100% satisfaction guarantee Immediately available after payment Both online and in PDF No strings attached
logo-home
Previously searched by you
Previously searched by you
logo
Summary SIP 400 Civil Procedure Summaries for Semester Test 1 R150,00
Add to cart
Quickly navigate to
Preview
  2.  
  3. University Of Pretoria (UP)
  4.  
  5. SIP400 (SIP400)

Summary

Summary SIP 400 Civil Procedure Summaries for Semester Test 1

13 reviews
 22 purchases

These notes contain all the study material demarcated during the lectures before the National Lockdown (Chapters 1 - 6) as well as the study material as set out in the Explanatory Notes for Lecture 4B (founding or confirmation of jurisdiction over a foreign peregrinus) up until Lecture 8 (Applicati...

[Show more]
Last document update: 4 year ago

Preview 10 out of 85  pages

Document information

  • April 6, 2020
  • June 9, 2020
  • 85
  • 2019/2020
  • Summary

Subjects

Written for

All documents for this subject (3)

13  reviews

review-writer-avatar

By: joshuaeveleigh • 3 year ago

review-writer-avatar

By: damilolaodeyemi • 3 year ago

review-writer-avatar

By: u16029314 • 4 year ago

review-writer-avatar

By: jessjanearnold • 4 year ago

review-writer-avatar

By: tarryncogger10 • 4 year ago

review-writer-avatar

By: msomipumla88 • 4 year ago

review-writer-avatar

By: Mbali1 • 4 year ago

Show more reviews  

Seller

avatar-seller
marissab

Reviews received

Content preview

SIP 400




Semester Test 1
Summaries



by Marissa Badenhorst

, Please note that you are not allowed to distribute any part of
these notes after purchase. Doing so without my express
consent will amount to an infringement of our agreement and
may result in me having to take necessary steps against you. I
depend on your good faith and honesty in this matter and trust
that you will adhere to these conditions. Thank you so much for
your support and good luck!

These summaries were compiled from the following sources:

 Theopilopoulos et al “Fundamental Principles of Civil
Procedure” 3rd edition 2015 LexisNexis
 SIP Study Guide
 SIP class slides
 SIP explanatory notes
 All other prescribed material referred to in the study guide
(legislation, case law etc.)

Copyright vests in the authors of the book and in the University
of Pretoria. These notes are in no way a substitute for the
textbook, but merely a personal summary of the course syllabus.
Please use at your own risk. Although I always try to create
summaries that are as comprehensive as possible I will not
accept any responsibility for the outcome of your assessments
and strongly advise that you use these in conjunction with the
textbook and prescribed material.

- Marissa, 2020

, SIP 400 Study theme 1

Introduction to Civil Procedure

Definitions
* Know definitions for max 3 marks
National law
SUBSTANTIVE LAW PROCEDURAL LAW

Indicates how these rights,
Describes what a person’s
remedies and duties may
rights, duties and
be enforced and enables
remedies are in a given
a party to approach a
Substantive law Procedural law situation
court for legal relief
(material law) (formal law)
Determines the content Provides the procedure
and scope of a natural for the enforcement of
and juristic person’s rights, these rights, duties and
duties and remedies remedies
Law of evidence e.g. determines whether a
e.g. prescribes the
Public law Criminal person has a legal claim
procedure for claiming
procedure for damages arising from
Private law such damages
a motor vehicle accident
Civil Procedure


CRIMINAL PROCEDURE CIVIL PROCEDURE
Example:
Joe disobeys a red traffic light and collides with Enables the State, acting Civil law and civil
Jim’s vehicle. Joe is criminally prosecuted by obo the general public, to procedure enable parties
means of the law of criminal procedure for the
take action against to take action to enforce
offence of “reckless and negligent driving”. The
two litigating parties are the State and Joe. The persons who infringe rules rights and remedies or to
State prosecutes Joe and the criminal court of criminal law defend actions brought
imposes a fine on him that must be paid to the against them
State.
Purpose: To protect the Purpose: To protect
As a result of Joe’s conduct, Jim suffered public against threats to private interests;
damage to his vehicle. Jim institutes an action safety and security with proceedings are voluntary
against Joe in order to recover his damages. The objective of punishing and plaintiff or applicant
two litigating parties are Jim and Joe. The State wrongdoers may choose whether he
does not play a role as a prosecuting party. The wants to institute civil
civil court decides that Jim suffered damages as
proceedings
a result of Joe’s negligent conduct and orders
Joe to pay a quantified amount to Jim. Parties will usually be the The parties act on their
State acting obo the own behalf in enforcing or
The State may also be a party to civil
public and the wrongdoer defending claims and are
litigation, as in the following example:
usually private parties (but
Joe disobeys a red traffic light and collides with the State may litigate as a
the patrol vehicle driver by Constable Jim, which party on its own behalf)
vehicle belongs to the South African Police
Service. The State may now institute civil
Proceedings generally take two forms:
proceedings against Joe, claiming  action proceedings or
compensation in respect of the damage  application proceedings
caused to their police vehicle. If the collision was
caused by Constable Jim while acting in the
Action proceedings:
course and scope of his duty as a policeman,
Plaintiff (person who institutes the claim) and the defendant (the
then Joe can sue the State to recover the
person who raises a defence against the claim)
damage caused to his vehicle.
Application proceedings:
Applicant (person who brings the application) and the respondent
(the person who opposes the application)

, SIP 400 Study theme 1
Principles that underlie civil procedure
* NB for tests – know 4 principles

 All persons must have equal and effective access to an independent and impartial judiciary
and costs and duration of litigation must be reasonable
 Throughout the proceedings, the parties must be given an equal opportunity present their
respective cases to the court (audi et alteram partem principle) and ensures that (know
these 3 principles):
 (a) the defendant is notified of the proceedings;
 (b) both parties are informed of the nature of the opposing party’s case, as well as
the grounds on which it is based;
 (c) both parties are afforded the opportunity to present their respective cases to the
court
 Party Control: The decision to institute/defend an action and to determine the scope of the
dispute rests with the parties, and the parties decide on the evidentiary material to be
presented as proof
 Provision must be made for direct oral communication between parties and the court
 The main proceedings must take place in public (with exception to in camera proceedings)
 The court must consider the evidentiary material on objective and rational grounds
 The court must give a reasoned and legally motivated judgment and give it expeditiously
(with speed and efficiency)
 The decision of the court is final and binding (although provision for appeal/review and
rescission of a judgment in certain instances does exist)

 Section 34 of the Constitution states that everyone has the 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/forum.
 De Vos states that the entrenchment of civil procedural
guarantees in the Constitution expresses a totally new approach to this branch of the law, of
which the right to a fair trial lays the foundation for future development
 The doctrine of judicial immunity  a judicial officer enjoys judicial immunity from civil liability for
damages that may arise from the exercise of his judicial duties unless he acted maliciously/in bad
faith
 Judicial immunity thus entrenches the principle of judicial independence, promotes the
ability of the judiciary to administer the law without fear, favour or prejudice and is
therefore consonant with section 165 of the Constitution




Sources of of civil procedure
* Know 4 sources

 The Constitution of the Republic of South Africa
 The Constitutional Court Complementary Act and the rules of the Constitutional Court
 The Superior Courts Act 10 of 2013
 The Rules of the Supreme Court of Appeal
 The Uniform Rules of Court applicable in the High Court
 The Magistrates’ Courts Act
 The Magistrate’s Courts Rules
 The Small Claims Court Act
 The common law underlying the rules of procedure and jurisdiction in the High Court
 Other legislation and regulations relevant to specialised courts
 Practice arrangements and directives applicable in the respective divisions of the High Court
 Case law

,SIP 400 Study theme 2

Structure of the Courts
General hierarchy of courts
Section 166 of the Constitution describes the various courts of the republic:


Constitutional
Court Why is the hierarchy important?
 In light of the doctrine of stare decisis (to
Supreme Court of stand by decisions previously taken) or the
Appeal doctrine of precedent  the lower-ranking
High Courts courts are bound by the decisions of higher
courts
 Lower courts such as magistrates’ courts do
Magistrates’ Courts not set precedents in this way, but are
bound by the precedents of the superior
Other Courts courts




Constitutional Court
 Existence is confirmed by section 167 of Constitution
 Presided over by Chief Justice, the Deputy Chief Justice and nine other judges
 Seat is in Johannesburg
 Matter before CC must be heart by at least 8 judges
 CC is not bound to its previous decisions – however only in certain circumstances will it deviate
from its previous decisions
 Ito the Constitutional Seventh Amendment Act:
 The CC is the highest court in all matters
 May adjudicate on constitutional matters as well as any other matter if the CC grants
leave to appeal on the grounds that such other matter raises an arguable point of law
of general public importance
 The CC is the final decision-maker on whether a matter is within its jurisdiction
 Matters which are reserved for the exclusive jurisdiction of the CC:
 Disputes between organs of state in the national/provincial sphere concerning
constitutional status
 The constitutionality of any parliamentary or provincial bill
 An application brough by members of the National Assembly/provincial council for an
order declaring all or part of an Act unconstitutional
 Constitutionality of any amendment to the Constitution
 Whether Parliament or the President has failed to comply with a constitutional
obligation
 Certify a provincial constitution


Supreme Court of Appeal
 Ito section 167(3) of the Constitution, the SCA may decide appeals in any matter arising
from the High Court, or a court of similar status to the High Court
 The SCA is thus purely a court of appeal and not a court of first instance
 No original jurisdiction
 Most matters that have no constitutional element will still go to SCA
 Seat in Bloemfontein and consists of a President, Deputy President and judges of appeal
 Quorum = 5 judges (NB) (for both civil and criminal matters)
 Why 5? There may be a majority decision (3/4 judges) and a minority decision (1/2)

, High Court
 Ito section 166 of the Constitution, the previously independent High Courts have now been
consolidated into a single High Court of South Africa which is administratively and
jurisdictionally separated into a number of divisions and in some instances into local seats
of a division
 The High Court is a court of first instance (court a quo) but it can also operate as a court of
appeal and review for the Magistrates’ Court within its area of jurisdiction
 Two judges will generally form the quorum for an appeal from a Magistrates’ Court
 The HC also operates as a court of appeal iro decisions made by a single judge of the HC
 In such case it will either go to a three-judge bench (full bench) of the same HC or
to the SCA
 A division of the HC consists of a Judge-President and as many judges as the president
may appoint
 Generally, a single judge presides of a High Court sits as a court of first instance, however
sometimes a matter can be referred to a cull court consisting of three judges



Magistrates’ Courts
 All Magistrates’ Courts are creatures of statute and are created by and operate ito the
Magistrates’ Courts Act
 Magistrates’ Courts exist at two levels:
 Regional Courts and
 District Courts
 There are almost 700 district courts in SA, each exercising jurisdiction over a specific
geographical area
 Regional Magistrates’ Courts previously exercised only criminal jurisdiction, but regional
jurisdictions have now been created to deal with civil matters as well ito the Jurisdiction of
Regional Courts Amendment Act and the Magistrates’ Courts Amendment Act
 Section 170 of the Constitution provides that a Magistrates’ Court may decide any matter
determined by an Act of Parliament, but does not possess the power to enquire into or rule
on the constitutionality of legislation or any conduct of the president
 The procedure to be followed in the Magistrates’ Court is contained in the Magistrates’
Courts Rules


Courts of chiefs and headmen
 Item 16(1) of Schedule 6 to the Constitution provides generally for the courts of traditional
leaders to continue to function and exercise jurisdiction ito the applicable legislation
 Section 12 of the Black Administration Act provides that chiefs and headmen may be
authorised to hear and determine civil claims arising out of statutory, indigenous or
customary law
 An appeal against a judgment from these courts will go to the Magistrates’ Courts


Small Claims Court
 A specialist type of court constituted ito the Small Claims Court Act
 The purpose of this court is to make the judicial system less expensive and more accessible
to those persons who cannot afford High Court and Magistrates’ Court fees
 This court sits after ordinary office hours to ensure that litigating parties do not lose time and
wages and costs are reduced by allowing the parties to conduct their own cases, i.e. legal
representation is not allowed
 It is not a court of record, i.e. the proceedings are not recorded on tape
 A plaintiff in this court must be a natural person and cannot be a juristic person or
corporation
 Monetary jurisdiction limit = R20 000
 It is not possible to appeal against a judgment of this court (since it is not a court of record)

, Study theme 2


Situation where one of the judges of the Supreme Court of
Appeal or High Court dies/is absent/retires during a
hearing (NB)
 In the Supreme Court of Appeal:
 The quorum of judges for both civil and criminal appeals in the SCA is
generally 5 judges, and the judgment of the majority is the judgment of the
Court
 If at any time one/more of the judges dies, retires or otherwise becomes
incompetent to preside or is absent  the trial proceeds before the
remaining judges, and the majority judgment of the remaining judges will
constitute the judgment
 When a majority of judges cannot reach agreement, the matter is adjourned
and commenced de novo before a new court as composed and
determined by the President of the Court
 In the High Court:
 If a judge of a full court at any time during the hearing of a matter dies,
retires, becomes incompetent or is absent, the matter proceeds before the
remaining judges, but only if the remaining judges constitute a majority of the
judges before whom the matter commenced
 If the remaining judges do not constitute a majority, or if only one judge
remains, the trial must commence de novo




Citation of High Courts
* Very NB to know the correct names


Main seats
Free State High Court, Bloemfontein IN THE HIGH COURT OF SOUTH AFRICA FREE
STATE DIVISION, BLOEMFONTEIN
Kwa-Zulu Natal High Court, Pietermaritzburg IN THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU NATAL DIVISION,
PIETERMARITZBURG
North Gauteng High Court, Pretoria IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Western Cape High Court, Cape Town IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN


Local seats
Kwa-Zulu Natal High Court, Durban IN THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU NATAL LOCAL DIVISION, DURBAN
South Gauteng High Court, Johannesburg IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG

, Specialised Courts Study theme 2
* Must know for 3 marks each - explain the following specialised courts
Know how it was created + what the functions of the court are


How was it
Court Description Functions
created?
Has the same authority,
powers and standing as Adjudication of matters
a High Court in relation ito LRA, BCEA, UIA, EEA,
to matters under its OHSA, COIDA. It has
jurisdiction. It has concurrent jurisdiction
Labour Courts jurisdiction in all parts of
Section 151 of the
Labour Relations Act
with the civil courts to
SA and has exclusive hear and determine any
jurisdiction iro all matters matter concerning a
ito the LRA or any other contract of
law relevant to the employment.
Labour Court.

May determine a right to
restitution of any land in
Has the same status as
accordance with the
the HC and has
Act, determine issues of
exclusive jurisdiction to
compensation iro the
determine a right to
appropriation or
restitution of any land in
acquisition of such land,
accordance with the
determine title to such
Act
Land Claims The Land Claims Court Section 22 of the
land and determine
whether compensation
has its own rules and its Restitution of Land Rights
Court procedures are more Act
received at the time of
dispossession of the land
flexible than those of the
was just and equitable. It
HC, allowing it to
also has exclusive
conduct proceedings
jurisdiction to determine
on an informal basis. It
matters involving the
has its seat in Randburg,
Land Reform (Labour
but may convene in any
Tenants) Act and the
part of the country.
Extension of Security of
Tenure At.

Composed of a judge or
acting judge of the HC, Hearing of income tax
Special Income an accountant of not
less than 10 years’
Sections 116-132 of the
Tax Administration Act
appeals by persons
dissatisfied with decisions
Tax Court standing and a
representative of the
provides for its
constitution
made by the
commissioner of the
commercial business SARS.
community.

Responsible for the
investigation, control
and evaluation of
restrictive practices,
abuses of dominant
Has a status similar to
Competition that of a HC and has
position and mergers.
May review any decision
jurisdiction throughout The Competition Act
Appeal court the RSA. Consists of at
of the Competition
Tribunal or consider an
least 3 judges of the HC
appeal against a
decision of the Tribunal.
There is no appeal from
the Competition Appeal
Court to the SCA.

, Study theme 2
May review any decision
Has the same status as of the Electoral
the High Court and Commission relating to
Section 18 of the
Electoral Court consists of a judge of the
SCA and two HC judges
Electoral Commission
an electoral matter, and
it may hear certain
Act
plus two other members appeals against
who are SA citizens decisions of the Electoral
Commission
Provided for by the CPA
which sets out a
Consumer Court
Consumer may enforce
regulatory and
any consumer right set
enforcement framework
and related for the protection of
The Consumer
Protection Act
out in
transaction/agreement
matters
fundamental consumer
or resolve any dispute
rights which exist
with a supplier
between a consumer
and supplier

The former Divorce
Court has been
absorbed into
Divorce Court Magistrates’ Courts of
Regional Division which
Magistrates’ Court
amendment Act
Divorce proceedings
are currently part of the
ordinary structure of the
Magistrates’ Courts

Every Magistrates’ Court
is deemed to be a
Children’s children’s court and has
jurisdiction over matters Section 42 of the
May adjudicate any
matter ito the Children’s
Court arising from the
application of the
Children’s Act
Act
Children’s Act



Every Magistrates’ Court
at district level is, within
Maintenance its area of jurisdiction, Where applicants can
also a maintenance Maintenance Act obtain and enforce
Court court for the purposes of maintenance orders
the Act.


Section 16 of the
Every Magistrates’ Court
Promotion of Equality
Equality Court and every High Court is
also an Equality Court in
and Prevention of Unfair
Deals with complaints of
unfair discrimination.
Discrimination Act
the area of jurisdiction.
(PEPUDA)



Example questions: Officers of the Court
 Judges
Example t/f question: The CC is the highest  Magistrates
court but only relating to Constitutional  Registrar of the High Court
matters  Clerk and Registrar of the Magistrate’s Court
= FALSE, the Constitutional Court Amendment  The Sheriff
Act of 2012 changed this position  Master of the High Court
 Legal Practitioners
 Attorneys
How many High Courts do we have in SA?  Advocates
1 Court - back to previous system. However  Advocates with trust accounts (new
certain seats/divisions and local category created by Legal Practice
seats/divisions Act)

, Study theme 2

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

Guaranteed quality through customer reviews

Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.

Quick and easy check-out

Quick and easy check-out

You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.

Focus on what matters

Focus on what matters

Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!

Frequently asked questions

What do I get when I buy this document?

You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.

Satisfaction guarantee: how does it work?

Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.

Who am I buying this summary from?

Stuvia is a marketplace, so you are not buying this document from us, but from seller marissab. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy this summary for R150,00. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

69052 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy summaries for 15 years now

Start selling
R150,00  22x  sold
  • (13)
Add to cart
Added