This document contains comprehensive summaries from the lecture slides, Q&A documents and prescribed textbook (Clinical Law in South Africa (3rd edition)).
The following themes are contained herein:
Theme 1: Information and consultation skills
Theme 2: Divorce litigation
Theme 3: Introduction to ...
DISCLAIMER:
Please take note of the fact that these notes may not be comprehensive of the
material required to be covered for the module and contained in the prescribed
syllabus as reflected in the study guide. There may be errors; omissions or
shortcomings, accordingly, use these notes at your own discretion.
ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
• Frik Grobler & Samantha Yell:
o Lecturers in the Department of Procedural Law, University of
Pretoria: PRR 400 (Practical law) 2020.
o Slides and class notes.
• The Practical Law 400 (PRR 400) Study Guide (2020) University of
Pretoria.
• SH Mohamed et al Clinical Law in South Africa (2016) 3rd ed LexisNexis.
PLEASE NOTE:
These notes shall not be shared without the express consent of the author
thereof.
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Table of Contents
Theme 1: Introduction & consultation skills ............................................................................... 4
The objectives of the consultation: ........................................................................................... 4
The five stages of consultation methodology:....................................................................... 4
Procedure to be followed before and after the consultation: ............................................ 6
Important information to obtain in any consultation: .......................................................... 7
Theme 2: Divorce litigation ........................................................................................................... 16
Settlement in divorce proceedings: ........................................................................................ 16
Divorce litigation in the Regional Division of the Magistrates Court:............................ 17
Processes in divorce litigation: ............................................................................................... 25
Interim relief in divorce proceedings: .................................................................................... 29
Theme 3: Introduction to the UP-Law Clinic & office manual .............................................. 30
Confidentiality and legal professional privilege .................................................................. 30
Rules and operation of the UP-Law Clinic: ........................................................................... 30
Administrative systems and procedures of the UP-Law Clinic: ...................................... 30
Opening, diarising, managing and closing a file: ................................................................ 31
Client application form and the means test: ......................................................................... 32
Indemnity form: ............................................................................................................................ 32
Theme 4: Negotiations .................................................................................................................... 33
Theme 5: Overview of action procedure .................................................................................... 40
Differences between the action and application procedures: ......................................... 40
Action procedure: ........................................................................................................................ 41
1. Simple summons procedure:............................................................................................ 42
2. Combined summons procedure ...................................................................................... 43
The difference between pleadings, notices and letters: .................................................... 46
Function of documents: ............................................................................................................. 46
Process of service of documents:........................................................................................... 49
Substituted service: .................................................................................................................... 50
Theme 6: Drafting letters, office notes & legal opinions ....................................................... 51
Drafting letters: ............................................................................................................................. 51
Drafting office notes: .................................................................................................................. 55
Drafting legal opinions: .............................................................................................................. 55
Theme 7: Drafting pleadings ......................................................................................................... 60
Drafting a particulars of claim: ................................................................................................. 63
Drafting a plea: ............................................................................................................................. 65
Drafting a counterclaim:............................................................................................................. 68
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Drafting a replication: ................................................................................................................. 68
Specific claims in terms of the Magistrates’ Court Rules: ................................................ 69
Theme 8: Drafting affidavits/applications.................................................................................. 70
General: .......................................................................................................................................... 70
Types of applications: ................................................................................................................ 72
Notice of motion:.......................................................................................................................... 72
Founding affidavits: .................................................................................................................... 75
Application (motion) process: .................................................................................................. 79
Theme 9: Child law & child maintenance .................................................................................. 80
Child law theory: .......................................................................................................................... 80
Divorce matters: ........................................................................................................................... 85
Referring a matter to the Family Advocate’s Office: .......................................................... 93
Application to the Children’s Court: ....................................................................................... 94
Theme 10: Maintenance court matters ..................................................................................... 102
Theme 11: Domestic Violence Act, 116 of 1998 & Protection from Harassment Act, 17
of 2011............................................................................................................................................... 119
Domestic Violence Act, 116 of 1998: .................................................................................... 119
Protection from Harassment Act, 17 of 2011: .................................................................... 127
Theme 12: Preparation for trial................................................................................................... 129
Overview of the action procedure: ........................................................................................ 129
Close of pleadings: Litis contestatio .................................................................................... 129
Applying for a court date: ........................................................................................................ 129
Discovery of documents: ......................................................................................................... 132
Inspection of documents: ........................................................................................................ 139
Discovery and inspection timeline: ....................................................................................... 140
Failure to make available for discovery or inspection: .................................................... 140
Proving documents before trial: ............................................................................................ 140
Pre-trial conference: .................................................................................................................. 141
Other pre-trial procedures to note: ....................................................................................... 142
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Theme 1: Introduction & consultation skills
The objectives of the consultation:
• General objectives of the consultation:
o Establish a relationship with the client;
o Obtain the necessary facts;
o Advise the client; and
o Obtain instructions from the client.
• Specific objectives of the consultation:
o Explore the reasons for seeking legal advice and assistance from the
client;
o Identify the legal problems presented;
o Provide an analysis of the options and counsel the client in the decision-
making process;
o Allow the client to make an informed decision at the appropriate stage;
and
o Ensure that the legal practitioner and the client are both aware of the
consequences of any decision made.
The five stages of consultation methodology:
1) Introductory or ‘meet and greet’ stage
o Meet the client at the UP-Law Clinic reception.
▪ Show care and respect to the client as a person.
▪ This enables the client to respect you as a competent
professional.
o Introduce yourself and address the client by their title and surname.
o Give the client an introduction to the UP-Law Clinic by explaining:
▪ That you are students working under the supervision of qualified
attorneys;
▪ Any fees that may become payable; and
▪ The application form and means test.
2) Listening stage (passive techniques)
o Active listening is used to:
▪ Absorb the relevant facts (with the head);
▪ Understand the client’s emotions (with the heart);
▪ Obtain an awareness of the client’s basic human needs (with the
stomach); and
▪ Identify the client’s intention or will (with the feet).
• i.e. Identify in which direction the client is moving and how
strong their commitment is.
o Active listening techniques include:
▪ Silence;
• It conveys the message: “I don’t’ want to interrupt. I am
listening.”
▪ Restraint from interruption;
• Try not to cut through ‘unimportant’ details.
▪ Use of appropriate body language;
• This includes nodding of the head, appropriate eye
contact, facial expressions, body positioning and tone of
voice.
▪ Encouraging elaboration or response;
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▪ Restating;
• This technique involves using the client’s own words for
the purpose of conveying to the client that you have been
listening to their account.
▪ Paraphrasing;
• Paraphrasing gives you the chance to clarify facts that you
may have misunderstood
▪ Note-taking; and
• Accurate and comprehensive consultation notes are
imperative to proceeding with a client’s matter.
▪ Displaying empathy.
• Empathy indicates that you acknowledge the distress or
other emotional state of the client.
3) Questioning stage (active techniques)
• Types of questions:
o Open questions:
▪ Cannot be answered with a simple ‘yes’ or ‘no’.
▪ Likely to elicit more information about the client’s problem
and expectations.
▪ Allow clients to explain situations from their perspectives,
rather than simply responding to questions put to them.
▪ Allow for a more interactive process.
▪ Can extend the length of the interview.
▪ E.G. “Why did you do it?”; “What were you doing?”; and
“Please tell me more about…”
o Closed questions:
▪ Restrict the range of responses to either a simple ‘yes’ or
‘no’.
▪ Permit you to obtain much information in a short period of
time.
▪ Especially beneficial for completing a checklist.
▪ Restrict the flow of information because ‘why’ questions
are not dealt with.
▪ E.G. “Who was your immediate supervisor?”; “Did you call
him on that day?”; and “When did you start working at the
company?”
• T-funnel questioning technique applicable to any line of enquiry:
o Start with broad questions; and then
o Narrow down the focus of the enquiry with progressively narrower
questions.
• Questions to be avoided:
o Biased or loaded questions:
▪ The bias of a question affects the validity of the response.
▪ Biased questions produce neither valid nor relevant
information.
o Persuasive questions:
▪ There is never a good reason for trying to persuade the
client to answer a question in a particular way.
▪ There is an inherent danger in trying to get the ‘right’
answer from your client.
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• Useful questions:
o Process-controlling questions:
▪ This is where questions are used to move the consultation
along, where the interviewer needs to take control of the
process.
▪ E.G. “Shall we move along to consider…?”; and “What
happened the next time you met Mr Z?”
o Reflective questions:
▪ These questions are aimed at establishing whether the
interviewer has accurately understood what the client is
saying, with regard to the facts and feelings underlying the
situation.
▪ E.G. “Correct me if I’m wrong, but I get the impression that
you were extremely angry when you realised that the
landlord had no intention of having the leaking roof fixed…
Am I correct?”
4) Advising stage
• In order to advise clients about their legal problems, you must be
knowledgeable about substantive and procedural law.
o Research the relevant law before dispensing with advice.
• Legal practitioners are obliged to give a competent opinion, based on
sufficient knowledge of the relevant facts, adequate consideration of the
applicable law and by drawing upon the practitioner’s own experience
and expertise.
• You should never overstate the merits of the case in an attempt to
reassure the client.
5) Taking of instructions stage
• Lay out each available option separately and discuss the consequences
of taking that option.
• Allow clients to ask questions about your explanation of the available
options.
• Insist that clients do not make a decision before all the options have been
laid out.
• Do not omit possible negative consequences of an option for fear of a
client’s reaction.
o Clients should be fully appraised of all the potential repercussions
of making a particular decision.
• If there is bad news to convey, be brutally honest with the client.
• Kindly refuse to make decisions on behalf of your client, because it is
them who will have to live with the consequences thereof.
• Keep the ethical limits of the legal profession in mind.
Procedure to be followed before and after the consultation:
Before the consultation After the consultation
Proper preparation prevents poor Confirm the consultation and client’s
performance. instructions in writing as soon as
practicably possible after the
consultation, by way of a letter of
engagement.
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• Explain the procedure to be
followed; and
• Whether or not the client’s matter
has been accepted or rejected by
the UP-Law Clinic.
Remember to make a pre-consultation Remind the client that it is a co-operative
phone call to confirm the client’s process which may require them to
attendance: deliver additional documentation and
• Pre-screen the client for the information.
means test; • Explain to your client that together
• Obtain a brief overview of the you are different players on the
facts of the matter; same team.
• Remind the client to bring relevant
documentation;
• Ask whether an interpreter will be
required; and
• Brush up on the relevant law
At first contact with the client: Maintain regular and clear
• Wear professional attire; communication with the client on their
• Be punctual; matter.
• Consider the seating • It is essential that the client has a
arrangements in the venue; clear understanding of the
• Ensure that the consultation room procedure that will follow.
is neat and tidy;
• Avoid disruptions during the
consultation;
• Have the required forms ready on
hand;
• Ask whether the client would like
any water to drink before or during
the consultation; and
• Be cognisant of the time allocated
for the consultation.
Important information to obtain in any consultation:
• Locus standi in iudicio and citation of the parties:
o Who?
▪ Who is the plaintiff/applicant?
▪ Who is the defendant/respondent?
▪ Do they have the capacity to sue or be sued?
▪ Do they have an interest in the right forming the subject-matter of
the litigation?
▪ How do we cite the parties?
o Locus standi in iudicio:
▪ Refers to the capacity to act as a litigant i.e. The capacity to sue
or be sued; or
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• General rule: Every natural person with full legal capacity
has the capacity to litigate.
o Persons without full legal capacity need the
assistance of someone with the authority to litigate
on their behalf.
o Others with full legal capacity may be subject to
certain limitations in being able to litigate.
▪ Minors:
• In terms of the Children’s Act, 38 of
2005, natural persons under the age
of 18 years are ‘minors’ and natural
persons who have reached the age of
18 years are ‘majors’.
• Minors younger than 7 years are
incapable to act as litigants.
o Guardians must act on behalf
of and in the interests of the
minor.
o If the minor has no guardian,
one must apply to the High
Court for the appointment of a
curator ad litem.
• Minors older than 7 but younger than
18 years have limited capacity to act
as litigants.
o These minors may act as
litigants, provided that their
lack of capacity is cured by the
assistance of a guardian.
o The claim is still the minor’s
claim and is instituted in the
minor’s name, while the
guardian renders their
assistance.
o The guardian may also
institute a claim on behalf of
the minor, in the guardian’s
name.
▪ i.e. Same as minors
younger than 7 years.
• Where a minor sues or is sued, the
minor is the party to the action and the
guardian only appears in a
representative capacity.
o The guardian is not liable for
the payment of costs or
damages awarded against the
minor, except where the
guardian acted mala fide,
recklessly or negligently.
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• A minor may litigate without the
assistance of a guardian or a curator
ad litem where:
o An application is made for a
curator ad litem;
o Where the court grants leave
for the minor to litigate
unassisted; and
o Where an application for leave
to marry is made without
parents’ consent.
• A minor has locus standi if they:
o Are married;
o Have been declared a major in
terms of the Children’s Act 38
of 2005; or
o Has been tacitly emancipated.
▪ Persons under curatorship:
• Curatorship is the official supervision
under which an adult person or their
estate remains, where they are
incapable of managing their own
affairs.
• There are two types of curatorship
appointments:
o Curator bonis: Appointed to
administer a person’s property
and affairs in general.
o Curator ad litem: Appointed to
represent a person, a minor or
a major in civil litigation.
• Persons who may have curators are:
o Mentally disordered persons
who have no locus standi in
iudicio;
o Interdicted prodigals (persons
who spend money in recklessly
extravagant ways) who have
limited legal capacity, like
minors younger than 7 years;
and
o Unrehabilitated insolvents with
diminished locus standi in
iudicio.
▪ Married persons:
• Spouses married in community of
property cannot institute or defend
legal proceedings without the written
consent of the other spouse.
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