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Summary FULL YEAR NOTES ON CIVIL PROCEDURE
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- Stellenbosch University (SUN)
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- Civil Procedure
Full year summary on Civil Procedure 371. Summarized in an easy way to learn.
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CIVILPROCEDURE 371
NOTES
,CONSTITUTIONAL COURT: HIGH COURT:
Composition: Composition:
• Chief justice (CJ) – Mogoeng Mogoeng COURTS IN SOUTH AFRICA • Judges (J)
• Deputy Chief justice (DCJ) - Raymond Zondo • Judge president (JP)
• 9 judges (J) – Judges surname precede by the • Registrar
word “Justice” (Justice Cameron) • Sherriff
• Address all judges – “the Court” • Taxing master
• Legal practitioners
Situated: CC
• Johannesburg SCA Original work: deals with all the administrative
HC work relating to civil litigation
What it can do: MC • HC: registrar of the court
• Originally a specialised court, purely constitutional SCC Legal documents: carries out civil arrests and
matters. attaching the goods of debtors
• Court of 1st instance (limited cases) Relevant legislation: • HC: sheriff of the court
1. Superior Courts Act 10 of 2013 Bill of cost: drawn up by the taxing master
17th Amendment Act of 2012: • Preamble section 4-7
• Became the highest court of appeal in ALL matters. 2. Magistrates Court Act 32 of 1944 Names changes: 1 March 2009:
• Confirms declarations of invalidity by the HC or • Sections 13, 13A & 65 Western Cape High Court, Cape Town - WCC
SCA 3. Small Claims Court Act 61 0f 1984
• CJ – admiration of justice 4. Constitution of the Republic of South Africa MAGISTRATE’S COURT:
• Sections 38, 166, 167 & 168 Composition:
SUPREME COURT OF APPEAL: 5. Constitution 17th Amendment Act, 2012 • Magistrates
Composition:
• Organisational work
• President (P) – Lex Mpathi (most senior judge)
• Sheriff
• Deputy President (DP) – Mandisa Maya (first female
• Taxing master
judge)
• Judges of appeal (JA) • Legal practitioners
• Judges address: no longer My Lord or My Lady
• Judges address now: The Court/ Justice surname Presiding officer: in the District and Regional MC
is the Magistrate. (Your Worship)
Situated: Original work: deals with all the administrative
• Bloemfontein work relating to civil litigation
• DMC: clerk of the court
Hears: • RMC: registrar of the court
• Appeals in any matter arising from HC or any court Legal documents: carries out civil arrests and
of similar status attaching the goods of debtors
• EXCEPT in certain labour or competition matters • MC: sheriff of the court
,1. DELICTUAL CLAIMS: Sale for cash – seller remedies:
• Motor vehicle accident Option 1: Enforce contract by demanding the outstanding
• Assault (delict) CAUSE OF ACTION: balance of the purchase price – specific performance.
Elements that needs to be alleged: Option 2: Chancel contract and try to get asset back –
Simply means the cause of the plaintiff’s or
• Wrongful act: unlawful act causing prejudice cancellation with restitution.
applicant’s complaint. It is made up of different
• Fault: intention/negligence elements which must be alleged in the papers and
• Causation: causal link between elements proved in court. Elements determined by
Option 3: Reclaim procession of property – rei vindication.
• Damages: • You are the owner of the asset.
substantive law; you need to know what your
▪ patrimonial loss = Money • The defendant was in possession of the asset at
client’s substantive rights are in order to
▪ Non-patrimonial = pain & suffering the time of the institution of action.
determine remedy. Every fact which is material to
• Vicarious liability: acting within the course & scope of be proved to entitle the plaintiff to the relief
your employment. If disposed of asset during proceedings:
sought. (Facta probanda)
• You were the owner of the asset when it was
2. CONTRACTUAL CLAIMS: disposed.
Sale for credit – seller remedies: • The defendant was in possession of the asset.
Option 1: Enforce contract by demanding the outstanding • When it was disposed the defendant knew the
balance of the purchase price – specific performance. plaintiff possessed the asset.
• Prove there was a contract. • The defendant intestinally disposed the asset.
• Purchase price is due and payable because the asset
has already been delivered. Buyer remedies:
Defects:
Option 2: Chancel contract and try to get asset back – Latent (hidden)
cancellation with restitution. • Seller knew:
• Prove there was a contract. ▪ Stick to contract and claim the ‘benefit of his
• Breach of contract. bargain’ and damages.
• Has right to cancel because the breach was material. ▪ Cancel contract, return vehicle and claim
• Notice of cancellation of the contract prior to legal money back, damages.
proceedings in not necessary.
• Seller did not know:
Allege and prove: ▪ If voetstoots = no remedy
1. There was an agreement to buy & sell ▪ If voetstoots = Actio redhibitoria or action
2. There was an agreement on the item t be bought and quanti minoris
sold
3. There was an agreement on the purchase price to be Patent (obvious)
paid • No remedies
, 3. DIVORCE ACTIONS: 4. LIQUID DOCUMENTS:
Satisfied the court with:
• Cheque
• There was a valid marriage exist. CAUSE OF ACTION:
• Written acknowledgment of debt
• The court has jurisdiction. • Mortgage bond
• Martial regime under which the parties are 1. Gather the facts
married. 2. Write down the main / material facts of Procedure:
• Children under the age of 18, dependants – your clients’ version Provisional sentence procedure
provisions for the welfare of the children 3. Leave evidence out • Breach of the contract of sale
• Claim for sole guardianship, right to care 4. Contextualize: what area of law is • Liquid document
for/maintain contact with children applicable?
Alleged and prove:
• Amount of maintenance 5. Research the law, identify elements of the
• Cheque was drawn by defendant.
• Mediation in Certain Divorce Matters Act 24 of COA
• You were the legal holder of the cheque.
1987 ▪ Cheque was made out to you
• Grounds for divorce ▪ Cheque was made to someone else
• Maintenance claimed/offered who then endorsed it in your name
• Settlement agreement ▪ Cheque was for cash, that you were in
lawful possession of the cheque
• You presented the cheque for payment.
• Cheque was dishonoured by non-payment.
• Notice of dishonour of the cheque was given to
the defendant.
• Notice of dishonour was dispensed with for a
reason set out in s 48 of the Bills of Exchange
Act 34 of 1964.
• COA arise at the place where the cheque is
drawn as well as the place where it is
dishonoured by non-payment.
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