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These summaries were compiled from the following sources:
Theopilopoulos et al “Fundamental Principles of Civil
Procedure” 3rd edition 2015 LexisNexis
SIP Study Guide
SIP class slides
SIP explanatory notes
All other prescribed material referred to in the study guide
(legislation, case law etc.)
Copyright vests in the authors of the book and in the University
of Pretoria. These notes are in no way a substitute for the
textbook, but merely a personal summary of the course syllabus.
Please use at your own risk. Although I always try to create
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textbook and prescribed material.
- Marissa, 2020
, SIP 400 Study theme 1
Introduction to Civil Procedure
Definitions
* Know definitions for max 3 marks
National law
SUBSTANTIVE LAW PROCEDURAL LAW
Indicates how these rights,
Describes what a person’s
remedies and duties may
rights, duties and
be enforced and enables
remedies are in a given
a party to approach a
Substantive law Procedural law situation
court for legal relief
(material law) (formal law)
Determines the content Provides the procedure
and scope of a natural for the enforcement of
and juristic person’s rights, these rights, duties and
duties and remedies remedies
Law of evidence e.g. determines whether a
e.g. prescribes the
Public law Criminal person has a legal claim
procedure for claiming
procedure for damages arising from
Private law such damages
a motor vehicle accident
Civil Procedure
CRIMINAL PROCEDURE CIVIL PROCEDURE
Example:
Joe disobeys a red traffic light and collides with Enables the State, acting Civil law and civil
Jim’s vehicle. Joe is criminally prosecuted by obo the general public, to procedure enable parties
means of the law of criminal procedure for the
take action against to take action to enforce
offence of “reckless and negligent driving”. The
two litigating parties are the State and Joe. The persons who infringe rules rights and remedies or to
State prosecutes Joe and the criminal court of criminal law defend actions brought
imposes a fine on him that must be paid to the against them
State.
Purpose: To protect the Purpose: To protect
As a result of Joe’s conduct, Jim suffered public against threats to private interests;
damage to his vehicle. Jim institutes an action safety and security with proceedings are voluntary
against Joe in order to recover his damages. The objective of punishing and plaintiff or applicant
two litigating parties are Jim and Joe. The State wrongdoers may choose whether he
does not play a role as a prosecuting party. The wants to institute civil
civil court decides that Jim suffered damages as
proceedings
a result of Joe’s negligent conduct and orders
Joe to pay a quantified amount to Jim. Parties will usually be the The parties act on their
State acting obo the own behalf in enforcing or
The State may also be a party to civil
public and the wrongdoer defending claims and are
litigation, as in the following example:
usually private parties (but
Joe disobeys a red traffic light and collides with the State may litigate as a
the patrol vehicle driver by Constable Jim, which party on its own behalf)
vehicle belongs to the South African Police
Service. The State may now institute civil
Proceedings generally take two forms:
proceedings against Joe, claiming action proceedings or
compensation in respect of the damage application proceedings
caused to their police vehicle. If the collision was
caused by Constable Jim while acting in the
Action proceedings:
course and scope of his duty as a policeman,
Plaintiff (person who institutes the claim) and the defendant (the
then Joe can sue the State to recover the
person who raises a defence against the claim)
damage caused to his vehicle.
Application proceedings:
Applicant (person who brings the application) and the respondent
(the person who opposes the application)
, SIP 400 Study theme 1
Principles that underlie civil procedure
* NB for tests – know 4 principles
All persons must have equal and effective access to an independent and impartial judiciary
and costs and duration of litigation must be reasonable
Throughout the proceedings, the parties must be given an equal opportunity present their
respective cases to the court (audi et alteram partem principle) and ensures that (know
these 3 principles):
(a) the defendant is notified of the proceedings;
(b) both parties are informed of the nature of the opposing party’s case, as well as
the grounds on which it is based;
(c) both parties are afforded the opportunity to present their respective cases to the
court
Party Control: The decision to institute/defend an action and to determine the scope of the
dispute rests with the parties, and the parties decide on the evidentiary material to be
presented as proof
Provision must be made for direct oral communication between parties and the court
The main proceedings must take place in public (with exception to in camera proceedings)
The court must consider the evidentiary material on objective and rational grounds
The court must give a reasoned and legally motivated judgment and give it expeditiously
(with speed and efficiency)
The decision of the court is final and binding (although provision for appeal/review and
rescission of a judgment in certain instances does exist)
Section 34 of the Constitution states that everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing before a court, or where
appropriate, another independent and impartial tribunal/forum.
De Vos states that the entrenchment of civil procedural
guarantees in the Constitution expresses a totally new approach to this branch of the law, of
which the right to a fair trial lays the foundation for future development
The doctrine of judicial immunity a judicial officer enjoys judicial immunity from civil liability for
damages that may arise from the exercise of his judicial duties unless he acted maliciously/in bad
faith
Judicial immunity thus entrenches the principle of judicial independence, promotes the
ability of the judiciary to administer the law without fear, favour or prejudice and is
therefore consonant with section 165 of the Constitution
Sources of of civil procedure
* Know 4 sources
The Constitution of the Republic of South Africa
The Constitutional Court Complementary Act and the rules of the Constitutional Court
The Superior Courts Act 10 of 2013
The Rules of the Supreme Court of Appeal
The Uniform Rules of Court applicable in the High Court
The Magistrates’ Courts Act
The Magistrate’s Courts Rules
The Small Claims Court Act
The common law underlying the rules of procedure and jurisdiction in the High Court
Other legislation and regulations relevant to specialised courts
Practice arrangements and directives applicable in the respective divisions of the High Court
Case law
,SIP 400 Study theme 2
Structure of the Courts
General hierarchy of courts
Section 166 of the Constitution describes the various courts of the republic:
Constitutional
Court Why is the hierarchy important?
In light of the doctrine of stare decisis (to
Supreme Court of stand by decisions previously taken) or the
Appeal doctrine of precedent the lower-ranking
High Courts courts are bound by the decisions of higher
courts
Lower courts such as magistrates’ courts do
Magistrates’ Courts not set precedents in this way, but are
bound by the precedents of the superior
Other Courts courts
Constitutional Court
Existence is confirmed by section 167 of Constitution
Presided over by Chief Justice, the Deputy Chief Justice and nine other judges
Seat is in Johannesburg
Matter before CC must be heart by at least 8 judges
CC is not bound to its previous decisions – however only in certain circumstances will it deviate
from its previous decisions
Ito the Constitutional Seventh Amendment Act:
The CC is the highest court in all matters
May adjudicate on constitutional matters as well as any other matter if the CC grants
leave to appeal on the grounds that such other matter raises an arguable point of law
of general public importance
The CC is the final decision-maker on whether a matter is within its jurisdiction
Matters which are reserved for the exclusive jurisdiction of the CC:
Disputes between organs of state in the national/provincial sphere concerning
constitutional status
The constitutionality of any parliamentary or provincial bill
An application brough by members of the National Assembly/provincial council for an
order declaring all or part of an Act unconstitutional
Constitutionality of any amendment to the Constitution
Whether Parliament or the President has failed to comply with a constitutional
obligation
Certify a provincial constitution
Supreme Court of Appeal
Ito section 167(3) of the Constitution, the SCA may decide appeals in any matter arising
from the High Court, or a court of similar status to the High Court
The SCA is thus purely a court of appeal and not a court of first instance
No original jurisdiction
Most matters that have no constitutional element will still go to SCA
Seat in Bloemfontein and consists of a President, Deputy President and judges of appeal
Quorum = 5 judges (NB) (for both civil and criminal matters)
Why 5? There may be a majority decision (3/4 judges) and a minority decision (1/2)
, High Court
Ito section 166 of the Constitution, the previously independent High Courts have now been
consolidated into a single High Court of South Africa which is administratively and
jurisdictionally separated into a number of divisions and in some instances into local seats
of a division
The High Court is a court of first instance (court a quo) but it can also operate as a court of
appeal and review for the Magistrates’ Court within its area of jurisdiction
Two judges will generally form the quorum for an appeal from a Magistrates’ Court
The HC also operates as a court of appeal iro decisions made by a single judge of the HC
In such case it will either go to a three-judge bench (full bench) of the same HC or
to the SCA
A division of the HC consists of a Judge-President and as many judges as the president
may appoint
Generally, a single judge presides of a High Court sits as a court of first instance, however
sometimes a matter can be referred to a cull court consisting of three judges
Magistrates’ Courts
All Magistrates’ Courts are creatures of statute and are created by and operate ito the
Magistrates’ Courts Act
Magistrates’ Courts exist at two levels:
Regional Courts and
District Courts
There are almost 700 district courts in SA, each exercising jurisdiction over a specific
geographical area
Regional Magistrates’ Courts previously exercised only criminal jurisdiction, but regional
jurisdictions have now been created to deal with civil matters as well ito the Jurisdiction of
Regional Courts Amendment Act and the Magistrates’ Courts Amendment Act
Section 170 of the Constitution provides that a Magistrates’ Court may decide any matter
determined by an Act of Parliament, but does not possess the power to enquire into or rule
on the constitutionality of legislation or any conduct of the president
The procedure to be followed in the Magistrates’ Court is contained in the Magistrates’
Courts Rules
Courts of chiefs and headmen
Item 16(1) of Schedule 6 to the Constitution provides generally for the courts of traditional
leaders to continue to function and exercise jurisdiction ito the applicable legislation
Section 12 of the Black Administration Act provides that chiefs and headmen may be
authorised to hear and determine civil claims arising out of statutory, indigenous or
customary law
An appeal against a judgment from these courts will go to the Magistrates’ Courts
Small Claims Court
A specialist type of court constituted ito the Small Claims Court Act
The purpose of this court is to make the judicial system less expensive and more accessible
to those persons who cannot afford High Court and Magistrates’ Court fees
This court sits after ordinary office hours to ensure that litigating parties do not lose time and
wages and costs are reduced by allowing the parties to conduct their own cases, i.e. legal
representation is not allowed
It is not a court of record, i.e. the proceedings are not recorded on tape
A plaintiff in this court must be a natural person and cannot be a juristic person or
corporation
Monetary jurisdiction limit = R20 000
It is not possible to appeal against a judgment of this court (since it is not a court of record)
, Study theme 2
Situation where one of the judges of the Supreme Court of
Appeal or High Court dies/is absent/retires during a
hearing (NB)
In the Supreme Court of Appeal:
The quorum of judges for both civil and criminal appeals in the SCA is
generally 5 judges, and the judgment of the majority is the judgment of the
Court
If at any time one/more of the judges dies, retires or otherwise becomes
incompetent to preside or is absent the trial proceeds before the
remaining judges, and the majority judgment of the remaining judges will
constitute the judgment
When a majority of judges cannot reach agreement, the matter is adjourned
and commenced de novo before a new court as composed and
determined by the President of the Court
In the High Court:
If a judge of a full court at any time during the hearing of a matter dies,
retires, becomes incompetent or is absent, the matter proceeds before the
remaining judges, but only if the remaining judges constitute a majority of the
judges before whom the matter commenced
If the remaining judges do not constitute a majority, or if only one judge
remains, the trial must commence de novo
Citation of High Courts
* Very NB to know the correct names
Main seats
Free State High Court, Bloemfontein IN THE HIGH COURT OF SOUTH AFRICA FREE
STATE DIVISION, BLOEMFONTEIN
Kwa-Zulu Natal High Court, Pietermaritzburg IN THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU NATAL DIVISION,
PIETERMARITZBURG
North Gauteng High Court, Pretoria IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Western Cape High Court, Cape Town IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Local seats
Kwa-Zulu Natal High Court, Durban IN THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU NATAL LOCAL DIVISION, DURBAN
South Gauteng High Court, Johannesburg IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
, Specialised Courts Study theme 2
* Must know for 3 marks each - explain the following specialised courts
Know how it was created + what the functions of the court are
How was it
Court Description Functions
created?
Has the same authority,
powers and standing as Adjudication of matters
a High Court in relation ito LRA, BCEA, UIA, EEA,
to matters under its OHSA, COIDA. It has
jurisdiction. It has concurrent jurisdiction
Labour Courts jurisdiction in all parts of
Section 151 of the
Labour Relations Act
with the civil courts to
SA and has exclusive hear and determine any
jurisdiction iro all matters matter concerning a
ito the LRA or any other contract of
law relevant to the employment.
Labour Court.
May determine a right to
restitution of any land in
Has the same status as
accordance with the
the HC and has
Act, determine issues of
exclusive jurisdiction to
compensation iro the
determine a right to
appropriation or
restitution of any land in
acquisition of such land,
accordance with the
determine title to such
Act
Land Claims The Land Claims Court Section 22 of the
land and determine
whether compensation
has its own rules and its Restitution of Land Rights
Court procedures are more Act
received at the time of
dispossession of the land
flexible than those of the
was just and equitable. It
HC, allowing it to
also has exclusive
conduct proceedings
jurisdiction to determine
on an informal basis. It
matters involving the
has its seat in Randburg,
Land Reform (Labour
but may convene in any
Tenants) Act and the
part of the country.
Extension of Security of
Tenure At.
Composed of a judge or
acting judge of the HC, Hearing of income tax
Special Income an accountant of not
less than 10 years’
Sections 116-132 of the
Tax Administration Act
appeals by persons
dissatisfied with decisions
Tax Court standing and a
representative of the
provides for its
constitution
made by the
commissioner of the
commercial business SARS.
community.
Responsible for the
investigation, control
and evaluation of
restrictive practices,
abuses of dominant
Has a status similar to
Competition that of a HC and has
position and mergers.
May review any decision
jurisdiction throughout The Competition Act
Appeal court the RSA. Consists of at
of the Competition
Tribunal or consider an
least 3 judges of the HC
appeal against a
decision of the Tribunal.
There is no appeal from
the Competition Appeal
Court to the SCA.
, Study theme 2
May review any decision
Has the same status as of the Electoral
the High Court and Commission relating to
Section 18 of the
Electoral Court consists of a judge of the
SCA and two HC judges
Electoral Commission
an electoral matter, and
it may hear certain
Act
plus two other members appeals against
who are SA citizens decisions of the Electoral
Commission
Provided for by the CPA
which sets out a
Consumer Court
Consumer may enforce
regulatory and
any consumer right set
enforcement framework
and related for the protection of
The Consumer
Protection Act
out in
transaction/agreement
matters
fundamental consumer
or resolve any dispute
rights which exist
with a supplier
between a consumer
and supplier
The former Divorce
Court has been
absorbed into
Divorce Court Magistrates’ Courts of
Regional Division which
Magistrates’ Court
amendment Act
Divorce proceedings
are currently part of the
ordinary structure of the
Magistrates’ Courts
Every Magistrates’ Court
is deemed to be a
Children’s children’s court and has
jurisdiction over matters Section 42 of the
May adjudicate any
matter ito the Children’s
Court arising from the
application of the
Children’s Act
Act
Children’s Act
Every Magistrates’ Court
at district level is, within
Maintenance its area of jurisdiction, Where applicants can
also a maintenance Maintenance Act obtain and enforce
Court court for the purposes of maintenance orders
the Act.
Section 16 of the
Every Magistrates’ Court
Promotion of Equality
Equality Court and every High Court is
also an Equality Court in
and Prevention of Unfair
Deals with complaints of
unfair discrimination.
Discrimination Act
the area of jurisdiction.
(PEPUDA)
Example questions: Officers of the Court
Judges
Example t/f question: The CC is the highest Magistrates
court but only relating to Constitutional Registrar of the High Court
matters Clerk and Registrar of the Magistrate’s Court
= FALSE, the Constitutional Court Amendment The Sheriff
Act of 2012 changed this position Master of the High Court
Legal Practitioners
Attorneys
How many High Courts do we have in SA? Advocates
1 Court - back to previous system. However Advocates with trust accounts (new
certain seats/divisions and local category created by Legal Practice
seats/divisions Act)
, Study theme 2
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