Exam and class notes neatly compiled. Includes class notes and textbook summaries. These were done during online classes so lectures are typed pretty much word for word.
• Erasmus “Historical Foundations of SA Law of Civil Procedure” 1991 SALJ 265
• De Vos “Civil Procedural Law and the Constitution of 1996” 1997 (3) TSAR 444.
• Malachi v Cape Dance Academy Int. (Pty) Ltd 2010 (6) SA 1 (CC).
1.1 Procedural vs. Substantive law
▪ Substantive law: describes a person’s rights, duties and remedies in a given
situation.
• Gives the content and scope of a natural and juristic person’s rights, duties
and remedies.
• E.g., will determine whether a person has a claim for damages arising from a
motor vehicle accident (for example).
▪ Procedural law: indicates how these rights, remedies and duties may be
enforced. - - Provides the procedure for the enforcement of these rights,
remedies and duties.
• E.g., prescribes the procedure for claiming damages.
• Processes to enforce the substantive rights. We’re focusing on the
mechanisms. It allows a party to approach the court for legal relief, on the
basis of infringement of a party’s right, and therefore furnishes the
mechanism for the enforcement of substantive law.
▪ Mechanism by means of which rights derived from substantive law are enforced.
▪ Example: neighbour playing loud music, you will need an interdict to stop them from
doing it so we need procedural law to be able to enact municipal by-laws.
1.2 Civil and Criminal Procedure
o Civil Procedure: enable parties to take action to enforce rights and claim remedies or
to defend actions brought against them.
• Parties: acting on their own behalf enforcing and defending claims – private
parties
o Criminal Procedure: enables the State, acting on behalf of the general public, to take
action against persons who infringe rules of criminal law.
• Purpose: to protect public and punishes wrongdoers.
• Parties: State acting on behalf of the public, wrongdoer
o Procedure in civil litigation:
▪ Application v Action: Look at Room Hire vs Jeppe Street Mansions case for
distinction. In Erasmus article (NB case for the difference between an action & an
application. Sets out the test applied when determining whether it is an action or
application.
, ▪ Erasmus article
o Application: “Motion proceedings in the superior courts under Supreme Court
rule 6 have retained their essential character as established by the rules
promulgated under the First Charter: every application by way of
motion must be supported by affidavits of the facts or circumstances
upon which it is made. In the event of a dispute of fact arising which
cannot be decided without the hearing of oral evidence, the court has
a discretion as to the future course of the proceedings, and may
dismiss the application with costs; or order that oral evidence be
heard on specified issues; or order the parties to go to trial.”
o Action: “Proceedings by way of summons. Rule 11, promulgated on 1 February
1828, provided that in 'all simple original actions', 'the coin on
process' of the court to compel the appearance of any person to
answer a complaint or demand 'shall be by summons, directed to the
sheriff of the Colony'. Elaborate provision was made in the rules for
matters such as the form of summonses (both in ordinary cases and
for provisional sentence), service of process and return of it, arrests and
attachments, pleadings, setting down for trial, sum-
mons for witnesses, execution of judgments a and appeals.- The 'common process'
in 'simple original actions' thus introduced was reminiscent of the proceedings in the
courts of common law. This form of process underlies action proceedings in the
superior courts as today governed by Supreme Court rules 17-50. The
proceedings have retained their essential character as established by
the rules promulgated under the First Charter: a system of pretrial
pleading by which the issues in dispute are defined for determination
at a trial at which viva voce evidence is heard.”
▪ From Vuyo Mkwibiso article (for better understanding):
o The most salient distinction is that action proceedings envisage the presentation
of facts and evidence verbally in court during a trial, whereas application
proceedings envisage the presentation of facts and evidence in affidavits that will
be read by a judge before hearing arguments in court on the issues raised in the
affidavits.
o Application proceedings are usually heard in court shortly after their initiation,
whereas action proceedings may be heard several years after their initiation.
Application proceedings are usually disposed of more expeditiously than action
proceedings. As a result, application proceedings are generally cheaper and lead
to a relatively speedy resolution of disputes compared to action proceedings.
• Application proceedings are quicker and cheaper.
o Judge will look at possible dispute of fact in application proceedings to decide
whether to dismiss the application or not.
o Failing to deal with the merits of an applicant’s claim in application proceedings
based on some technical ground may have drastic consequences as a
respondent may suffer an adverse order being granted without having fully
exercised his right to be heard.
o Legal practitioners are urged to familiarise themselves with the applicable
principles regarding disputes of fact before advising their clients on how to
oppose legal proceedings brought as applications supported by affidavits
, • Look at box below to see who is called what.
→ Civil proceedings are voluntary whereas in criminal proceedings the State decides
whether to take action or not.
→ Does it mean the state can’t be party to a civil procedure?
▪ Is possible to prevent state from performing a certain act.
▪ State can litigate on their own behalf. Eg., when it is a party to a contract or when a
constitutional right is enforced against the state.
▪ Can get damages/ specific performance from state.
▪ Must just be proven on a balance of probabilities.
▪ Exception: can't litigate against state in a small claims court
→ Civil procedure = Not criminal in nature, but about compensation or reward for
specific performance. State can litigate on its own behalf (like a civil case does) if it is
party to a contract or when a constitutional right is enforced against the state,
1.3. Principles underlying the law of civil procedure and access to justice
o S 34 of the Constitution states: 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 or forum.
o Principles (based on Anglo-American adversarial system):
1. Equal and effective access to independent and impartial jury
2. Parties must be able to present their cases equally – audi et alteram
partem principle which ensures:
o Def notified of the proceedings
o Both parties are informed of each parties case as well as the
grounds they are on
o Both parties are able to present their cases to the court.
3. Party control: decision to institute or 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.
4. During presentation of cases there must be direct oral communication
between the parties (legal rep) and the court. Evidentiary material may be
in writing.
5. Main proceedings in principle take place in public
, 6. The court must consider the evidentiary material on objective and rational
grounds.
7. The court must give a reasoned and motivated judgement
8. Decision of court is final and binding. Provision is made for appeal or
review.
→ These principles were part of the procedural law before constitutional dispensation
and were granted recognition in the BoR.
• Main aim in civil procedure: is to assist litigants in having their legal rights
appropriately protected and enforced procedurally and substantively.
• Civil justice system is time consuming an expensive so can be excluding.
• The doctrine of judicial immunity = judicial officers enjoys judicial immunity
from civil liability and damages that may arise from the exercise of their
judicial duties unless they acted maliciously or in bad faith. This entrenched
the principle of judicial independence. Promotes the ability of the judiciary to
administer the law without fear, favour or prejudice and is consistent with s
165 of the constitution.
❖ W de Vos “South African Civil Procedural Law in Historical and Social Context”
Stell LR (2002) 2 236, article helps with understanding Erasmus article
• Traditional Courts Bill (1652-1795) i.e., civil procedure not just practiced in high
courts
- Started in 2003
- In 2020 the NCA passed the Traditional Courts Bill
- Passed despite WC & KZN rejecting the bill due to constitutional concerns
- Purpose: to establish/ recognise a separate civil procedural system under the
geographic jurisdiction of traditional leaders/ persons
- Means people living in rural areas will automatically be transferred to the
Traditional Courts even if they don't want to be a part of it
- Involuntary process
- Raises questions about s 34 of Con & right of access to courts
- To what extent can a member of a rural community access a small claims court &
visa versa??
- Constitutionality has been questioned
• 1652-1795
o Roman Dutch law prevalent in SA
o The sui generis nature of our civil procedure law
o In 1656 the Council of Justice operated in the cape in accordance with the Court of
Holland
o RD law had a continental character-means that the proceedings were inquisitorial
o The judicial officer played an active role in the resolution of the dispute
o Parties were passive & subservient
o Litigation took place primarily in writing
o Substantive nature
• British colonial rule from 1795-1910: English was dissatisfied with roman Dutch civil
procedure. They recommended be replaced with English civil procedure
- Change was as a result of the dissatisfaction of the English to the efficiency of the
Roman-Dutch system of civil procedure
- They recommended that the RD system is replaced by an English system of civil
procedure
- English common law based civil procedural system
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