SIP 400
Quiz Summaries
Study Theme 16 – 20
(Chapter 19-24 )
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
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. Keep a copy of the MCR
rules & Amler’s Precedents of Pleadings with you when
completing the test.
- Marissa, 2020
,SIP 400 Study Theme 16
Study Theme 16
The trial and judgment
Prescribed Material
CHAPTER 19 read with MC rules 29 to 32 and Form
6.
HEARING AND JUDGMENT
General
HCR 38.
MCR 29 to 32 and Form 6.
Study Unit 1:
HA Millard & Son (Pty) Ltd v Enzenhofer
The trial and judgment 1968 (1) SA 330 (T)
Further recommended reading: Erasmus
B1-292 to Bl-293
Postponement
Greyvenstein v Neethling 1952 (1) SA 463
(C)
,SIP 400 Study Theme 17
Study Unit 1: The trial and judgment
Introduction
• The adversarial trial system in SA is based on the principle of two adversaries the
plaintiff and the defendant, confronting each other in a neutral court before an
objective adjudicator
• The trial is the forum in which the material facts in issue (facta probanda) are identified
and clarified during the pleading stage of litigation, are placed before the court and
proved through the admission of evidence (facta probantia)
• The trial process is chronologically divided into a number of phases, beginning with the
determination of the primary onus and opening arguments, continuing trough to the
calling and questioning of witnesses, a possible request for absolution, closing
arguments and ending with a judgment
• A High Court matter in a division or local set of a division is usually heard by a single
judge, but the Judge-President of a division may direct that the matter be heard by a
full bench, or a single judge may terminate the matter and direct that it be heard by a
full bench
• All matters in the High Court and Magistrates’ Courts are heard in open court, or in the
appropriate circumstances behind closed doors
• Trial procedure in the HC is regulated by HCR 39 and in the Magistrates’ Courts by MCR
29
• Legal proceedings instituted in one court will usually proceed to finality in that court,
although it is possible to transfer a part-heard matter to another court when justice,
convenience and common sense require it
• Although there ≠ particular rules or provisions for the holding of an inspection in loco,
such inspections are accepted practice in both the High Court and Magistrates’ Courts
• The entire court, together with the parties, will travel to the physical site where the
cause of action arose in order to inspect the geographical area and to examine
any real evidence that may be on the site
• A party may apply for an inspection in loco at any time during the trial but before
the parties have closed their respective cases
• A court has the discretion to grant or refuse an inspection in loco, and it may
even order an inspection on its own initiative
• The court, together with the parties will visit the location and make notes or
observations of any relevant physical and geographical evidence
• The notes are read into the court record
The Stages in the Adversarial Process
• After the close of pleadings, the case is set down on the court roll for trial on a specific
date
• On the day of trial, the case is called at roll-call and a courtroom and judge are
assigned
• The trial commences once the respective parties and their legal counsel
indicated to the court their readiness to begin
• All superior courts are courts of record, and a record must be made of all the evidence,
arguments and judgment
• At the commencement of trial the case reference, names of the presiding officer and
the parties’ counsel are read into the record
• The recording process is more informal in the Magistrates’ Courts
,SIP 400 Study Theme 17
Commencement of trial
The incidence of the burden of proof Does not shift
• HCR 39(5) and (9) provide that the party bearing the primary burden of proof has the duty
to adduce evidence first
• MCR 29(7)(a) and (8) is essentially the same as HCR 39
• The trial commences with the determination of which party will bear the primary burden of
proof or the duty of persuading the judge, by the end of the trial of the legal truth of his or
her case
• The primary burden is a matter of substantive law, is fixed at the beginning of the trial and
does not shift during the course of the trial
• In the case of Pillay v Krishna it was held that 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
• For example, a plaintiff relying on a contract bears the onus of proving it,
and a plaintiff claiming delictual damages bears the onus of proving
negligence and the quantum of damages
• When the defendant has simply denied the facts averred by the plaintiff, the plaintiff is
required to place before the court sufficient evidence to establish a prima facie case
• However, when the defendant has filed a plea raising a special defence, the
defendant bears the onus of proving the special defence
• It follows that in a civil action the burden of proof will not necessarily fall on one
party alone, but each party may bear a burden of proof in relation to different
issues
• Pillay v Krishna describes these different burdens as follows:
• “Where there are several and distinct issues, for example a claim and a
special defence, then there are several and distinct burdens of proof, which
have nothing to do with each other, save that the second will not arise until
the first has been discharged”
• It may appear that the burden of proof shifts from one party to another, but this is not true
because the burden of proof, once established, does not shift what occurs is that each
of the parties bears the burden of proof in relation to separate issues in the trial
• Once the burden iro one of the issues has been discharged, the inquiry moves to
whether the burden of proof has been discharged in relation to the other issue
The duty to begin
• HCR 39(13) and MCR 29(9)(a) describe the circumstances in which one or other of the
parties has a procedural duty to adduce evidence first in relation to different issues in
the trial
• The general rule is that the party that bears the evidentiary burden has the duty to begin
• This means that where the duty of adducing evidence on one or more issues is on
the plaintiff and that of adducing evidence on any other issue is on the
defendant, the plaintiff shall first adduce evidence relating to the issues iro which
the onus is on him and may then close
• If absolution is not given, the defendant shall thereafter call for evidence iro
those issues regarding proof of which he/she bears the onus
,SIP 400 Study Theme 17
The duty to begin (continued)
• The duty to adduce evidence may sometimes coincide with the primary burden of proof,
but unlike the burden of proof, has no bearing upon the evaluation of evidence
• It is merely a procedural duty imposed upon one or the other party in order to allow
the trial to be effectively conducted and to ensure a logical order of giving
evidence
• It has been held by our courts that acceptance by a party of the duty to begin the
trial does not imply an acceptance of the onus of proof
• In terms of HCR 39(11) and MCR 29(10) 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 of the trial, for a ruling by the court regarding the onus of adducing
evidence
The evidentiary burden shifts
• The fixed primary onus of proof must be distinguished from the evidentiary burden the
evidentiary burden is a duty to adduce evidence to combat a prima facie case
established by the opponent
• The evidentiary burden ≠ fixed and shifts from the one party to the other
• For example, if the plaintiff has established a prima facie case, the evidentiary
burden shifts to the defendant to rebut the prima facie case established by the
plaintiff
• In the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd, the word “onus” was described as referring to two distinct concepts, namely:
1. The litigant’s duty to satisfy the court that he/she is entitled to succeed on the claim
or defence;
2. The litigant’s duty to adduce evidence in order to combat a prima facie case
made by an opponent
• Only the first concept represents the true and primary onus the true onus can never shift
from the party upon whom it is originally placed
• The second concept is a mere burden of adducing evidence in rebuttal (an evidentiary
burden) and this burden shifts during the course of the trial, depending on the measure of
proof furnished by one party or the other
The relationship between the primary onus, the
evidentiary burden and the duty to begin
• The general rule is that the party bearing the evidentiary burden must begin
the trial. The following three circumstances must be distinguished:
1) Where the Plaintiff bears the primary onus of proof on one or more
issues, the Plaintiff will also have the duty to adduce evidence.
2) In certain circumstances, although the Plaintiff bears the primary
onus, 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.
3) Case law also suggests that considerations of fairness and
convenience may sometimes require the defendant to begin despite
the fact that the plaintiff bears the primary onus.
,SIP 400 Study Theme 17
Examination of the witnesses
• Once the primary onus and the duty to begin have been established the party
bearing the onus (usually the plaintiff) begins the trial
• The plaintiff’s counsel opens by addressing the court and briefly outlining the
claims which the plaintiff will attempt to prove
• The opening address gives the judge an overview of the case and provides the
judge with assistance in properly following the case
• Thereafter the defendant’s counsel is afforded the opportunity to deliver the
defendant’s opening address
• The Plaintiff begins by establishing a prima facie case, and this is done by calling of viva
voce evidence from witnesses and the introduction of real or documentary evidence. 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 in
individually from the witness room outside the courtroom to give evidence.
• Examination of a witness is conducted in three stages, namely:
1. Examination in chief;
2. cross-examination and
3. re-examination
• Each of the plaintiff’s witnesses will be called separately and sworn in
• Thereafter each witness will be subject to examination-in-chief, cross-examination
and re-examination
• After the plaintiff’s counsel has called all the witnesses and their examination has been
completed, the plaintiff closes his or her case
• A witness who has been subpoenaed and without just excuse refuses to take the oath or
make an affirmation or refuses to answer any questions to produce required documents
may be committed to prison for up to 8 days
• The High Court will adjourn the matter for periods of up to 8 days until the disobedient
(recalcitrant) witness agrees to comply with he court’s request
Examination-in-Chief
• The witness is called to the witness box and is sworn
in to ensure the truthfulness of his/her testimony
• The counsel for the party obo whom the witness
testifies undertakes the examination-in-chief of the Cross-Examination
witness • After the examination-in-
• The judge may also question the witness at any chief, the opposing party’s
stage counsel is afforded the
• The purpose of the examination in chief is to opportunity to cross-
establish a prima facie case (i.e. to lay the basis of examine the witness
the party’s case in order to convince the judge, at • The purpose of cross-
the end of the trial, to grant the relief sought) examination is to elicit
• Examination in chief is conducted by means of oral evidence that supports the
questions and answers cross-examiner’s case and
• The examiner-in-chief may not ask leading to cast doubt on the other
questions, which are questions that suggest an party’s evidence
answer, to the witness nor may the credibility of the • Leading questions may be
witness be attacked asked, and the credibility of
• HCR 38(2) makes provision for witness testimony to the witness may also be
be handed in on affidavit at trial, instead of orally, tested during cross-
in which event the affidavit will be read at the examination
hearing o such terms and conditions as the court
thinks is suitable
,SIP 400 Study Theme 17
Re-Examination
• After cross-examination of the witness the counsel who undertook the examination-in-
chief is afforded a further opportunity to re-examine the witness
• Re-examination is confined to matters arising from cross-examination and no new
questions may be asked
• The purpose thereof is merely to clarify discrepancies or to correct a misleading
impression arising from the cross-examination of the witness
Absolution from the instance
• At the close of the Plaintiff’s case, the Defendant’s counsel may apply to court for
absolution from the instance A request for absolution at the end of the Plaintiff’s
case simply means that there is no evidence to support the Plaintiff’s claim or
insufficient evidence upon which a reasonable court could find for the Plaintiff
• Absolution may be applied for at two different stages of the trial, namely:
• 1. at the end of the plaintiff’s case and
• 2. at the end of the trial.
• When application is made for absolution from the instance at the end of the Plaintiff’s
case, the test is to determine whether or not there is evidence on which a court, by
applying its mind reasonably, might find in favour of the plaintiff:
• The judge must bring to bear upon the evidence not his own, but the
judgment of a reasonable man. Denouncing for the time being any tendency
to exercise a judgment of his own, he is bound to speculate on the conclusion
at which the reasonable man not should, but might or could arrive. This is the
process of reasoning which, however difficult its exercises, the law enjoins
upon the judidical officer (Myburgh v Kelly)
• In order to reach a decision regarding the granting of absolution at the end of the
plaintiff’s case the court accepts that the witness evidence is truthful
• The test for absolution does not normally take into account the credibility of
the plaintiff’s witnesses, except where their evidence is so vague,
contradictory or improbable that a reasonable court cannot discount it
• The practical rule is that in order to escape absolution the plaintiff has to
adduce sufficient evidence to establish a prima facie case
• At the close of the trial when the Plaintiff has failed to discharge the primary burden
of proof by failing to adduce sufficient evidence to meet the standard of a balance
of probabilities, the court may:
• Dismiss the action;
• grant judgment in favour of the Defendant; or
• grant absolution from the instance
• If the court decides on absolution from the instance, the plaintiff may institute a fresh
action at a later date, but if the court decides in favour of the defendant, the
judgment becomes res judicata and the plaintiff cannot begin again
• Alternatively, where the onus is on the defendant and the defendant has
failed to discharge the onus, the court may only grant judgment in favour of
the plaintiff and cannot grant absolution from the instance
, SIP 400 Study Theme 17
The Defendant’s case
• After the Plaintiff has closed his or her case, and if an application for absolution is
unsuccessful, the Defendant’s counsel is afforded the opportunity to call the Defendant’s
witnesses
• Each witness is then called separately and sworn in, whereupon the witness is
subjected to examination in chief, cross-examination and re-examination
• Cross-examination of the Defendant’s witnesses is undertaken by the Plaintiff’s counsel.
• After completing the examination of the Defendant’s witnesses, the Defendant closes his
or her case.
Closing arguments Judgment
• After the closing of both the Plaintiff’s • After closing arguments the judge
and the Defendant’s cases, their delivers the judgment and gives brief
respective counsel are called upon to reasons therefor
deliver closing arguments. • The judge may reserve judgment if
• The purpose of closing arguments is: the matter is complicated and
• to summarise each party’s requires further deliberation
case,
• to indicate what has been
•
proved and
to identify various weaknesses in
Judgments and orders
the opponent’s case. • A judgment has two essential aspects:
• It also serves as a final inducement to • (i) it is a command to the losing
the court to find in favour of one or party, with a warrant to the sheriff
other of the parties. to enforce the court’s command;
• It often happens that the closing and
arguments take on the form of a • (ii) it regulates the legal
debate and dialogue between relationship between the parties
counsel and the judge. and settles their mutual rights and
obligations.
• The HC and MC may grant the following
Balance of probabilities judgments and orders:
Judgment on behalf of the
• The onus of proving a civil fact in issue is
plaintiff;
always discharged on a preponderance
Dismissal of the plaintiff’s case;
of probabilities.
Absolution from the instance at
• The civil standard was formulated in Miller
the end of the Plaintiff’s case;
v Minister of Pensions and confirmed in
Judgment in favour of the
Ocean Accident and Guarantee
Defendant in respect of the
Corporation Ltd v Koch as that which:
counterclaim;
• Carries a reasonable degree of
Dismissal of the Defendant’s
probability but not so high as is required
counterclaim.
by a criminal case. If the evidence is
such that the court can say, ‘we think it
more probable than not’ the burden is discharged, but if probabilities are equal it is not
• 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.
• 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.
, SIP 400 Study Theme 17
Recission and variation of judgments
• As a general rule, when a court hands down a final judgment or order, it becomes functus
officio and has no further authority to correct, vary or set aside the judgment or order
• However, there are some instances in which it is desirable to allow the correction,
variation or rescission of a judgment
• For example, a judgment may be granted in the absence of a party who
wishes to have the judgment set aside in order to make an appearance and
defend the matter, or there could be some error in the judgment which
either party wishes to have corrected
• Therefore, both the HC and the Mag Courts have the power to correct, vary or set
aside their own judgments under certain circumstances
Common law variation and rescission in the High Court
• The HC may, ito the common law and 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 the meaning is ambiguous, unclear or uncertain;
• Correct clerical, arithmetic or other errors;
• Correct, alter or supplement a costs order.
• In terms of the common law the HC may also rescind or set aside a judgment or order:
When judgment has been granted by default;
When fraud has been committed;
When new documents have been discovered;
When there was an error or irregularity in the proceedings.
• The HC has inherent jurisdiction to rescind a default judgment provided that sufficient
good cause is shown
• In Chetty v Law Society, the court held that, although the term “sufficient cause” or
“good cause” defies precise or comprehensive definition, two essential elements of
sufficient cause for rescission of a judgment by default are that:
1. The applicant for rescission presents a reasonable and acceptable
explanation for his or her initial default;
2. On the merits the applicant has a bona fide defence which prima facie
carries some prospect of success.
• The court has a discretion to grant an order rescinding a default judgment, but in terms of
precedent there may be no room for exercising that discretion in favour of an applicant
who has been in willful default
• Herbstein and Van Winsen state that, although wilful default ≠ an independent or
absolute requirement of the common law, an inquiry into sufficient cause clearly
depend on whether the applicant acted in wilful disregard of the court rules and
time limits
• Wilful default or disregard is determined by whether the defendant:
• Knew of the action against him or her;
• Deliberately refrained from entering an appearance to defend
• Intentionally failed to defend the action
• The defendant must also show a bona fide defence one that is substantial and good in
law
• It must also be clear that the defendant intends bona fide to use the defence at a
trial and that the application for rescission has not been brough purely to delay
execution of the judgment
