CIV3701 Civil Procedure Summary Notes Condensed
Summary.
CIV3701 Civil Procedure Summary Notes Condensed Summary
Civil Procedure in High Court
Application Proceedings Summons proceedings
Starts with Notice of motion then formal
documents: process documents
Starts with Summons then formal
Do...
Application Proceedings Summons proceedings
Starts with Notice of motion then formal Starts with Summons then formal
documents: process documents Documents: Pleadings & Processes
- Application proceedings have no - Have pleading & trial stage
pleading stage, thus not - In Illiquid summons proceedings,
distinction between pleading and pleadings consist of written
trial stages. statements, made by parties to an
- Application proceedings has actions.
processes - Facts set out in summary form
& therefore process documents - Conclusions of fact are pleaded
- Processes consists of applicants - Pleadings exists to crystalize the
affidavit & supporting affivadit nature and extent of factual dispute
from witnesses - Summons proceedings
- Application Proceedings are faster compulsory for divorce
& cheaper than summons proceedings, unliquidated claims
proceedings. for damages, compensation &
Courts extending the use of enrichment.
Application Proceedings
- Application Proceedings initiated
by notice of motion -> used where
no real dispute of fact & can be
decided without viva voce evidence
Exparte Applications (without notice to - Summons divided into liquid and
persons) illiquid summons, illiquid summons
- Exparte Application – when proceedings instituted by simple or
application is the only person whose combined summons and liquid
rights are affected by the relief summons proceedings instituted by
sought provisional sentence summons.
- Where relief sought is a preliminary - Summons issuing entails a claim
step in proceedings & is necessary to being
bring other party before court instituted by a plaintiff (claim in
- Where Act of Parliament demands it. convention), if defendant has a
- Circumstances where others may be counterclaim, called claim in
affected, but they are so numerous reconvention
that it would be highly inconvenient - Combined Summons used in
to serve them all. unliquidated claims, and are
Ordinary applications (with notice to accompanied by “particulars of
persons) claim”
- Notice is given to another person by - Once summons has been served,
handing a copy of the application defendant can deliver intention to
- Interlocutory applications – defend and can then file plea on the
approaching the court for relief in merits and can also file
respect of matters related to counterclaim at the same time.
proceedings that have already been - Provisional Sentence Summons ->
instituted – brought by way of notice extraordinary procedure designed
of motion to
- Urgent Applications – Where relief assist a creditor, armed with
is needed urgently (spouse is about
, to take children out of the country, or sufficient documentary proof in
magazine publishing a story), normal recovering money.
rules of procedure are dispensed
with. Usual prayers for relief should
include an additional prayer that the
forms & service provided for in the
URoC be dispensed with.
- Application proceedings are
accompanied by supporting affidavits
- Exparte Application = 1 supporting
affidavit
- Ordinary Application = supporting,
answering and replying affidavit
, When is there a Dispute of fact
- respondent denies material allegations made, adduces evidence to the contrary
- respondent admits allegations but alleges other facts
- respondent denies knowledge of facts stated
When dispute of fact arises court may
- dismiss the application, order oral evidence, order parties to trial with direction as to
pleadings
Conduct of Application Proceedings
Power of Attorney
- Written Document in which an agent is given authority to act on behalf of his or her
principal.
- Client may withdraw mandate to attorney at any time, but once accepted, the
attorney may only withdraw only for sound reasons.
- When is Power of Attorney required – not required for the issuing of summons,
but for the conduct of defence of a civil appeal in the High Court, not required to be
filed in SCA, unless authority of legal practitioner is disputed.
- Power of attorney is essential for protection of both attorney and client, to
determine extent of attorney’s brief
- Contains details of the action being instituted, relief sought. Provides direction in
terms of costs expected.
- Not required in magistrates courts, unless authority of a legal practitioner is
disputed.
Joinder of Plaintifs – Each plaintiff has a claim against the same defendant and the legal
claim depends on the substantially the same question of law or fact.
Joinder of defendants – For example, a pedestrian injured in a collision between two
cars, but doesn’t know which driver was negligent, he or she may sue them jointly instead
of taking the risk proceeding against one, failing and then against the other.
Compulsory Joinder – Court will determine the joinder of a 3 rd party as a party to the
proceedings is necessary if such party may have a direct & real interest in any order which
the court may make.
Any person entitled to join as a plaintiff must first give notice to all the parties and
thereafter apply for leave to join as plaintiff or defendant.
In Forma Paupers proceedings
- Procedure in terms of which indigent persons may obtain free legal aid by
approaching the registrar, after which legal representatives are appointed. - A
person with less than R40K qualifies
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