Summary
Summary Chapter 2
- Course
- Law of civil procedure
- Institution
- University Of Johannesburg (UJ)
Detailed summary of chapter 2 from the fundamental principles of civil procedure textbook
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CHAPTER 2 – STRUCTURE &OFFICERS OF THE COURTS
Introduction
GENERAL:
SA courts:
∙ Are well structured
∙ Well organised and
∙ Speak to the diverse needs of society
CONSTITUTION:
S165:
∙ States that judicial authority vests in the courts
∙ Courts must be:
-Independent
-Subject only to the Constitution and the law
-And must apply the Constitution and law
impartially and without fear, favour or
prejudice
In terms of the separation of powers doctrine AND
S165:
∙ No person OR organ of state may interfere with
the functioning of the courts
∙ State organs must assist and protect the courts
in order to ensure the court’s independence,
impartiality, dignity and efficiency
∙ An order of the court binds all persons and
organs of State to which it applies
, Impact of the Constitution on
the Structure, Powers and
Functioning of the Courts
IMPACT:
S8(1) Constitution:
∙ All SA courts are bound by the basic rights
contained in the Bill of Rights
S8(3) Constitution:
∙ All SA courts must give effect to these rights
EFFECT THE CONSTITUTION HAS HAD ON THE LAW OF
CIVIL PROCEDURE:
Locus Standi:
∙ Under the common law any party wanting to
institute proceedings must have had a ‘direct
and substantial interest’ in the right which forms
the subject matter of the litigation
∙ However, S38 of the Bill of Rights has widened
this locus standi
∙ In an action/application where there is a
violation of any of the rights contained in the Bill
of Rights ANYONE can institute proceedings
Litigation involving State Organs:
∙ Before the new constitutional dispensation there
were strict requirements and reduces
, prescription periods in which to institute claims
against organs of State
∙ Now: due to the enactment of the Institution of
Legal Proceedings against Organs of State Act of
2002 – these requirements and prescription
periods have been brought in line with the
Constitution
∙ It is now easier to sue an organ of State
High court rule 17(4):
∙ Stated that every summons must state the
names of the parties, the defendant’s sex and if
female, the defendant’s marital status
∙ Nedcor Bank v Hennop the High court held that
HCR 17(4), with reference to the defendant’s sex
and marital status, was an infringement of
S9(1)and(3) of the equality clause in the
Constitution
S65 Magistrate’s Court Act:
∙ Relates to debt collection procedure
∙ Used to allow a person to be imprisoned for
failure to pay a debt
∙ Coetzee v Government RSA and Matiso case the
court held that it was unconstitutional and S65
has now been redrafted to be line with the
Constitution
Hierarchy of the SA Courts
S166 – SA COURTS:
Constitutional Court
Supreme Court of Appeal
High Court
Magistrate’s Courts (district and regional courts)
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