This document contains detailed civil procedure law 421 exam notes. it includes the following topic covered: legal costs , interdict, execution,appeal and review; trial, provisional sentencing summons, etc.
• Trial procedure in the HC - HCR39 & MCR29. The courts trial proceedings are recorded.
• In MC, a magistrate is allocated to hear the trial matter
Commencement of Trial
• The trial commences with the determination of which party will bear the primary burden of
proof or the duty of persuading the judge, by end of the trial of the legal truth of his case.
Primary Burden The primary burden, is a matter of substantive law, fixed at the beginning of the trial and
does not shift during the course of the trial.
Pillay v Krishna - the primary burden is determined by the rules stating that:
• The party making the claim or asserting a positive averment bears the onus of
proving the averment, unless
• The party against whom the claim is made is not content with a mere denial but
instead raises a special defence.
• The issues raised in the pleadings will determine which party bears the primary onus,
and this is usually the plaintiff.
The duty to begin General rule: the party that bears the evidentiary burden has the duty to begin.
• if the parties cannot agree on who must bear the onus of proof and who must begin
with the presentation of evidence, either party may apply, at the opening.
The evidentiary burden It is a duty to adduce evidence to combat a prima facie case established by the opponent.
• This burden shifts during the course of trial, depending on measures of proof.
The relationship between the primary onus, the evidentiary burden and the duty to begin
• General rule: Party bearing the evidentiary burden must begin the trial. Exceptions:
o Where the Plaintiff bears the primary onus of proof on one or more issues, the
Plaintiff will also have the duty to adduce evidence
o Where an admission by the Defendant in the pleadings create a prima facie case in
favour of the Plaintiff and places an evidentiary burden on the Defendant, who must
then bear the duty to begin.
o Where considerations of fairness and convenience require the defendant to begin
despite the fact that the plaintiff bears the primary onus.
Examination of the witnesses
• Plaintiff begins by establishing a prima facie case by calling of viva voce evidence from
witnesses and the introduction of real or documentary evidence.
o A witness gives evidence under oath or under a solemn affirmation to tell the truth.
• The Plaintiff usually gives evidence first, and then the plaintiff’s witnesses are called.
• Examination of a witness is conducted in 3 stages:
o Examination in chief
o cross-examination
o Re-examination.
,Absolution from the instance
• It is applied for at the close of the Plaintiff’s case or end of trial, by the Defendant’s counsel.
o At the end of the Plaintiff’s case = there is no evidence to support the Plaintiff’s
claim or insufficient evidence for Plaintiff
o At the end of trial = Plaintiff has failed to discharge the primary burden of proof.
▪ The court may: (1) Dismiss (2) Grant judgment (3) grant absolution.
The Defendant’s case
• After Plaintiff`s case is closed & absolution is unsuccessful, the Defendant’s counsel is calling
the Defendant’s witnesses separately and sworn in.
Closing Arguments
• After closing of both the Plaintiff’s & Defendant’s cases, counsel deliver closing arguments.
• Purpose: summarise each party’s case, indicate what has been proved & identify weakness.
• It also serves as a final inducement.
Balance of probabilities
• Onus of proving a civil fact in issue is always discharged on a preponderance of probabilities
- Miller v Minister of Pensions & Ocean Accident and Guarantee Corporation Ltd v Koch.
o Where there are two cases mutually in conflict with each other, before the onus is
discharged, the court must be satisfied upon adequate grounds that the case of the
litigant upon whom the onus rests is true and the other false.
o A grant of absolution from the instance at the end of the whole case will generally
be given in the Defendant’s favour when the court cannot decide at the end of the
case whether the plaintiff’s or defendant’s version is correct. This means that the
plaintiff has failed, on a balance of probabilities, to discharge the onus of proof
placed upon him or her at the beginning of the trial.
Judgments and orders
• A judgment has 2 aspects:
o it is a command to losing party, with a warrant to sheriff to enforce court command.
o it regulates legal relationship between parties & their mutual rights & obligations
• HC & MC may grant the following judgments and orders:
o Judgment on behalf of the plaintiff
o Dismissal of the plaintiff’s case
o Absolution from the instance at the end of the Plaintiff’s case
o Judgment in favour of the Defendant in respect of the counterclaim
o Dismissal of the Defendant’s counterclaim
Rescission and Variation of Judgments
• Common-law variation and rescission
o HC may, Ito common law & its own inherent jurisdiction to regulate its own
proceedings in the interests of justice:
▪ Supplement a judgment or order by including accessory or consequential
matters (such as costs or interest on judgment debt) that it overlooked or
inadvertently failed to grant
, ▪ Clarify a judgment or order when meaning is ambiguous, unclear or
uncertain;
▪ Correct clerical, arithmetic or other errors;
• HC may also rescind or set aside a judgment or order:
o When judgment has been granted by default
o When fraud has been committed
o When new documents have been discovered
o When there was an error or irregularity in the proceedings
• Chetty v Law Society - 2 elements of sufficient cause for rescission by default:
o The applicant for rescission presents a reasonable and acceptable explanation.
o On the merits the applicant has a bona fide defence which prima facie carries some
prospect of success
• The Defendant must also show a bona fide defence, one that is substantial and good in law.
o It must also be clear & that it is not been brought purely to delay judgment.
• An applicant who applies to have a judgment rescinded on the ground of fraud bears the
onus of establishing that:
o The evidence on which the judgment is based is incorrect
o The evidence was given fraudulently and with the intention to mislead
o The fraudulent evidence was the cause of the judgment.
• Rescission and amendment of judgments (HCR42 & HCR31)
o HCR 42(1)
▪ The court will rescind when the error is material to the judgment granted.
• It is used to correct obvious mistakes.
▪ Default judgment is usually granted in error when there is an irregularity in
the proceedings or the court is not legally competent to make a judgment.
o HCR31
▪ when no plea or notice of intention is filed then default judgment applies
within 20 days.
▪ used only to set aside a default judgment.
Void and abandoned judgments
• It is possible to void a judgment or order where:
o It was granted against a party not properly cited or joined in the proceeding
o The court lacks jurisdiction
o The proceedings were conducted on behalf of a party without a legal mandate
• One can abandon a judgment HCR41(2), part or wholly, by delivering a notice of
abandonment
Rescission in Magistrates’ Court
• S36 MCA - rescission of judgments & summary judgments to be granted in the absence of
the Defendant & to judgments granted in terms of MCR60 in absence of the Defendant.
• The procedure in MCR49(1) a substantive application is filed within 20 days after having
obtained knowledge of judgment.
• MCR49(5) - Plaintiff in whose favour a default judgment was granted may agree in writing to
the judgment being rescinded or varied.
o Rescission may be applied when the judgment debt is paid
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