Beautifully illustrated, well organised summaries of Law of Civil Procedure, including examples and case discussions.
Introduction and structure of courts, jurisdiction, parties and service, application and action procedures, judgement w/out trial, trial preparation and trial, appeal and review, e...
Civil Criminal
Parties Action: plaintiff Application: State v Accused
v defendant Applicant v
respondent
Liability Liability for another’s damages Guilty of crime
Remedy Compensation Punishment or rehabilitation
Onus Balance of probabilities; he who Beyond reasonable doubt; onus
alleges must prove rests on state
Interest Private interest Public interest (state acts on
behalf of public)
Participation Voluntary – large degree of Involuntary – state is dominis
party control litis
SUBSTANTIVE V ADJECTIVAL LAW
SUBSTANTIVE LAW
Describes a person's rights, How these rights, remedies
duties and remedies in a and duties may be enforced
situation Procedural law provides the
Content and scope of procedure for the
person's rights, duties and enforcemeant of these rights,
PROCEDURAL LAW
remedies remedies and duties
Enables a party to approach a
court for legal relief
Mechanism for enforcemeant
of substantive law
PRINCIPLES UNDERLYING THE LAW OF CIVIL PROCEDURE AND
ACCESS TO JUSTICE
1
, • Section 34 of the Constitution: right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum
• Access to justice principles:
Equal and effective access to an Audi et alteram partem
independent and impartial judiciary •Defendant is notified of proceedings
•Cost and duration of litigation kept •Both parties informed of nature of opposing
reasonable party's case
•Both parties have opportunity to present
respective cases to the court
Party control Direct oral communication
•Decision to institute/defend •Does not exclude possibility of important
•Parties decide on evidentiary material elements of presentation
Court considers material on
Public hearing
objective and rational grounds
Decision is final and binding
Court must give a reasoned and •Provisions exist for appeal and review, or
recission of judgement
legally motivated judgement
SOURCES OF CIVIL PROCEDURE
2
, Constitution &
Rules of ConCourt
Superior Courts Act
Statutes
Magistrate's Court
Act
Civil Procedure Common Law
Practice
Uniform Rules
manuals/directives
Case Law
Uniform Rules
• Promotes uniformity and consistency
• Sets out formal structure of the various types of pleadings and documents
necessary to for litigation
• High courts have power to protect and regulate their own procedure and to
develop the common law in this regard
MECHANISMS FOR SOLVING CIVIL DISPUTES
• Rules of civil procedure are geared to reaching a solution in court
• However, there has been a push towards using ADR
o Or really, any other mechanism than courts
• Why?
o Finances
o Time
• However, ADR is not always the answer
o Both parties need to be willing
NEGOTIATION
3
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