Exam (elaborations)
CIV3701 Assignment 1 2024
- Course
- CIV3701 (CIV3701)
- Institution
- University Of South Africa (Unisa)
CIV3701 Assignment 1 2024
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CIV3701ASSIGNMENT 1
DUE DATE: 22 MARCH 2024
, INTRODUCTORY STUDIES
QUESTION 1
(a) Briefly explain in general terms in what respect has the Constitution, 1996
affected the Law of Civil Procedure in South Africa.
The Constitution of South Africa, adopted in 1996, has had a significant impact on the Law
of Civil Procedure in various ways. Some key influences include:
Protection of Fundamental Rights: The Bill of Rights, enshrined in Chapter 2 of the
Constitution, has influenced civil procedure by emphasizing and protecting fundamental
rights. For example, the Coetzee case highlighted the unconstitutionality of certain debt
collection procedures, leading to their redrafting to align with constitutional principles.
Access to Courts: Section 38 of the Constitution broadens access to the courts in matters
related to the infringement of rights in the Bill of Rights. It allows individuals to approach the
court not only in their own interest but also on behalf of others, as members of a group, or
in the public interest. This provision enhances access to justice for a wider range of people.
State Liability: The Constitution has influenced civil procedure concerning litigation
involving state organs. Previous legislation imposing strict notice requirements and shorter
prescription periods for claims against the state has been reformed to align with
constitutional principles, ensuring fair access to legal relief.
Equality before the Law: The Constitution's emphasis on equality has affected civil
procedure, as seen in cases like Nedcor Bank Ltd v Hennop. Outdated and discriminatory
rules, such as those requiring the mention of a defendant's sex and marital status in
summonses, have been challenged and found to be inconsistent with constitutional equality
provisions.
Procedural Safeguards: The Constitution has led to the reevaluation of various procedural
aspects, ensuring that legal processes, such as emolument attachment orders, undergo
judicial oversight to protect the rights and dignity of individuals, especially those with low
income.
Abolition of Outdated Rules: The Constitution has prompted the abolition of common-law
rules that were deemed contrary to the spirit, purport, and objects of the Bill of Rights, as
seen in the case of Bid Industrial Holdings (Pty) Ltd v Strang and another regarding the
arrest of foreign peregrini.
Impact on Specific Procedures: The Constitution has influenced specific procedures like
provisional sentence procedures, execution against immovable property, and arrest
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