Summary
Summary Chapter 7
- Course
- Law of civil procedure
- Institution
- University Of Johannesburg (UJ)
Detailed summary of chapter 7 from the fundamental principles of civil procedure textbook
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CHAPTER 7 – THE PARTIESIntroduction
GENERAL:
In common law jurisdictions, like SA, civil litigation =
and ADVERSIAL process
∙ there are 2 opposing parties
∙ Ie: the party requesting relief AND the party
opposing relief
Action procedure:
∙ Party requesting relief = Plaintiff
∙ Party opposing relief = Defendant
Application procedure:
∙ Party requesting relief = Applicant
∙ Party opposing relief = Respondent
Dominus litis:
∙ = Party who drives the litigation
∙ Ie: who is control of the proceedings
∙ = plaintiff/ applicant
Pre- litigation issues to be considered:
∙ Cause of action
∙ Which court had jurisdiction
∙ Locus standi of parties
∙ Joinder of parties
∙ Intervention
Locus Standi
WHAT:
Locus standi in iudicio
∙ Means place to stand before a court
∙ Ie: refers to a person’s legal standing
, Analysis of a party’s locus standi involved the
consideration of 2 discrete legal concepts:
∙ Involves an examination on whether the litigant
has a sufficient interest in the right which is the
subject matter of the litigation AND
∙ Involves an examination whether the litigants
have the capacity to sue or be sued
Sufficient Interest in the Right which is
the Subject Matter of the Litigation
COMMON LAW:
Provides that:
∙ Party instituting proceedings and bringing a
claim before the court
∙ Must have a DIRECT and SUBSTANTIAL interest
∙ In the RIGHT which forms the subject matter of
the litigation
Requirements of a direct and substantial interest:
∙ According to Jones and Buckle the plaintiff/
applicant is required to have:
- An adequate interest in the subject matter of
the litigation, which is not a technical concept,
but is a direct interest in the relief sought
- An interest that is not too far removed
- An actual interest , not abstract or academic
one
- A current interest, not a hypothetical one
CONSTITUTION – S38 BILL OF RIGHTS:
Common law definition of interest applies in majority
of proceedings
However, when litigation is based on a Bill of Rights
issue it is governed by S38 Constitution
, S38 has significantly extended the definition of locus
standi in the case of fundamental rights litigation (=
much broader than the common law definition)
S38 Provides that any of the following parties have
the right to approach a competent court when
alleging that a right in the Bill of Rights has been
infringed:
a) Anyone acting in their own interest
b) Anyone acting on behalf of another person who
cannot act in their own name
c) Anyone acting as a member of, or in the interest
of a group or class of persons (ie: class actions)
d) Anyone acting in the public interest (ie: public
interest actions)
e) An association acting in the interests of its
members
CLASS ACTIONS vs PUBLIC INTEREST ACTIONS:
Class Actions:
∙ Also known as a representative action
∙ Allows a single person to institute an action on
behalf of and in the interest of a group or class
of persons all having the same cause of action
∙ Action is of particular use where there is a large
group of plaintiffs who each have small claims
but it is difficult/ impossible to pursue
individually
Ngxuza case:
SCA held that the most important characteristic of a
class action is whether other members of the class,
although not formally and individually joined, benefit
from and are bound by the outcome of the litigation
(However, it is not clear whether this case creates a
general class action suit in cases that affect rights other
than those contained in the Bill of Rights)
, Public Interest Actions:
∙ Plaintiff institutes an action on behalf of the
public or distinct section of the public – even if
he has not direct, indirect or personal interest in
the outcome of the action
∙ Mostly directed at state organs in order to
protect the rights contained in the Bill of Rights
∙ 2 requirements to institute this action:
- It must be established that a person is actually
acting in the public interest
- It must be established that the public has a
sufficient interest in the proposed remedy
Litigants have the Capacity to Sue or
be Sued
GENERAL:
Every natural person possessing full legal capacity
may sue or be sued – BUT there are certain persons
who do not enjoy full legal capacity and cannot act
as parties in legal proceedings without the
appropriate assistance
Note:
∙ Companies and CC’s have full capacity to litigate
Persons who do not have full legal capacity:
∙ Minors
∙ Married woman
∙ Insane persons (mentally disordered person)
∙ Prodigals
∙ Insolvents
∙ Trusts
∙ Partnerships, firms and associations
∙ Judges, diplomats and others
MINORS:
S17 Children’s Act changed the age of majority in
2005 when it replaced the Age of Majority Act:
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