Law of Civil Procedure: Part of adjective/formal law that enables a party to approach a
court for legal relief, on the basis of the infringement of a party’s rights. Provides a
mechanism for the enforcement of civil law.
Principles underlying Civil Proc:
• Can only be an effective procedure if it pursues principles designed to ensure a fair
legal process.
• Section 34 Constitution: 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.
Sources of Civil Procedure:
- The Constitution
- The Constitutional Court Complementary Act
- The Superior Courts Act
- Rules of Supreme Court of Appeal
- Uniform Rules of Court applicable in High Court
- The Magistrates Court Act
- The Magistrates Court Rules
- Small Claims court act
- common law
- case law
Cases:
Malachi v Cape Dance Academy:
Facts: Regards Sections 30(1) and (3) of Magistrates Court Act that empowers a magistrate
to issue an order for the arrest and detention of a debtor un circumstances where a creditor
reasonably believes that a debtor is about to flea the country. Known as arrest tanquam
suspectus de fuga. Court declared practice unconstitutional and invalid.
WAS ASKED IN FIRST TEST 2021
,Chapter 2
Hierarchy of Courts
• Constitutional Court
• Supreme Court of Appeal
• High Court
• Magistrate’s Court
• Small Courts
Constitutional Court
- Highest court in all matters.
- Established in Constitution of 1997.
- Presided over by Chief Justice (Mogoeng Mogoeng), Deputy Chief Justice (Raymond
Zondo) and 9 other judges.
- Can decide constitutionality of matter.
Supreme Court of Appeal
- May decide all appeals in any matter that arises from the High Court.
- Not a court of first instance, purely court of appeal.
- Jurisdiction over whole of SA.
- Court sits in Bloemfontein.
- Consists of a President (Mandisa Maya), Deputy President (Xola Petse) and a number
of judges of appeal.
High Court
- Consists of a single High Court, separated jurisdictionally and administratively into a
number of divisions.
- Is a court a quo.
- Can be a court of appeal in instances where decision was made by 1 judge of High
Court.
Magistrate’s Court
- Creatures of statue
- Two levels: District Courts and Regional Courts.
- Regional divisions also have also been created to deal with civil matters.
Small Claims Courts
- Regulated by Small Claims Court Act
- Purpose: Make judicial system less expensive and more accessible.
- Legal representation is not allowed in the small claims court.
- May only approach this court if claim is under R20 000.
, - Only natural persons may institute actions in this court, not juristic persons.
- Procedure at court instituted by a commissioner.
- Issues regarding small claims court?
Specialized Courts:
Labour courts, Land claims court, Special Income Tax Court, Competition Appeal Court.
Officers of the Court:
1) Judges:
- Judicial officers.
- Preside in the High Court, SCA, and Constitutional Court.
- Process of appointment: Judges can either be appointed to the bench from the
ranks of attorneys or legal academics. S 8 of Constitution, president appoints judges
with advice from Judicial Service Commission.
- Chief of the administrative court staff in a division or a local seat of High Court.
- Deals with issues of processes, filing of documents, the enrolment matters, issue of
court orders, issue of writs of execution and the taxation of bills of costs.
- Also has powers to grant default judgements in certain matters.
4) Clerks and registrars of Magistrate’s Court
- Deals with same matters as those who dealt with in the office of the registrar of High
Court, but process a much larger number of default judgements because MC is used
extensively for collection of debts.
5) Sherrif
- Officer of the court attending to the service of all processes of the court, such as
summons and subpoenas.
- Important role in execution of court orders.
- Appointed for a specific geographical area.
- Not appointed by Department of Justice, independent contractors.
, 6) Master of High Court
- Appointed in each division of high court.
- Called upon to report to court.
- Performs functions relating to deceased and insolvent estates, liquidation, judicial
managing of companies, interests of persons who cannot administer their own
affairs.
7) Legal Practitioners:
- Attorneys and Advocates
- Attorney: general practitioner and attends to wide rang of legal functions.
- Advocate: Specialists in court proceedings and drafting of legal opinions.
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