study guide civil procedure 2012

1

ADMINISTRATIVE INFORMATION: LAW OF CIVIL PROCEDURE

1. LECTURERS & CONTACT DETALS English class – Lecturer: MISS MONIQUE DU PREEZ Office: A-Ring 721 (Law Faculty, APK Campus) Consulting hours: Monday: 9:45 – 14:45

or by appointment Please contact the lecturer directly to arrange an appointment if necessary.

Telephone numbers: (011) 559 2897 (office) 083 690 2335 (cellular)

Email: [email protected] or [email protected]

Secretary: Office: Telephone number:

MS TERTIA ENGELBRECHT A-Ring 701 011 559 2027 (office)

Afrikaans class –

Lecturer: MISS CORDELIA SIEGERT Office: A-Ring 702 Consulting hours: Wednesday: 10:00-14:30

Thursday: 10:00-11:30 Telephone number: 011 559 3846 2. PRESCRIBED MATERIAL The following material is prescribed for purposes of this course:

1) Study guide (provided by the lecturer); 2) Textbook “Fundamental Principles of Civil Procedure” (2011/12) Van Heerden, Boraine et al.

Please note that this textbook will only be available in March 2012. Students should not purchase the 2006 edition;

3) Documents on Edulink; 4) Other prescribed material (ie cases and articles) and 5) Pleadings bundle. This bundle contains examples of court documents (ie pleadings and notices) and

forms an important part of the course. 3. COURSE OVERVIEW In short, the course entails a discussion of various aspects pertaining to the law of civil procedure, ie the procedure followed in civil proceedings in South African courts.

2 The course begins with an introduction to the applicable civil procedures (ie, the application and the action procedure) and the objectives of the law of civil procedure. This is followed by an overview of the court structure/hierarchy in South Africa.

The emphasis of this course remains the civil procedures that apply in the Magistrates’ Courts and the High Courts. Particular attention is given to the issue of jurisdiction and the parties/litigants to a civil suit followed by a discussion of the so-called “application” and “action” procedure. In this regard the procedures/steps that apply in the Magistrates’ Courts and the High Court respectively are dealt with simultaneously rather than treating these courts separately. Students will note that the procedure in the Magistrates’ Courts has, to a large extent, now been aligned with the procedure in the High Court. Current and relevant issues in the context of the law civil procedure will also beaddressed, ie the impact of the Constitution of 1996 on the law of civil procedure and, for example, the development of class actions in South African law. To summarize, the following topics will be covered during the course of this year: 1 An introduction to the law of civil procedure with reference to the history, underlying principles and

sources 2 The court structure in South Africa with reference to the jurisdiction of the various courts 3 Pre-litigation phase: Consultation, legal representation, demand and prescription 4 Jurisdiction 5 The parties to civil litigation 6 The application procedure, with reference to: Types of applications Notice of motion Affidavits Notice of intention to oppose 7 The action procedure, with reference to: The pre-trial phase –

The summons, particulars of claim and declaration Service of process or court documents The notice of intention to defend Default judgement Summary judgement Interim procedures (exception; application to strike out and irregular steps) Settlement offers and tenders Security for costs Plea, counterclaim, replication, counterplea Close of pleadings Amendment of pleadings Preparation for trial The trial phase The trial phase – Trial itself Judgement The after-trial phase – Appeal Review Execution/enforcement of the judgement 8 Legal costs 9 The impact of the Constitution and other legislation on the law of civil procedure

3 The course entails both a theoretical foundation as well as practical application. Students should therefore be able to apply the theory in practice. In order to facilitate this process, the course includes the following elements:

Students are required to complete written assignments and drafting exercises on a regular basis. Students are required to draft an application (notice of motion and affidavit) together with heads of

argument and to argue the application in the UJ Moot Court. Students are divided into groups or “law firms” and required to litigate on the basis of a set of facts up

to and including the close of pleadings. This exercise the drafting and exchange of court documents. With regard to the action procedure, claims based on breach of firstly contract, secondly delict and

thirdly divorce are used as examples for purposes of drafting the relevant court documents.

In this sense the law of procedure is integrated with principles of substantive law. The intention is to illustrate, with reference to practical examples, the interaction between facts, substantive law and procedure. 4. LECTURES Contact sessions entail one double lecture per week as follows: Day: Monday Time: 15:00-16:30 Venue: D Les 102 Lectures are typically structured around the following elements:

A brief introduction to the topic and the place thereof within the law of civil procedure; Basic theory with reference to relevant principles, rules, legislation and case law ; Practical work/application ie, the drafting of documents and pleadings and the completion of

assignments and Participation by students in discussions.

It is important for students to attend all the lectures in this course. Please note that lecture notes and examples of court documents will not be made available on Edulink or otherwise. The objective of this course is not to train advocates or attorneys in the first place but to introduce students to the basic principles of the law of civil procedure in such a manner so as to prepare them for legal practice. The subject aims to serve as a bridge between legal theory in an academic context and legal practice. Students should take note that the study guide and the scope/extent of prescribed material may be amended and/or supplemented during the course of lectures. It is the responsibility of each student to remain informed in so far as the content of lectures, prescribed sources and or study material is concerned. Please make sure to contact the lecturer should you have any questions in this regard. 5. SEMESTER MARK: TESTS AND EXAMINATIONS SEMESTER ONE: Tests (80%) and Assignments/Practical Work (20%) SEMESTER TWO: Test 3 and/or 4 (60%); Moot court (20%) and Assignments/Practical Work (20%)

4 YEAR MARK: The year mark with which a student writes the November examinations is calculated

by adding the half year mark (following the June examinations) to the second semester mark and dividing the total by two.

A student requires a final mark of at least 40% for purposes of exam entrance. FINAL MARK: The final mark is calculated by adding the year mark to the November exam mark

and dividing the total by two.

A student requires a final mark of at least 50% to pass the course. 6. AEGROTAT TESTS AND EXAMS

Students must consult the general rules and regulations of the Faculty of Law in this regard. The dates for aegrotat tests have been published as part of the timetable booklet.. Please note this may take the form of an oral test/examination.

7. FORMAT OF TESTS AND EXAMINATION QUESTIONS 7.1 General The questions that follow serve as examples of the type of questions students can expect. 7.2 The approach to be followed when answering questions Theory: The student must always attempt to provide reasons for his or her answer/s unless the question specifically requires the student to “name” or “list” something. When motivating an answer, a student should refer to the relevant sources ie legislation, case law, rules of court and views expressed by authors in books/journal articles. Please ensure that you refer to relevant authority when answering a question. You should bear in mind that the law of civil procedure as applied in the High Court and Magistrates’ Courts is based on two principal sources: Legislation/statutes and the relevant Rules of Court (ie the Supreme Court Act of 1959 and the rules in terms of this legislation as well as the Magistrates’ Court Act of 1944 and the rules in terms of this legislation). Drafting of pleadings: Students are required to draft various documents as part of this course. The documents may take the form of letters, notices and pleadings. It is important to ensure that you draft only the relevant sections of such documents or pleadings. For instance, if students are asked to draft a Particulars of Claim, it is not necessary to draft the complete summons except when specifically requested to do so. The basic rule is that the student should read the question carefully and draft only the document etc that is specifically requested.

5 To illustrate this:

If students are requested to draft a notion of intention to defend, the full document including the heading and the standard ending should be included;

If students are required to indicate/draft the citation of the parties to litigation only, then only the citation is to be provided, it is not necessary to draft the complete summons and or particulars of claim

Examples of short “direct” questions:

1. Name two basic principles that underlie civil procedure. 2. Define the law of civil procedure. 3. Distinguish between the application and the action procedure.

Examples of multiple choice questions or true/false type questions: Indicate whether the following statements are “true” or “false”. (You may be required to provide reasons for your answers).

1. A assaults B. As a result, B incurs medical expenses in the amount of R50 000. B can institute criminal proceedings against A to recover his medical expenses.

[2] (False (1). Motivation: The damage is the result of a delict for which A is responsible. As a general rule, it has to be recovered by instituting civil action against A (1).)

2. A Magistrate’s Court may not hear an application to invalidate a will.

[2] (True (1). This type of case is excluded from the jurisdiction of the Magistrates’ Courts (1).)

Examples of essay type questions:

1. Discuss the impact of the Constitution of 1996 on the law of civil procedure. [15]

2. Write a note on summary judgement as it applies in the Magistrates’ Courts. [7]

3. Write an essay on the acknowledgement and application of class actions in South African law. [15]

Examples of problem solving questions:

A, a peregrinus, institutes legal action against B, an incola of the Republic, for an amount of R150 000. A owns a beach cottage in the Western Cape. B requires from A to provide security for costs. Advise B. Will B be successful in his request for security for costs under these circumstances? [5] A’s motor vehicle is insured by the B Insurance Company. He is involved in a motor vehicle accident caused by C’s negligence. A suffers damages in the amount of R120 000 to his vehicle. a. Advise the insurance company with regard to the institution of a claim against C after B has

indemnified A. [4]

b. Indicate the parties to the subsequent suit in view of your advice in a. [4] c. From which court will you issue summons? [2] d. What type of summons will you use? [2]

6 Examples of questions in relation to case law: Indicate the principles laid down in BST Kombuise v Abrahams 1978 (4) SA 182 (T) with regard to discovery.

[3]

Or

Indicate the importance of the judgement in BST Kombuise v Abrahams 1978 (4) SA 182 (T) for the law of civil procedure.

[3]

Drafting documents/pleadings: Consider the following set of facts and answer the questions below in regard thereto - Peter Smit is 20 years of age and a student at UJ. He was involved in a motorcar accident with Mr. Sam Ndlovu. Sam is a sales person at Edgars in the Menlyn shopping centre in Pretoria. Sam allegedly ignored a red robot. The accident took place at the corner of Duncan Street and Duxbury Road, Hillcrest, Pretoria. Peter was driving his brother’s car (Jack Smit) at the time and the amount in respect of damages to the vehicle is R15 000. Peter obtained a quotation from a panel beater. Peter and Jack reside at 10 Makou Street, Colbyn, Pretoria and Sam at 20 Meer Street, Sunnyside, Pretoria. (a) You act on behalf of Peter and Jack and your advice is to institute action against Sam. Draft the

citation of the relevant parties. [4]

(b) Draft the particulars of claim. [4] (c) Draft a notice of intention to defend on behalf of Sam. [4] How to deal with procedural errors in pleadings etc: The student may be presented with a set of pleadings or, for instance, a summons or the sheriff’s return of service, and asked to indicate/identify the errors in the document and to explain how he/she will address these problems. Examples of past papers: November (2009); June and November exam (2010); November exam (2011).

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UNIVERSITY OF JOHANNESBURG KINGSWAY CAMPUS

FACULTY OF LAW

NOVEMBER EXAMINATION 2009

SUBJECT NAME: LAW OF CIVIL PROCEDURE DURATION: 3 HOURS SUBJECT CODE: SPR0000 MARKS: 100 EXAMINERS: 1) MS M DU PREEZ

2) MS C SIEGERT THIS PAPER RUNS TO 6 (SIX) PAGES. QUESTION 1 1.1 Discuss only the ratio decidendi in each of the following reported decisions: 1.1.1 Toekies Butchery v Stassen 1974 (4) 771 (T). (3) 1.1.2 Fatti’s Engineering Co v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T). (3) 1.1.3 Magida v Minister of Police 1987 (1) SA 1 (A). (3) 1.1.4 Greyvenstein v Neethling 1952 (1) SA 463 (C). (3) 1.1.5 Coopers v Deutsche Gesellschaft fur Schadlingsbekampfung 1976 SA 357 (A). (3) [15] QUESTION 2 Write a short note on the impact of the Bill of Rights on the law of civil procedure, with reference to examples and relevant journal articles. [6] QUESTION 3 Indicate which High Court is best suited to hear each of the following matters. You are required to provide the full and correct name of the court in each instance. Please note that you may only refer to one court per question. 3.1 A civil matter in respect of which the cause of action arose in Kimberley; (1) 3.2 A divorce matter where both parties are domiciled in Port Elizabeth; (1) 3.3 A dispute between the Johannesburg Municipality and local residents with regard to service delivery; (1) 3.4 A civil claim following a motor vehicle collision in the Eastern Cape. Both parties reside in the Eastern Cape.

(1) ______________________________________________________________ [4] QUESTION 4 Complete the following sentences by writing only the missing words in your answer booklet: 4.1 The monetary jurisdiction of the Small Claims Court is currently R_____. (1) 4.2 In circumstances where the plaintiff wishes to effect service upon a person no longer physically present in the Republic, the following procedure is to be used: _____ _____. (1) 4.3 Where no date for performance has been agreed upon, a letter of demand is used to place a debtor _____ _____.

(1)

8 4.4 _____ means that a necessary party has not been joined to the litigation, in other words, that a person with a direct

and substantial interest in the matter has not been joined. (1) 4.5 ____ entails the joinder of a party having no interest in the matter. In other words, the joinder is not justified. (1) 4.6 A court may order a plaintiff/applicant to give security for the costs to be incurred by the defendant/respondent

where the plaintiff is a _____ or a _____. (1) 4.7 An order of costs ____ ____ ____ is an order that the costs must be paid by the attorney instead of the client. (1) 4.8 An example of a defence which may be raised as a special plea is ____ ____ ____ - this allows the defendant to

raise the objection that the same matter is already before another competent court. (1) ______________________________________________________________ [8] QUESTION 5 Consider the following set of facts: On 1 November 2009, a collision occurred between a Greyhound bus with registration number PMV 123GP and a BMW motor vehicle with registration number SPEEDY GP. The driver of the bus, Mr Tarica, was travelling at a speed of 180 km per hour when he collided with the said BMW on the N1 highway near Pretoria during the early hours of the morning. During a subsequent investigation in which Greyhound (Pty) Ltd dismissed its employee, Mr Tarica, it surfaced that the bus was an old model and that the brakes were not working properly. The driver of the BMW was Mr Fourie, a law lecturer employed by the University of Pretoria at 113 Atterbury Road, Pretoria. The owner of the BMW is his wife, Mrs Fourie, a retired accountant. She was overseas at the time of the accident. The couple resides at 111 Waterkloof Manor, Pretoria. Mr Fourie sustained no serious injuries during the accident. The damage to the BMW amounts to R238 000. Answer the following questions with reference to the above facts. Please note that, to the extent that you are required to draft any notices or pleadings, these documents should be complete/comprehensive. 5.1 You are instructed to institute legal action on behalf of the plaintiff in this matter.

Draft only the particulars of claim to be attached to the first page of the summons. (10) 5.2 Briefly explain what the “issuing” of a summons entails. (1) 5.3 Briefly explain what the “service” of a summons entails. (1) 5.4 The defendant wishes to defend the matter.

Draft the notice of intention to defend the matter on behalf of the defendant. (6)

5.5 Your client (the plaintiff) is of the opinion that the defendant has no bona fide defence to the claim and that an appearance to defend has been entered solely for purposes of delaying the matter.

Indicate which step you will advise your client to take in this regard prior to the defendant delivering a plea. You are required to draft the necessary documents on behalf of your client to give effect to your advice. (10) 5.6 The plaintiff subsequently wishes to amend the particulars of claim by amending the claim amount from

R238 000 to R288 000. Discuss the procedure to be followed by the plaintiff in amending the summons. It is not necessary to draft any

documents on behalf of the plaintiff. (6) 5.7 Accept that the matter proceeds to trial. The plaintiff requires the defendant to submit to a medical examination. Draft the necessary notice to be delivered to the defendant in this regard. (6) ______________________________________________________________ [40]

9 QUESTION 6 Consider the following set of facts: You act on behalf of Angus Botha, the plaintiff, in a civil matter. Angus is the neighbour of the defendant, Jackie Ndlovu, the newly elected chairman of the Sandton Home Owners Association. To celebrate his election as chairman, Jackie recently held a party at his house in Sandton. During the course of the celebrations, Jackie became intoxicated and painted Angus’ Jaguar X-Type motor vehicle with red spray paint. Angus sued Jackie for damages in the amount of R150 000, being the reasonable costs to repair his vehicle. The plaintiff’s summons and particulars of claim contained all of the allegations referred to above. In response thereto, Jackie gave notice of his intention to defend the matter and delivered a plea. Jackie vehemently denies the claim, and in his plea alleges that he has photographs in his possession to prove that someone else had in fact painted the vehicle. At the close of pleadings, the defendant fails to discover any documents. 6.1 Identify what the next step is that the plaintiff should take in this matter. (1) 6.2 With reference to your answer in 6.1 above, draft the necessary notice to be delivered to the defendant in this

regard. (6) 6.3 Which documents should the parties, as a general rule, discover in civil proceedings?

(1) ______________________________________________________________ [8] QUESTION 7 7.1 You act for the plaintiff in a civil matter. The plaintiff sued the defendant for an amount of R100 000, being the

purchase price of goods sold to the defendant by the plaintiff and delivered by the plaintiff to the defendant at the defendant’s special instance and request.

The plaintiff’s summons and particulars of claim contained all of the allegations referred to above. In response

thereto, the defendant gave notice of his intention to defend the matter and delivered a plea. Consider the following extract from the plea delivered by the defendant in this matter: “The content of this paragraph is denied. The defendant specifically denies having bought the goods from the

plaintiff. In the alternative, the defendant alleges that he has already paid the purchase price of R100 000 to the plaintiff.”

You are instructed to advise your client as to whether the content of the plea complies with the rules of court. Answer this question by indicating the next step you will advise your client to take in this regard and how your

client should go about dealing with the content of the plea. (4) 7.2 Accept that the defendant subsequently wishes to settle the matter by offering to pay an amount of R80 000 to

the plaintiff. Briefly discuss the requirements with which the defendant’s written notice of settlement must comply in terms of

High Court Rule 34. (4) ____________________________________________________________ [8] QUESTION 8 Consider the notice of a sale in execution attached hereto as Annexure A. Answer the following questions with reference to this document: 8.1 Who (which 3 categories of persons) should receive written notice from the sheriff when he effects the

attachment of immovable property? (1)

10 8.2 Who is responsible for determining whether there are any bonds or encumbrances registered against the

property? (1) 8.3 Briefly discuss the procedure to be followed should there be a preferent claim in respect of the property. (1) 8.4 Indicate what the “conditions” as referred to in paragraph 1 of the attached notice relate to. (1) 8.5 Briefly discuss the duties of the sheriff following the sale in execution. (1) 8.6 Accept that the plaintiff obtained default judgement against the defendants on the basis of a debt flowing from

the mortgage bond over this immovable property, which is also the defendant’s home. The defendants, who are the owners of this property, object to the attachment and allege that the attachment of

residential property is unconstitutional. Discuss this statement with reference to applicable case law. (5) [11]

TOTAL: [100]

-oOo-

11

ANNEXURE A

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UNIVERSITY OF JOHANNESBURG KINGSWAY CAMPUS

FACULTY OF LAW

MAY EXAMINATION 2010


2) MS C SIEGERT THIS PAPER RUNS TO 11 (ELEVEN) PAGES. QUESTION 1 Answer the following questions by selecting the correct answer. Please note that you may only select one correct answer for each question. You are required to answer this question by completing the separate, multiple choice answer sheet attached to this paper. Question 1: Multiple choice 1.1 A letter of demand:

A. should preferably be sent by registered mail, for purposes of proof; B. may be used to place a debtor in mora, where no date for performance has been agreed upon; C. is a legal necessity in all cases. In other words, a party is not entitled to proceed with legal action

before having addressed a letter of demand to the opposing party; D. is required when the cause of action is based on a breach of contract and the terms of the contract

require a letter of demand. The letter is therefore necessary to complete the cause of action; E. is required in terms of the Small Claims Court Act before legal action may be taken in this forum. Answer: 1. Only statements A and B are correct. 2. Only statement A is correct. 3. Statements A, B and C are correct. 4. Statements A, B, D and E are correct. 5. All the statements are correct.

(1) 1.2 A replication is: A. filed by the plaintiff in civil proceedings; B. an answer to the defendant’s plea; C. a response to the plaintiff’s particulars of claim; D. necessary when the intention is to place new facts before the court and not when the plaintiff’s

response is a bare denial of the defendant’s averments; E. necessary when the defendant’s defence is one of confession and avoidance. Answer: 1. Only statements A and B are correct. 2. Only statements C and D are correct. 3. Statements A, B, D and E are correct.

13 4. All the statements are correct. 5. All the statements are incorrect.

(1) 1.3 The prescription period: A. in respect of a judgement debt is 30 years; B. in respect of a debt owing to the state arising from a loan of money and the sale or lease of land is

normally 15 years; C. in respect of a debt arising from a cheque is six years; D. is usually calculated according to calendar days and not court days; E. may be interrupted by means of an acknowledgement of debt by the debtor to the creditor; F. may be interrupted if the creditor causes a summons to be issued. Answer: 1. Only statement A is correct. 2. Only statements A, C and E and F are correct. 3. Only statements B, C and D are correct. 4. All the statements are correct. 5. Statements A, B, C, D and E are correct.

(1) 1.4 Motion proceedings should not be instituted in the following instances: A. claims for liquidated damages; B. matters in which it is anticipated that a material dispute of facts may arise; C. claims for unliquidated damages. D. a matter where relief must be obtained on an urgent basis. Answer: 1. All the statements are correct. 2. All the statements are incorrect. 3. Only statements A and B are correct. 4. Statements A, B, and C are correct. 5. Statements B and C are correct.

(1) 1.5 An ex parte application: A. is also referred to as a bilateral application; B. may be used when the applicant is the only person with an interest in the case; C. may be used when the application is merely a preliminary step in the matter; D. may be used when urgent or immediate relief is required; E. requires the applicant to observe the utmost good faith.

Answer:

1. Statements A and D are correct. 2. Statements B, C, D and E are correct. 3. Only Statements B and C are correct. 4. All the statements are incorrect. 5. All the statements are correct. (1) 1.6 With regard to the prescribed quorum of judges: A. a matter in the Constitutional Court must be heard by at least 10 judges. B. a matter in the Supreme Court of Appeal must be heard by at least 5 judges. C. An appeal from the Magistrates’ Court must be head by at least 2 judges in the High Court. Answer: 1. Statements A and B are correct. 2. Statements B and C are correct. 3. All statements are correct. 4. All statements are incorrect. 5. Only Statement A is correct.

(1) 1.7 The Labour Court:

14 A. has the same authority, powers and standing as the High Court in relation to matters under its

jurisdiction; B. has the same authority, powers and standing as the Supreme Court of Appeal; C. is the final court of appeal in respect of all labour matters; D. has its own rules and procedures in terms of the Labour Relations Act, 66 of 1995;

Answer:

1. Statements A and D are correct. 2. Statements A, C and D are correct. 3. Only statement A is correct. 4. All the statements are correct. 5. All the statements are incorrect.

(1) 1.8 When it comes to the jurisdiction of the High Court, the forum rei sitae has exclusive jurisdiction in respect of: A. claims for the handing over of occupation or possession of immovable property; B. proceedings for a declaration that immovable property is executable; C. proceedings to determine title to immovable property; D. claims for the transfer or partition of immovable property. E. claims for the rescission of a contract for the sale of immovable property. Answer: 1. Statements A, B and C are correct. 2. Statements A and C are correct. 3. Statements B, C and D are correct. 4. All the statements are correct. 5. All the statements are incorrect.

(1) 1.9 Where the defendant is a foreign peregrinus while the plaintiff is either a local or foreign peregrinus A. a recognised ratio jurisdictionis as well as attachment of property is required; B. the attachment is said to be ad confirmandum jurisdictionem; C. it is not possible to attach the property of the defendant in order to found jurisdiction due to the fact

that the plaintiff is not an incola of any South African court; D. the ratio jurisdictionis can take the form of the cause of action arising within the jurisdiction of the

relevant court.

Answer: 1. Only statements B and D are correct. 2. Only statements B, C and D are correct. 3. Statements A, B and C are correct. 4. All the statements are correct. 5. All the statements are incorrect. (1) 1.10 A plaintiff or applicant is required to have a “direct and substantial interest” in the right which forms

the subject matter of civil litigation. According to Jones & Buckle this entails that the party is required to have: A. an interest that is not too far removed; B. an actual interest rather than an abstract or academic interest; C. a current interest; D. a direct interest in the relief sought; E. no direct, indirect or personal interest in the outcome of the action. Answer: 1. Statements B and C are correct. 2. Statements A and D are correct. 3. Statements A, B, C and D are correct. 4. All the statements are incorrect. 5. All the statements are correct.

(1)

15 1.11 A. Joinder of necessity is at the court’s discretion. B. Joinder of convenience is not at the court’s discretion. C. Non-joinder refers to a situation where it is merely convenient to join a person and that person has not been joined. D. A person who establishes a right of joinder may waive such a right and agree to be bound by the court’s judgement in which case it becomes unnecessary to join such a person. E. Misjoinder entails the joinder of a party who has a direct and substantial interest in the case. Answer: 1. Statements B, C and D are correct. 2. Statements A, B and C are correct. 3. Only statement D is correct. 4. All the statements are incorrect. 5. All the statements are correct.

(1) 1.12 In terms of the Renaming of High Courts Act, 30 of 2008: A. the WLD is now the South Gauteng High Court, Johannesburg; B. the TPD is now the North Gauteng High Court, Pretoria; C. the Durban and Coast Local Division of the High Court is now the KwaZulu-Natal High Court,

Durban; D. The Cape of Good Hope Provincial Division of the High Court is now the Eastern Cape High

Court, Grahamstown.

Answer: 1. Statements B and C are correct. 2. Statements A and D are correct. 3. All the statements are incorrect. 4. All the statements are correct. 5. Statements A, B and C are correct.

(1) 1.13 A pleading: A. enables each litigating party to come to trial fully prepared to meet the case of the other party. B. must contain brief statements of all the facta probantia; C. establishes the litigating parties’ locus standi in iudicio and the court’s jurisdiction; D. is not required to contain a prayer in all instances; E. places the issues on record in order to prevent further litigation on the same matters. Answer: 1. Statements A and C are correct. 2. Statements B and D are correct. 3. All the statements are incorrect. 4. Statements A, C and E are correct. 5. All the statements are correct.

(1) 1.14 High Court Rule 18 stipulates general requirements regarding pleadings as follows: A. Where damages are claimed, the particulars must include the date of birth, nature, effect and duration

of disability as well as the different amounts claimed; B. If a party relies on contract, a copy of the contract or of the part of the contract relied upon must

be annexed; C. Each pleading must contain a heading; D. Each pleading must be divided into paragraphs; E. Each pleading must be signed in the presence of a Commissioner of Oaths. Answer: 1. Statements A, B and C are correct. 2. Statements A, B, C and D are correct. 3. Statements C, D and E are correct.

16 4. All the statements are correct. 5. All the statements are incorrect.

(1) 1.15 Mr A and Mr B are involved in a motor vehicle collision which was caused by Mr A’s negligence. The damage to Mr B’s motor vehicle amounts to R120 000 and is calculated as follows: damage to the engine in the amount of R60 000 and damage to the body of the vehicle in the amount of R60 000.

A. A can issue a separate summons in the Magistrates’ Court for each of these amounts. B. B’s claims arise from a single cause of action; C. B will have to institute action in the High Court unless the jurisdiction of the Magistrates’ Courts have been

extended; D. B has a substantive claim for R120 00 exceeding the jurisdiction of the Magistrates’ Court and which may not

be split with the object of recovering the amount in more than one action. Answer: 1. Statements A, B and C are correct. 2. Statements A, B, C and D are correct. 3. Statements C and D are correct. 4. All the statements are correct. 5. All the statements are incorrect. (1)

(15) QUESTION 2 Consider the following set of facts and answer the questions below in relation thereto: Your client, Aaron, is a building contractor who works and resides in Johannesburg. During 2009 he entered into a written agreement with Benson. In terms of this agreement, Aaron undertook to repair the roof at Benson’s house for an amount of R103 000. The parties further agreed that Benson would supply the materials for the repair work. In January 2010 Aaron completed the repair work. Benson however failed to make payment as agreed. You consult with Aaron at your offices in Pretoria. He informs you that he wishes to institute legal action against Benson for services rendered in the amount of R103 000. Aaron further informs you that he owes Benson an amount of R3000 in respect of the material Benson bought and paid for on Aaron’s behalf. 2.1 Indicate whether it will be necessary to deal with the Financial Intelligence Centre Act, 38 of 2001 during your

consultation? Explain your answer. (3) 2.2 Explain why it is advisable for a legal representative to address a so-called mandate letter to his/her client as

soon as possible after the first consultation. (2) 2.3 Indicate which civil procedure you will institute on behalf of your client. You are required to explain your answer. (2) 2.4 Indicate which documents will be exchanged between the parties as part of the “pleadings phase” during this

matter. (3) 2.5 Explain the difference, if any, between a “pleading” and an “affidavit”. (2) 2.6 Indicate what the formalities with regard to the signature of pleadings in the High Court entail. (2) 2.7 Explain the difference between abandonment and subtraction of an admitted debt. (2) 2.8 Assume that, at trial, Aaron proves that Benson owes him R103 000. Explain to your client which amount he is likely to be awarded by the court in the case of: 2.8.1 abandonment; (1) 2.8.2 subtraction. (1) 2.9 Assume that, at trial, Aaron proves that Benson owes him R100 000.

17 Explain to your client which amount he is likely to be awarded by the court in the case of: 2.9.1 abandonment; (1) 2.9.2 subtraction. (1) [20] QUESTION 3 Indicate which court will have jurisdiction to decide each of the following matters. You are required to provide the full name of each court and to refer to only one court per matter. 3.1 A divorce matter in Cape Town; (1) 3.2 A claim for damages (R800 000) following a motor vehicle collision in Kimberley; (1) 3.3 An application for the liquidation of a close corporation in Bloemfontein; (1) 3.4 A claim for specific performance without an alternative claim for the payment of damages. The cause of action

arose in Pietermaritzburg; (1) 3.5 An action for the determination of a right of way in respect of a farm situated in Pretoria. (1) [5] QUESTION 4 Consider the following set of facts and answer the questions below in relation thereto:

Zondo, the plaintiff in a civil matter, resides in Pretoria. He is an artist who owns his own gallery in Pretoria. In May 2010 he enters into a written contract of sale with Helga. Helga is a German citizen who was on vacation in South Africa at the time of the conclusion of the agreement in Pretoria.

In terms of the agreement, Zondo agrees to sell wooden curios to Helga and Helga undertakes to make payment in the amount of R150 000 to Zondo. The contract requires Zondo to deliver the goods within seven days and Helga is required to make payment within seven days of receipt of the goods. Zondo makes delivery of the goods and Helga subsequently sends the goods to her residential address in Germany. Helga however fails to make payment to Zondo.

During June 2010 you consult with Zondo at your offices in Pretoria. He intends to recover the amount of R150 000 from Helga as soon as possible and instructs you to initiate proceedings. He informs you that Helga owns a private aircraft, which is apparently kept at the Wonderboom Airport in Pretoria. You further learn that Helga is currently on safari in the Kruger National Park, but is set to return to Germany, using her private aeroplane, on 12 July 2010.

Zondo intends to institute legal action against Helga in a South African court and asks you for advice in this regard.

4.1 Explain what the requirements for legal action of this nature entail. You should refer to relevant case law and legislation as part of your answer. (5)

4.2 Make up your own facts where necessary and draft the complete application for attachment. (15) [20] QUESTION 5 Refer to the facts in question 4 above. Accept that Helga submits to the court’s jurisdiction prior to your client bringing any court application. Indicate how this will change the position, if at all. You are required to refer to applicable case law as part of your answer. [5] QUESTION 6 You act for the plaintiff in each of the following matters. Provide the full citation of the plaintiff as it will appear in your client’s particulars of claim. Make up your own facts to the extent that this may be necessary.

18 6.1 Mr Albert Abrahams, a law professor at UCT; (1) 6.2 African Furniture Warehouse (Pty) Ltd; (1) 6.3 Coronation Close Coporation; (1) 6.4 The Soap Shop. This entails a partnership carrying on business from 123 Alex road, Kensington, Johannesburg. The partners are Mr a and Mrs B. (1) 6.5 The Government Employees Pension Fund. (1) [5] QUESTION 7 Consider the following set of facts and answer the questions below in relation thereto:

Early on the morning of 29 April 2010, whilst on his way to work, Orson travelled at 60 km/h in a 40 km/h residential area.

At the same time, Mike exited his driveway while failing to keep a proper lookout. In an attempt to avoid a collision with Mike, Orson swerved and, in doing so, he collided with Carl’s Mercedes. The Mercedes was parked on the side of the road at the time of the incident.

Carl subsequently instituted legal action against Orson to recover damages to his motor vehicle in the amount of R110 000.

Orson is of the view that Mike was also negligent and that he isn’t solely responsible for Carl’s damages.

7.1 Advise Orson with regard to the possible application and consequences of section 2(2) of the Apportionment of

Damages Act, 34 of 1956. (3) 7.2 Distinguish between section 2(2)(b) of the Apportionment of Damages Act, 34 of 1956 and rule 13 of the High

Court Rules. (4) 7.3 Accept that Judge Nugget, who is Orson’s neighbour, witnessed the entire incident. Orson intends to have a

subpoena delivered to his work address at the High Court in Johannesburg. Explain what the rules are with regard to delivering a subpoena to a High Court judge in a matter of this nature. (3) [10] QUESTION 8 Consider the following set of facts and answer the questions below in relation thereto: Mrs S resides in Johannesburg. Late one evening she heard a noise in her garden and subsequently found a police vehicle in her swimming pool. The vehicle seems to have crashed into her fence and landed up in her swimming pool. The damage to her swimming pool/fence amounts to R65 000. She intends to claim this amount from the SA Police Services and approaches you for advice. Upon further investigation, you learn that the driver of the police vehicle was a young constable who was speeding on his way to the Lolly Jackson crime scene. His defence is that he dropped his coffee cup and accidently hit the accelerator. Advise your client on the procedure to be followed when intending to institute civil proceedings against the state. Your answer should make reference to applicable legislation. (5) [5] QUESTION 9 Discuss the ratio decidendi in respect of each of the following decisions: 9.1 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T). (6) 9.2 Luna Meubelvervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 (W). (6)

19 9.3 Permanent Secretary, Department of Welfare, Eastern Cape v Ngxusa and Others 2001 (4) SA 1184 (SCA).

(3) [15] TOTAL: [100]

20

UNIVERSITY OF JOHANNESBURG

KINGSWAY CAMPUS

FACULTY OF LAW



2) MS CM SIEGERT THIS PAPER RUNS TO 7 (SEVEN) PAGES. Instructions: - Read all questions carefully and answer only what has been asked. - Accept that you act as the attorney of record where you are required to provide an opinion and/or advice to a client. - Refer to authority (case law, legislation and the rules of court) where relevant. QUESTION 1 Discuss only the ratio decidendi in respect of the following reported cases: 1.1 Magida v Minister of Police 1987 (1) SA 1 A; (4) 1.2 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (1) BCLR 78 (CC); (3) 1.3 Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft fur Schudlingsbeskampfung mbH 1976 (3) SA 352 (A). (3) [10] QUESTION 2 2.1 Your client intends to institute a civil claim for damages in the High Court. You inform him that you estimate his

total legal fees to be in the region of R100 000, if he were to proceed with the action. He asks you to explain whether, if his action succeeds, he will be entitled to recover all his legal fees from the party against whom the court has made an order.

Briefly explain your advice to the client with reference to what party-and-party costs entail. (4)

2.2 Distinguish between attorney-and-own-client costs and costs de bonis propriis. (2)

2.3 Distinguish between a writ and a warrant of execution. (2) 2.4 Your client, the judgement creditor, intends to enforce a civil judgement. The judgement debtor has insufficient

movable/immovable property to satisfy the judgement debt. Your client has since discovered that the judgement debtor is employed as a financial manager and that he earns in excess of R30 000 per month.

Your client asks whether he is entitled to attach the judgement debtor’s salary or a portion thereof to satisfy the judgement debt. Briefly set out your response to this question. (2)

[10]

21 QUESTION 3 Complete the following sentences (write down only the missing word/s in each case). Take notice that some of these sentences require you to write down more than one word or a phrase. 3.1 A _____ is an itemised account reflecting all the charges, including fees and disbursements, made by an

attorney. It may have to be taxed by the ____ of the court. (1) 3.2 Execution will first take place against the debtor’s _____ property and only thereafter against any _____

property. (1) 3.3 At the close of the plaintiff’s case in a civil trial, the defendant’s counsel may apply for _____.

(1) 3.4 A ____ refers to an inspection on site for the evaluation of real evidence. This entails that the court, together

well as the parties, will visit the location and make notes or observations of any relevant evidence. (1)

3.5 A ____ is a document which requires of a witness to produce at trial a particular document in his/her possession. (1)

3.6 After the pre-trial conference has been held, the ____ of the conference must be prepared and signed by or on behalf of every party. This document must then be filed with the registrar of the High Court not less than ____ weeks prior to the trial. (1)

3.7 A person resident in Durban is a _____ of the KwaZulu-Natal High Court, Durban, but a _____ of the South Gauteng High Court, Johannesburg. (1)

3.8 Generally speaking, before a person can swear positively to facts in legal proceedings, the facts must be _____. (1)

3.9 In an application for summary judgement: if the defendant does not wish to provide security to the plaintiff, the defendant will have to satisfy the court by affidavit that he/she has _____. (1)

3.10 High Court Rule 23 provides that an exception may be taken to a pleading in two circumstances: if it is _____ or if it _____. (1)

[10] QUESTION 4 Indicate whether a Regional Magistrate’s Court has jurisdiction to deal with each of the following matters. You are required to motivate your answer. 4.1 A divorce matter; 4.2 A dispute over immovable property to the value of R300 000; 4.3 The enforcement of a credit agreement to the value of R200 000. (3) Indicate which High Court is most suited to deal with each of the following matters. You are required to provide the full name of each court. 4.4 A damages claim between two parties in Bloemfontein; 4.5 An application for an interdict between parties who both reside in Cape Town. (2) [5]

QUESTION 5 Consider the following set of facts and answer the questions below in relation thereto: Your client is employed as a researcher by the SA Weather Bureau in Johannesburg. During the recent Soccer World Cup in South Africa, he was involved in a motor vehicle collision with Mr David Villa. Mr Villa is one of the players who representedthe Spanish soccer team in South Africa. The accident occurred on the corner of West and South streets in Sandton, Johannesburg. Mr Villa skipped a red light and crashed into your client’s vehicle at a speed of 70 km/h. Your client did not sustain any serious bodily injuries during the accident but the damage to his vehicle, a brand new BMW, amounts to R100 000.

22 Your client informs you that he intends to institute a civil action for damages against Mr Villa. Mr Villa however has since left the country. Your client is aware of his residential and work address in Madrid, Spain. 5.1 You are instructed to proceed with an application for leave to effect service of the summons outside the

Republic of South Africa. Draft only the notice of motion in respect of this application. (5) 5.2 Draft the Particulars of Claim to be attached to the summons your client intends to serve on the defendant.

Make up your own facts to the extent necessary. (8) 5.3 Accept that the defendant intends to defend the matter.

Draft the notice of intention to defend. (5) 5.4 Accept that the defendant fails to file a plea within the prescribed time limits. Indicate whether and if so, when,

the plaintiff will be entitled to apply for default judgement. (2) [20] QUESTION 6 “The impact of the Bill of Rights on the law of civil procedure over the last thirteen years should not be underestimated”. Discuss this statement with reference to at least three examples to illustrate the impact of the Bill of Rights. (6) [6] QUESTION 7 Briefly define each of the following terms: 7.1 forum rei sitae; 7.2 ratio jurisdictiones; 7.3 decree of perpetual silence; and 7.4 abandonment in terms of section 38 of the Magistrates’ Court Act. (4) [4] QUESTION 8 8.1 The application procedure, as a general rule, entails the filing of three sets of affidavits. Is a litigant allowed to file further affidavits, in addition to the affidavits mentioned above? If so, indicate what the

requirements are. (3) 8.2 If an application can’t properly be decided on affidavit as a result of a dispute of fact, the court may make any

order as is necessary to ensure a just and expeditious decision. Indicate which orders the court is entitled to make under these circumstances.

(3) 8.3 When, as a general rule, is anapplicant in a civil matter entitled to proceed by way of an ex parte application?

(2) 8.4 Briefly discuss the purpose of the replying affidavit during application proceedings. You are required to indicate

what should/should not be included as part of this affidavit. (3)

23 8.5 Provide an example of circumstances which will qualify as a valid ground for urgency and in respect of which an

applicant will be entitled to proceed with a so-called urgent application. (1)

8.6 Briefly explain the procedure to be followed if the defendant is of the view that the plaintiff’s summons is vague

and embarrassing. (3) [15]

QUESTION 9 9.1 Refer to the defendant’s plea attached hereto as Annexure A.

The plea contains an example of each of the four recognised modes of pleading.

Identify these modes and briefly indicate what the practical implications of each are. (4)

9.2 Provide four examples of defences which may be raised as so-called special pleas.

(2) 9.3 Why is it important to determine precisely when pleadings have closed in a civil action?

(2) 9.4 When will you advise a client to proceed with a notice in terms of High Court rule 13?

(1) 9.5 Explain the difference between the: 9.5.1 serving; and 9.5.2 filing of a summons. (1) [10] QUESTION 10 Consider the following facts and answer the questions below in relation thereto: Mr B sustained serious brain injuries in a motor vehicle collision. He is the plaintiff in a civil claim for damages in the Magistrates’ Court. His attorney intends to call Dr C, a surgeon, to testify during the trial with regard to the nature and extent of the plaintiff’s injuries. 10.1 Draft the required notice in terms of Magistrates’ Court rule 24 (9) (a) and (b) for purposes of informing the

defendant of this witness. (6) 10.2 The plaintiff requests the defendant to make discovery. Indicate which documents, as a general rule, a party is

obliged to discover. (3) 10.3 Indicate exactly how discovery is to be made. (3) 10.4 Accept that the Magistrates’ Court dismisses the plaintiff’s action. The plaintiff intends to take the matter on

appeal from the Magistrates’ Court to the High Court in Pretoria. Explain the steps to be taken from the date of judgement (in the Magistrates’ Court) up until the date of the hearing of the appeal (in the High Court). (8)

[20] TOTAL: [110]

_____

24

ANNEXURE “A”

DEFENDANT’S PLEA

Ad paragraph 1-2 The defendant admits the contents of this paragraph.

Ad paragraph 3 The defendant denies the contents of this paragraph.

Ad paragraph 4 The defendant has no knowledge of the allegation and in the premises denies the allegation and puts the plaintiff to the proof thereof. Ad paragraph 5-6 The defendant admits that the parties entered into a written agreement but alleges that the plaintiff acted ultra vires in that he had no authority to enter into the agreement. Wherefore the defendant prays that the plaintiff’s claim is dismissed with costs. _______________ Adv Bosman SC Counsel for the Defendant ________________ MNW Attorneys Attorneys for Defendant 1 Fredman Drive Cape Town Tel: 021 243 4090 Ref: Mr Moody/133 To: The Registrar of the High Court Cape Town And to: Soobramany Attorneys Attorneys for Plaintiff 1 Protea Place Cape Town Tel: 021 439 3535 Ref: Ms Soobramany

25

UNIVERSITY OF JOHANNESBURG

KINGSWAY CAMPUS

FACULTY OF LAW



2) MS CM SIEGERT THIS PAPER RUNS TO 11 (ELEVEN) PAGES. Instructions: - Read all questions carefully and answer only what has been asked. - Accept that you act as the attorney of record where you are required to provide an opinion and/or advice to a client. - Refer to authority (case law, legislation and rules of court) where relevant. - Please answer question 1 on a separate answering sheet. QUESTION 1 Please use the separate, multiple-choice answering sheet attached to this paper for purposes of answering question 1. Mark the correct answer with an “X”. 1.1 a) In an appeal, the party challenges the legal result or outcome of the matter whereas in a review the party

challenges the method used by the court in arriving at the legal result. b) Extrinsic evidence may be brought/used in appeal proceedings but not review proceedings. c) Appeals are brought by lodging a notice of appeal whereas reviews are brought by way of an application with a

supporting affidavit. d) In review proceedings the parties are not strictly bound by the record of the proceedings of the court a quo.

1. Only (a), (b) and (c) are correct. 2. Only (a), (c) and (d) are correct. 3. Only (b), (c) and (d) are correct. 4. Only (b) is correct. 5. All statements [(a) to (d)] are correct.

1.2 a) An exception may be taken only to/in respect of a pleading. b) An exception itself constitutes a pleading. c) An exception must be signed by both an attorney and an advocate or alternatively, by an attorney with the right of

appearance in the High Court. d) An exception can be taken in respect of a combined summons but not a simple summons. e) An exception can't be taken to/in respect of an affidavit.

1. Only (a) and (b) are correct. 2. Only (b) and (c) are correct. 3. Only (c) is correct. 4. All statements [(a) to (e)] are incorrect. 5. All statements [(a) to (e)] are correct.

1.3 In terms of s 24(1) of the Supreme Court Act, a High Court has the power to review the proceedings of an inferior

court on the following grounds: a) Gross irregularity; b) Admission of inadmissible or rejection of admissible evidence;

26 c) Interest in the cause, bias, malice or corruption on part of the presiding officer; d) The court has no jurisdiction.

1. Only (a) is correct. 2. Only (b) and (c) are correct. 3. Only (b), (c) and (d) are correct. 4. All statements [(a) to (d)] are incorrect. 5. All statements [(a) to (d)] are correct.

1.4 a) MCR 60A and HCR 30 provide a mechanism where a party to a case may set aside a so-called “irregular step”. b) An application can be made to the court to set aside an irregular step only if the applicant has not taken a further

step in the cause with knowledge of the irregularity. c) An example of an irregular step is where an urgent application is brought but the reason for urgency is not

described in the supporting affidavit. d) The irregular step procedure only applies to trial actions and not to motion proceedings. e) The irregular step procedure is only available in the High Court and not in the Magistrates' Courts.

1. Only (a) is correct. 2. Only (a) and (b) are correct. 3. Only (a), (c) and (d) are correct. 4. Only (b), (c) and (d) and (e) are correct. 5. All statements [(a) to (e)] are correct.

1.5 (a) In the High Court and in the Magistrates' Courts affidavits and other sworn statements cannot be amended by way of an interlocutory application and are corrected by filing a further supplementary affidavit. (b) A party proposing to amend a pleading is required to deliver a "notice to remove cause of complaint" to his opponent. (c) If no objection against the proposed amendment is lodged within the prescribed time period, the party intending to amend his papers is required to effect the amendment. (d) When an objection is raised to a proposed amendment, the party proposing the amendment is required to make application to the court for leave to amend. (e) The court will normally allow an amendment to a pleading which has the effect of introducing a new cause of action which has already prescribed.

1. Only (a) is correct. 2. Only (a) and (b) are correct. 3. Only (a), (c) and (d) are correct. 4. Only (b), (c) and (d) and (e) are correct. 5. All statements [(a) to (e)] are correct.

1.6 a) An application to strike out a word, sentence or averment from a pleading entails an interlocutory application. b) Vexatious averments are allegations worded to be abusive or defamatory and may lead to an application to strike

out. c) Scandalous averments are allegations conveying an intention to harass or annoy and may lead to an application to

strike out. d) It is not possible, in one matter, to take exception to a pleading and, in the alternative, to apply for striking out of the

offending words. e) In an application to strike out, the court must be satisfied that the party seeking relief would be prejudiced if the

matter was struck out.

1. Only (c) and (d) are correct. 2. Only (b) is correct. 3. Only (a), (b), (c) and (e) are correct. 4. Only (a), (b) and (c) are correct. 5. All statements [(a) to (e)] are correct.

1.7 (a) Communications between attorney and client do not need to be discovered. (b) When a party to an action wishes to obtain discovery of documents, the party must deliver a written notice of set down to his/her opponent. (c) Discovery is made by delivering a so-called discovery affidavit with two schedules to the opponent.

27 (d) A party is not required to make discovery of any documents which have previously been in his/her possession but which are no longer in his/her possession. (e) As a general rule, a party may only call for discovery after litis contestatio.

1. Only (a) is correct. 2. Only (a) and (b) are correct. 3. Only (a), (c) and (e) are correct. 4. Only (b), (c) and (d) and (e) are correct. 5. All statements [(a) to (e)] are correct.

1.8 (a) The dies inducia for delivering a notice of intention to defend in both the High Court and the Magistrates' Courts are 5 days (from date of service of the summons). (b) When an action is instituted against the State or any state official, the time allowed for delivery of intention to defend shall be at least 10 days after service of the summons. (c) When a summons is served outside of the court's area of jurisdiction but less than 100 miles (160 km) from the court out of which it was issued, the time allowed for delivery of intention to defend is 21 days. (d) In the High Court, the defendant's notice of intention to defend is required to provide an address within 15 km of the court building for purposes of delivery of further documents to the defendant. (e) In the Magistrates' Courts, the defendant's notice of intention to defend is required to provide an address within 15 km of the court building for purposes of delivery of further documents to the defendant. 1. Only (a) is correct. 2. Only (e) is correct. 3. Only (c) is correct. 4. Only (a) and (b) are correct. 5. All statements [(a) to (e)] are correct. 1.9 Mr A signed an acknowledgement of debt in respect of which he undertook to pay six instalments in the amount of R60 000 (sixty thousand rand) each to Mr B. Mr A agreed to pay the instalments on a monthly basis. However, Mr B failed to pay any instalments for a period of six months and Mr A decides to sue him on the basis of the acknowledgement of debt. (a) The total amount exceeds the jurisdiction of the Magistrates' Courts and therefore Mr A can't institute action in the Magistrates' Courts. (b) The several months' instalments may not be claimed in one summons. (c) A separate cause of action lies in respect of each month's instalment and therefore the total amount can be claimed in one summons. (d) Mr A can institute proceedings in the Magistrate's Court on the basis of the court's cumulative jurisdiction provided for in s 43 of the Magistrates' Courts Act, 1944. 1. Only (a) is correct. 2. Only (a) and (b) are correct. 3. Only (c) is correct. 4. Only (c) and (d) are correct. 5. All statements [(a) to (d)] are correct. 1.10 (a) Party and party costs refer to all necessary costs incurred for litigation and calculated according to the rules of

court/prescribed tariff. (b) Attorney and client costs refer to all necessary costs incurred for litigation and calculated according to the rules of

court. (c) Attorney and own client costs refer to all necessary costs incurred for litigation and calculated according to the rules

of court. (d) Costs de bonis propries refer to costs awarded against a party where such party incurred the costs for services

which were of no use for the party in the action. (e) Costs in the cause are costs awarded against a party where such party who acts in a representative capacity, acted

mala fide or negligent. 1. Only (a) is correct. 2. Only (a) and (b) are correct. 3. Only (c) is correct. 4. Only (c) and (e) are correct. 5. All statements [(a) to (e)] are correct.

28 [10] QUESTION 2 Discuss the ratio decidendi in respect of the following reported cases: 2.1 American Flag Plc v Great African T-shirt Corporation CC 2000 (1) SA 356 (W);

(2) 2.2 Jaftha v Schoeman and others; Van Rooyen v Stoltz and others 2005 (2) SA 140 CC;

(5) 2.3 Blakes Maphanga Inc v Outsurance Insurance Co Ltd 2010 (4) SA 232 SCA;

(2) 2.4 David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 W; (3) 2.5 Santam Ltd v Segal 2010 (2) SA 160 N. (3) [15] QUESTION 3 Cosmo Property Developments Ltd intends to sue Mr Bizos, a tenant, for arrear rental in the amount of R90 000 (ninety thousand rand). The parties entered into a lease agreement during the course of April 2011. Mr Bizos has however, to date, failed to pay any rent in terms of the agreement. 3.1 Draft the prayer for interest as it will appear in the summons. (1) 3.2 After the summons has been served on the defendant, you realize that the correct amount in respect of arrear

rental is in fact R109 000 (one hundred and nine thousand rand) and not R90 000 (ninety thousand rand). Explain the procedure which you should follow to correct the summons on behalf of the plaintiff in this matter. (3)

3.3 Draft the necessary notice to give effect to your advice in question 3.2 above. You may accept, for purposes of this question, that proceedings have been instituted in the Magistrate's Court in Pretoria. (5)

3.4 Accept that you act for the defendant. You are instructed to defend the matter. Draft the first notice which you will deliver on behalf of your client. You may accept, for purposes of this question only, that proceedings have been instituted in the High Court in Pretoria. (5)

3.5 Assume that the defendant fails to do anything following delivery of the notice referred to in question 3.4 above. A period of 10 days has elapsed. What is the next procedural step which can be taken on behalf of the plaintiff? Explain your answer. (2)

3.6 Assume that, despite the plaintiff having taken the procedural step referred to in question 3.3 above, the defendant fails to do anything/fails to respond to the plaintiff's notice. What is the next step that should be taken by the plaintiff in this matter? (2)

[18] QUESTION 4 Complete the following sentences (write down only the missing word/s in each case). 4.1 A simple summons may be used when the plaintiff's claim is based on a ____ or a _____.

4.2 A provisional sentence summons may be used if the plaintiff's claim is founded on a _____.

4.3 After a simple summons has been served on the defendant by the _____, the plaintiff is allowed _____ days to

give notice of his/her intention to defend the matter. After the notice of intention to defend has been delivered, the plaintiff is bound to deliver a _____ to the defendant.

4.4 If a litigant intends to commence legal proceedings against a person who is no longer physically present within the Republic of South Africa, it will be necessary to proceed with an application for _____ as a first step in order to seek leave from the court.

4.5 When a defendant fails to enter an appearance to defend in proceedings in the High Court, the plaintiff may apply for _____ against the defendant. To the extent that the plaintiff's claim is based on a _____, the registrar of the court has the authority to grant the application. However, when the plaintiff's claim is based on a _____, the application must be set down for hearing in court.

4.6 In the High Court, where a pleading or affidavit contains averments which are _____ or _____, the opposing party may apply for a striking out of the objectionable matter.

4.7 Further particulars may only be requested for purposes of _____ in both the High Court and the Magistrate's Court.

29 4.8 If there is no agreement as to the rate at which interest should be charged, the plaintiff will be entitled to charge

the rate as stipulated in terms of the Prescribed Rate of Interest Act, 1975. The prescribed rate is currently set at _____%.

4.9 After a pre-trial conference has been held, the ____ of the conference must be prepared and signed by or on behalf of every party. This document must then be filed with the registrar of the High Court not less than ____ weeks prior to the trial.

4.10 When intending to take a decision of single judge in the High Court on appeal to a full bench of the same court, the appellant is required to apply for _____ as a first step.

4.11 Every pleading must contain a _____. This sets out the relief sought by the plaintiff in, for example, the particulars of claim (18 x ½)

[9] QUESTION 5 You have issued three separate summonses in the Magistrate's Court. You received a notice of intention to defend in respect of each of these three matters. Indicate whether you are entitled to apply for summary judgment in each of the following cases and explain your answer. Where the claim is based on: 5.1 The amount owing under a mortgage bond; 5.2 A claim by a firm of panel beaters for the costs of repairs to the defendant's vehicle; 5.3 The amount your client paid to a dentist to attend to badly executed dental work that the defendant had carried

out on your client. [3] QUESTION 6 On 15 November 2011 the Magistrate's Court for the district of Johannesburg dismissed Mr Mashaba's (the plaintiff's) claim against the City of Johannesburg. Your client intends to take the matter on appeal to the South Gauteng High Court, Johannesburg. Describe the procedural steps during the course of the appeal to the High Court. You are required to explain the procedure in detail. [8] QUESTION 7 “Over the last decade, the Bill of Rights has had a significant impact on the law of civil procedure”. Discuss this statement with reference to at least three examples to illustrate the impact. [3] QUESTION 8 Consider the following set of facts and answer the questions below in regard thereto: On 15 January 2011 Mr Sipho Skosana, a photographer from Johannesburg, was involved in a motor vehicle collision. He was driving a Toyota Hilux motor vehiclewith registration number COOLPIX GP at the time and collided with a Volkswagen Citi Golf with registration number XX12YY GP. The Citi Golf was driven by Joyce Jones, a legal secretary. The damages to the Citi Golf amounted to R30 000 whilst the damages to the Toyota amounted to R10 000. Sipho did not suffer any injuries during the collision, but Joyce’s seven year old daughter, Jenna, who was sitting on the back seat of the Citi Golf at the time of the collision, suffered extensive injuries to her head, back and both arms. The medical expenses in relation to these injuries amount to R200 000. Joyce intends to institute action against Sipho to recover the amount of R230 000. You act for the plaintiff in this matter. 8.1 Draft the citation of the parties as it appears in the summons in this matter.

(2)

30 8.2 List four situations under which pleadings shall be considered closed in terms of MCR 21A/HCR 29.

(4) 8.3 Your client intends to obtain a court date as soon as possible. Explain how your client should go about getting

the matter on the court roll and informing his opponent of the date. (2) 8.4 The defendant delivers a written notice requiring your client to make discovery in terms of MCR 23. Explain how,

in terms of the rules of court, your client should go about making discovery in this matter. (2) 8.5 Briefly discuss the prescribed contents of each of the schedules to the discovery affidavit. (2) 8.6 Your client intends to tender seven photos of the scene of the accident as evidence in this matter. Draft the

required notice for purposes of tendering these photos as evidence. (6) 8.7 Accept that the defendant does not admit the photos referred to in question 8.6 above. Explain how your client

should deal with this issue in court. (2) 8.8 Your client intends to call Dr Snyckers, a surgeon, to testify as to the extent of the brain injuries sustained by the

minor child. Draft the necessary notice in terms of MCR 24(9) in relation to this witness. (5) [25] QUESTION 9 Consider the following set of facts and answer the questions below in regard thereto: On 3 October 2011 and on the instructions of your client, MrsMarlena Evans, you issued a summons against John Black. Mr Black is a well-known businessman in Johannesburg. The summons was in respect of payment of an amount of R150 000. This amount was owing to the plaintiff by the defendant for services rendered by the plaintiff to the defendant. Assume that the defendant has entered an appearance to defend the action. You are of the opinion that the defendant has no defence to your client’s claim and that he is attempting to delay the matter unnecessarily. 9.1 Advise your client fully on the procedure to be followed under these circumstances. (2) 9.2 Draft the necessary document, supporting your advice in question 9.1, on behalf of the plaintiff. (6) 9.3 Will your client be able to request security for costs in these circumstances? Explain your answer.

(2) [10] QUESTION 10 Refer to the defendant’s plea attached hereto as Annexure A. The plea contains an example of each of the four recognised methods of pleading. Identify these modes and briefly indicate what the practical implications of each are. [4] QUESTION 11 Briefly explain each of the following concepts: 11.1 Writ 11.2 Plan of distribution 11.3 Garnishee order 11.4 Bill of costs 11.5 Sale in execution [5] TOTAL: [110]

_____

31

ANNEXURE “A”

DEFENDANT’S PLEA

Ad paragraph 1-2 The defendant denies the contents of these paragraphs.

Ad paragraph 3

The defendant admits the contents of this paragraph.

Ad paragraph 4 The defendant has no knowledge of the allegation and in the premises denies the allegation and puts the plaintiff to the proof thereof. Ad paragraph 5-6 The defendant admits that the parties entered into a written agreement but alleges that the plaintiff has waived his rights in terms of the agreement. Wherefore the defendant prays for judgement in his favour and that the plaintiff’s claim be dismissed with costs. _______________ Adv Bosman SC Counsel for the Defendant ________________ MNW Attorneys Attorneys for Defendant 1 Fredman Drive Cape Town Tel: 021 243 4090 Ref: Mr Moody/133 To: The Registrar of the High Court Cape Town And to: Soobramany Attorneys Attorneys for Plaintiff 1 Protea Place Cape Town Tel: 021 439 3535 Ref: Ms Soobramany

32 8. USING THE STUDY GUIDE AND TEXTBOOK The textbook “Fundamental Principles of Civil Procedure” (2012) serves as the basic source for tests and examinations. This study guide serves as a guideline. The information contained herein is by no means exhaustive and should be supplemented through self-study. You will be referred to other sources (ie, case law, legislation, rules of court and journal articles) during lectures. It is compulsory to consult these other sources for purposes of tests and examinations. You must also study the additional reading material referred toin the study guide. Each student bears the onus to ensure that his/her study material is complete and up to date. 9. EXPLANATION OF STUDY INSTRUCTIONS “prescribed material” Case law, legislation and/or articles that the student must study for purposes of

tests/exams. “from the textbook” Sufficient for purposes of test/exam if studied from the textbook.

10. PROVISIONAL YEAR PROGRAMME: 2012

This programme is subject to change. Please ensure that you diarize the relevant dates. Please also take note of the relevant dates in so far as the action procedure exercise and the application

procedure exercise is concerned: o Action procedure exercise:

Relevant dates: Week of 23 July (Plaintiff to issue and deliver summons) Week of 30 July (Defendant to deliver notice of intention to defend) Week of 6 August (Defendant to deliver plea) Week of 13 August (Plaintiff to deliver replication, if any)

o Application procedure exercise: Week of 13 August (Applicant to issue and deliver notice of motion ) Week of 20 August (Respondent to deliver notice of intention to oppose) Week of 27 August (Respondent to deliver answering affidavit) Week of 10 September (Applicant to deliver replying affidavit) Week of 17 and 25 September – Moot court proceedings (UJ moot court)

33

Day Date Topic/Content FEBRUARY

Monday 6 Chapter 1 and Chapter 2 Monday 13 Chapter 2 and Chapter 3 Monday 20 Chapter 4 and Chapter 5 Monday 27 Chapter 5 and Chapter 6

MARCH Monday 5 Chapter 6 and Chapter 7 Monday 12 Chapter 7 and Chapter 8 Monday 19 Chapter 8

APRIL AUTUMN RECESS (24 MARCH – 9 APRIL)

Monday 16 Chapter 8 and Chapter 9 Monday 16 SEMESTER TEST 1 Monday 23 Chapter 9– Monday 30 No lecture – UJ Holiday

MAY Monday 7 Chapter 10

Moot court – distribution of first instruction sheet Thursday 10 Chapter 10 and Chapter 11

(Monday’ Monday 14 Chapter 11 and Chapter 12 Monday 21 Chapter 12 and Chapter 13

Moot court – distribution of final instructions and hand out Monday 21 AEGROTAT TEST

STUDY BREAK (26 MAY – 1 JUNE) JUNE

Thursday 7 EXAM/SEMESTER TEST 2 (Chapter 1-12): Time – 8:30 – 11:30 WINTER RECESS (26 JUNE – 15 JULY)

JULY Monday 16 Review: Exam Monday 23 Chapter 13 and Chapter 14 Monday 30 Chapter 14

AUGUST Monday 6 Chapter 15 Monday 13 Chapter 16

Wednesday 15 SEMESTER TEST 3 Monday 20 Chapter 17 Monday 27 Chapter 18 Monday 27 AEGROTAT TEST

Week of 27 August

Special lecture to be arranged

SEPTEMBER SPRING RECESS (1 SEPTEMBER – 9 SEPTEMBER)

Monday 10 Chapter 18 Wednesday 12 SEMESTER TEST 4

Monday 17 Chapter 18 Week of 24 Sep Special lecture to be arranged

Chapter 18 OCTOBER

Monday 1 Chapter 19 and Chapter 21 Monday 8 Chapter 21 and Chapter 22 Monday 15 Chapter 22 Monday 22 Chapter 22 and 24 Monday 22 AEGROTAT TEST

STUDY BREAK (27 OCTOBER – 2 NOVEMBER) NOVEMBER

Thursday 8 FINAL EXAM (Chapter 1-24): Time – 12:30 – 15:30

LAW OF CIVIL PROCEDURE 2012 - YEAR PROGRAMME - ENGLISH CLASS

34 11. LIST OF BASIC SOURCES

The following list of references to civil procedure textbooks is for reference purposes. The highlighted abbreviations will be used in this study guide. It is not necessary to purchase these text books/publications at this stage 1. Erasmus H.J. and O.J. Burrow. Supreme Court Act and Magistrates’ Court Act (1999) Juta. (E

& B) 2. Erasmus H.J. Superior Court Practice (1994) Juta. (Erasmus) 3. Harms L.T.C. and J.H. Hugo. Amler's Precedents of Pleadings (6 th) Butterworths (2003).

(Amler) 4. Harms L.T.C. Civil Procedure in the Supreme Court. Butterworths. (Harms) 5. Harms L.T.C. Civil Procedure in the Supreme Court. Butterworths. (1998) (Harms Student

Edition) 6. Harms L.T.C. Civil Procedure in the Magistrates’ Court. Butterworths. (Harms MC) 7. Hosten and Edwards : Introduction to SA Law. Butterworths (1984). (Hosten) 8. Van Winsen et al : The Civil Practice of the Superior Courts in South Africa (4 ed) Juta (1997).

(Van Winsen) 9. Jones and Buckle : The Civil Practice of the Magistrates’ Court in South Africa (Vol I & II) (9 ed)

Juta. (Jones & Buckle) 10. LAWSA Vol 3. Butterworths. (LAWSA) 11. Paterson T.J.M. Eckard’s Civil Procedure in the Magistrates’ Court (4 ed) Juta (2001) 12. Pete S. Civil Procedure : A Practical Guide (2005). (New edition: 2011) 13. Pretorius D. : Pollak on Jurisdiction (2 nd) Juta. (Pollak) 14. Pretorius H.N. : Burgerlike Prosesreg in die Landdroshowe. Butterworths (1986). (Pretorius). 15. Strauss S.A. You in the Small Claims Court Juta (1991). (Strauss) 16. The Constitution, 1996. 17. Jurisdiction of Regional Courts Amendment Act, 31 of 2008. 18. Small Claims Court Act, 61 of 1984 as amended.

Other important sources: 1. Magistrates’ Court Act, 32 of 1944 as amended and Rules (Magistrates’ Court Rules or MCR) Please consider the new rules as follows: Rules regulating the conduct of proceedings of the Magistrates’ Courts of South Africa (published under Government Notice R740 in Government Gazette 33487 of 23 August 2010) – date of commencement: 15 October 2010 2. Supreme Court Act, 59 of 1959 and Uniform Rules of Court (High Court Rules or HCR) 3. Rules of the Supreme Court of Appeal of South Africa (SCA Rules or SCAR)

35 12. IMPORTANT LEGAL DEVELOPMENTS

12.1

Rules of procedure

Rules of procedure for an application to court in terms of the Promotion of Access to Information Act 2 of 2000 were published under GN R965 in GG 32622 of 9 October 2009. The rules came into operation on 16 November 2009.

Rules of procedure for judicial review of administrative action under the Promotion of Administrative Justice Act 3 of 2000 were published under GN R966 in GG 32622 of 9 October 2009.

12.2 The Judicial Service Commission Amendment Act, 20 of 2008 This Act:

came into operation on 1 June 2010; amends the Judicial Service Commission Act, 1994; establishes the Judicial Conduct Committee to receive and deal with complaints about judges; provides for a Code of Judicial Conduct which serves as the prevailing standard of judicial

conduct which judges must adhere to; provides for the establishment and maintenance of a register of judges' registrable interests; provides for procedures for dealing with complaints about judges and provides for the establishment of Judicial Conduct Tribunals to inquire Into and report on

allegations of incapacity, gross incompetence or gross misconduct against judges.

12.3 The Jurisdiction of Regional Courts Amendment Act, 31 of 2008

This legislation took effect on 9 August 2010.

The Department of Justice and Constitutional Development has amended the Magistrate’s Courts Act of 1944 giving powers to Regional Courts to deal with civil cases. Previously, these courts only dealt with criminal matters. The department has indicated that the amendments increase access to justice to members of the public, in particular, women and children who go to courts daily for the resolution of family related disputes relating to divorce; maintenance; adoption; and matters relating to custody of minor children.

The regional courts have been authorised to deal with the following civil matters:

Family disputes including: divorce; maintenance; adoption; and matters relating to custody of

minor children. Disputes over movable and immovable property of between R100 000 to R300 000 which were

dealt with by the High Court before the amendment. Credit Agreements of between R100 000 to R300 000. Road Accident Fund Claims of between R100 000 to R300 000.

36

The benefits of this legislation are said to include the following:

Reduced time of finalisation of cases: There are now 62 more Regional courts to deal with same workload that the 3 former

divorce courts. This will assist in reducing case backlogs both at the High Courts and Magistrates’ Courts.

Reduced Costs: Proceedings in the High Courts are complex to the extent that attorneys and advocates are

usually instructed resulting in high litigation costs. Regional courts have a reduced scale of costs in relation to the High Court, and simplified

proceedings which include the use of mediation in resolving civil disputes.

The Act:

Confers on courts for regional divisions the same jurisdiction as any High Court to:

o Hear and determine suits relating to the nullity of a marriage or a civil union and any question arising therefrom;

o Hear and determine suits relating to divorce and any question arising therefrom;

o Hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act 120 of 1998.

Converts the divorce courts established under s 10 of the Administration Amendment Act 9 of 1929 into Magistrates’ Courts for regional divisions.

You should take note that:

The jurisdiction of courts for regional divisions for purposes of s 29(1) of the MCA was fixed at above R100 000 up to R300 000 (Government Notice 670 in GG 33418 of 29 July 2010).

The rules of the divorce courts made under s 10 (4) of the Administration Amendment Act 9 of 1929 and the rules regulating the conduct of the proceedings of the Magistrates’ Court were repealed and replaced by a comprehensive set of new rules. The new rules were published in 3 parts (Government Notice 888 in GG 33620 of 8 October 2010) and came into operation on 15 October 2010.

12.4

The Renaming of the High Courts Act, 30 of 2008

This legislation commenced on 1 March 2009 and changed the names of the High Courts in South Africa as set out below:

37 Old Name of court Old

Abbreviation

New Name of court New

Abbreviation

Ciskei High Court Ck Eastern Cape High

Court, Bhisho

ECB

Eastern Cape

Provincial Division

E Eastern Cape High

Court, Grahamstown

ECG

Transkei High Court Tk Eastern Cape High

Court, Mthatha

ECM

South Eastern Cape

Local Division

SE Eastern Cape High

Court, Port Elizabeth

ECP

Orange Free State

Provincial Division

O Free State High Court,

Bloemfontein

FB

Durban and Coast

Local Division

D KwaZulu-Natal High

Court, Durban

KZD

Natal Provincial

Division

N KwaZulu-Natal High

Court, Pietermaritzburg

KZP

Witwatersrand

Local Division

W South Gauteng High

Court, Johannesburg

GSJ

Transvaal Provincial

Division

T North Gauteng High

Court, Pretoria

GNP

Northern Cape

Provincial Division

NC Northern Cape High

Court, Kimberley

NCK

Bophuthatswana

High Court

B North West High Court,

Mafikeng

NWM

Venda High Court V Limpopo High Court,

Thohoyandou

LT

Cape Provincial

Division

C Western Cape High

Court, Cape Town

WCC

This legislation is important since you will find references to the old/previous names of the High Courts in South Africa in most reported court cases. The new names only took effect on 1 March 2009. It is therefore only cases that have been reported after this date that make reference to the new High Court names.

38 12.5

The Superior Courts Bill

Cabinet approved the Superior Courts Bill.

This is draft legislation which has not yet been finalized.

The Bill recognises that, "with the advent of the democratic constitutional dispensation in 1994, we inherited a fragmented court structure and infrastructure, which were largely derived from our colonial history and were subsequently further structured to serve the segregation objectives of the apartheid dispensation".

The Bill will rationalise the court structure with a view to establish a judicial system suited to the requirements of the Constitution.

The importance and impact of this legislation should not be underestimated as it will introduce an entirely revised court structure.

You should take note that:

The aim of this Bill is to "rationalise, consolidate and amend the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa” in a single act of Parliament;

The Bill aims to enshrine the "independence, impartiality and dignity of the judiciary";

The Bill provides for a uniform framework for judicial management, by the judiciary, of the judicial functions of all courts;

Other matters addressed in this legislation include, for example, : access to courts, recess periods and attendance at courts; appointment of officers and staff; orders of constitutional invalidity, appeals and settlement of conflicting decisions; persons over whom and matters in relation to which the High Court has jurisdiction; the rules of the various courts; the nature of courts and adducing of evidence and procedural matters;

Once the Bill is approved and comes into operation, it will repeal, amongst others, the whole of the Supreme Court Act, 1959, the Constitutional Court Complementary Act, 1995 and the Renaming of the High Courts Act, 2008. It will also amend certain sections of the Labour Relations Act, 1995.

The Bill deals extensively with the structure of Superior Courts along the following lines:

39

Constitutional Court

Supreme Court of Appeal

High Court:

Divisions

Circuit Courts

Composition:

Chief Justice, Deputy Chief Justice and 9 other judges

Composition:

President, Deputy President and a so many other judges as may be determined and approved by the President

Composition:

Judge President and one or more Deputy Judges President and a number of other judges, each with specified headquarters within the area under the jurisdiction of the particular division

D Appeals in SCA or civil and criminal matters in a division of the High Court

Seat is in Johannesburg. Court is authorised to hold sittings in other places.

Seat is in Bloemfontein. Court is authorised to hold sittings in other places.

Area of jurisdiction and seat of each court to be determined.

Courts include:

Eastern Cape Division (Grahamstown)

Free State Division (Bloemfontein)

KwaZulu-Natal Division (Pietermaritzburg)

Limpopo Division (Polokwane)

Mpumalanga Division (Nelspruit)

Northern Cape Division (Kimberley)

Gauteng Division (Pretoria)

North West Division (Mafikeng)

Western Cape Division (Cape Town)

40 Assignments Assignment 1 Question 1: Distinguish between the following two civil procedures: application procedure and action procedure. You are required to list at least 5 differences. Please provide your answer in table format.

[5] Question 2: Write down the missing words:

High Court (HC)

The procedures of the High Court are set out in the 2.1 _____ Act. This Act must be read together with the following set of rules: 2.2 _____.

The High Court was previously known as the 2.3 _____.

Magistrates’ Courts (MC)

The procedures of the Magistrates’ Courts are set out in the 2.4 _____ Act. Similarly, this Act must be read together with the following set of rules: 2.5 _____.

New legislation in the form of the 2.6 _____ Act resulted in the regional courts having jurisdiction to deal with civil matters.

Supreme Court of Appeal (SCA) The procedures of the Supreme Court of Appeal are set out in the 2.7 _____ Act. Similarly, this Act must be read together with the following set of rules: 2.8 _____. The SCA is situated in 2.9 _____ and was previously known as the 2.10 _____.

[10] Question 3: State the full name of each the following (former) High Courts in accordance with the Renaming of High Courts Act, 30 of 2008:

3.1 Witwatersrand Local Division; 3.2 Cape Provincial Division; 3.3 Transvaal Provincial Division; 3.4 Durban and Coast Local Division and 3.5 Bloemfontein Provincial Division.

[5]

41 Question 4: All Magistrates’ Courts are “creatures of statutes”. (Boraine, et al. 2006:12) Briefly explain this statement.

[2] Question 5: What is a “constitutional matter”? Explain your answer with reference to Constitution of the RSA, 1996.

[2]

Question 6: What is the difference between the jurisdiction of the Regional Magistrates’ Courts and that of the District Courts?

[2] Question 7: Consider the following set of facts and answer the questions below in relation thereto: Jonathan concludes an agreement with Phillip. In terms of this agreement, he buys five paintings from Phillip at an amount of R2 000 each. Jonathan pays 50% of the total amount as a deposit and the parties agree that the balance of 50% will be paid on the 2nd of February 2011, when Phillip is to deliver the paintings to Jonathan. Phillip however fails to deliver the paintings as agreed. As a result, Jonathan decides to cancel the agreement. He wants his money back and approaches you for advice.

7.1 Does this matter fall within the monetary jurisdiction of the Small Claims Court? Motivate your answer.

[1]

7.2 Accept that the Small Claims Court dismisses the claim. Jonathan is not satisfied with the decision of the court and wishes to take the matter on appeal. He asks for your advice. Briefly explain your advice to the client.

[1]

7.3 Jonathan subsequently realizes that Phillip paid the Commissioner to rule in his favour. Is a review of the decision possible? Motivate your answer.

[2]

Total: 30 marks

42 Assignment 2 Question 1: Consider the following facts and prepare a letter of demand on behalf of X, your client. You should make up your own facts to the extent necessary for purposes of the letter. Facts: You are an attorney at Lochman and Partners in Johannesburg. On 15 February 2012 you consult with X (“your client”) at your offices in Johannesburg. Your client’s instructions are as follows: On 2 January 2012, a collision occurred between a BMW motor vehicle with registration number ABC123GP and a Hummer motor vehicle with registration number COOLGP. The driver and owner of the BMW, X, was travelling at a speed of 60 km per hour when the said Hummer, travelling at a speed of 120 km per hour, collided with her on the corner of Beyers Naude Drive and Judith Avenue in Mellville, Johannesburg. The collision occurred during the early hours of the morning on 2 January 2012. The driver and owner of the Hummer was Hannah Cyrus. She is a 20 year old law student who resides at 113 Barry Hertzog Avenue, Emmarentia, Johannesburg. Neither party sustained any serious injuries during the collision. The damage to your client’s BMW amounts to R99 000. Your client wishes to claim this amount from Hannah and instructs you to proceed with a demand for payment. Your client is adamant that the accident occurred as a result of Hannah’s conduct. [10] Question 2: You attend a first consultation with your client. Your client intends to institute a divorce action against her husband and consults with you in this regard. Make a list of the main issues/questions you will address during the first consultation with the client (ie the parties’ matrimonial property regime and date of marriage etc). [10] Question 3: You attend a first consultation with your client. Your client intends to institute a delictual claim for damages against Mr X, following a motor vehicle collision between the parties. Make a list of the main issues/questions you will address during the first consultation with the client (ie bodily injuries etc). [10]

Total: 30 marks

43 Assignment 3 Question 1: Briefly explain each of the following concepts (in no more than one line each): 1.1 jurisdiction 1.2 actor sequitur forum rei 1.3 incola 1.4 peregrinus 1.5 local peregrinus 1.6 foreign peregrinus

[6] Question 2: Indicate which High Court has jurisdiction in each of the following matters. Provide a reason for your answer. 2.1 A resides in Jhb. B resides in Cape Town. A intends to institute a delictual action for damages against

B. The motor vehicle collision between the parties occurred in Cape Town. 2.2 A resides in Jhb. B resides in Cape Town. A intends to institute a delictual action for damages against

B. The motor vehicle collision between the parties occurred in Jhb. 2.3 A, the plaintiff, resides in Pretoria. B, the defendant, is a US citizen on vacation in South Africa. The

parties were involved in a motor vehicle collision in Cape Town and A subsequently institutes legal action against B.

2.4 A, the plaintiff, is domiciled in Bloemfontein. B, the defendant, is domiciled in Durban. A intends to

proceed with a divorce action against her husband. [4] Question 3: Indicate whether the Regional Magistrates’ Court or the District Magistrates’ Court has jurisdiction in respect of each of the following matters: 3.1 A divorce matter 3.2 A claim for damages in the amount of R20 000 3.3 A dispute in relation to immovable property. The value of the property is R75 000 3.4 A dispute in relation to a credit agreement. The agreement concerns an amount of R199 000 [4] Question 4: Complete the following table –

44 High Court Regional

Magistrates’ Court

District Magistrates’ Court

Does this court have inherent jurisdiction? Yes/No

? ? ?

Any limitations on substantial jurisdiction (type of claim)? If so – explain.

? ? ?

Any limitations on monetary jurisdiction (value of claim)? If so – explain.

? ? ?

[9] Question 5: 5.1 Summarize the decision of the court in Bid Industrial Holdings vs Strang 2008 (3) SA 535 SCA. (4) 5.2 Summarize the decision of the court in American Flag Plc v Great African T-shirt Corporation CC

2000 (1) SA 356 (W). (3)

[7]

Total: 30 marks

45 Assignment 4

Question 1: Briefly explain the content of High Court Rule 13 in your own words.

[2] Question 2: List 2 situations in which the so-called third party procedure in terms of High Court Rule 13 is available/can be used. [2] Question 3: Briefly explain the content of section 2 of the Apportionment of Damages Act, 34 of 1956 in your own words. [2] Question 4: In table format, explain the differences between High Court Rule 13 and section 2 of the Apportionment of Damages Act. [4]

Total: 10 marks

46 Course Content:

CHAPTER 1: INTRODUCTION TO THE LAW OF CIVIL PROCEDURE

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain what the Law of Civil Procedure is/entails. 2. Distinguish between the Law of Civil Procedure and the Law of Criminal Procedure. 3. Indicate which basic principles underlie the Law of Civil Procedure. 4. Identify the principal sources of the Law of Civil Procedure. 5. Indicate which institutions mainly apply the Law/rules of Civil Procedure. 6. Distinguish between the basic civil procedures, ie action/application procedures. 7. Discuss the historical foundations and developments of the Law of Civil Procedure in South Africa with

reference to the impact of the Constitution of 1996 on civil litigation. Reading list: 1. Prescribed textbook: Chapter 1. 2. Erasmus “Historical Foundation of SA Law of Civil Procedure” 1991 SALJ 265. 3. De Vos “Developments in SA Civil Procedural Law over the last 50 years” 2000 Stell LR 343. 4. De Vos “Civil Procedural Law and the Constitution of 1996” 1997 (3) TSAR 444 – specifically in

relation to the following aspects:

Principles: chapter 1 textbook Chapter 8 of Constitution Fundamental rights

Equality – s 9 Freedom of person: s 12 Privacy – attachment: s 14 Fair civil trial: s 34

According to De Vos this includes:

Judicial independence and impartiality Access to justice Public hearing Fair hearing (trial): - (i) equality and the right to be heard (ii) legal representation (iii) party control (iv) oral hearing (v) evidence obtained lawfully (vi) reasons for judgment (vii) finality of court decisions and appeal

Class action and locus standi: see s 38 of the Constitution and chapter 7 of textbook on class

actions S 39 of the Constitution - extension of common law: re procedure. [See Ngxusa 2001 (4) SA

1184 (SCA)] Limitation: s 36 of the Constitution

47 Other sources: Note:

Students must, with the view to answer this question in the final examination, prepare an essay on the (potential) impact of the Bill of Rights on the law of civil procedure.

Aspects relating to this topic will be dealt with as part of lectures throughout the year. Your answer must refer to the abovementioned prescribed articles. You must incorporate your own examples to illustrate the impact of the Bill of Rights on the law of

civil procedure.

CHAPTER 2: STRUCTURE OF THE COURTS AND OFFICERS OF THE COURTS

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain the hierarchy of South African courts. 2. Explain the composition and jurisdiction of the Constitutional Court, Supreme Court of Appeal,

High Courts and Magistrates’ Courts. 3. 3. Identify the officers of the various courts and explain their functions. 4. Discuss the various so-called specialised courts in South Africa. 5. Discuss the jurisdiction of the Small Claims Court in relation to the following aspects: a) monetary b) substantive c) persons. 6. Apply the three-pronged test for the Small Claims Court’s jurisdiction to a practical scenario. 7. Explain the procedure to be followed in the Small Claims Court. 8. Indicate if a right of appeal and/or review exists in respect of proceedings in the Small Claims Court. Reading list: 1. Prescribed textbook: Chapter 2. 2. S 166 of the Constitution of the Republic of South Africa, 1996. 3. Renaming of High Courts Act 30 of 2008. 4. Small Claims Court Act 61 of 1984 (as amended). 5. Meintjies-van der Walt and Others Introduction to South African Law Fresh Perspectives 2nd Edition

2011 Pearson Publications (Chapter 9, p 133-154) Other sources:

48

CHAPTER 3: CONSULTATION, LEGAL REPRESENTATION, DEMAND AND PRESCRIPTION

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Indicate which information a legal practitioner should obtain from a client during the first consultation

with the client. 2. Indicate which obligations FICA (the Financial Intelligence Centre Act) places on accountable

institutions (ie law firms). 3. Explain how to be mandated to represent a person in civil litigation and how to withdraw as a legal

representative. 4. Draft a letter of demand. 5. Indicate what the prescription periods are with regard to the institution of a civil action. Reading list: 1. Prescribed textbook: Chapter 3. 2. Prescription Act 68 of 1969 – from the textbook. 3. Institution of the Legal Proceedings against Certain Organs of State Act 40 of 2002 – from the textbook. 4. National Credit Act 34 of 2005 – from the textbook. 5. Paleker "Letters of Demand (intepellatio extraiudicialis): substance and form", Journal for Juridical Science, 2005, 30, 68-90. Please note that you will be referred to specific journal articles dealing with letters of demand during the lecture. There are various considerations to be taken into account when drafting a letter of demand. These issues will be discussed during the lecture. Other sources:

49 Example of a business letter

Letterhead

Details of writer, ie

Lochman and Partners

Address

Details of addressee, ie

Mrs Hannah Cyrus

Address

Date

Dear Sir/Madam

Heading

ie, Motor vehicle collision/X v H Cyrus/Demand for payment/Damages to vehicle

1 Introduction/mandate, ie:

We act for X / We address this letter to you on the instructions of X / We act on behalf of our client, X.

2 Reason for demand, ie:

Details of claim – no facta probantia, only facta probanda or basic facts to be set out, ie cause of action – refer to parties, dates and amounts.

Ie We are instructed that, on 2 January 2010, a motor vehicle collision occurred between ... at ..... We are instructed that the accident was caused by ..... The damages to our client’s motor vehicle amounts to R...

3 Action expected plus time for performance, ie:

We hereby demand that you .... (ie make payment of the amount of R99 000 into our trust account by no later than ...)

4 Consequences of failure to comply, ie:

failing which we are instructed to proceed with a summons to recover this amount without further notification.

Yours faithfully

Name and signature

50

CHAPTER 4: JURISDICTION – GENERAL PRINCIPLES

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain what "jurisdiction" means. 2. Explain the general principles relating to jurisdiction; namely actor sequitor forum rei; effectiveness and

consent. 3. Explain the following concepts: a) incola b) local peregrinus c) foreign peregrinus d) arrest ad fundandam jurisdictionem e) arrest ad confirmandam jurisdictionem. 4. Discuss the effect of foreign peregrini consenting to the jurisdiction of the court. 5. Indicate which procedure must be followed in the event of: a) attachment ad fundandam jurisdictionem; b) attachment ad confirmandam jurisdictionem. 6. Draft an application for attachment ad fundandam/ad confirmandam jurisdictionem. Reading list: 1. Prescribed textbook: Chapter 4. 2. Mayne v Main 2001 (2) SA 1239 SCA – from the textbook. 3. Thermo Radiant Oven Sale (Ltd) v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 A. 4. American Flag Plc v Great Africa T-shirt CC 2000 (1) SA 356 W. 5. Bid Industrial Holdings v Strang 2008 (3) SA 355 SCA. 6. Theophilopoulos “Arresting a foreign peregrines: Bid Industrial Holdings (Pty) Ltd v Strang and a

new jurisdictional lacuna” 2010 1 Stell LR 132. Other sources: Handout/s/Pleadings Bundle:

51

CHAPTER 5 – JURISDICTION OF THE HIGH COURT

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain what the “ inherent jurisdiction” of the High Court refers to. 2. Explain the extent of the jurisdiction of the Supreme Court of Appeal. 3. Discuss the relevance of section 19(1)(a) of the Supreme Court Act 59 of 1959. 4. Discuss the jurisdiction of the High Court with reference to:

a) claims for the payment of a sum of money; b) claims regarding property; c) matrimonial claims.

Reading list: 1. Prescribed textbook: Chapter 5. 2. S2(1) of the Divorce Act 70 of 1979. 3. Ss 19-21 of the Supreme Court Act 59 of 1959. 4. Permanent Secretary, Department of Welfare, Eastern Cape v Ngxusa & others 2001 (4) SA 1184

SCA. 5. Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 SCA. Other sources:

Summary: Jurisdiction of the High Courts 1 Inherent jurisdiction

Definition? Implications?

2 Value of claim

No limitation Discretion to award costs on MC scale

3 Type of claim

Any type of matter unless limited by legislation ie Constitution; specialized courts

4 Territory

S 19(1) SC Act-

Person residing/being in area Cause of action arise within area

Vs Common law-

Link/rationes jurisdictionis Effectiveness

Divorce matters-

Divorce Act – 1 or both parties Domiciled Ordinarily resident

52 Property matters-

Forum rei sitae (court in whose area property is

situated) 1) Immovable

Exclusive jurisdiction vs Non-exclusive jurisdiction

2) Movable Forum rei sitae

3) Incorporeal Court of fictional locality has

jurisdiction

Where money is claimed-

When dealing with peregrinus Arrest or attachment to found or confirm

jurisdiction Ad fundandam jurisdictionem

or Ad confirmandam jurisdictionem

↓

Specific scenarios: Plaintiff = FP/LP/Incola & Defendant = Incola

Plainiff = FP/LP/Incola & Defendant = LP

Plaintiff = Incola & Defendant = FP

Plaintiff = LP/FP & Defendant = FP

↓ ↓ ↓ ↓ Court where def is resident Link or ratio jurisdictionis

required Because Defendant = FP Arrest or Attachment is necessary

Because Defendant = FP Arrest or Attachment is necessary

↓ ↓ ↓ ↓ Why? S 19 & Common law

Why? S 19 & Common law

If link exists : no need to found jurisdiction; simply need to confirm jurisdiction Vs If no link exists: has to found jurisdiction Therefore SA court can exercise jurisdiction either ad fundandam or ad confirmandam

2 Peregrini involved – both foreigners

↓ ↓ ↓ ↓ S 19 : Residence Plaintiff has choice

between: Defendant’s residence and where cause of action arose

Strang case: Arrest unconstitutional

Link/ratio jurisdictionis + attachment necessary

↓ ↓ ↓ Common law: Actor sequitor forum rei

Alternatives: Attachment of property (in SA); Serving summons on defendant while in SA etc

Has to confirm jurisdiction

53 Consent: Court will always assume jurisdiction over incola defendant – no consent necessary

Consent alone is not sufficient to confer jurisdiction – you need the existence of a recognized link/ratio jurisdictionis

If link exists, ie if cause of action arose within jurisdiction: Not necessary to attach if defendant consents to jurisdiction

If link exists (therefore it is only necessary to confirm jurisdiction): Consent is sufficient to give the court jurisdiction

If no link exists, as long as Plaintiff = Incola and the Defendant submitted to the jurisdiction of the Court, attachment was neither necessary nor permissible (American Flag)

If no link exists: submission not sufficient to give the court jurisdiction

Categories:

DIVORCE MATTERS PROPERTY MATTERS MONETARY CLAIMS

Common law:

Court of area in which parties were

domiciled at time of action

Immovable Scenario 1:

Def = Incola &

Pl = FP/LP/Incola

Divorce Act & Domicile Act:

1 or both parties domiciled/ordinarily

resident

Movable Scenario 2:

Def = LP &

Pl = FP/LP/Incola

Note:

Definition of “divorce action”

Incorporeal Scenario 3:

Def = FP &

Pl = Incola

Scenario 4:

Def = FP &

Pl = FP/LP

54

CHAPTER 6 – JURISDICTION OF THE MAGISTRATES’ COURTS

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain the notion that a Magistrate’s Court has no inherent jurisdiction but that it is a creature of statute. 2. Explain how to determine the jurisdiction of a specific Magistrates’ court with reference to: monetary

limitations; jurisdiction in respect of persons; jurisdiction in respect of causes of action; arrests and interdicts.

3. Explain the jurisdiction of the Magistrate’s Court with reference to sections 29 and 46 of the Magistrates’ Court Act 32 of 1944.

4. Explain the extension of Magistrates’ Court jurisdiction in accordance with sections 38, 39 and 45 of the Magistrates’ Court Act 32 of 1944 and apply these sections to a practical situation.

Reading list: 1. Prescribed textbook: Chapter 6. 2. Dusheiko v Milburn 1964 (4) SA 648 A. 3. Ss 28, 29, 35, 37, 38, 39, 40, 43, 45, 46 and 50 of the Magistrates’ Courts Act 32 of 1944. 4. Jurisdiction of Regional Courts Amendment Act, 31 of 2008. Other sources:

Summary: Jurisdiction of the Magistrates’ Courts Introduction: ↓ What? Create of Statute Can only do what legislation

entitles the court to do. No incidental jurisdiction.

Where? MC Act

(New) MC Rules

Description : Jurisdiction What the court may/may not

do: Authority:

↓ 1) Constitutional matters No jurisdiction to enquire into

constitutional validity of any law/conduct of President.

S 170 of Constitution S 110 MC Act

2) Type of matter 2.1 Certain matters are excluded from the MC’s jurisdiction – court can not deal with these matters.

1) Divorce 2) Validity/interpretation of will 3) Status of person iro mental capacity 4) Perpetual silence 5) Specific performance without damages.

S 46

55 2.2 Certain matters are included in the MC’s jurisdiction – the court can deal with these matters.

1) Delivery/transfer of property 2) Actions of ejectment 3) Right of way 4) Liquid document 5) Credit Agreement 6) Matrimonial Property Act : consent in marriages in community of property 7) Actions ito CC Act 8 Any other actions not exceeding the amount determined by Minister.

S 29

3) Value of claim Determined by Min of Justice and

published in GG. Does not include interest/costs

S 29

4) Territory Person of Defendant includes:

1) Person residing/carrying on business in district 2) Partnership with business premises in district or member residing in district 3) Any person (plaintiff/applicant) in respect of incidental proceedings. 4) Any person if the cause of action arose wholly within the district 5) Any party to interpleader proceedings 6) Any defendant who appears and takes no objection to jurisdiction of court 7) Person owning immovable property in district in action iro such property.

S 28

Extension of jurisdiction: ↓ 1) Incidental jurisdiction Capital amount claimed should

fall within jurisdiction. Irrelevant whether transactions/circumstances giving rise to claim involve much larger amounts.

S 37

2) Abandonment Plaintiff gets judgment for

amount Plaintiff proves in court. Note: Never deduct anything from amount proven in court.

S 38

VS 3) Deduction of admitted debt Plaintiff gets judgment for

amount Plaintiff proves in court minus admitted debt. Note: Always deduct admitted debt from amount proven in court.

S 39

56 4) Consent Parties may consent to

jurisdiction of: 1) MC in general (iro anticipated proceedings) Or 2) Specific district of MC (iro proceedings already instituted or about to be instituted).

S 45

Other matters: ↓ Transfer matter from one court to another

By consent of parties / application by one party.

S 35

Splitting of claims Substantive claim exceeding

jurisdiction may not be split to bring it within jurisdiction of MC. If claims are based on different causes of action – it does NOT amount to a splitting of claims.

S 40

Cumulative jurisdiction Provided that each claim is based

on a different cause of action & provided that each claim falls within the limits of Sec 29, more than one claim may be combined in 1 summons. Court will have jurisdiction to decide each claim as if it had formed the sole subject of a separate action.

S 43

Counterclaim exceeding jurisdiction

MC may stay action to allow Defendant to institute proceedings in HC. Test: prima facie reasonable prospect of success on counterclaim.

S 47

Removing a matter to the HC On application by Defendant.

Certain procedural requirements apply, ie notice of intention to be given; notice must state that applicant objects to matter being tried by MC; applicant must give security for capital amount and costs.

S 50

57

CHAPTER 7 – PARTIES

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain what locus standi is. 2. Explain the situation with regard toclass actions in South African law. 3. Explain the difference between joinder of necessity and joinder of convenience. 4. Distinguish between non-joinder and misjoinder. 5. Explain High Court rule 13 (the so-called third party procedure). 6. Draft a third party notice with reference to a given set of facts. 7. Distinguish between the third party procedure in terms of High Court Rule 13 and the related

procedure in terms of the Appropriation of Damages Act, 1955. 8. Cite the parties to a civil suit. 9. In the case of issuing summons against a partnership, explain the purpose of a notice in terms of MR

54(1) and explain its link with MR 54(6). 10. Discuss the procedure for purposes of appointing a curator ad litem. Reading list: 1. Prescribed textbook: Chapter 7. 2. Vitorakis v Wolf 1973 (3) SA 928 W. 3. Toekies Butchery v Stassen 1974 (4) 771 T. 4. Permanent Secretary, Department of Welfare, Eastern Cape v Ngxusa & others 2001 (4) SA 1184

SCA. 5. De Vos “Reflections on the Introduction of Class Action in South Africa” 1996 TSAR 639-657. 6. Hurter “Class action: Failure to comply with guidelines laid down by courts ruled fatal” 2010 2

TSAR 409. 7. S2(2) & (4) of the Apportionment of Damages Act 34 of 1955. 8. HCR 7, 10, 11, 12, 13, 16, 17(4). 9. MCR 54. Other sources:

Summary: Parties to litigation Locus standi in iudicio

o Definition? o 2 Elements:

1) Sufficient interest 2) Capacity to sue/be sued

1) Interest o Common law : “direct and substantial interest” o Meaning?

Jones & Buckle (4 issues) o Vs extended standing : Constitutional litigation (s 38 of Constitution).

2) Capacity to litigate: various categories, ie:

58 PARTY LEGAL POSITION CITATION Remember to include full details

as part of the citation, ie name, surname, gender, occupation, address etc (p 94-5 in TB)

1 Natural person

Full legal capacity

The Plaintiff is Mr X, a major male businessman having his work address at … / The Defendant is Ms B, a major, unmarried, female accountant residing/employed at …

2 Minors

Different scenarios: 0-7 yrs? 7-14 yrs? Under 18 yrs? Must be “duly assisted” or “represented” by a guardian 1) Guardian acts in representative capacity (minor does not litigate in own name)→ 2) Guardian assists minor (minor litigates in own name)→ Guardian may act in dual capacity→ What if there is no guardian/guardian refuses to act on behalf of minor? – curator ad litem

The Plaintiff is Mr X, a major male lecturer residing at …, in his representative capacity as father and natural guardian of his minor son, B, who resides at the same address as the Plaintiff. The Defendant is Y, a minor male scholar residing at …, duly assisted by his mother and natural guardian, Mrs S, residing at the same address. The Plaintiff is Mrs J, an adult female accountant residing at …, in her personal capacity as well as in her representative capacity as the mother and natural guardian of her minor son, G, residing at the same address.

3 Married women

All married women possess locus standi.

4 Spouses married in community of property.

Need consent of other spouse to sue/defend proceedings. S 17 of Matrimonial Property Act – certain exceptions where consent is not required – examples?

5 Insane persons

HC Rule 57. Person incapable of managing own affairs by reason of mental disability.

The Defendant is Mr A, a major male advocate residing at …, in his capacity as duly-appointed curator ad litem to assist Mr F,

59

Application for curator ad litem and then curator bonis.

an adult male residing at …

6 Prodigals

Person incapable of managing own financial affairs. Application for curator bonis to manage estate. Curator ad litem only if person does not understand nature of legal proceedings.

7 Insolvents

Trustee administers estate – acts in a representative capacity. Certain matters: insolvent may act/sue in own name – examples?

8 Company

Juristic person. Separate legal personality.

The Plaintiff is ABC (Pty) Ltd, a company with limited liability and duly incorporated ito the Companies Act, with its registered address (or principal place of business) at … The Defendant is X (Pty) Ltd t/a Y, a private company with limited liability, duly incorporated ito the company laws of the RSA with its registered address at …

9 Close corporation

Juristic person. Separate legal personality.

The Defendant is ABC CC, a close corporation with limited liability and duly incorporated ito the Close Corporations Act, with its registered address (or principal place of business) at …

10 Trust

Legal entity without separate legal personality. Cannot sue/be sued in its own name. Trustees must be cited in representative capacity.

The Defendant is Mr X, a major male businessman residing at …, in his capacity as trustee fro the time being of the Smith Family Trust. The Plaintiffs are Mr A and Mr B, both major males and advocates, having their chambers at …, who sue herein in their representative capacities as trustees of the ABC Trust.

11 Partnerships, firms, associations

Not a juristic person. No separate legal personality. For reasons of practicality – may sue/be sued in its own name : (HC Rule 14 and MC rule 54).

The Plaintiff is Mr Z, a firm (or partnership) carrying on the business of retail clothing sales and having its place of business at … The Plaintiff is D Darts Club, an association not for gain, which is

60

capable of suing and being sued in its own name ito its Constitution, and whose is address is … The First Defendant is x Attorneys, a firm of attorneys having its principal place of business at …

12 Judges

Consent required to subpoena or sue.

13 Member of Parliament.

May sue member but not when attending Parliament, unless proceedings is instituted in Cape Town.

14 Foreign heads of State, diplomats etc.

Enjoy immunity from all legal proceedings in SA courts. May not be sued unless person/state has waived immunity.

15 Fugitives from justice.

May not institute proceedings in SA but may defend proceedings.

Other: Pension fund

The First Applicant is the … Pension Fund, a defined benefit pension fund registered in terms of section 4 of the Pension Funds Act 24 of 1956 which has its registered offices at …

State departments

The Defendant is the Minister of Safety and Security, cited in his official capacity as representative of the SAPS established ito section 5 of the South African Police Service Act. The Office of the National Commissioner of SAPS is situated at …c/o State Attorney.

Local Authority

The Defendant is the … Municipality, a metropolitan municipality with legal persona, established ito the Local Government: Municipal Structures Act 1998, which is a body corporate capable of suing and being sued, seated at …. The First Respondent is the City of Jhb, a metropolitan municipality constituted as such ito s 12 of the Local Government: Municipal Structure Act 117 of 1998 read with provincial notice 6766 of 1 Oct 2000. The City has its registered office and principal place of business at …

61 Citation of parties for purposes of litigation: Natural person/Individual Full legal capacity

Sued/be sued in own name Not necessary to include reference to marital status (Nedcor

Bank Ltd v Hennop case) Locus standi depends on majority, not adulthood

“The plaintiff/defendant is William Smith, a major male accountant, residing at OR carrying on business at OR employed at …. (address).” / “The plaintiff/defendant is William Smith, a major male whose full and further particulars are not known to the plaintiff.”

Minor Duly assisted by (action in name of minor) or

Guardian acting in a representative capacity (action in name of guardian)

Sometimes: Guardian acting in dual capacity “The plaintiff/defendant is Sammy Smith, a minor male scholar residing at … (address), duly assisted by his father and natural guardian, Mr William Smith, residing at the same address”./ “The plaintiff/defendant is William Smith, a major male accountant residing at … (address), in his representative capacity as the father and natural guardian of his minor son, Sammy Smith, residing at the same address”./ “The Plaintiff is William Smith, an major male accountant residing at ..., in his personal capacity as well in his representative capacity as the father and natural guardian of his minor son, Sammy Smith, residing at the same address.”

Close Corporation Juristic person with full legal capacity – separate from

members Sued/be sued in own name Registered address/principal place of business

“The plaintiff/defendant is Telematix CC, a close corporation registered and incorporated in terms of the Close Corporations Act 69 of 1984, having its registered office/principal place of business within the jurisdiction of the court at … (address).”

Company Juristic person with full legal capacity – separate from

directors and board Sued/be sued in own name Registered address/principal place of business Note: new Companies Act, 71 of 2008

“The plaintiff/defendant is Telematix (Pty) Ltd, a private company with limited liability, registered and incorporated in terms of the Companies Act, 61 of 1973, having its registered office/principal place of business within the jurisdiction of the court at … (address).”/ “The plaintiff/defendant is Telematix Ltd, a public company with limited liability, registered and incorporated in terms of the Companies Act, 61 of 1973, having its registered office/principal place of business within the jurisdiction of the court at … (address).”

Company in liquidation “The plaintiff/defendant is Telematix (Pty) Ltd, a company in

liquidation by order of court (detail), herein represented by its duly appointed liquidator (name, address and detail of appointment).”/ “The plaintiff/defendant is (name of liquidator N.O.), herein cited in his capacity as duly appointed liquidator of Telematix (Pty) Ltd, a company in liquidation by order of court (detail).”

62

Executor and Trustee/s Proceedings in the name of the executor/trustee in official capacity

“The plaintiff/defendant is Mr William Smith, a major male businessman residing at/employed at … (address), in his capacity as trustee for the time being of the Smith Family Trust.”/ “The plaintiff/defendant is Mr William Smith N.O. …”

Government and State Officials In proceedings against the State, the minister of the

department concerned should be cited as defendant/respondent

Same applies to Member of Executive Council of a province

“The plaintiff/defendant is the Minister of Education, acting in his official capacity...”

Parliament The State Liability Act, 1957 applies Local Government Municipalities have separate legal personality

The plaintiff/defendant is the ... Municipality, a municipality established in terms of s 155 of the Constitution of the RSA, 1996 and the Local Government: Municipal Structures Act, 1998 ....”

Partnerships, firms and unincorporated bodies

“The plaintiff/defendant is Telematix Trading, a partnership/firm trading as retailers and having is place of business at … (address).”/ The plaintiff/defendant is the Gauteng Soccer Club, a voluntary association and soccer club, of … (address).”

Public Corporations Created by statute

Corporate status and establishing statute must be stated “The plaintiff/defendant is Telkom SA Ltd, a public company contemplated in s 3(1) of the Post Office Act 44 of 1958.”

Other bodies incorporated under statutes

The plaintiff/defendant is … a … having its principal place of business at …. (address).

Bank duly registered in terms of the Banks Act, 1990 Co-operative society registered and incorporated in terms of

the Co-operatives Act, 2005 Pension fund registered in terms of the Pension Funds Act,

1956 Trade union registered under the Labour Relations Act,

1995 University established in terms of the Higher Education

Act, 1997 Also: Law Societies, ie Law Society of the Northern

Provinces

63

CHAPTER 8 – APPLICATION PROCEDURE

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Indicate what the difference is between the action and the application procedure. 2. With reference to case law indicate:

a) How a factual dispute arises and b) What the court can do if a party institutes/makes use of the incorrect civil procedure.

3. Distinguish between three main types of applications. 4. Explain each main type of application with reference to:

a) the notice of motion b) the founding affidavit c) the opposing/answering affidavit.

5. Explain the principles applicable to urgent applications with reference to case law. 6. Give a brief explanation of the application procedure in the Magistrates’ Court, ie which steps are to

be followed. 7. Indicate instances where the application procedure is usually used. 8. Indicate instances where the application procedure is mandatory. Reading list: 1. Prescribed textbook: Chapter 8. 2. HCR6 and MCR 55. 3. Room Hire v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 T. 4. Luna Meubelvervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 W. 5. Giant Concerts CC v Minister of Local Government, Housing and Traditional Affairs, Kwa-Zulu Natal

2011 (4) SA 164 (KZP). You will be referred to specific material with regard to interdicts (final and interim) and so-called Anton Piller orders. Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:

To be discussed in the lecture.

64

Summary: Application Procedure

Different phases/stages in the Application procedure:

Overview: APPLICATION / MOTION PROCEDURE

Types of applications:

Ex parte vs Bilateral

65

1) Ex-parte (1 party).

The procedure is as follows:

One party = Applicant

Usually no Respondent

Issue documents (Notice of motion + Founding Affidavit)

No notice to counter party – no service required

Set down on unopposed court roll

Heard as Unopposed Application on date mentioned in Notice of Motion: matter argued on the papers

Judgement

Proviso: Certain applications: If interests of another person stand to be effected – no final order Court will grant a provisional order/rule nisi with return date Serve application with annexures and provisional order on Respondent Answering Affidavit (Respondent) Hearing on return date: both parties present argument Final order

2) On notice (2 parties or more)

The procedure is as follows: Step 1:

A) Pleadings Phase

Note: Application procedure is mandatory in certain instances & application procedure is prohibited in certain other

instances

Applicant to initiate proceedings with first set of documents, ie Notice of Motion + Founding Affidavit

Consult with client & draft documents

Documents = Notice of motion PLUS Founding affidavit (with other, supporting/confirmatory affidavits and/or any

supporting documents if necessary)

Applicant/Client (deponent) to sign affidavit with Commissioner of Oaths

Issue documents at court (obtain case number)

Rule 6(1)

Content of documents: Notice of motion contains: form of relief sought; address for service (8km); reference to attached affidavit Founding Affidavit contains essential allegations to make out the cause of action and to justify relief (description of parties; jurisdiction; exposition of facts; relief sought)

Step 2:

Service of documents

Sheriff: return of service

Step 3: Notice of intention to oppose

Respondent has limited number of days to deliver notice of intention to oppose (note, not notice of intention to defend)

If Respondent delivers a notice to oppose, it becomes an Opposed Application

If Respondent fails to deliver a notice to oppose, it remains an Unopposed Application

66

Step 4:

Answering Affidavit / Opposing Affidavit (delivered by Respondent)

Step 5:

Replying Affidavit if necessary (delivered by Applicant)

Step 6: Litis Contestatio (close of pleadings)

As a general rule rule: only 3 sets of affidavits are allowed. The court may, on application, allow further affidavits.

Step 7:

Application to court for a hearing date/Selection of a hearing date

Notice of set down (giving notice of the hearing date) – responsibility of Applicant

Step 8:

Preparation for hearing:

Pagination and indexing, delivery of practice note, ensuring matter has been enrolled for hearing, heads of argument

B) Hearing Phase

Step 9:

Hearing (in Court)

Both parties present argument

As a general rule – matter is argued on the papers/submissions are limited to what is contained in the papers/no oral

evidence allowed

If a material dispute of fact arises? – Court may dismiss application or direct that oral evidence be heard or refer to the

matter to trial

Step 10:

Judgement/Court order

Application is granted/dismissed with/without costs

Step 11:

Appeal/Review

CHAPTER 9 –

67

ACTION PROCEDURE LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Indicate how the action procedure differs from the application procedure. 2. Explain what a pleading is. 3. Indicate the purpose and function of pleadings. 4. Discuss the requirements for pleadings in terms of HCR 18. 5. Distinguish between a pleading, a document and a notice. 6. Draft a basic Particulars of Claim in respect of the following: a motor vehicle accident (damages to

the body of the vehicle); a divorce action and a claim based on breach of contract. Reading list: 1. Prescribed textbook: Chapter 9. 2. King v King 1971 (2) SA 630 O. 3. Millman v Klein 1986 (1) SA 465 C. 4. HCR 18. 5. MCR 6.

Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


Summary: Various phases during the Action procedure

70

CHAPTER 10 – SUMMONS

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain what a summons is. 2. Distinguish between a simple and a combined summons in the High Court by way of an example. 3. Explain what is meant by “citation” and be able to cite a party. 4. Indicate the requirements for a High Court summons. 5. Indicate the requirements for a Magistrate’s Court summons. 6. Discuss lapsing of a summons.. 7. Discuss the nature of and requirements for the Particulars of Claim. Reading list: 1. Prescribed textbook: Chapter 10 2. Fatti’s Engineering Co v Vendick Spares (Pty) Ltd 1962 (1) SA 736 T 3. MCR 5 and HCR 17. 4. MCR 6 and HCR 18. Other sources: Handout/s/Pleadings Bundle:

CHAPTER 11 – SERVING OF DOCUMENTS

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain what the function of “service” is. 2. Distinguish between service and delivery of a document. 3. Fully explain the duties of the sheriff when serving a document and to apply such knowledge to a

practical situation. 4. Distinguish between substituted service and edictal situation and to apply such knowledge to a

practical situation. 5. Explain what is meant by judicial discretion in respect of service. 6. Draft an application for substituted service. 7. Draft an application for edictal citation.

71 Reading list: 1. Prescribed textbook: Chapter 11. 2. Kerbel v Kerbel 1987 (1) SA 562 W. 3. HCR 4 & 5. 4. MCR 8 & 9. Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


CHAPTER 12 – JUDGEMENT AT AN EARLY STAGE and STAY OF PROCEEDINGS

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain the purpose of a notice of intention to defend. 2. Distinguish between a notice of intention to defend in the High Court and in the Magistrates’ Court. 3. Draft a notice of intention to defend (in the High Court and the Magistrates’ Court). 4. Indicate what default judgment entails. 5. Draft an application for default judgment. 6. Distinguish between the various types of default judgment and to explain what each entails. 7. Distinguish between the procedures provided for section 57 and 58 of the Magistrates’ Court Act 32

of 1944. 8. Explain what a notice of bar is and draft a notice of bar. 10. Indicate how to bring an application for discharge of bar, extension of time or condonation. 11. Indicate what an application to compel is. 12. Indicate how the following MCR operate with regard to applications to compel, penalize and to draft

the following applications: i) Rule 60(2) ii) Rule 60(3) iii) Rule 60(5) 13. Discuss the stay of proceedings.

72 Reading list: 1. Prescribed textbook: Chapter 12. 2. Briel v Van Zyl 1985 (4) SA 163 T. 3. Thornhill v Gerhardt 1979 (2) SA 1092 T. 4. Vonck v Fraserburg Munisipaliteit 1974 (1) 777 C. 5. HCR 19, 21(4), 26, 31. 6. S27A of Supreme Court Act. 7. HCR26. 8. MCR 5, 12, 13, 60. Other sources: Handout/s/Pleadings Bundle:

CHAPTER 13 – SUMMARY JUDGEMENT

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain the ratio/reasoning behind the summary judgment procedure. 2. Explain how to test whether a matter is susceptible to summary judgment with reference to a practical

situation. 3. Explain the procedure for

i) a summary judgment application and ii) opposing a summary judgment application. Reading list: 1. Prescribed textbook: Chapter 13. 2. Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 A. 3. Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 T. 4. Tredoux v Kellerman 2010 (1) SA 160 C. 5. Blakes Maphanga Inc v Outsurance Insurance Co Ltd 2010 (4) SA 232 SCA. 6. Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC 2010 (5) SA 112 (KZP). 7. HCR 32. 8. MCR 14. Other sources:

73 Handout/s/Pleadings Bundle: ASSIGNMENT:


CHAPTER 14 – INTERIM PROCEDURES

LEARNING OUTCOMES Exception - At the end of this chapter, you should be able to: 1. Explain what an exception is and when it can be raised in the High Court and Magistrate’s Court

respectively. 2. Explain the exception procedure in the High Court and in the Magistrate’s Court. 3. Draft an exception. Striking out - At the end of this chapter, you should be able to: 1. Give examples of situations where the procedure of striking out could be used. 2. Explain the procedure for the striking out in the High Court and Magistrates’ Court respectively. 3. Draft a request for striking out. Irregular Step - At the end of this chapter, you should be able to: 1. Provide examples of an irregular steps in civil litigation. 2. Explain the procedure for the setting aside of the irregular step in the High Court. 3. Draft a notice of application in terms of HCR30. 4. Distinguish between an exception and an irregular step. Reading list: 1. Prescribed textbook: Chapter 14. 2. Trope v South African Reserve Bank 1993 (3) SA 264 A. 3. Wellington Court Shareblock v Johannesburg City Council 1995 (3) SA 827 A. 4. Breedenkamp v Standard Bank of South Africa Ltd 2009 (5) SA 304 (GSJ). 5. Standard Bank of South Africa Ltd v Hunkydory Investmetns 194 (Pty) Ltd and Another (No 1) 2010

(1) SA 627 (C). 6. HCR 18, 23 and 30 7. MCR 19 and60 Other sources:

74 Handout/s/Pleadings Bundle:

CHAPTER 15 – SETTLEMENT OFFERS OF TENDERS AND SECURITY FOR COSTS

LEARNING OUTCOMES Settlement - At the end of this chapter, you should be able to: 1. Distinguish between a conditional and unconditional settlement offer. 2. Explain the procedure for the settlement offer in the High Court. 3. Explain the procedure for judicial payment into the Magistrate’s Court. Security for costs – At the end of this chapter, you should be able to: 1. Explain the ratio behind security for costs. 2. Distinguish between security for costs in the High Court and the Magistrates’ Court. 3. Draft a request for security for costs. 4. Explain the rules regarding security for costs in case of a company or close corporation. Reading list: 1. Prescribed textbook: Chapter 15. 2. Magida v Minister of Police 1987 (1) SA 1 A. 3. HCR 34, 34A, 47 & 47A. 4. MCR 18, 18A & 62. Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


75

Summary: Security for costs

CHAPTER 16 – PLEA, COUNTERCLAIM, REPLICATION, COUNTERPLEA AND CLOSE OF PLEADINGS

LEARNING OUTCOMES Plea - At the end of this chapter, you should be able to: 1. Explain what a plea is. 2. Explain the following concepts with reference to the practical implications/effect of each: i) admit ii) deny iii) confess and avoid iv) non-admission 3. Distinguish between a plea on the merits and a special plea. 4. Explain the procedure for filing a plea in the High Court and Magistrate’s Court respectively. 5. Draft a plea and a special plea. Replication - At the end of this chapter, you should be able to: 1. Explain what a replication is. 2. Distinguish between a replication in the High Court and the Magistrate’s Court. 3. Explain what the effect is of a failure to deliver a replication. 4. Draft a replication. Counterclaim - At the end of this chapter, you should be able to: 1. Explain what a counterclaim is. 2. Differentiate between the concepts “convention” and “reconvention”. 3. Explain the function of the term “brevitas causa”. 4. Distinguish between the counterclaim in the High Court and Magistrate’s Court. 5. Explain the consequences of not delivering a plea to the counterclaim. 6. Draft a counterclaim. Plea to Counterclaim - At the end of this chapter, you should be able to: 1. Indicate what the plea to the counterclaim is. 2. Draft a plea to a counterclaim.

76 3. Discuss subsequent pleadings. Close of Pleadings - At the end of this unit, you should be able to: 1. Indicate the importance of ascertaining the time when the pleadings are closed. 2. Distinguish between the close of pleadings in the High and Magistrates’ Courts. Reading list: 1. Prescribed textbook: Chapter 16. 2. David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 W. 3. Nyandeni v Natal Motor Industries Ltd 1974 (2) SA 274 D. 4. Pillay v Krishna 1946 AD 946. 5. HCR 22, 24, 25. 6. MCR 17, 20 and 21. Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


CHAPTER 17 – AMENDMENTS OF PLEADINGS

LEARNING OUTCOMES At the end of this chapter, you should be able to: 1. Explain the ratio behind the amendment procedure. 2. Fully describe the considerations and procedure applicable to amendments in the High Court and the

Magistrate’s Court respectively. 3. Draft a notice of intended amendment and an application for amendment. 4. Explain the procedure to be followed after the court has granted a party leave to amend his/her

pleadings. Reading list: 1. Prescribed textbook: Chapter 17. 2. Moolman v Estate Moolman 1927 CPD 27. 3. Cross v Ferreira 1950 (3) SA 445 (C). 4. HCR 28. 5. MCR 55A.

77 Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


Summary: Amendment of Pleadings

When can amendment be sought? – specific instances:

78 Other issues:

Prescription

Jurisdiction

Excipiable pleading

Procedure to amend pleadings: 2 scenarios Scenario 1:

Scenario 2:

79

CHAPTER 18 – PREPARATION FOR TRIAL

LEARNING OUTCOMES At the end of this unit, you should be able to: 1. Explain what is meant by “set down” for trial. 2. Fully distinguish between discovery in the High Court and the Magistrate’s Court (in respect of theory

and procedure). 3. Explain the consequences of failure to discover. 4. Explain the ratio behind expert testimony. 5. Indicate which procedure must be followed if a person wishes to present the evidence of an expert

witness at a trial. 6. Explain the procedure for- i) A request that a party submits himself to a medical examination. ii) A request that a party makes an item available for inspection. iii) Using photographs or a plan at a trial.

iv) Requesting further particulars for purposes of trial. 7. Give a detailed explanation of the pre-trial conference in i) The High Court. ii) The Magistrates’ Court. 8. Indicate the relevance of obtaining detailed witness statements well in advance of the trial for the purposes of preparation for trial. 9. Indicate what is meant by “subpoena”/ “subpoena duces tecum”. 10. Indicate how to go about to ensure that you are properly prepared for trial. 11. Draft the following documents: i) Notice of Set Down. ii) Request for discovery. iii) Discovery Affidavit. iv) Expert notice and summary. v) Request for submission to medical inspection. vi) Request for inspection of an object. vii) Notice that photo’s will be used at the trial.

viii) Pretrial Notice. Reading list: 1. Prescribed textbook: Chapter 18. 2. BST Kombuise v Abrams 1978 (4) SA 182 T. 3. Coopers v Deutsche Gesellschaft fur Schadlingsbekampfung 1976 (3) SA 357 A. 4. KPMG Chartered Accountants (SA) vs Securefin 2009 (4) SA 399 (SCA). 5. Santam Ltd v Segal 2010 (2) SA 160 N. 6. Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC). 7. MCR 16, 21A, 22, 23, 24, 25 and 26. 8. HCR 21, 29, 35, 36, 37 and 38. 9. S54 of Magistrates’ Courts Act 32 of 1944. Other sources:



Summary: Preparation for Trial

81

Summary: Discovery of documents

HIGH COURT MAGISTRATE’S COURT

What to discover? All documents and tape recordings

Documents which are/have been in party’s possession or under his control

Documents relating to any matter in question in such action. Narrow interpretation

In other words: have to discover all documents which are detrimental to the party’s own case or which may advance the

opponent’s case

What not to discover? Documents you don’t need not discover/exceptions:

Specific exclusionary rule: HCR 35(2) Must list these documents but don’t have to make them

available, ie:

Witness statements Communications between attorney & client

Communications between attorney & advocate Pleadings, affidavits & notices

When? General rule – only after close of pleadings.

Certain exceptions =

HCR 35(1) – before close of pleadings with leave of a judge HCR 35 (12) – any time before hearing if opponent refers to

document or tape recording in his pleadings/affidavits

HCR (14) – make available clearly specified document

82

Who? Party

Exception Other, driver/owner/cedent

Other legislation, ie PAIA or Anton Piller order

How?

Notice to make discovery – allow 20 days Under oath – affidavit

Affidavit + 2 schedules required Discovery affidavit – First Schedule & Second Schedule

Part 1 (no objection) and Part 2 (valid objection) Exclude: privileged documents

Specification of documents in discovery affidavit Description of document

Copy or Original Bundle of documents

Compulsory or not? Yes

Even if not asked – party must make discovery Must make discovery within 15 days of receiving notice of trial

date

Further discovery Notice in terms of HCR 35(3)

2 Options: make available for inspection or

state under oath that documents are not in party’s possession

How to secure production of discovered documents Entitled to inspect and copy documents

HCR 35(6) – mechanism In practice – not necessary

Other discovery rules HCR 35(8) – require particulars of date/parties to any

document

HCR 35 (9) – require document to be admitted HCR 35 (10) – notice to produce the original document at the

hearing

HCR 35 (11) – court may order production of a document Sanctions

HCR 35 (4) – can’t use document HCR 35 (7) – application to compel

HCR 30 (A) – enforce compliance with any rule

CHAPTER 19 –

THE TRIAL AND JUDGEMENT LEARNING OUTCOMES At the end of this unit, you should be able to: 1. Fully explain the chronological course of a civiltrial. 2. Distinguish between: i) examination in chief ii) cross-examination

iii) re-examination 3. Explain the test for absolution of the instance: i) at the end of the plaintiff’s case

ii) at the end of the whole case.

83 Reading list: 1. Prescribed textbook: Chapter 19. 2. HA Millard & Son (Pty) Ltd v Enzenhofer 1968 (1) SA 330 T. 3. Greyvenstein v Neethling 1952 (1) SA 463 C. 4. HCR 33(4) & 39. 5. MCR 29. Other sources: Handout/s/Pleadings Bundle:

CHAPTER 21 – APPEAL AND REVIEW

LEARNING OUTCOMES At the end of this unit, you should be able to: 1. Distinguish between appeal and review. 2. Indicate which judgments can be appealed against. 3. Explain the procedure for appeal against a Magistrates’ Courts decision. 4. Indicate the grounds for review of a Magistrates’ Courts decision. 5. Indicate the procedure for review of a Magistrates’ Courts decision. 6. Draft the following documents: i) Request for reasons for judgment

ii) Notice of appeal iii) Application to rescind a judgment.

7. Discuss the principles underlying rescission of a judgment. 8. Discuss the procedure for the rescission of a judgment in the High Court and the Magistrate’s Court respectively. 9. Indicate how you will deal with an application for rescission of a judgment when you are out of time

with such application. Reading list: 1. Prescribed textbook: Chapter 21. 2. S24(1) of the Supreme Court Act. 3. HCR 50 and 53. 4. MCR 49 and 51.

84 Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


CHAPTER 22 – EXECUTION

LEARNING OUTCOMES At the end of this unit, you should be able to: 1. Explain what is meant by execution. 2. Indicate the “golden rule” for execution. 3. Distinguish between execution against movable and immovables i) in the High Court and

ii) in the Magistrate’s Court. 4. Explain what is meant by “interpleader” and how to apply this procedure. Reading list: 1. Prescribed textbook: Chapter 22. 2. Jaftha v Schoeman and others; Van Rooyen v Stoltz and others 2005 (2) SA 140 CC. 3. Standard Bank of SA Ltd v Saunderson 2006 (2) SA 264 SCA. 4. Gundwana v Steko Development 2011 (3) SA 608 CC. 5. HCR 45, 49 & 58. 6. Ss 66-69 & 78 of Magistrates’ Courts Act 32 of 1944. Other sources:



CHAPTER 24 – LEGAL COSTS

LEARNING OUTCOMES At the end of this unit, you should be able to: 1. Indicate the general rules with regard to legal costs as well as the exceptions thereto. 2. Give an explanation of the terminology relevant to legal costs as listed in this chapter. 3. Explain the principles applicable to taxation. 4. Explain the relevance of the prescribed tariffs in the High Court and the Magistrates’ Court

respectively. (See HCR 48; 67; 68 and 70 with regard to party-and party costs; attorney-and-client-costs; and attorney-and-own client costs)

5. Explain the provisions relating to the taxation of High Court and Magistrates’ Courts matters respectively. 6. Explain the provision regarding the review of taxations in the High Court and Magistrates’ Courts respectively. Reading list: 1. Prescribed textbook: Chapter 24. 2. Contingency Fees Act 66 of 1997. Other sources: Handout/s/Pleadings Bundle: ASSIGNMENT:


86

Summary: Legal costs

Definition=

costs payable in respect of legal fees of legal practitioner who has acted on behalf of a party + expenses

In order words: fees + disbursements

Legal practitioner:

Discuss/Agree

Overcharge

Undercharge

Each party remains responsible to own representative, regardless of win/loose

+ Advocate’s fees

Usually ask for costs - prayer

Paid to own attorney

Contingency Fees Act, 1997

Contingency basis

If win

General rules relating to an award of costs

Discretion – considering facts of each case

1) Generally, the successful party is entitled to costs – in order words, costs follow the event

Court order will be for party and party costs

Court order may, in special cases, be for attorney and own client costs

2) The court may for good reason deprive a successful party of his costs

Conduct, unnecessary steps, wrong procedure, misconduct

3) The court may for good reason order a successful party to pay all or a part of the losing party’s costs

Unnecessary procedure

Bill of costs

Agreed or Taxed – Taxing Master

Liquidated – becomes part of judgement debt

87

Summary: Terminology in respect of legal costs

1

PARTY & PARTY

2

ATTORNEY & CLIENT

3

ATTORNEY & OWN CLIENT

4

COSTS DE BONIS PROPRIIS

5

WASTED COSTS

6

COSTS RESERVED

7

COSTS IN THE CAUSE

8

COSTS OF THE DAY

9

ALL COSTS

10

NO COSTS ORDER

Costs necessarily incurred for litigation

All costs that attorney is entitled to recover from client

Remuneration that attorney is entitled to in terms of agreement with client

Costs must be paid by attorney/

trustee/

executor,

not the client

Services for which costs charged are of no use to the parties

Question of who should pay costs will be decided at a later stage, normally at the end of the matter.

Costs of interlocutory or interim proceedings are included in total costs of case at the end of the matter.

Costs incurred by a party in respect of proceedings which occurred on a particular day

Refers to party and party costs unless the court directs otherwise

Court indicates that it makes no order as to costs

Costs according to tariff stipulated in the rules of court

Client can’t ordinarily recover this from other party

Predetermined rate, ie Rx per hour

Attorney was at fault

The court makes no costs order for the time being

Vs the court making a costs order immediately after the interim application has been finalized

As a result, each party remains liable for his/her own legal costs

Does not include all costs, but only those costs which the taxing master considered necessary in the matter

Higher than category 1

Higher than category 1 and category 2

When the court orders costs to the winner of a case, it is taken to mean party-and-party costs – loser must pay his own lawyer + pay party-and-party costs to winner

Half-way-house between category 1 and category 3

88 NOTES: