Class notes
Concise notes on Civil Procedure 371
- Institution
- Stellenbosch University (SUN)
Notes are complete as the lecturer dealt with the work , includes case and legislation discussions as it occurred in class.
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LAW OF CIVILPROCEDURE 371
Study Notes 2017
,Intellectual Property of Chelsea Roux 1
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, Topic 1: Introduction
1. Introduction
• Civil procedural law is that part of the adjective (procedural) law that regulates civil litigation.
o ∴ it is the mechanism by means of which rights derived from substantive law are enforced.
• Procedure is about the creation & enforcement of rights ∴ this subject deals with enforcement.
• RSA has an adversarial system
o Applies to both civil & criminal cases
o Opposing parties who “fight” a case while the court acts as an impartial referee.
§ Court doesn’t involve itself in the dispute or tell the parties how to run their respective cases
§ Parties must just obey the rules of the court.
• Civil procedure is part of civil law.
o To know what civil law is >> compare with criminal law
Civil Procedural Law Criminal Procedural Law
Civil action: Plaintiff vs. Defendant (institutes
action vs. defends)
State vs. Accused
Civil application: Applicant vs. Respondent
(brings application vs. opposes)
Nature: Private & aims to find out if the
Nature: Public & aims to find out if the
defendant/respondent is responsible for the
accused is guilty or not
plaintiff/applicant’s claim
Decision: defendant/respondent liable for
Decision: accused guilty of crime/offence?
plaintiff/ applicant’s claim?
Onus: Balance of probabilities
Onus: Beyond reasonable doubt
Punishment: damages or specific performance Punishment: fine, imprisonment or both
Aim of punishment: monetary compensation for Aim of punishment: retribution, deterrence,
loss suffered or to compel/prevent a party from rehabilitation…
doing something
• Note that both civil & criminal procedure are heavily influenced by the law of evidence.
o Main point of both these procedures is to place evidence before the court.
o Evidence ∴ dominates procedure
o Type of procedure used is determined by the way evidence must be presented in each case.
• Dominus litis = lord or master of proceedings
• Types of civil claims:
o Specific performance
o Damages
o Prohibitory interdict
o Ejection
o Sequestration
o Divorce
• Civil law is about the private person recovering what is due to him/her >> civil procedure = that part of civil law
which enables the person to go about doing that in practice.
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, 2. The court system and the officials
• Special courts
o Small Claims Court
o Labour Court
o Competition Appeal Court
o Tax Courts
o Land Claims Court
o Electoral Court
2.1 Magistrates’ Courts: District and Regional
• Creature of statute
o Created and function within the Magistrates’ Court Act
• 2 levels
o [1] District MC:
§ RSA ÷ into magisterial districts
§ Each served by MC
o [2] Regional MC
§ MC for regional divisions
• Remember:
o Single magisterial district may include more than 1 municipal area.
2.2 High Court
• HC system before constitutional dispensation
o Single 'Supreme Court of SA', divided into divisions
§ 6 ‘provincial’ divisions, 3 ‘local’ divisions, 1 ‘appellate’ division (highest court)
o Each provincial division exercised legal control over its own territorial area
o Appellate division provided the final decision in appeals from provincial divisions
o Each former ‘independent homeland’ (Ciskei, Transkei, Venda & Bophuthatswana) had own superior
court system
§ TBVC states
• HC system after constitutional dispensation
o Supreme Court of Appeal (SCA) completely separate & outside HC system
o Constitutional Court (CC): highest court, final arbiter in constitutional matters
o 1 March 2009: HC’s names changed >> Renaming of High Courts Act 30 of 2008
o Superior Courts Act 10 of 2013
§ Provides that the Minister of Justice and Correctional Services, after consultation with the
Judicial Service Commission, may establish one or more local seats for a division.
§ Local divisions have concurrent jurisdiction with the main seats of the respective divisions.
• But, have limited geographical areas
Intellectual Property of Chelsea Roux 3
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