Exam (elaborations)
CIV3701 notes
- Course
- CIV3701
- Institution
- University Of South Africa (Unisa)
CIV3701 notes 100% correct questions, answers, workings, and explanations
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CIV3701 notes, General principles of the Law of Civil Procedure (guarantees):
Civil Proc Notes Fundamental rights or guarantees that the parties to a civil action may claim/protect.
Nature:
General introduction: These guarantees are the basic requirements have to be met in order to effectuate
What is the Law of Civil Procedure? procedural justice.
Civil procedure forms part of the formal adjectival law of South Africa, that regulates These guarantees are the foundation that all the procedural law must be built on, if the
civil litigation and the enforcement of substantive rights foundation is absent, then one cannot bring about procedural justice.
It is a mechanism used to enforce the rights that are derived from the substantive General principles are general in their scope, but flexible in nature, and they never
private law. constitute an absolute requirement in all circumstances.
Differences between Civil Procedure and Criminal Procedure: Flexible Nature:
Basis Civil (Private) Criminal (Public) Must be able to bend where necessary; must be subject to reasonable limits.
PARTIES Application: Applicant and State and Defendant Importance of the general principles:
Respondent (brings With the above in mind the following are very NB:
application vs. opposes) If you understand the NB of principles, you will have a better understanding of the rules.
Meaningful reform: these principles bring about or help to insure meaningful reform of
Action: Plaintiff and our civil procedural system can be done.
Defendant (institutes Meaningful reform of the system will only be possible if these general principles are
action vs. defends) kept in mind the danger is that streamlined, efficient procedures will abandon
VOLUNTARY/COMPULSORY Voluntary Compulsory (state decides the fundamental guarantees of civil procedure.
whether to prosecute) Comparative study: a meaningful comparative study of two countries can only be done
DECISION: Respondent/Defendant Accused guilty of crime or when the general principles of the two countries are the same.
liable for offense. ∴. Can only do a successful comparative study if you understand the guarantees of
Applicant/Plaintiff’s claim both countries.
BURDEN OF PROOF Balance of Probabilities Beyond a Reasonable Particular guarantees include:
doubt a) Everyone must have equal and effective access to an independent, impartial and
RECOURSE BETWEEN Punishment: Punishment: competent judiciary.
PARTIES Damages Fine Costs and duration of the lawsuit should be reasonable.
Specific Performance Imprisonment Separation of Powers: the state should not be able to influence the courts, the 2
AIM OF PUNISHMENT Monetary compensation Retribution, Deterrence, should be independent of one another.
for loss suffered or to Rehabilitation b) Audi alteram partem:
compel/prevent a party to Eckhart: “both parties must be allowed the opportunity to give their case”
do/from doing something. This is the overriding principle of law of criminal procedure, it ensures that:
Civil procedure is broader than criminal procedure due to the burden of proof in civil i) The defendant is informed of the proceedings
cases being much easier to prove, and because criminal cases function mainly between ii) Both parties are mutually kept informed of the nature of the opponent’s case, as
the State and the accused, it is limited to the criminal environment, whereas civil well as the grounds of the case.
procedure is not just between individuals but also groups of people, applications iii) Both parties are offered the opportunity to present their respective cases before
brought in the public interest etc. the court.
Material (substantive law): private law and criminal law
Limitation of the audi alteram partem guarantee: lessor’s tacit hypothec – if the
Formal Law: Civil procedure, criminal procedure and law of evidence. tenant does not pay rent, the lessor may claim movables from the dwelling to
Law of evidence is NB to CPL because it dictates what evidence must be brought recover the rent (attachment and sale in execution).
forward to court in order to prove your claim and enforce your rights. c) Competent legal representation:
, Parties must have access to competent legal representation ∴. Do not have to SA Enterprise Development Fund v Industrial Credit Corporation Africa Ltd 2008 (6) SA
represent oneself. 468 (W) – NB remark of judge.
Objective test is used. PROBLEM: when a party does not have the financial ability to come to court or
d) Public hearing: obtain legal representation.
It is a guarantee but must not be seen as inflexible. Look at the needs of the community – does the system fit the needs of the
e) Judgement: community as a whole?
The final hearing must be done in open court, and the court has to motivate its Objective (formal) truth: which of the systems will be better to find objective
judgement (i.e. give reasons). The court’s ruling will have final legal force, provided truth? It will be argued that an Anglo-American system in a country run on a
that provision is made for higher recourse (appeal), the principle of finality must be capitalistic system will make it more difficult for a poorer person to get fair legal
qualified by this right of recourse. justice… because the richer you are the better equipped you are to afford more
f) Higher recourse: expensive (better) legal representation.
Res judicata – if the court has determined an issue they may not consider the issue Judges need to look at the abilities of parties and keep in mind the audi alteram
again. partem (flexibility).
If there is a mistake in the judgement, there must be provision for higher recourse Impartiality – which one of the systems is best to ensure an impartial judiciary?
(appeal or review). Where does SA stand in the scheme of the two systems? Where are we in terms of
g) Role of the court: our system and how would you evaluate our system against the above?
It rests with the parties to institute/defend an action. The evidentiary material to be Judge:
presented to the courts should also rest with the parties. However, the principle can “Against this background I consider it appropriate and necessary to briefly
be qualified by allocating an active and controlling role to the court (esp with w.r.t. comment on the court’s power to deal with issues mero moto raised by it. I cannot
evidentiary material and continuance of the proceedings). accept the notion of the Judge merely acting as an umpire in the adjudication of
READ: De Vos’s article disputes between parties. It is also the judge’s duty to ensure that justice is done.
If during the consideration of a matter, a fundamental issue arises, which the
Approaches to application of guarantees: parties have overlooked or failed to recognise, and it is in the opinion of the judge
in the interests of justice, necessary and convenient to determine that issue, I can
see no reason why this cannot be achieved through a process of fairness to all the
Anglo-American Process Continental CPL System
1. Adversarial character – the proceedings are 1. Inquisitorial character – Presiding officer plays a
parties concerned. Fairness, I need hardly reiterate, would embrace inter alia that
controlled by the parties – they decide to more active role, whereas the parties play a more proper notice of the issue and its proposed determination be given to all parties
institute proceedings and what evidence they passive one. The court decides what evidence will be and further that the principles of audi alteram partem be observed. The
are going to put before the court or to cross- put before the court and which witnesses will be called possibility of prejudice always remains an important consideration.”
examine witnesses etc. Presiding judge plays an etc. The judicial officer works with the police in
umpire-type role. gathering evidence. ∴. Instead of looking at the two systems separately, we should take the favourable
2. Viva Voce – witnesses are brought forward 2. Dossier – all documents are brought together in a points out of out of the both of them and combine them.
orally at the trial itself. written document. Recognition of Guarantees:
3. Cross-examination is permitted. 3. During the hearing, the judge asks questions and all 1. English Approach:
the legal representatives can do is make arguments
based on the statements in the dossier. UK law is unwritten and flexible, the country does not have a written Constitution or
4. Continuous process – the matter is placed on a 4. Interrupted process because the presiding judge parliament; nor a Bill of Rights entrenching certain basic HR’s
continuous role. often wants to keep doing further investigations ∴. They governed their process largely by using a number of rules
Very stop-start.
5. e.g. ‘common law’ countries such as America, 5. e.g. France, Switzerland, Holland.
The legislative measures, until recently, did not contain any statement regarding
England, Australia and SA This was originally the system used in South fundamental guarantees as such.
Africa. The Human Rights Act was passed (1998), ito which the ‘European convention for the
Protection of Human Rights and Fundamental Freedoms of 1950’ was incorporated into
Evaluation of systems: law.
2. French Approach:
, French Constitution of 1958 is inflexible, and does not make provision for judicial review Freedom and security of person
of legislation by the CC. The right to privacy
The guarantees are not specifically included in the Constitution, but you can read the Access to information held by the state
civil procedure’s guarantees into the basic human rights, as entrenched in their Const. The interim Bill of Rights did not guarantee the right to a fair and public hearing
3. USA and Germany’s Approach: in the context of civil litigants.
Much the same as SA. c. Final Const. 1996
Both acknowledge the principle of constitutional protection of procedural guarantees. Nature of the Const. dispensation and the role of the courts:
Both have inflexible constitutions that entrench these guarantees, as well as a system The final Const. breaks from tradition by giving a more comprehensive protection
of judicial review i.r.o. legislation. to the rights of civil litigants than they were given before
4. South Africa: The essential features of the IC dispensation, concerning the recognition of
a. Traditional Approach (pre 1993) (English and Dutch influence) fundamental rights was maintained in the FC.
Most important characteristics: Innovations w.r.t. the structure of judicial authority:
SA legal system has a hybrid character (influenced by Dutch and English law) CC retained its name and remained the highest court for all Const.
We have an English oriented judicial and procedural framework, which serves as matters.
the mechanism for the enforcement of substantive rules of law. Supreme court was restructured , the provincial and local divisions of the
Nature of the Const. dispensation and the role of the courts: supreme court became HC’s and there is now a SCA
The Const. preceding the new dispensation did not contain a Bill of Rights and SCA may decide any appeals in any matter, highest court of appeal,
did not allow the judicial review of legislation duly enacted by parliament the except in Const. matters.
only meaningful method of control was judicial review of Anglo-American MC are not allowed to enquire into or rule on the constitutionality of any
system by the Supreme Court of Appeal. legislation or conduct of the president.
Parliamentary supremacy – Parliament was sovereign – no one could question it. Recognition of civil procedural guarantees:
Recognition of civil procedure guarantees – onus on parties: The right of access to courts forms the basis of the Const. protection offered to
Full recognition to the principle of party control, the judge takes a passive role civil litigants Section 34 Const.
whilst the parties take an active role (represented by their legal representatives). This broad provision gives recognition to 4 guarantees:
It is up to the parties to initiate the action and prepare the case for trial. 1. Access to justice
Parties play a leading role, they determine what evidence is to be presented to 2. Fair hearing (trial) foundation of the entire civil process
the court and they control the examination of the witnesses. 3. Public hearing (trial) purpose is to safeguard the administration of justice
b. Interim Const. 1993 by means of public scrutiny.
Nature of the Const. dispensation and the role of the courts: 4. Independence and impartiality of the judge inherent requirement
The IC was the culmination of a totally new political order, which came into being The more specific guarantees that sec 34 includes = equal treatment of the
upon the demise of apartheid – it focussed on Const. supremacy and equality of parties; legal representation; party control; an oral hearing ; exclusion of
all. unlawfully obtained evidence; reasons for judgement and appeal.
Recognition of civil procedure guarantees: There is a problem w.r.t. financial implications of litigation and legal
Fundamental rights and the principle of judicial control of legislation and other representation being obtained.
forms of state action were recognised by the IC.
PROBLEM: although the interim Bill of Rights made elaborate provision for the De Vos: Civil procedural law and the Const. of 1996: an appraisal of procedural guarantees
protection of procedural guarantees in the context of criminal proceedings, it in civil proceedings.
paid very little attention to the rights of civil litigants. 1. Introduction:
Some civil procedural guarantees are recognised: Focus of the article: how the FC contained the recognition of procedural guarantees for
Access to court civil litigants.
Right to equality before the law
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