(e) an order or decision by a court binds all persons to whom and all organs of state to which it applies; and
(f) he Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms
and standards for the exercise of the judicial functions of all courts;
AND section 166 of the Constitution provides that the courts are—
(a) the Constitutional Court;
Rules Board which is a statutory body responsible for the
(b) the Supreme Court of Appeal review, repeal and/or amendment of the rules. It has the power
(c) the High Court of South Africa; to do same. Important however: an Act, (statute) however can
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either only be repealed amended etc. by an act of parliament.
the High Court or the Magistrates’ Courts; In the High Courts, “Uniform Rules, Uniform Rules of Court, and
AND section 171 of the Constitution provides that all courts function in terms of national legislation, and their rules and
High Court Rules”: these are the same and are the rules of the
procedures must be provided for in terms of national legislation;
AND section 180 of the Constitution provides that national legislation may provide for any matter concerning the administration High Court. They were promulgated in terms of the now
of justice that is not dealt with in the Constitution; repealed Act 59/59.
AND item 16 (6) (a) of Schedule 6 to the Constitution provides that as soon as practical after the Constitution took effect all
The various rules of court also prescribes precedents; these are
courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a
view to establishing a judicial system suited to the requirements of the Constitution; the prescribed format of various court documents. See various
NOTING FURTHER that, with the advent of the democratic constitutional dispensation in 1994, the Republic inherited a fragmented
examples in your textbook at the back.
court structure and infrastructure which were largely derived from our colonial history and were subsequently further structured to
serve the segregation objectives of the apartheid dispensation;
AND that, before the advent of the democratic constitutional dispensation in 1994, the Magistrates’ Courts were not
constitutionally recognised as part of the judicial authority and were largely dealt with as an extension of the public service;
AND that, since the Constitution provides that the judicial authority is vested in all the courts, it is desirable to provide for a
uniform framework for judicial management, by the judiciary, of the judicial functions of all courts;
AND RECOGNISING that the rationalisation envisaged by item 16 (6) (a) of Schedule 6 to the Constitution is an on-going
process that is likely to result in further legislative and other measures in order to establish a judicial system suited to the
requirements of the Constitution,
© Alda Vorster
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