These notes are lecture notes (I attend 100% of lectures), the textbook and case summaries all condensed into one document. You will not need to do any reading beyond these notes.
These notes cover the work prescribed for test 1 and 2 of 2016.
Lecturer: Mr SJH van der Merwe, Legal Aid Clinic, Ste...
Introduction
1. Definition and classification of CPL in the SA legal system
Definition (NB for tests and exams): civil procedural law (CPL) is that part of the adjective
law that regulates civil litigation. It is, therefore, the mechanism by means of which
rights derived from substantive law are enforced.
Distinction in SA law between substantive and procedural law:
o Substantive law: determines content and scope of natural and juristic person’s
rights, duties and remedies
o Procedural law: indicates what procedure must be followed for rights, duties
and remedies to be enforced
o E.g. substantive law determines whether a person has a legal claim for damages
arising from a motor vehicle accident, while procedural law prescribes the
procedure for claiming damages
Distinction between civil and criminal procedure
o Civil law and the CPL enable parties to take action to enforce rights and claim
remedies, or to defend actions brought against them
o Criminal procedure enables the State, acting on behalf of the general public, to
take action against persons who infringe rules of criminal law
Purpose: protect public against threats to safety and security and punish
wrongdoers
o Differences:
o Parties
Criminal = State (acting on public’s behalf) and the wrongdoer
Civil = parties act on their own behalf (plaintiff and defendant if an
action, or applicant and respondent if an application)
o Sanction
Criminal = found guilty of a crime; punished and rehabilitated
Civil = liable to pay damages or compensation
o Onus of proof
Criminal = above reasonable doubt
Civil = balance of probabilities (lighter onus of proof)
o In whose interest
Criminal = public interest
Civil = private interest
o Party involvement
Involvement in civil procedure is voluntary (plaintiff or applicant chooses
whether to institute civil proceedings, and there is a large degree of
party control)
Involvement in criminal procedure is not voluntary (State decides
whether to take action against wrongdoer)
Broader application than criminal procedure
o E.g. class actions fall under civil procedure
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