Civil Litigation

Civil Litigation

Edition 4

CIVIL LITIGATION

Introduction

Nature and scope of civil procedure

Sources

Rules of court

Causes of action

Jurisdiction

The magistrates court

Matters beyond jurisdiction: section 46

Jurisdiction in respect of causes of action: section 29

Abandonment of a portion of a claim: section 38

Deduction of an admitted debt

Consent to jurisdiction

Jurisdiction is respect of persons

Parties to litigation

Capacity to litigate

Legal representation

Adequate notice

Civil proceedings on the magistrates courts

Pre-trial procedure

Letter of demand

The summons

Service of legal process

Edictal citation and substituted service

Judgement by consent

Security for costs

Notice of intention to defend

Judgement by default

Summary judgement

Declaration

Plea

Exceptions and application to strike out

Special plea

Counter claim (Claims in Reconvention)

Reply to plea and plea to claim in reconvention

Close of pleadings

Other points to note

Preparation for trial

Discovery

Medical examinations and documents

Condition of an object

Expert notices

Photos, plans, models and sketches

Witnesses

Request for further particulars

File preparation

Consultations with witnesses (including expert witnesses)

Pre-trial conference

The trial

The judgement of the court

Costs

Application for rescission of judgement

Execution of judgement

Interpleader proceedings

Applications

Specific applications

Appeals

Civil proceedings in the High Court

Civil jurisdiction

Territorial limits

Officials of the court

Judges

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Civil Litigation / ? SASPS

The registrar

The sheriff

The taxing master

The family advocate

Interpreters

The court orderly

Judge¡¯s clerks

The court stenographer

The Master of the High Court

Attorneys and advocates

The form of civil proceedings

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Civil Litigation / ? SASPS

PRINTING HISTORY

1st Edition June 2006

2nd Edition November 2006

3rd Edition January 2008

Revised Edition August 2009

4th Edition January 2011

Revised Edition January 2012

? THE SOUTH AFRICAN SCHOOL OF PARALEGAL STUDIES CC

Reg No 1994/020523/23

7 Greenwich Grove, Station Road, Rondebosch, 7700

(SASPS)

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This document contains proprietary information that is protected by copyright. All

rights are reserved. No part of this document may be photocopied, reproduced,

electronically stored or transmitted, or translated without the written permission of the

SASPS.

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Civil Litigation / ? SASPS / (ii)

INTRODUCTION

Nature and scope of civil procedure

The law gives a citizen certain rights and remedies. If one of these rights is infringed, the

aggrieved citizen can enforce his rights through the court system. The rules of civil

procedure are concerned with the manner in which an aggrieved party may bring his

case before the appropriate court for an authoritative decision that is enforced by the

state.

In a matter involving a dispute, the first issue to be determined is whether the aggrieved

party has a right and if so, whether that right has been infringed. If a right has been

infringed then it follows that the injured party does have a remedy because there is a

general rule that where there is a right there is a remedy (ubi ius ibi remedius).

The next step would be to determine which court is competent to grant the remedy. This

involves the issue of jurisdiction. By jurisdiction is basically meant the competency of a

court to hear an issue and give an authoritative decision. The issue of jurisdiction is

addressed before commencement of proceedings and the selection of a competent court

in turn influences the nature and conduct of proceedings.

The major courts with civil jurisdiction in South Africa are the following:

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the Supreme Court of Appeal;

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the High Courts; and

the magistrates' courts, consisting of the

district magistrates courts, and

regional magistrates courts (of which there are 62 throughout South Africa).

The conduct of proceedings in each court is different, although there are

similarities in many respects between the High Court and the magistrate's

court procedure. As of the 15th of October 2010 the Magistrates Court

procedures were amended to bring the procedures in line with the High Court

procedures.

Sources

Most of our law of procedure has been introduced by legislation and is based on the

English system of procedure, although some High Court Rules are based on common

law, for example, the rules relating to provisional sentence. In the main, the rules

regulating High Court procedure are to be found in the Supreme Court Act 59 of 1959

and the Rules of Court. The source of procedural rules relating to the magistrates'

courts, on the other hand, is the statute responsible for their establishment, namely the

Magistrates' Courts Act 32 of 1944 and the Rules promulgated in terms thereof.

Rules of court

The purpose of the rules of court is to allow litigants to address the issues in dispute

between them as expeditiously and inexpensively as possible and at the same time

ensure that the courts dispense justice uniformly and fairly.

The rules applicable to magistrate's courts were originally devised by the

Rules Board established under the Magistrates' Courts Act, but are now

also regulated by the Rules Board for Courts of Law.

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