Civil Study Guide UNAM 2020

STUDY GUIDE
CIVIL PROCEDURE
BACHELOR OF LAWS
LPCI 3771
Centre for Open, Distance and e-Learning

Materials Development and Instructional Design Department
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Acknowledgements
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Department wishes to thank those below for their contribution to this study guide:
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CIVIL PROCEDURE
Contents
About this study guide 1
How this study guide is structured .................................................................................... 1
Course overview 3
Welcome to CIVIL PROCEDURE LPCI 3771 ................................................................. 3
Exit Learning Outcomes .................................................................................................... 3
Time frame ........................................................................................................................ 4
Study skills ........................................................................................................................ 4
Need help? ......................................................................................................................... 5
Assignments ...................................................................................................................... 5
Assessments ....................................................................................................................... 5
Getting around this study guide 6

Margin icons ...................................................................................................................... 6
Unit 1 7
General introduction .......................................................................................................... 7
Introduction .............................................................................................................. 7
1.1. Cause of action .............................................................................................. 8
1.2. Locus standi ............................................................................................................ 9
1.3. Jurisdiction................................................... Error! Bookmark not defined.
1.3.1. High court ........................................................................................................... 13
1.4. Prescription .................................................. Error! Bookmark not defined.
1.5. A general mind-map of civil procedure ....................................................... 19
Unit summary .................................................................................................................. 21
References ....................................................................................................................... 22
Unit 2 23
Initial stages of litigation ................................................................................................. 23
Introduction ............................................................................................................ 23
2.1. Service ......................................................... Error! Bookmark not defined.
2.1.1. Issuing of process .................................................................................................. 24
2.1.2. How is service effected by the sheriff? ............................................................... 24
2.1.3. Methods of service .............................................................................................. 25
2.2. Substituted service and edictal citation ................................................................. 27
2.3. Action or Application? ................................................................................ 27
2.3.1. Actions ................................................................................................................ 28
2.3.2. Applications ........................................................................................................ 29
2.4. Joinder of parties ......................................................................................... 29
What is a joinder? ............................................................................................................ 29
Two types of joinder ........................................................................................................ 29
When are parties joined? ................................................................................................. 30
Joining of parties as plaintiffs or defendants ................................................................... 31
2.5. Amendments ................................................ Error! Bookmark not defined.
Unit summary .................................................................................................................. 33
References ....................................................................................................................... 33
Unit 3 34
Applications ..................................................................................................................... 34
3.1. Introduction ................................................................................................. 35
Instances where the use of application is mandatory ....................................................... 35
Application procedure cannot be used on the following matters ..................................... 36
Which proceedings may be brought by applications? ........................................... 36
• Interlocutory applications ................................................................................ 36
• Urgent applications ......................................................................................... 36
• Ex Parte applications ...................................................................................... 36
• Interdicts .......................................................................................................... 36
3.2. The notice of motion.................................................................................... 36
3.3. Affidavits .............................................................. Error! Bookmark not defined.
3.3.1. Further affidavits................................................................................................. 37
3.4. Types of applications ................................................................................... 38
3.5. Rule nisi................................................................................................................. 40
3.6. Factual dispute in applications .................................................................... 41
The Plascon-Evans rule ................................................................................................... 41
Unit summary .................................................................................................................. 42
References ....................................................................................................................... 42
Unit 4 43
ACTIONS ........................................................................................................................ 43
Introduction ............................................................................................................ 43
4.1. The undefended action .................................................................................... 45
4.1.1. Default judgement............................................................................................... 45
4.2. Defended action ........................................................................................... 47
4.2.1. Notice of intention to defend ..................................................................... 47
Dius induciae ................................................................................................................... 48
Dies non ........................................................................................................................... 48
4.2.2. Summary judgement ........................................................................................... 48
Procedure and content of affidavit ................................................................................... 49
4.3. Further pleadings ......................................................................................... 50
4.3.1. Plea ..................................................................................................................... 50
4.3.2. Special pleas ....................................................................................................... 52
4.3.3. Replication .......................................................... Error! Bookmark not defined.
4.3.4. Exception ............................................................ Error! Bookmark not defined.
4.4. Close of pleadings ................................................................................................. 54
Unit summary .................................................................................................................. 54
References ....................................................................................................................... 55
Unit 5 56
Pre-Trial, Trial and Post-Trial ......................................................................................... 56
Introduction ............................................................................................................ 56
5.1. Discovery .................................................................................................... 58
5.1.1. Discovery in the High Court ............................................................................... 58
5.1.2. Discovery in the Magistrates Court .................................................................... 59
5.1.3. Failure to discover .............................................................................................. 59
5.1.4. How to discover .................................................................................................. 59
5.2. Judicial Case Management .......................................................................... 60
5.2.1. High court ........................................................................................................... 61
5.2.2. Lower court ......................................................................................................... 62
5.3. Trial ............................................................. Error! Bookmark not defined.
5.4. Judgements, Interests and Costs .................................................................. 63
5.4.1. Judgement ........................................................................................................... 63
5.4.2. Interest ................................................................................................................ 63
5.4.3. Costs ................................................................................................................... 64
5.5. Appeals and reviews .................................................................................... 65
Unit summary .................................................................................................................. 66
References ....................................................................................................................... 66
Unit 6 67
Debt Collection Procedures ............................................................................................. 67
Introduction ............................................................................................................ 67
6.1. Writs and warrants of execution ..................................................................... 69
6.1.1. High Court .......................................................................................................... 69
A. Writ of execution in the High Court ..................................................................... 69
B. Attachment and sale of movable property ............................................................ 69
C. Attachment and sale of immovable property ........................................................ 70
6.1.2. Magistrates Court ................................................................................................ 71
A. Warrant of execution in the Magistrates Court ..................................................... 71
B. Attachment ............................................................................................................ 71
6.2. Section 65 proceedings ................................................................................ 74
6.2.1. Section 65A ........................................................................................................ 74
6.2.2. Section 65J .......................................................................................................... 75
6.2.3. Section 65M ........................................................................................................ 75
6.3. Additional procedures.................................................................................. 75
6.3.1. Settlement .................................................................................................. 75
A. Magistrates Court ........................................................................................ 75
B. High Court ................................................................................................... 76
6.3.2. Provisional sentence .................................................................................. 76
6.3.3. Arrest tanquam suspectus de fuga ............................................................. 77
Unit summary .................................................................................................................. 78
References ....................................................................................................................... 78
CIVIL PROCEDURE
About this study guide

CIVIL PROCEDURE LPCI 3771has been produced by the Centre for
Open, Distance and e-Learning. All study guides produced by the Centre
for Open, Distance and e-Learning are structured in the same way, as
outlined below.
How this study guide is structured

The course overview
The course overview gives you a general introduction to the course.
Information contained in the course overview will help you determine:
 If the course is suitable for you;
 What you will already need to know;
 What you can expect from the course; and
 How much time you will need to invest to complete the course.
The overview also provides guidance on:
 Study skills.
 Where to get help.
 Course assignments and assessments.
 Activity icons.
 Units.
We strongly recommend that you read the overview carefully before

starting your study.
The course content

The course is broken down into units. Each unit comprises:
 An introduction to the unit content;
1
About this study guide General introduction
 Unit outcomes;
 New terminology;
 Core content of the unit with a variety of learning activities;
 A unit summary;
 Assignments and/or assessments, as applicable;
 Answers to Assignment and/or assessment, as applicable.
Resources
For those interested in learning more on Civil Procedure, we provide you
with a list of additional resources at the end of this study guide; these
may be books, articles or web sites.
Your comments
After completing Civil Procedure we would appreciate it if you would
take a few moments to give us your feedback on any aspect of this
course. Your feedback might include comments on:
 Course content and structure;
 Course reading materials and resources;
 Course assignments;
 Course assessments;
 Course duration; and
 Course support (assigned tutors, technical help, etc.).
Your constructive feedback will help us to improve and enhance this

course.
2
CIVIL PROCEDURE
Course overview
Welcome to CIVIL PROCEDURE

LPCI 3771
This course deals with Civil Procedure in the High Court and Lower
Courts. It develops the student’s competencies in the following areas: the
procedural stages of the law of civil procedure and specific components
of the stages of the law.
Exit Learning Outcomes

Upon completion of this course students should be able to:
 Distinguish between the jurisdiction of the Supreme, High Court and

the Lower Courts;
 Identify at least five different sources of law in civil procedure;
Exit Learning Outcomes  Describe the different stages in civil proceedings;
 List at least three kinds of reactions of defendant on receipt of

summons;
 Explain the appropriate procedural steps to be taken in reply to steps
by an opposing litigant in a civil matter;
 Apply the processes taken in civil matters to a given set of
hypothetical facts;
 Analyse the difference between acquisitive and extinctive
prescription;
 Scrutinize section 11 of the Prescription Act 68 of 1969 with regards

to the different periods of prescription;
 Identify different types of costs and their implications on the parties;
 Outline the process in execution of judgements; and
 Differentiate between appeals and reviews.
3
Course overview General introduction
Time frame
This is a semester course. This means it will take you 14 weeks of study
to complete this course.
We expect you to spend at least 2 hours per week studying this course.
How long?
Study skills
As an adult learner your approach to learning will be different to that
from your school days: You will choose what you want to study, you will
have professional and/or personal motivation for doing so and you will
most likely be fitting your study activities around other professional or
domestic responsibilities .
Essentially, you will be taking control of your learning environment. As a

consequence, you will need to consider performance issues related to
time management, goal setting, stress management, etc. Perhaps you will
also need to reacquaint yourself in areas such as essay planning, coping
with exams and using the web as a learning resource.
Your most significant considerations will be time and space, i.e. the time
you dedicate to your learning and the environment in which you engage
in that learning.
We recommend that you take time now—before starting your self-

study—to familiarize yourself with these issues. There are a number of
excellent resources on the web. A few suggested links are:
 http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills resources.
You will find links to study preparation (a list of nine essentials for a
good study place), taking notes, strategies for reading text books,
using reference sources, test anxiety.
 http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).
4
CIVIL PROCEDURE
 http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to time
management, efficient reading, questioning/listening/observing skills,
getting the most out of doing (“hands-on” learning), memory building,
tips for staying motivated, developing a learning plan.
The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more go to
www.google.com and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.
Need help?
For routine enquiries please contact the Student Support Department at
+264 61 206 3416.
For further assistance you can go to your nearest Regional UNAM

Help Centre.
Assignments
Please see tutorial letter for instructions on the submission of

assignments.
Assignments
Assessments
Course materials may have activities and/or self-assessment exercises to
check your own understanding of the material, but there are also tutor-
marked assignments/tests which you have to submit. Please see tutorial
letter for more details.
Assessments
5
Getting around this study guide General introduction
Getting around this study guide
Margin icons
While working through this study guide you will notice the frequent use
of margin icons. These icons serve to “signpost” a particular piece of text,
a new task or change in activity; they have been included to help you to
find your way around this study guide.
A complete icon set is shown below. We suggest that you familiarize

yourself with the icons and their meaning before starting your study.
Activity Additional Answers to Assessment

reading Assessments
Assignment Audio Case study Discussion
Exit Learning Feedback Group Activity Help

Outcomes
Prescribed Recommended
Note it!/Warning Outcomes Reading website
References Reflection Study skills Summary
Terminology Tip Video
6
CIVIL PROCEDURE
Unit 1
General introduction
Introduction
The purpose of this unit is to provide an overview of the module by
providing students with an overview of Civil Procedure. It is crucial for
students to understand how Civil Procedure fits into the law and practice.
Civil Procedure is part of civil law, and it is concerned with disputes

between private parties which give rise to a claim. Civil Procedure deals
with the procedure that parties follow in order to enforce their claims.
Civil Procedure falls under Procedural Law (adjective law).
Civil Procedure is wider in scope than Criminal Procedure and more

complex. Civil Procedure forms the basis for much of what legal
practitioners do in their professional lives. It is worth noting that Civil
Procedure is heavily influenced by the law of evidence.
Upon completion of this unit you should be able to:
 define cause of action;
 define jurisdiction;
Outcomes  define locus standi;
 explain how locus standi is determined; and
 highlight different sources of civil procedure.
Pete, S. et al (2013) Civil procedure: A practical guide (3rd.). Oxford

University Press and Southern Africa.
Paterson TJM (2005) Eckard’s principles of civil procedure in the

Prescribed reading magistrate’s court (5th ed. Cape Town: Juta & Co.
Jones & Buckle (1979) The civil practice of the magistrate’s court in
South Africa, Volume 1, The Act and Volume 2, The Rules by Baker,
Erasmus, Farlam, Juta, 7th Ed.
7
Unit 1 General introduction
Rules of the High Court

High Court Act 16 of 1990
Consolidated Practice Directions
Rules of the Magistrate Court
Additional reading
Magistrate’s Court Act 32 of 1944
The Namibian Constitution
1. Cause of Action
What is a cause of action? Cause of action simply means the cause of the
plaintiff’s or applicant’s complaint. There are elements that must be
averred (alleged) in the papers and proved in court. A cause of action is
simply a legal fact giving rise to the plaintiff’s claim. Therefore, a cause
of action means all the elements a plaintiff has to prove in order to be
entitled to whatever relief he/she is seeking.1 A cause of action is the
recognize cause or reason for the proceedings that one party wishes to
institute against another.2
Liability never originates in vacuo (in a vacuum). It is always based on a

legal fact, resulting in an obligation.
The term cause of action is defined by means of reference to a distinction

between the facta probanda (facts in issue/facts which have to be proved)
and the facta probantia (a fact offered in evidence as proof of other
fact/facts which prove) of the case. The facta probanda are the facts
which form the basis of the cause of action. These are the facts which
form basis of the cause of action. These are the facts that the plaintiff
must prove in order to succeed in his action. The facta probantia are the
facts which are used in order to prove the facts in dispute.
Watermeyer J stated as follows in Abrahamse & Sons v SAR & H:3
‘The proper legal meaning of the expression “cause of action”

is the entire set of facts which gives rise to an enforceable
claim and includes every fact which is material to be proved to
entitle a plaintiff to succeed in his claim. It includes all that a
1
Pete, S. et al (latest edition) Civil Procedure: A Practical Guide, Oxford
University Press, and Southern Africa.
2
Bascerano, E. (2012). A Basic Guide to Civil Procedure in the Magistrates’
Courts. Cape Town: Juta & Co Ltd, p.23.
3
1933 CPD 626 at 637 quoted in King’s Transport v Viljoen 1954 (1) SA 133 (C)
at 135 and in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838G.
8
CIVIL PROCEDURE
plaintiff must set out in his declaration (summons) in order to

disclose a cause of action. Such cause of action does not arise
or accrue until the occurrence of the last of such facts and
consequently the last of such facts is sometimes loosely spoken
of as the cause of action.’
Before instituting a claim, the cause of action has to be complete. To

determine whether the cause of action is complete, notice must be taken
of the relevant legal principles in each particular case.
Normally, a letter of demand is not necessary before the plaintiff may

institute an action against the defendant. However, there are cases where
written notice or a letter of demand is essential for the completion of the
plaintiff’s cause of action. For example, where there is no fixed date for
performance set out in a certain contract.
Activity 1
1. What is a cause of action?
1. Differentiate between facta probanda and facta probantia.
Write down your answers. You may share them with

your colleagues.
Feedback
1.2. Locus standi

A preliminary procedural question that has to be considered in the
judicial process is whether the parties to the litigation have necessary
standing or legal capacity to litigate.4 Legal standing is not only a
procedural question but it is also a question of substance; it concerns the
sufficiency and directness of a litigant’s interest in proceedings, which
4
Joubert, W.A. (2017). The Law of South Africa 3rd Ed. Durban: LexisNexis,
p.70-71.
9
warrants his or her title to prosecute the claim asserted.5 Locus standi in
iudicio is the capacity to act as a litigant.
The general rule is that every natural person with full legal capacity has
the capacity to litigate. Persons without full legal capacity need the
assistance of someone with the necessary authority to litigate on their
behalf.6 Others with full legal capacity may be subject to limitations in
being able to be sued or to sue. The fact of standing must appear from the
initiating process.7
However, Article 25(2) of the Namibian Constitution creates an

exception to this general rule as it provides for group actions:
“Aggrieved persons who claim that a fundamental right or

freedom guaranteed by this Constitution has been infringed or
threatened shall be entitled to approach a competent Court to
enforce or protect such a right or freedom”
It is for the party instituting proceedings to allege and prove that he or she
has standing and the onus to establish standing rests upon that party
throughout the proceedings.
The phrase “locus standi in iudicio” is commonly used in another

context. It is a requirement that a party to litigation must have direct and
substantial interest in the right which is the subject matter of the
litigation, and in the outcome of the litigation. Thus, in the case of a
person requesting legal relief, there must have been an encroachment or
threat of his rights or interests. In the case of a person opposing the
granting of the legal relief, his rights or interests must stand to e affected
by the requested legal relief. If a party does not comply with this
requirement, he or she is said to lack legal standing.8
A person who has the right to sue or be sued in a particular matter is said
to possess locus standi in iudicio (legal standing) in the matter. There are
two tests to determine the locus standi of a party- firstly whether or not
the party concerned has a direct and substantial interest9 in the matter
and secondly, whether or not that party has legal capacity to litigate in
the matter.10
The persons who may approach a court are –

 Anyone acting in their own interest;
5
Ibid, p. 70-71.
6
Joubert, W.A. (2017). The Law of South Africa 3rd Ed. Durban: LexisNexis,
p.70-71.
7
Ibid, p. 70-71.
8
Pete, S. et al (latest edition) Civil Procedure: A Practical Guide, Oxford
University Press, and Southern Africa, p.35.
9
Ibid, p.35.
10
Ibid, p.35.
10
CIVIL PROCEDURE
 Anyone acting on behalf of another person who cannot act in their

own name;
 Anyone acting as a member of, or in the interest of, a group or class of
persons;
 Anyone acting in the public interest, and
 An association acting in the interest of its members.11
There are two tests to determine the locus standi of a party – firstly
whether or not the party concerned has a direct and substantial interest in
the matter.12
2. Direct and Substantial Interest

A person wishing to institute or defend legal proceedings must have
direct and substantial interest in the right that is the subject matter of the
litigation, and in the outcome of the litigation.13
Financial interest alone is not sufficient. According to Jones and

Buckle14 the requirements for a direct and substantial interest are as
follows:
a The plaintiff/applicant for relief must have an adequate
interest in the subject-matter of the litigation, which is not a
technical concept but is usually described as a direct interest
in the relief sought;
b The interest must not be too far removed;
c The interest must be actual, not abstract or academic;
d The interest must be current interest and not a hypothetical
one.
The following categories of persons have no or have limited locus standi

in iudicio:
 Minors – a minor is any natural person under the age of 21. Minors
under the age of 7 are incapable to act. This means that such a person
(even with the assistance of his/her guardian) may not act as a litigant.
11
Pete, S. et al (2016) Civil Procedure: A Practical Guide, Oxford University
Press, and Southern Africa, p.35.
12
Ibid, p. 35.
13
14
Jones & Buckle (1979) The civil practice of the magistrate’s court in South
Africa, Volume 1, The Act and Volume 2, The Rules by Baker, Erasmus,
Farlam, Juta, 7th Ed.
11
In such a case the guardian must act on his/her behalf, although the
claim is rightfully the minor’s claim.15
 Persons under curatorship – curatorship is the official supervision
under which an adult person or his estate remains, where he is
incapable of managing his own affairs. In this respect, one should
distinguish between a curator bonis (who is appointed to administer a
person’s property and affairs in general) and a curator ad litem (who is
appointed by the court to represent a person, whether a minor or a
major, in civil litigation).16
 Mentally disabled persons - a person who is mentally ill and cannot
appreciate the nature of legal proceedings because of some mental
disorder does not possess locus standi.17
 An interdicted prodigal – a prodigal is a spendthrift who is unable to
keep his finances in order. The High Court may be approached to
declare a person to be a prodigal, and as such incapable of managing
his affairs. The order of the court will specify in what respects the
legal capacity of the prodigal is limited, and he will retain his legal
capacity in those areas not covered by the order.18
 Married persons – Persons married in community of property cannot
sue or defend legal proceedings without the written consent of the
other spouse.19
 Insolvents – once a person has been declared insolvent and his estate
sequestrated by the court, the person’s estate is placed in the hands of
the master of the High Court and a trustee will be elected to
administer his estate.20
3. Jurisdiction
Jurisdiction can generally be defined as the legal competence (power or
authority) of a court to hear a specific matter and to grant an order in
relation to it.21
Before litigation is instituted, it must be determined which court has

jurisdiction. First, it must be determined whether the matter lies in the
competence of an inferior court or in the superior court. To proceed in the
High Court on a claim which is within the jurisdiction of the Magistrate
15
16
17
Ibid, p.39.
18
Ibid, p.39.
19
Ibid, p.39.
20
Ibid, p.39.
21
Ibid, p.39.
12
CIVIL PROCEDURE
Court will expose the plaintiff to the danger of being awarded costs on
the scale applicable to Magistrates courts.
4. High Court
The High Court has inherent jurisdiction; this means the High Court may
do anything unless forbidden by law. Certain limitations are imposed by
common law but more often by statute. For example, the High Court is
deprived of original jurisdiction in certain matters reserved by statute for
special tribunal, for instance: water courts, special courts for hearing
income tax appeals emanating from the Competition commission.
Further, the High Court has no jurisdiction to hear an appeal from a
Military Court but does have the jurisdiction to hear a review of a
decision of the Military Court.
The general common law principles are:
(a) The doctrine of effectiveness
In Steytler N.O. v Fitzgerald 1911 AD 295 the court declares:
“A court can only be said to have jurisdiction in a matter if it has the power not
only to take cognisance of the suit, but also of giving effect to its judgement”
Therefore, the fact that a defendant resides in the area of the court’s
jurisdiction will not give that court jurisdiction if the claim relates to the
transfer of property not within the area of jurisdiction and in respect of
which the order cannot be enforced by court.
The doctrine of effectiveness has led to the fact that Namibian courts are
generally not prepared or reluctant to adjudicate a matter against a
foreigner has been arrested or his or her goods have been attached for
purposes of execution.
The term effectiveness must not be approached too literally. It can never
be equated to a guarantee that the judgement will be enforced fully.
(b) The doctrine of submission
This doctrine entitles a court that would otherwise not have jurisdiction to
hear a matter against a specific person to obtain the necessary jurisdiction
based on the consent of such person, either by positive consent or
negatively by not objecting to the capacity of the courts to entertain the
case against him.
The submission by a defendant of his person to the jurisdiction of a court

can only be effective if the court is entitled to adjudicate the cause of
action.
(c) The principle: Actor Sequitur Forum Rei
13
This principle entails that the plaintiff must take the case to the forum of
the defendant and institute action in the court in whose area the debtor.
The common law grounds of jurisdiction include:
Ratione domicilii22
At common law the only court to adjudicate matters relating to status is

the court of the relevant party’s domicile.
Ratione contractus23
In cases of contractual claims, the nexus in the fact that the contract in
dispute, was concluded within the court’s jurisdiction, or that the contract
in dispute was to have been performed wholly or in part within its area of
jurisdiction or that the breach occurred there.
Ratione delicti commissi24
In cases of claims that arise from delict, the delict had to be committed
within the area of jurisdiction of the court.
Ratione rei sitae25
In claims for relief with regard to a real right or an immovable property

the court will have jurisdiction if such real right or property is situated
within the court’s territorial limits.
4. Lower Courts
The magistrate court is a creature of statute and has no jurisdiction
beyond that granted by the statute creating it. It has no inherent
jurisdiction such as is possessed by the superior courts and can claim no
authority which cannot be found within the four corners of its constituent
Act.26
The court officials consist of the clerk of court, the sheriff and the legal
representatives. The function of the clerk of the court is to issue and file
summonses, the filing of pleadings, the storing and safekeeping of court
files and the taxation of accounts in respect of costs. The sheriff is
responsible for the service of court process and the execution of
22
23
Ibid, p.100.
24
Ibid, p.100.
25
Ibid, p.100.
26
Magistrates Court Act 32 of 1944.
14
CIVIL PROCEDURE
Section judgements. Legal representatives appear in court on behalf of

their clients.
Consequently, jurisdiction in the Magistrate’s Court is ascertained by a

set of provisions and these are discussed below:
28 Jurisdiction in respect of persons 27
(1) Saving any other jurisdiction assigned to a court by this Act or by any
other law, the persons in respect of whom the court shall have jurisdiction
shall be the following and no other - -
a any person (defendant), who resides carries on business or is
employed within the district;
b any partnership which has business premises situated or any
member whereof resides within the district;
c any person whatever, in respect of any proceedings incidental
to any action or proceeding instituted in the court by such
person himself;
d any person , whether or not he resides, carries on business or is
employed within the district, if the cause of action arose
wholly within the district;
e any party to interpleader proceedings, if –
i the execution creditor and every claimant to the subject-
matter of the proceedings reside, carry on business, or are
employed within the district;
ii the subject-matter of the proceedings has been attached by
process of the court; or
iii such proceedings are taken under subsection (2) of
section 69 and the person therein referred to as the “third party”
resides, carries on business, or is employed within the district; or
f all the parties consent to the jurisdiction of the court;
g any defendant (whether in convention or reconvention) who
appears and takes no objection to the jurisdiction of the court;
h any person who owns immovable property within the district
in actions in respect of such property or in respect of
mortgage bonds thereon.
Section 29 Jurisdiction in respect of causes of action

i Subject to the provisions of this Act and any other relevant
legislative provision, the court, in respect of causes of action, shall
have jurisdiction in –
a actions in which it is claimed the delivery or transfer of any
property, movable or immovable, not exceeding N$ 25 000.00
27
Act 32 of 1944.
15
in value which is the amount determined by the Minister from

time to time in the Gazette in clear value to the occupier;
b actions of ejectment against the occupier of any premises or
land within the district: Provided that, where the right of
occupation of any such premises is in dispute between the
parties, such right does not exceed the amount of N$ 25
000.00 in clear value which is the amount determined by the
Minister from time to time in the Gazette in clear vale to the
occupier.
c actions for the determination of a right of way,
notwithstanding the provisions of section 46;
d actions on or arising out of a liquid document (no restriction)
or a mortgage bond, where the claim does not exceed the
amount N$ 100 000 which is the amount determined by the
Minister from time to time by notice in the Gazette;
e actions on or arising out of any credit agreement as defined in
Section 1 of the Credit Agreement Act, 1980 (Act 75 of
1980); where the claim or value does not exceed N$ 1 00 000
(and this includes the amount in reconvention)
f actions in terms of section 16(1) of the Matrimonial Property
Act, 1984, where the claim or value of the property in dispute
does not exceed the amount determined by the Minister from
time to time by notice in the Gazette;
g actions, including an application for liquidation, in terms of
the Close Corporations Act, 1984 (Act 69 of 1984);
h actions other than those already mentioned in this section
where the claim or the value of the matter in dispute does not
exceed the amount of N$ 25 000 as determined by the
Minister from time to time by notice in the Gazette.
In the case of NEDBANK Ltd v Mateman; NEDBANK Ltd v Stringer

[2008] All SA 593 (T) the full bench ruled that a High Court has got
concurrent jurisdiction with a magistrate’s court but that a Plaintiff ran
the risk of only being awarded costs on a magistrate’s court scale if he
instituted action in a High for a claim which traditionally falls within the
jurisdiction of a magistrate’s court.
Once it has been established that the magistrate’s court has jurisdiction to
hear the matter one must establish which magistrate’s court has
jurisdiction to hear any specific matter with reference to section 28. There
are 17 magisterial districts in Namibia. Section 26 (1) of the Magistrates
Court Act 32 of 1944 states that the area of jurisdiction of a court shall be
the district, sub-district or area for which such a court is established.
Section 30: Arrests and interdicts
In terms of section 30, the court may grant orders for

i arrest tanquam suspectus de fuga
ii Attachments
iii Interdicts
iv Mandament van spolie (also known as the spoliation remedy or the
mandament) this remedy is available to anyone who has been
16
CIVIL PROCEDURE
dispossessed unlawfully without a court order or authorizing legislation,

aimed at restoring dispossession irrespective of the merit.
Section 30 bis
Section 30 provides for Attachment to found or confirm jurisdiction:

 Against any person who does not reside in Namibia
 The dispute amounts to at least 40 dollars exclusive of costs
Overcoming jurisdictional problems in the Lower court
Section 45- provides for consent to jurisdiction. That means any matter of
any monetary value can be considered in the Magistrates Court, provided
that the two parties have agreed in writing.
Section 35 – allows for any action or proceeding to be transferred from

one court
Section 38 – a plaintiff may abandon part of his claim, if so the part of a

claim be so abandoned, it is finally extinguished. If the claim is upheld in
part only, the abandonment is deemed to take effect upon the claim not
upheld. No later claim may be brought on the abandoned amount.
Section 39- deduction of admitted debt
It is not the same as set-off, only an amount that is liquidated can be set-
off. The plaintiff deducts from his claim any amount owing to the
defendant, if deduction causes the claim to fall within the jurisdictional
limits. This section applies whether the plaintiff’s claim is liquidated or
unliquidated.
Section 40 Splitting of claims
Section 40 disallows the splitting of claims. However, a party can sue for
a number of separate and different claims in one summons on condition
that each separate cause of action falls within the jurisdiction of the court
Section 46 matters beyond jurisdiction
The Magistrates court will have no jurisdiction in the following instances:

 validity or interpretation of a will or other testamentary
 specific performance sought without an alternative of payment of
damages except:
 Rendering of an account where the claim does not exceed N$ 25
000.00
 The delivery or transfer of property not exceeding N$ 25 000.00
 A decree of perpetual silence
17
Objection to jurisdiction:
 Done by raising a special plea by defendant that the court lacks
jurisdiction28
 The onus is upon the defendant to prove the facts upon which the plea
is based
5. Prescription
There are two forms of prescription:
Prescription means the manner of acquiring ownership by long, honest

and uninterrupted possession or use during the time required by law
(Prescription Act 68 of 1969). The possession must have been long,
continued, peaceable and without lawful interruption. This is known as
acquisitive prescription.
Prescription also refers to the liberation of a debtor, it is mere bar which

the debtor may oppose to the creditor who has neglected to exercise
his/her rights, or procured them to be acknowledged during the time
prescribed by law. This is what is known as extinctive prescription.
According to Section 12 of the Prescription Act 68 of 1969, prescription

begins to run not necessarily when the debt arises, but only when it
becomes due.
Section 11 of the Prescription Act provides for four extinctive

prescriptive periods:
 30 years in respect of:
 Mortgage bond
 Judgement debt
 Any debt in respect of any taxation
 Certain debts owed to the State in respect of any share, profits,
royalties etc.
 15 years in respect of:

 Any debt owed to the State
 Any debt arising out of a loan of money or sale or lease of land by the
State to a debtor
 6 years in respect of any debt arising from a negotiable instrument

such as a cheque or from a notarial contract.
28
Explain further as regards such special plea!
18
CIVIL PROCEDURE
 3 years in respect of any other debt, except where stipulated otherwise

by another Act of Parliament.
Prescription runs against a debtor only if he is aware of the facts that give
rise to the debt and the identity of the creditor.
The general principle is if you claim it, you must raise it. The courts will
not take notice of prescription “meru motu ”,29 the parties must raise it on
the papers filed of record.
Study sections 13, 14 and 15 of the Prescription Act 68 of 1969.
5.1..A general mind-map of civil procedure

The following is an outline of civil procedure. It has been divided into
four stages:
Stage One - before litigation
At this stage, the court is not yet involved in the matter. Before litigation,
the attorney has to consider fundamental questions once they are briefed
in the new matter before he/she starts preparing the matter for
litigation.the following questions have to be considered before deciding
to institute proceedings:
Question 1: Does the client have a valid cause of action? The answer to
this question has to be found in substantive law.
Question 2 : Who are the parties to the matter and do they have the
necessary locus standi to appear before the court?
Question 3 : Which particular court has inherent jurisdiction to adjudicate

the matter?
Question 4 : Is the cause of action complete? To answer this question, one

will have to consider whether there has been notice given of the
impending proceedings. At this stage one must also determine if demand
is necessary or not to complete the cause of action.
Question 5 : which procedure is suitable for the impending proceedings?

To answer this question, one must consider whether or not there is a
dispute of fact or a dispute of law.
29
Mero motu means automatically
19
Question 6 : Are there any impediments? Prescription, res iudicata, lis

pendens
Question 7 : Do they need legal representation?
Question 8: Can they afford legal representation? (Cost-benefit analysis)
Stage Two - Litigation
This part deals with the litigation process itself, i.e. what happens once
the court becomes involved in the matter. The proceedings might take the
route of action or application procedure depending on the nature of the
dispute before court.
If the plaintiff elects to approach the court action procedure, the

proceedings will commence with summons accompanied by the
particulars of claim. In the action procedure, there is a pleading stage,
which is more like a paper war. There are pre-trial procedures, the trial
and the judgement, interest and costs. Note that there is oral evidence that
is brought before court to determine the claim.
If the plaintiffs elect to follow the application procedures, one

commences with a notice of motion accompanied by particulars of claim.
The parties involved in an application are called applicant and defendant.
Note that that viva voce evidence is heard in an application, since the
application was based on a dispute of law.\
Stage Three – Appeals and reviews
This procedure is available if one or both parties are dissatisfied with the
order or judgement handed down by the court. These are issues that may
arise after the court case has been finalised. An appeal is lodged in those
cases where one party or both is satisfied with procedures adopted at the
trial or hearing, but disagree with the decision reached by the presiding
officer on the merits.
A review is used in situations where there was a serious irregularity in the

procedure adopted during the trial, for example, the presiding was guilty
of bias, malice or corruption in reaching his/her decision.
Stage Four – Debt Collection procedures
Civil procedure does not come to an end when judgement is granted in

favour of one of the parties. In many cases, a party against whom a
judgement has been granted simply ignores the judgement. If the winning
party is owed money it is up to him as the judgement creditor to take the
initiative by making use of the debt collection procedures provided,
which will then be enforced by the state.
5.2.Sources of civil procedure
20
CIVIL PROCEDURE
You are now aware that civil procedure is that branch of the law that sets
out the rules and procedures to be followed when enforcing rights, the
procedure which is followed is derived from the rules of court, the
constitution, the relevant Acts, common law as well as practice
directions.
The sources of civil procedure are thus as follows:

i The Namibian constitution
ii The rules of the High Court of Namibia
iii The rules of the Magistrate’s Court
iv The Consolidated Practice Directions
v The High Court Act 16 of 1990
vi The Supreme Court Act 15 of 1990
vii The Magistrates Court Act 32 of 1944
viii Common law
ix Case law
Unit summary
In this unit you learned about preliminary issues before proceedings are
instituted. Before litigation, one has to consider whether the plaintiff has
a cause of action sustainable in law; determine the legal standing (locus
standi) of the parties and which court has jurisdiction. Once these have
Summary been determined, the plaintiff or his or her attorney should decide form
proceedings will the take, whether action or application proceedings
depending on the dispute at hand.
In this unit you also have been provided with a mind-map of the civil
process, which set the outline of civil procedure from beginning to end.
You have also learned about the sources of civil procedure.
21
References
Bascerano, E. (2012). A Basic Guide to Civil Procedure in the
Magistrates’ Courts. Cape Town: Juta & Co Ltd,
References Pete, S. et al. (2016). Civil Procedure: A Practical Guide 3rd Ed., Oxford
Paterson TJM (2005) Eckard’s Principles of Civil Procedure in the

Magistrate’s Court, Juta & Co, Cape Town, 5th Ed.
Jones and Buckle (1979) ‘The Civil Practice of the Magistrate’s Court in
Joubert, W.A. (2017). The Law of South Africa 3rd Ed. Durban:
LexisNexis,
22
CIVIL PROCEDURE
Unit 2
Initial Stages of Litigation

Introduction
In this unit, you are going to learn about the initial stages of litigation
such as service of court papers, the different types of proceedings, the
different reactions of the defendant/respondent upon receipt of the
summons/notices of motion.
 define service
 discuss service of court documents;
 discuss the types of procedures one may follow in court
Outcomes  differentiate between action and applications;

 evaluate types of applications;
Rules of the High Court of Namibia
Rules of the Magistrate’s Court

Prescribed reading Amoo, S.K. (2008). An introduction to Namibian law: Materials and
cases. Windhoek: Macmillan Education Namibia Publishers (Pty) Ltd
Pete, S. et al. (2016). Civil Procedure: A Practical Guide 3rd Ed., Oxford
University Press, and Southern Africa
Service: the delivery of court documents to the defendant or

respondent
sheriff: an official of the court who delivers court process
Terminology Messenger: Can be used interchangeably with sheriff
23
Unit 2 Initial Stages of Litigation
domicile: chosen address for the purposes of service and

execution
1. Service
In most cases, legal proceedings are started with the delivery of court
documents (also called court process) to the defendant or respondent.
This is known as service. The court must be satisfied that the defendant
or respondent has received these documents (summons or notice of
motion) and has been made aware that legal proceedings are being
brought against him.30
In the High Court, court process is served by the sheriff of the High Court
and in the Regional and District Courts by the sheriff of the Magistrates
court. In the past the sheriff of the Magistrates’ court was known as the
Messenger of the Court.
A sheriff is appointed to serve documents within a particular area and

may not serve outside the area for which he was appointed.31
1.1. Issuing of Process

Before a legal document is served it should have been issued. This is
done by the commencing documents being assigned a case number and a
court file being opened. Lastly, a revenue stamp will be affixed on the top
right-hand corner of the relevant court document.
After being issued, the following documents will be sent to the sheriff for
service:
1. The original document
2. The number of copies of the document which has to be served
3. An extra copy of the document (which will be the office copy)
1.2.How is service effected by the sheriff?

The sheriff must carry out service in the following manner:
1. The sheriff must explain the nature and contents of the document to
the person being served
2. The sheriff must then hand a copy of the document to the person
being served.
30
Rules of the High Court of Namibia.
Pete, S. et al. (2016). Civil Procedure: A Practical Guide 3rd Ed.,
31
Oxford University Press, and Southern Africa, p.132.
24
CIVIL PROCEDURE
3. The extra copy will be returned to the attorney who requested for the
service together with the return of service. A return of service is
written report from the sheriff stating when, here and how he served
the document. The return of service constitutes prima facie proof of
service.
2. Methods of Service
In this section we consider the methods of service. In the High Court,
service is provided for in Rule 8, 9, 10, 11, 12 and 13. In the Magistrates
Court, provision is made for service in Rule 9.
A. The usual method of service32

1. Personal service : the court process is delivered to the individual
personally, by which it is meant that the sheriff is in the presence of
the defendant or respondent and hands the relevant document to him.
In cases where personal service is required but not possible,
application must be made for directions from the court as to
substituted service, in terms of Rule13 of the High Court.
2. Leaving a copy at the place of residence or business : with this type of
service, the document may be left with a person at the place of
residence or business of the defendant or respondent, provided that
the person is apparently in charge of the premises, and is not younger
than 16 years old. Both these requirements must be satisfied for the
service to be effective.
3. As far as the place of business of the person to be served is concerned,
this refers to the place where that person conducts his own business
as opposed to the place where he is employed by someone else.
4. Service at the place of employment of the person to be served: service is
effected by delivering the document to a person who is apparently in
authority over the person to be served, and is apparently not younger
than 16 years old.
5. Service at the domicilium citandi executandi of the person to be served: A
person’s domicilium citandi is an address which has been chosen by
that person for service of documents upon him. Many contracts
contain a clause appointing a domicilium citandi. it means the
address for the purposes of service (citandi) and execution
(executandi).
6. The purpose of domicilium addresses is that the parties should not be
required to search for one another’s whereabouts when wishing to litigate.
7. As a general rule, the courts are reluctant to allow the use of domicilium
a ddress when the plaintiff is aware that the defendant is unlikely to
receive notice of the proceedings if the domicilium is used.
32
25
8. Service on a company or a close corporation : service on a company or

close corporation, then this must be done at its registered office or at
its principal place of business within the court’s jurisdiction.
9. Service has to be effected by handing the process to a responsible
employee or by affixing the document to the main door of the
registered office or place of principal place of business.
10. Service on an agent duly authorised in writing to accept service : the agent
must produce a written authorisation to accept service of the process.
11. Service on a partnership, firm or voluntary association : the process may
be left at the place of business of the partnership, firm or voluntary
association with a person who is apparently in charge of the premises,
and is apparently not younger than 16 years.
12. Service on a local authority or a statutory body : process must be
delivered to the town clerk, city manager or mayor of the local
authority.
13. Service on two or more persons being sued in their joint representative
capacity : service must be effected on each of these persons
individually.
14. Service on the State , Minister or Deputy Minister in his official
capacity: the process may be served at the office of the State Attorney
situated in the area of jurisdiction of the court out of which the
process was issued.
15. Service on prisoners : the process may be served on the inmate
personally. The official of Correctional Services who is in charge of
the prison in which the inmate is detained must assist to facilitate the
service of the process upon the inmate personally.
1. Service on foreign diplomats: see the case of Portion 20 of

Plot 15 Athol (Pty) Ltd v Rodriques 2001 (1) SA 1285 (W).33
1. What do you understand by the term service?
2. Discuss the methods of service?

Activity 1
3. What do you understand by the term domicilium?
4. Which rules of court provide for service in the High Court and
Magistrates Court?
33
University Press, and Southern Africa, pp.137 -138.
26
CIVIL PROCEDURE
1. the delivery of court documents (also called court

process) to the defendant or respondent.
Feedback 2. See section 1.3. above.
3. it means the address for the purposes of service

(citandi) and execution (executandi).
4. in the High Court service is provided in Rule8-13.

In the Magistrates Court it is provided for in Rule 9.
2.2.Substituted service and edictal citation

In circumstances where documents need to be served but it is not possible
to do so through the usual method of service, an application has to be
made to court for authority to serve in some other way. This application
is known as an application for substituted service.
Substituted service may be able use only where the defendant or

respondent is known or believed to be inside the country and where
service by one of the normal or required forms cannot be effected.
Substituted service is provided for in Rule 13 of the High Court rules.
Service outside the borders of the Republic must be effected by way of
edictal citation in the district magistrates or regional magistrates and High
Court.34 Edictal citation is provided for in Rule 12 of the Rules of the
High Court.
Note that the Court will only grant leave for edictal citation, the applicant
must set out the nature and extent of his or her claim, grounds upon
which it is based and on which the court has jurisdiction to entertain the
claim and the manner of service the court is asked to authorise.35
2.3.Action or Application?
Another preliminary issue in the judicial process, which must be
resolved, concerns the selection of the correct form of proceedings.
Litigation may take two forms: action or application. In the High Court,
the action procedure is provided for in Rule 65.36 In the Magistrates
34
35
Rule 12, High Court Rules (2014).
36
Briefly state what the rule provide for.
27
Court, the procedure can be inferred from Rule 6.37 Once it has been
established that the party has legal remedy, the attorney has to decide
whether to enforce that remedy by way of action proceedings or by way
of applications.
The basic difference between the trial or action procedure and the
application procedure is that trial or oral evidence is heard by the court,
whereas in application proceedings the evidence is placed before the
court in the form of written statements, signed and sworn to by the
witnesses. These statements are called affidavits. The action procedure
usually takes longer and is usually more costly than the application
procedure.
2.3.1.Actions
The parties are called plaintiff and defendant. Action proceedings are
characterized by a clear separation between the pleadings stage and the
trial and evidence stage. The pleadings consist of written statements made
by and delivered between the parties, setting out the material facts on
which the parties rely in support of their claim or defence. Only material
facts are set out in the in the pleadings.38 This means that the main
allegations on which the claim is based are set out by the plaintiff, and the
defendant sets out the main allegations on which the defence is based.
Actions deal with substantial factual disputes and commences with the
issuing of summons by the plaintiff. Further pleadings are exchanged by
the parties such as the defendant’s plea and counterclaim, plaintiff’s plea
to defendant’s counterclaim.
Once the process of pleadings has been completed, the action is set down
for trial, a stage called “preparation for trial” follows. Certain preparatory
steps are taken such as discovery of documents and expert notices.
At the trial, the parties try to prove, by means of evidence, the allegations
and responses contained in the pleadings. This is done through witnesses
who appear in person and give evidence, or by handing in other evidence
such as documents. The witnesses are examined-in-chief, cross-examined
and then re-examined. After the evidence has been completed, argument
is addressed to the court by the parties’ legal representatives, after which
the court gives the judgment.
Action proceedings are heard in what are usually called trial courts .
37
Briefly state what the rule provides for.
38
28
CIVIL PROCEDURE
2.3.2.Applications39
Parties in application proceedings are called applicant and respondent. An

application commences with the issuing of a notice of motion and
supporting founding affidavit. Further affidavits are exchanged namely;
answering affidavit and replying affidavit.
In application proceedings (also called motion proceedings) the entire

procedure is paper-based (i.e. no leading of witnesses). There is no
separation between the pleadings stage and the evidence stage. The
evidence in application proceedings is not oral but in writing, in the form
of affidavits. Further documents supporting the evidence contained in the
affidavits may be attached to the affidavits as annexures. The affidavits
with their annexures are then attached to the document that sets out the
order sought from the court (notice of motion).
In application proceeding, there is no substantial factual dispute that it

cannot be dealt with “on the papers” before the court. Application
proceedings are heard in motion court. Some applications are opposed, if
the application is opposed, it is set down for hearing. The application
proceeding is reserved for those matters in which the court is able to
reach a decision on the documents put before it.
3. Joinder of Parties
What is a joinder?
The test: Does the party have a direct interest? And, is the party
personally involved or substantially involved in the outcome of the
particular matter or in the relief to be granted?
Two types of joinder

a) Voluntary joinder40
Joinder of convenience happens when parties can issue summons even on

their own or can institute separate claims or decide to join claims.41 The
39
Ibid, p.172.
40
41
Jones and Buckle (1979) ‘The Civil Practice of the Magistrate’s Court
in South Africa, Volume 1, The Act and Volume 2, The Rules by Baker,
Erasmus, Farlam, Juta, 7th Ed, p.290.
29
rationale is to avoid multiplicity of claims. It will be convenient to the

court to rule /decide based on the same facts, same law etc. Rule 41, of
the High Court rules, provides that more than one person can act as co-
plaintiffs in a matter. Various persons can also be sued as co-defendants
in one action.
Rule 40 of the High Court determines that a person who is entitled to act
as a co-plaintiff in an action or who may be joined as a co-defendant may
with leave of the court intervene as plaintiff or defendant to the action.
Each party must have a claim and must act against the defendants. The
legal claim must depend on substantially the same question of law and
fact. This question of law or fact must be one which would have
originated in each individual action which could have been instituted.
b) Compulsory joinder
There is a situation where the court, irrespective of the wishes of the

parties, will not hand down a judgment or make an order unless another
(third) party is joined in the action.
The presence of a party is essential for that matter to proceed, if such a

party has, or may have, a direct and real interest in any order which the
court may make, or if such order will prejudice that party, unless the
court is satisfied that the party has distanced himself or herself from his
or her right to be joined in the proceedings.
Joinder of such essential party can take place on initiative of the plaintiff
when the action is instituted. It can also happen on request of the
defendant or by order of court once the action has already been instituted.
Furthermore, the person whose rights are affected can also approach the
court and request to be joined as a party to the matter. Finally, the court in
the event of non-joinder of a necessary party may meru motu raise the
issue and give directions to secure his rights.
What happens if an essential party is not joined or a wrong party is

joined? The answer lies in the following two concepts:
A non-joinder is the absence of an essential party to the proceedings. That

is the person who has a direct and substantial interest in the matter. The
matter cannot proceed until the essential party is joined.
A misjoinder is when you join a party to the proceedings who has

absolutely no interest in the matter.
When are parties joined?

Amalgamated Engineering Union v Minister of Labour establishes that it is
necessary to join as a party to litigation any person who has a direct and
30
CIVIL PROCEDURE
substantial interest in any order which the court might make in the
litigation with which it is seized.
Hartland Implemente (Edms) Bpk v Enal Eiendomme Bk en andere 2002 (3) SA

653 NC states that all the persons who have a direct and substantial
interest in the relief that may possibly be granted by the court must be
joined as parties to the action. They may be joined as co-plaintiff or co-
defendant. If a person has an interest and ought to be joined but was not
joined the court will not adjudicate the matter until such person has been
joined.
Joining of parties as plaintiffs or defendants

Any person who is entitled to join as a plaintiff, or who is exposed to
joinder as a defendant in an action may after notice to all parties, at any
stage of the proceedings, apply for leave to join as a plaintiff or
defendant. The court may in its discretion make an order upon such
request and may lay down further procedure in the action. Before leave to
intervene is granted, the applicant must show that he or she has a prima
facie case and his or her application is made seriously and not frivolously.
4. Amendments
To amend means to change, rectify, adjust, subtract or alter document
filed in court. It means a modification or a change of something from
what it was to something else. It may happen any time before judgement.
The only test to determine whether or not an application for amendment

will succeed is prejudice and cost.
What are the requirements?

 Prejudice
 Cost – liability for cost lies in the person asking for an amendment.
Rule 52 of the High Court rules provide for amendments (other than
amendments for an affidavit) in the High Court.
Procedure for amendments:
 Notice has to be given to the managing judge and the opposing party
 State the particulars of the amendment (what you intend to amend and
how)
 Afford a period of time for objections
 If no objections were lodged within the given time limit, file the
amended version
If the opposing party objects to the amendment, the procedure becomes

interlocutory in nature. It will be submitted to the managing judge for
consideration. A hearing is then held to that effect.
In the Magistrates’ court, Rule 7 makes provision for the amendment of
31
summons before service. The amendment of summons is simply initialled

by the clerk of court in the original summons. Until so initialled, such
alterations or amendments shall have no effect.
Furthermore, in the Magistrates court, Rule 55A makes provision for

amendment of pleadings. The procedure in the Magistrates court is
similar to that in the High Court, in that the party desiring to amend must
give notice to the opposing party and set out in such notice the particulars
of such amendment. The opposing party is afforded 7 days within which
to file any objections to the proposed amendments. If there are no
objections lodged within the suggested time, the party desiring to amend
proceeds to amend.
If any objection has been lodged, the amending party must proceed in
terms of the procedure set in Rule 55 of the Magistrates court.
Amendments will normally be allowed unless the application is mala fide

or would cause an injustice to the other side which cannot be cured by an
order as to costs and where appropriate a postponement.
Take note of the following:
 An amendment that will introduce a new cause of action may in
principle be allowed.
 An amendment that contains the withdrawal of an admission will only
be allowed by the court if such admission has been made in error and
there is no prejudice to the other party.
 The affidavit supporting such an application to amend must contain
evidence of the circumstances under which the admission was made in
error.
Where the proposed amendment is bad in law and excipiable, the court
will not grant an amendment.
32
CIVIL PROCEDURE
Unit summary
In this unit you learned about service of court documents as well as the
methods of service. You have further learned about the distinction
between actions and applications proceedings. Action proceedings are
instituted where there is a real dispute of fact, whereas application
Summary proceedings are used where there is no substantial dispute of fact that the
court can decide the matter based on the evidence placed before on papers
filed of record.
You have further learned about joinder of parties and why it is important
to join the right parties to the proceedings.
References
References Paterson TJM (2005) Eckard’s Principles of Civil Procedure in the

Rules of the High Court

Rules of the Magistrates Court
33
Unit 3 Applications
Unit 3
Applications
In this unit you will be exposed to an in-depth study of applications. You

will learn about the types of application.
 describe the application procedure;
 analyse types of applications;
Outcomes  critique the relevant rules relating to applications;
 define rule nisi.
Herbstein & Van Winsen. The Civil Practice of the Supreme Court of
Prescribed reading South Africa, 4th Ed.pp. 350, 351 and 355.

Rule nisi: An interim order which calls on interested parties

to show cause on the return day why the interim
order should not be made final.
affidavit: A written statement made under oath before a

commissioner of oath, also referred to as a sworn
34
CIVIL PROCEDURE
statement.
Terminology
Ex parte: with respect to or in the interests of one side only
or of an interested outside party.
Audi alteram partem: is a Latin phrase meaning "listen to the other

side", or "let the other side be heard as well"
Interlocutory means an application to the Court in any suit,

applications appeal or proceeding already instituted in such
Court, other than a proceeding for execution of a
decree or order. The orders which are passed in
those applications are called as interlocutory
orders
1.Introduction
Applications are decided on the papers placed before court. All evidence
the party wishes to put forward in support of a claim must be included in
the application papers.
The application papers consist of a notice of motion (notice that

application is to be made in court), together with an affidavit which is
known as the founding affidavit. Supporting evidence will be attached to
the affidavits in the form of annexures. These annexures, together with
the details set out in the affidavits, will contain not only a summary of the
main facts of the claim being made (cause of action) but also the evidence
which is being put forward in support of the claim.
In terms of Rule 65 of the High Court, every application must be brought

on notice of motion thereby giving notice to the other party. These
applications are called on notice applications. However, there are
circumstances where applications are brought without notice to the other
party – these are called ex parte applications. Ex parte applications are
often brought on an urgent basis. Certain other applications are brought in
order to achieve certain objectives during existing applications or actions
proceedings; these are known as interlocutory applications.
Instances where the use of application is mandatory

 Review application
 Rescission of judgment
 Interlocutory applications
 Interdicts
 Joinder of parties
 Consolidation of actions
35
Unit 3 Applications
We cannot use Application procedure on the following

matters
 Divorce
 Personal injury claims
 MVA claims
Which proceedings may be brought by applications?

 Interlocutory applications
 Urgent applications
 Ex Parte applications
 Interdicts
2. The Notice of Motion

The notice sets out:
 The terms of the order sought
 Date and time when the order will be sought
 Notice should be delivered not less 10 days before hearing
 Sets the time limits within which respondent is expected to respond
 The notice of motion will be supported by the founding affidavit
 Name and address of the applicant should appear
 Notice should be signed by Attorney/Applicant
 Cite all respondents, if not, could result in non-joinder or misjoinder
3. Affidavits
An affidavit is a statement made under affirmation or oath (also called a
sworn statement), which is signed and affirmed, or sworn to, by the
person making the statement (known as the deponent) before a
commissioner of oaths.42 The oath or affirmation is administered
because the information contained in an affidavit constitutes evidence.
An affidavit should be drafted in the first person (from the deponent’s
point of view). Once an affidavit has been deposed to, a deponent cannot
42
36
CIVIL PROCEDURE
amend it using the rules of court but must first seek leave from court to
submit a further affidavit to explain and correct the incorrect statement in
the earlier affidavit. The applicant should stand or fall by his affidavit.
Discipline of motion proceedings:
• Nelumbu v Shikumwah:43
“Evidence in motion proceedings is contained in the affidavits filed of

record by the parties. In motion proceedings the affidavits constitute both
the pleadings and evidence and the applicant cannot make out a particular
cause of action in the founding affidavit and then abandon that claim
based on a different cause of action in the replying papers”
A party must make sure all the evidence necessary to support its case is
included in the affidavit. In other words, the affidavits must contain all
the averments necessary to sustain a cause of action or a defence.
3.1. Further affidavits

The general rule is that only a set of three of affidavits are permitted. The
court may in its discretion permit the filing of further affidavits upon
application. The three affidavits are, namely, founding affidavit,
answering affidavit and replying affidavit.
A founding affidavit accompanies the notice of motion and sets out the
facts as well as the relief sought by the applicant.
An answering affidavit must be delivered within 15 days after the

respondent has received the notice of motion, by the respondent. The
respondent in this affidavit must clearly state whether they admit, deny
the allegations of the relevant paragraphs in the founding affidavit.
The replying affidavit must be delivered within 10 days of service of the

answering affidavit on the applicant. The applicant is not permitted to add
new evidence in this affidavit, which is not in the founding affidavit.
43
Nelumbu v Shikumwah (SA 27 - 2015)[2017] NASC (13 April 2017).
37
Unit 3 Applications
1. What is an affidavit?
2. Is it possible to amend an affidavit and how?
3. Which rule provides for applications in the High Court?
Activity1
1. An affidavit is a statement made under affirmation or oath (also

called a sworn statement), which is signed and affirmed, or sworn to,
by the person making the statement.
2. A deponent cannot amend it using the rules of court but must first
Feedback
seek leave from court to submit a further affidavit to explain and
correct the incorrect statement in the earlier affidavit.
3. Rules 65
4. Types of Applications
Ex parte application
An ex parte application is an application which involves one applicant

and is addressed to the Registrar.44
An ex parte application is brought in the following circumstances:

 When the applicant is the only person interested in the relief claimed,
from example an application for admission as a legal practitioner.
 When the relief sought is a preliminary step in the proceedings, such
as an application to sue by edictal citation
 When the nature of the relief sought is such that giving notice may
defeat the purpose of the application,
 When immediate relief is essential because the harm is imminent
 Where the identity of the respondent is not readily ascertainable.
Take note that ex parte applications have to provide a return date on

which cause must be shown why the order should not be confirmed. A
44
38
CIVIL PROCEDURE
copy of the order and supporting affidavit must be served on the

respondent.
Rule 72 of the High Court provides that an ex parte application must be

set down in the motion court and that it commences with the issuing of a
notice of motion.
Urgent applications:45
Urgent applications are usually brought on the basis that the relief needed
is so urgent that the ordinary provisions of the court rules in relation to
time and notice cannot be complied with. The applicant must inform the
court fully of the reasons why the application is urgent and why he cannot
wait in order to obtain relief by making application in the normal way.
An applicant launching an urgent application may formulate his own time

periods for the respondent to file an answering affidavit which the
respondent is obliged to obey until the hearing of the application.
It is important to note that an applicant cannot create his own urgency. A

certificate of urgency must be attached to the papers.
Rule 73 of the High Court rules provides for urgent applications.
Interlocutory applications46
Interlocutory applications do not initiate proceedings, but are incidental

proceedings that are already pending. Since it relates to a matter that is
already pending, an interlocutory application will be made under the
existing case number. The documents in such an applications may be
delivered to the service addresses provided for in the main proceedings.
Interdicts47
An interdict is an order of court and it is a discretionary remedy. With an

interdict you are requesting the court to maintain the status quo. Interdicts
are not about rights.
What are the requirements of an interdict?

 You must have a prima facie right
45
University Press, and Southern Africa,p.155.
46
47
39
Unit 3 Applications
 You must have a well-grounded apprehension (if relief is not granted)

harm
 The balance of convenience favours that the interim interdict be
granted (if not granted, the interdict will inconvenience you, the party
that will suffer the most discomfort must be favoured)
 There is no other final remedy available (if there is another remedy,
such remedy is non-satisfactory)
Types of interdicts:
 Prohibitory : prohibits a party from doing something48
 Mandatory : requires a party to do a certain thing49
 Restitutory : restores the status quo
5. Rule nisi
Where an ex parte application is made and it appears to the court that
such order will adversely affect the rights of a third party.50 The court in
order to protect the rights of such third-party may, instead of granting a
final order, grant an interim order (relief), in the form of a rule nisi
calling upon all interested parties to show cause why the order must not
be made final.51
On the return date, the court may confirm the order or refuse to grant the
relief sought. It may also postpone the application and extend the rule
accordingly. 52
The return date provides an opportunity to the opposing party to show

cause why the interim order should not be made final. The rule nisi may
be discharged in the following ways:
When the issue is resolved in the interim

 When the other party fails to give reasons
48
Ibid, p.453.
49
Ibid, p.453.
50
51
52
Herbstein & Van Winsen. The Civil Practice of the Supreme Court of South
Africa, 4th Ed.pp. 350, 351 and 355.
40
CIVIL PROCEDURE
6. Factual Dispute in Applications

What is the position where a factual dispute arises in an opposed
application? Rule 67 of the High Court provides that the court may
dismiss the application or direct that oral evidence be heard on specified
issues or it may refer the matter to trial with appropriate direction as to
pleadings or definition of issues.
Areal genuine and bona fide dispute of fact can only exist where the court
is satisfied that the party who purports to raise the dispute has in his/her
affidavit seriously and unambiguously addressed the facts set to be
disputed.
The Plascon-Evans rule

Where a factual dispute arises in an opposed application, the rule is that if
on the facts stated by the respondent together with admitted facts in the
applicant’s affidavit, the applicant is entitled to relief. A court will make
an order giving effect to such a finding. Plascons-Evans Ltd v Van Riebeeck
Paints (Pty) Ltd 1984 (3) SA 623A at 634E-635C .
A dispute of fact arises:

 Where the respondent denies substantial factual allegations of the
applicant and makes conflicting factual allegations against those of the
applicant, which the applicant denies.
 Where the respondent admits substantial factual allegations but on the
other hand alleges facts which he disputes.
 Where the respondent alleges that he does not have knowledge of the
allegations made by the applicant but that the applicant or his
deponents are unreliable untrustworthy or prejudicial and that certain
facts upon which the applicant relies to prove the main facts are
untrue.
Take note that if the dispute of fact was foreseeable, the court may
dismiss the application with costs.
If the dispute of fact was not foreseeable, the court may refer the matter
for evidence where the dispute is simple and a speedy determination of
the dispute is desirable.
If the dispute of fact was not foreseeable and the issue is comprehensive
or complicated, the court may refer the application to trial with
appropriate directions as to the exchange of pleadings.
When a genuine dispute of fact arises which cannot be settled without the
hearing of viva voce evidence, the court hearing the motion proceedings
41
Unit 3 Applications
may:
1. Dismiss the application (see Rule 67 of the High Court rules).
2. Order oral evidence to be heard on specific issues.
3. Order the parties to trial with appropriate directions as to pleadings,
the definition of issues.
Unit summary
In this unit you learned about applications and the different types of
applications. You learned about the Plascon-Evans rule. The Plascon-
Evans rule is applicable where a factual dispute arises in an opposed
application. Rule 67 of the High Court gives guideline on how the court
Summary deals with factual disputes in applications.
References
South Africa, 4th Ed.
References Pete, S. et al. (2016). Civil Procedure: A Practical Guide 3rd Ed., Oxford

42
CIVIL PROCEDURE
Unit 4
Actions
Introduction
Upon receipt of the summons the defendant has several choices:
a He may do nothing (which may result in the plaintiff applying
for default judgement)
b He may decide to defend the matter, in this case he must enter
an appearance to defend and the matter will proceed on a
defended basis
c He may consent to judgement in the Magistrates Court or
Confess to judgement in the High Court
d He may attempt to settle the matter with the plaintiff through
his/her attorney by agreement
 discuss what is a default judgement;
 describe rescission of default judgement;
Outcomes  discuss a notice of intention to defend;
 explain the difference between dies non and dius induciae;
 discuss summary judgement;
 discuss further pleadings.
43
Unit 4 Applications
South Africa, 4th Ed.
Prescribed reading University Press, and Southern Africa.

Dius non: a day when courts do not sit or carry on business

Terminology
Dies induciae: the time limit given for a defendant to appear in
court after first receiving a citation to appear
44
CIVIL PROCEDURE
1. The Undefended Action

There are instances in which a party may approach a court for relief prior
to trial.
In this instance, defendant decides to ignore the summons and the

required time to file notice of intention to defend expires, or the
defendant has filed the notice of intention to defend but fails to file plea.
Note that the defendant can still file appearance to defend before the
default judgement application.
1.1.Default Judgement
A party who fails to deliver a pleading or process in time is default. The
other party can then request a judgement.
A default judgement is a judgement given without hearing the defaulting

party and which ends the proceedings.53 It is a judgment made in the
absence of the party against whom judgment is made.
Rule 12 of Magistrates Court rules, and Rule 15 of the High Court, sets
out the basis and process of default judgement.
An application for default judgement is made in duplicate with the

original summons and the return of service.54 Furthermore, the request
for default judgement is made in the form of an ex parte application. An
application for default judgement is accompanied by an affidavit which
sets out the nature and extent of the claim.55
If unliquidated and claims subject to Credit Agreement Act: clerk refers

matter to court for assessment & judgment.
Students ( in this case you) should look at instances where the clerk of
court or the registrar will grant default judgement and where it will be
referred to court for hearing.
53
54
Ibid,p.244.
55
Ibid,p.245.
45
Unit 4 Applications
Default judgement is relevant in the following cases:

1. Where the defendant does not timeously give notice of intention to
defend
2. Where the defendant does not deliver a plea timeously
3. Where the plaintiff does not deliver a declaration timeously
4. Where a party fails to appear at the trial
Liquidated demand and unliquidated claims
When a judgement by default is requested in respect of claims for a debt

or liquidated demand, and the defendant is in default of delivery of a
notice of intention to defend or of a plea, the plaintiff must submit to the
Registrar of the court a written request for judgement. The registrar may
make a variety of orders and no evidence need to be led.56
When a judgement is requested in respect of claims for a debt or

unliquidated demand and the defendant is in default of delivery of a
notice of intention to defend or of a plea, judgement by default may be
granted only once evidence has been led in respect of the quantum of the
claim.57
Rescission of default judgement
In terms of Rule 49 of the Magistrates Court and Rule 16 f the High

Court Rules, in respect of a claim not for a debt or liquidated demand,
within 20 days after he or she has knowledge of a default judgement,
apply to court to set aside such judgement.
The court has the discretion whether or not to set aside a judgement. The
defendant must satisfy the court as to why he defaulted. The defendant
must therefore give a reasonable explanation for the default, which
means:
 A reasonable explanation must be given for the default
 The application must be bona fide and not merely a delaying tactic
 The defendant must have a bona fide defence.
56
57
Ibid, p.246.
46
CIVIL PROCEDURE
 On which claims may default judgement be applied?

 Is it possible to rescind a default judgement which has already been
granted? Refer to the relevant rules in the Magistrates and the High
 Activity 1 Court.
When will court grant default judgement?

 Clear cause of action
 Court has jurisdiction
 Summons have been served properly
 The dius induciae expired
 The claim is clear and correct
 Parties have been properly cited
1. Claims based on liquidated demand and unliquidated claims.

2. See Rule 49 of the Magistrates Court and Rule 16 of the High Court.
Feedback
2. Defended Action
2.1.Notice of Intention To Defend
Notice of intention to defend is provided for in Rule 13 of the Magistrates
Court and Rule 14 of the High Court rules. The notice is delivered to the
plaintiff and to the court.it informs the court and plaintiff that the
defendant intends to defend the action. The notice further appoints an
address for service on the defendant of the court process. It places the
defendant’s attorney on record. It does not preclude the defendant from
entering an exception or a special plea at a later stage i.e. misjoinder or
prescription or lack of jurisdiction
The notice is entered by delivering one copy of the notice to the Registrar
or clerk of court and one copy to the plaintiff or his legal representative.
A copy is served and the original is filed at court. It does not need to be
served by a sheriff. Note that the notice of intention to defend has to be
date-stamped and placed on the court file. The date-stamp is important in
47
Unit 4 Applications
order to resolve any dispute regarding whether there was timeous or

proper service.58
Dius induciae
Dies induciae refers to time limits within which the defendant must
deliver the notice of intention to defend. If the notice is not served within
the prescribed time-limit, the plaintiff might apply for default judgement
against the defendant. In the High Court, the defendant has 10 days
within which to respond, after service. In the Magistrates Court the
defendant has 7 days to react. 20 days are allowed where action is against
a Minister, officer or servant of the state.59
Dies non
The days between 16 December to 15 January, both days inclusive are
not counted when calculating dius induciae , these days are known as dies
non.
3. Summary Judgement
Summary judgement is a procedure which is designed to protect the
plaintiff, who has a claim of a particular nature, against a defendant who
has no valid defence to his or her claim, and who has simply entered an
appearance to defend for the purpose of gaining time and preventing the
plaintiff from obtaining the relief he or she seeks and deserves.60
Because of the audi alteram partem rule the courts are very cautious and
conservative in granting summary judgement.
Note that under this procedure, the defendant has filed the notice of
intention to defend; however, he/she lacks a valid defence. This
procedure is provided for in Rule 14 of the Magistrates Court Rules and
Rules 60 of the High Court Rules.
Summary judgement may be requested on the following claims:

 Based a liquid document
 For liquidated amount of money
 Delivery of specified movable property
 Eviction
58
59
Ibid, p.201.
60
Ibid, p.257.
48
CIVIL PROCEDURE
You will notice that these types of claims fall within the definition of a
“debt or liquidated demand. The application is made within the
framework of existing proceedings.
4.Procedure and Content of Affidavit

Rule 14 of the Magistrates Court and Rule 60 of the High Court provides
that the notice of intention to defend has been filed; the application from
summary judgement has to be made within a specified period. The
request is made together with an affidavit deposed to by the plaintiff or
by someone who can positively swear to the facts contained therein. The
affidavit must indicate:
1. that, in his or her opinion, there is no bona fide defence to the action
2. that the purpose of entering an appearance is merely to delay the
action
If the claim is based on a liquid document, a copy of the document must

be attached to the application.
Defendant’s option once summary judgement has been

applied for
Upon plaintiff applying for summary judgement defendant can make
payment into court or provide security for the sum sued for plus costs.
The defendant must further deliver an opposing affidavit in opposing
affidavit, show has defence and set out the details supporting defence.
Leave to defend will then be given, if court is satisfied with the defence.
If the defendant fails in other words, if the plaintiff succeeds: the

summary judgement will be granted. The matter ends there. If the
defendant is not satisfied, he or she can appeal. 61
1. Briefly state the grounds upon which summary judgement may be

requested.
2. Briefly explain the procedure which must be followed when summary
Activity2 judgement has been applied for.
61
University Press, and Southern Africa, p.253-254.
49
Unit 4 Applications
3. The procedure is clearly set in Rule 14 (Magistrates Court) and 60

(High Court).
4. Refer to Rule 14 (Magistrates Court) and Rule 60 (High Court)
Feedback
5. Further Pleadings
The plea is the defendant’s reply to the plaintiff’s claim.
5.1. Plea62
The plea contains the defendant’s defence to the claim. There are two
types of plea:
 Plea on the merits
 Special plea
Plea on the merits deals with the substance of the plaintiff’s claim, and
attacks the validity of the cause of action regarding the facts.
Special plea is a legal objection to some aspect of the plaintiff’s claim. It

attacks the plaintiff’s case before the merits are considered. After raising
the special plea, the defendant must still plead over the merits; this is an
alternative in case the special plea does not succeed. Rule 46 of the High
Court makes provision for a plea, whilst Rule 19 of the Magistrates Court
makes provision for a plea.63
Pleading over the merits: kinds of pleas-
The plaintiff’s particulars of claim must contain allegations of facts (they

are allegation because they have not been tested in court). When
responding to the Plaintiff’s allegation, the defendant may respond in the
following ways:
 Admit the allegation
 Deny the allegation
 Confess and avoid the allegation (avoid the legal implication the
plaintiff would like the court to draw from the fact)
62
Ibid,p.202.
63
50
CIVIL PROCEDURE
Make no admission, but put the plaintiff to the proof thereof.64
In addition-
 The defendant may file a counterclaim against the plaintiff, which will
extinguish the claim entirely or in part
 Secondly, the defendant may also plead in the alternative (occurs
when there is a second possible defence which is inconsistent with the
first the first defence)
 Thirdly, the defendant may deliver a plea of tender (not provided for
in the High Court rules).65
Therefore, there are three categories of pleas:

 Plead a counterclaim
 Plead an alternative defence
 Plead a tender
Admission of facts:
The purpose of pleadings is to define the issues that are in dispute

between the parties. Once the facts have been admitted, they become
common cause and they need not be proved at trial. Any fact implied to
be admitted is also deemed to be admitted, unless specifically denied.
Once an allegation has been admitted, it is difficult to retract the
admission. An application may be brought to that effect (to amend). The
applicant must have a reasonable explanation, i.e. the court will consider
prejudice that the opposing party might suffer if the amendment is
allowed.66
Denial of facts:
The facts that are denied by the defendant are placed in issue and must be
proved at trial. A bare denial is not allowed. It is necessary to be clear and
definite when denying an allegation. Do not be evasive (half-deny or
half-admit). An allegation should not leave the plaintiff in doubt about
what needs to be proved at trial.67
Confession and avoidance
The defendant admits an averment in the particulars of claim, but sets out
a new fact which if proved would justify the defendant’s admitted
64
Ibid, p. 204.
65
Ibid, p. 204.
66
67
Ibid, p.205.
51
Unit 4 Applications
conduct. For example, where the defendant is being sued for assault, he
may justify his conduct with the defence of self-defence.68
If the new fact set out is proved this could result in no liability on the part
of the defendant. It is necessary to avoid a denial being categorized as a
bare denial. The onus shifts to the defendant to prove new raised facts.69
Non-admission
The non-admission is used when defendant is unable to put forward one

of the other pleas, i.e. the defendant knows nothing about the particular
allegation. It has the same effect as plea of denial.70
5.1. Special Pleas

A special plea raises a special defence and is directed at an underlying
problem in the plaintiff’s case, rather than at the merits of the case. It
either destroys or postpones the operation of the plaintiff’s cause of
action.
Types of special pleas:
 Dilatory pleas
 Pleas in abatement
We will now discuss these pleas here below :

Dilatory pleas
1. Special plea of arbitration i.e. contractual clause to submit dispute to

arbitration.71
2.Special plea of lis pendens i.e. stays the proceedings- there is an action
already pending between the same parties, based on the same cause of
action in respect of the same subject matter, similar to a plea of res
iudicata.72
3. Special plea of premature summons: issued summons before the cause

of action is complete.73
68
Ibid, p.206.
69
Ibid, p.206.
70
Ibid, p.206.
71
72
Ibid,p.211.
73
Ibid,p.211.
52
CIVIL PROCEDURE
Special pleas in abatement
Special plea of prescription: cause of action has not been prosecuted

within a specific time, matter has prescribed, no legal liability, not raised
by the court meru motu, must be raised by the parties.74
Special plea of res iudicata: the point in dispute has been adjudicated
upon already between the parties, final judgement has been given,
previous court is functus officio, cannot hear the matter again.75
Special plea to jurisdiction: court lacks jurisdiction.76
Special plea of non locus standi in judicio: party lacks a real and
substantial interest.77
6. Replication
A replication is the plaintiff’s response to defendant’s plea. It is only
necessary if the defendant has raised new averments in the plea. The
plaintiff may only plead such new facts as are called for by the
defendant’s plea. The plaintiff must not introduce new cause of action.
The replication is provided for in Rule 47 of the High Court and in Rule
21 of Magistrates Court. Where the plaintiff does not within the specified
period deliver a reply, he shall be taken to have denied all the allegations
of fact contained in the plea.
7. Exception
An exception is legal objection to the pleading, the objection being that
the pleading is not legally valid for its purpose. The defect should be
apparent ex facie the pleading is then said to be excipiable. If the
exception is brought where the pleading is not apparent ex facie, the
exception will be bad in law. It may result in the dismissal or setting aside
of the claim or defence.78
74
Ibid,p.213.
75
Ibid,p.213
76
Ibid,p.213
77
Ibid,p.213
78
53
Unit 4 Applications
2 grounds for bring an exception:

 a pleading does not disclose a cause of action or defence (Rule
57(2) of the High Court)
 the pleading is vague and embarrassing (Rule 57(6) in the High
Court).
A pleading is vague and embarrassing if capable of more than one

meaning- ambiguous. Rule 17 and 19(14) of Magistrate Court makes
provision for an exception to a plea.
7. Close of Pleadings
 Once issues have been defined, pleadings close (known as litis
contestatio)
 Preparation for trial begins
 No further pleadings may be delivered after litis contestatio
 Rule 21(4) of Magistrates Court rules
 Rule 51 in the High Court.
Pleadings are deemed to be closed:

 If any of the parties joined issue without alleging any new matter and
without adding any further pleadings;
 If the last day allowed for filing a replication or subsequent pleading
has elapsed and it has not been filed;
 If the parties agree in writing that the pleadings are closed and such
agreement is filed with the Registrar of the High Court.
 If the parties are unable to agree as to the close of pleadings, and the
court, upon the application of a party declare them closed.
Unit summary
In this unit you learned you have learned about defended and undefended
actions. You have learned about the circumstances in which default
judgment may be applied for as well as when one may apply for summary
judge. In this unit, you have also learned about pleadings such as a plea,
Summary special plea, replication and exceptions.
It is important for you to note when certain pleadings need to be filed and
how as well as the procedure to be followed.
54
CIVIL PROCEDURE
References
Magistrate’s Cour t, Juta & Co, Cape Town, 5th Ed.
References
Hebstein and Van Winsen (1979) The Civil Practice of the Superior Courts in
South Afric a 3rd Ed.
South Africa’, Volume 1, The Act and Volume 2, The Rules by Baker,
55
Unit 5 Pre-Trial, Trial and Post-Trial
Unit 5
Pre-Trial, Trial and Post-Trial

Introduction
In this section, you will learn about the preparation for trial. After
pleadings have closed, the issues between the parties are clear. The
parties must now begin their preparation for trial. The matter is down for
trial.
At this stage both parties are now aware of what has been admitted and
what has been placed in issue. The legal representative of the parties must
now decide what evidence is required to prove the allegations made in the
pleadings in order to support the cause of action or defence.
Once it has been decided what evidence is required for the case, the next
step is to obtain such evidence. During this process, it may be necessary
to subpoena witnesses to ensure their attendance at trial, collect all the
documents needed for evidence as well as any exhibits, plans,
photographs etc.
Preparation for trial also involves a process known as Judicial Case

Management.
At the trial, the parties will present their arguments before open court,
call their witnesses, examine, the opposing party will then cross examine
the witnesses. All the evidence is presented before court, once closing
arguments have been made before court, the judge or the presiding officer
will then consider all the evidence, testimonies as well as submissions
made on behalf of all the parties. After this, the judgement or order will
be handed down.
 discuss steps that must be taken before trial;
 discuss discovery in the magistrates court and high court and its
purpose;
Outcomes
 discuss how discovery is done;
56
CIVIL PROCEDURE
 explain judicial case management;
 describe trial, interest and costs;
 distinguish between appeals and reviews.
Students must read:
Rule 23, 24 and 26 of the Magistrates Court

Prescribed reading Rules 28, 29 and 30 and 31 of the High Court
South African Sugar Association v Namibia Sugar Distributors (Pty)

1999 NR 241
University Press, and Southern Africa

Hebstein and Van Winsen (1979) The Civil Practice of the Superior
Courts in South Africa 3rd Ed.
Discovery:
a pre-trial procedure in a lawsuit in which each
Terminology party, through the law of civil procedure, can
obtain evidence from the other party or parties by
means of discovery devices such as interrogatories
and requests for production of documents,
57
Subpoena:
A subpoena witness summons is a writ issued by a
government agency, most often a court, to compel
testimony by a witness or production of evidence
Court a quo: The court against whose decision an appeal is

noted
Court of first instance: The court before which a matter was first heard
Full bench:
Usually three judges of the relevant division
1.Discovery 79
Discovery is meant to provide the evidence that supports the material
allegations in the pleadings. It also allows and facilitates settlement
discussions. It ensures that: there is no trial by ambush. Parties, through
discovery, have the opportunity to inspect documents before such
document is used at trial. It prevents parties from being surprised by all
sorts of “new” evidence at the trial.
The general rule is that, if you do not discover, you cannot use it. This
means that no party may for any purpose use a document at the trial if the
document has not been disclosed previously. The other party who was not
obliged to discover such document, will however be entitled to use such
document at the trial.
Note that tape recordings are treated as documents and must also be
disclosed.
1.1.Discovery in the High Court80

Rule 28 of the High Court provides for discovery. In the Magistrates
court, discovery is provided for by rule 23 and 24. It is a procedure that
allows both the plaintiff and the defendant to share all supporting
documents or evidence that will prove or disprove their claim or defence.
Rule 29 in the High Court provides for expert witness, you cannot use an
expert witness unless you were granted permission. You must request
permission to use an expert witness. In terms of rule 29, indicate the
name, qualification, field of expertise, and summary of his opinion.
79
South African Sugar Association v Namibia Sugar Distributors (Pty) 1999 NR
241.
80
Rule 28, Rules of the High Court of Namibia, 2014.
58
CIVIL PROCEDURE
Rule 30 provides that you can have a court appointed expert.
1.2.Discovery in the Magistrates Court

In the Magistrates court, provision for discovery is made in Rule 23, 24
and 26. Rule 23 stipulates that discovery has to be made after close of
pleadings but not later than 14 days before the trial. Either party may
deliver a notice to the other party calling on him or her to deliver a
schedule specifying the books and documents in his possession or under
his or her control which relate to the action and which he intends to use in
the action or which tend to prove or disprove either party’s case.
Rule 24 makes provision for medical examinations, inspection of things,

expert evidence and tendering in evidence any plan, diagram, model or
photograph.
Rule 26 relates to compelling the attendance of any person to give

evidence or to produce any document by subpoena, issued by the clerk of
the court and sued by the party requiring the attendance of such person.
1.3.Failure to discover81
In the High Court, if a party fails to make discovery, the other party may
apply to the court for an order to compel discovery. If discovery is
insufficient, the other party must make use of Rule 28 and if the other
party still fails to make discovery, the court may order sufficient
discovery and at further default thereof, the court may upon application to
strike out the claim of defence.
1.4.How to discover82
The party who wishes to discover documents relevant for the trial must
file a discovery affidavit as well as a discovery bundle.
It is essential that the documents be sorted in proper chronological order,

paginated and supplied with an index. Clear copies must be made for the
other party, counsel, the witnesses and the court.
81
82
Ibid, p.266.
59
1. What is discovery?
2. Which rules refer to discovery in the Magistrates and High Court?
3. What is a discovery affidavit?
Activity 1
4. What happens if any of the party to the action fails to discover?
5. Is it possible for a party to the proceedings to make use of a
document which he/she has not discovered? Why?
1. Discovery is a pre-trial procedure where the parties make available

the evidence that they will be using in the trial. The object of
discovery is to ensure that before trial both parties are made aware of
all the documentary evidence that is available. By this means the
Feedback issues are narrowed and the debate of points which are indisputable is
eliminated.
2. In the Magistrates Court, rules 23, 24 and 26 deal with the discovery
of evidence. In the High Court, Rules 28- 30 relates to discovery
matters.
3. Discovery is made on oath by way of an affidavit to which is attached
a schedule of the documents and/or tape recordings. The affidavit
delivered by the party making discovery, specifies any documents or
tape recordings in his possession. Having perused the discovery
affidavit, a litigant may then, by way of notice, call upon his
opponent to make available for inspection any documents set out in
the discovery affidavit.
4. If a party fails to make discovery, the other party may apply to the
court for an order to compel discovery.
5. No, no document which has not been discovered may be used at the
trial by the arty who failed to discover such document. It ensures that:
there is no trial by ambush.
2.Judicial Case Management

What is the meaning of judicial case management? It is a civil litigation
process in which:
(a) a judge controls the pace of litigation;
(b) the parties are required to cooperate with the court to, through early
and thorough preparation, identify the real issues in dispute (both as to
law and fact);
60
CIVIL PROCEDURE
(c) the interest of the administration of justice requires that costs are
limited as far as possible and that hearings take place on the dates
assigned by the court for a matter;
(d) parties are required to make early and automatic discovery without the
need for being called upon to do so.”83
The objectives of judicial case management are, inter alia, to identify

issues in dispute at an early stage which brings about obligations for
parties and their legal practitioners to assist the managing judge in
curtailing proceedings by confining the issues of fact and law which are
in dispute between the parties resulting in the pre-trial order to be
prepared by the parties. The same rules also caution that issues, evidence
and objections not set out in a managing judge’s pre-trial order are not
available to the parties at the trial or hearing.84
2.1.High Court
In the High Court, rules 22- 27 makes provision for judicial case
management. There are three conferences involved in this process:
a Case planning conference –Rule 23
b Case management conference- Rule 25
c Pre-trial conference – Rule 26
In between, you will find status hearing, to determine progress, update or

status on a particular process between the parties, at the request or
direction of the two parties or the managing judge.
Pre-trial conference is an indication that the matter is ready for trial and
must prepare a pre-trial report. This report indicates
 What are the issues of fact;
 What are the issues of law;
 What are the issues in dispute;
 The witnesses: are they voluntary or is there a need to subpoena
witnesses?
The judge will issue a pre-trial order, which indicates:
 The date
 All the issues set out by the parties.
83
I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC (I
601-2013 & I 4084-2010) [2014] NAHCMD 306 (17 October 2014) at 26.
84
Scania Jinance Southern Africa (Pty) Ltd v Aggressive Transport CC (I
3499/2011) [2014] NAHCMD 57 (19 February 2014).
61
2.2.Lower court
Section 54 (1) provides as follows:
“Pre-trial procedure for formulating issues
54. (1) The court may at any stage in any legal proceedings in its
discretion suo motu or upon the request in writing of either party
direct the parties or their representatives to
appear before it in chambers for a conference to consider -
(a) the simplification of the issues;
(b) the necessity or desirability of amendments to the pleadings;
(c) the possibility of obtaining admissions of fact and of documents

with a view to avoiding unnecessary proof;
(d) the limitation of the number of expert witnesses;
(e) such other matters as may aid in the disposal of the action in the
most expeditious and least costly manner.”85
Rule 25 of the Magistrates court relates to the pre-trial conference in the

Magistrates court. It states that the request for pre-trial conference may be
made in duplicate to the clerk of court and should indicate generally the
matters which are desired to be considered at such conference.
3. Trial
All cases are set down for trial.86 At the trial, the rule of practice is that
he who alleges (usually the plaintiff) has the duty to begin. The burden of
proof in civil matters is on a preponderance of probabilities. Each party
presents its case to the court orally.
If the burden of proof is on the plaintiff, his or her legal representative

will address the court first and briefly outline what he or she intends to
prove. The plaintiff must present all the evidence that supports all the
elements of their cause of action. The plaintiff calls witnesses to support
its case. After a witness has given evidence, the defendant’s legal
representative may cross-examine him or her.87 The plaintiff’s legal
representative will re-examine the witness to minimize or eradicate
problems or ambiguities which have arisen from cross-examination. Once
85
Magistrates’ Courts Act 32 of 1944 (SA).
86
Rule 22 in terms of the Magistrates Court and Rule 26(9)(b) of the High Court.
87
62
CIVIL PROCEDURE
the plaintiff is satisfied that they have made their case, they may close
their case.88
At the end of the plaintiff’s case, the defendant has two options; he or she
may apply for an absolution from the instance or present evidence.
Absolution from the instance means that the defendant believes that the
plaintiff has not made out a case and has no prima facie case for the
defence to answer. If this is not requested or granted, the defendant’s
legal representative will briefly outline the facts he or she intends to
prove and will call witnesses. All the defence witnesses may be cross-
examined by the plaintiff’s legal representative. The defendant may close
their case once they believe they made out their case.89
The judgment may be given immediately or the trial is postponed for the
judge to consider the evidence and give judgement at a later date.
4. Judgements, Interests and Costs

4.1.Judgement
At close of trial, the court may a decision called a judgement based on the
law and evidence.90
a) Absolution from the instance
b) Judgement for the plaintiff
c) Judgement for the defendant
4.2.Interest
Claims sounding in money attract interest. Interest is an amount of money
calculated as a percentage of the original debt. The sum of money
comprising of the original debt is known as the capital amount. The
percentages at which interest accrues on the capital amount and the
period over it is calculated vary. These two aspects together comprise
what is called the rate of interest.91
Interest is payable from the time the debt becomes due for payment to the
time the debtor actually pays the debt in full.92
88
Ibid, p. 301.
89
Ibid, p.303.
90
91
Ibid, p.321.
92
Ibid, p.321.
63
4.3.Costs
Legal costs are the fees charged by a professional, for example, legal
practitioners for personal services rendered on the instructions of the
client, the costs are considered as a subsidy in respect of quantifying what
is due and payable to the opposing party.93
The purpose of costs is to indemnify a successful litigant for the expenses

actually incurred for having been unjustly compelled to initiate or defend
litigation. Costs are intended to mitigate the costs that a winning party
spends to recover what they expended to institute proceedings against the
losing party.94
A court has a wide discretion when awarding costs. Factors which play a
role and which are considered by the court are the conduct of the parties
and any fact which may be relevant.
Types of costs:
Party-and-party costs95
These are costs which have been incurred by a party to legal proceedings
and which the court orders the other party to pay him or her. They only
include such costs, charges and expenses as were incurred in the actual
litigation and which are allowed by the Taxing Master.
Attorney-and-client costs96
Attorney-and-client costs are payable by the client to his or her attorney.

The liability of a client to pay costs to his or her attorney arises from the
contractual relationship between them and is unrelated to the outcome of
the legal proceedings. These costs include remuneration and expenses
incurred by the attorney in the execution of his client’s instructions.
Costs de bonis propriis97
Costs awarded against a professional that is negligent in the conduct of

his work. A good reason for this type of costs would be lack of bona
fides, unreasonable or improper conduct. The order must be specifically
requested at trial.
The general principles regarding the awarding of costs may be

summarised as follows:
1. As general rule, the successful party is entitled to his or her costs
93
Ibid, p.326.
94
Ibid, p.326.
95
96
Ibid, p.333.
97
Ibid, p.335.
64
CIVIL PROCEDURE
2. In determining who the successful party is, the court must look at the
substance of the judgement and not merely the form.
3. The court may in its discretion, deprive a successful party of part, or
all, of his or her costs, taking into account any misconduct,
unnecessary steps taken, excessive demands and the conduct of the
litigation.
5.Appeals and Reviews

A litigant who is not satisfied with the decision of a court of first instance
may appeal against such decision to a higher court. Appeals focus on the
merits of the judgement itself. The aim of appeal is to have the judgement
of the court a quo set aside. A decision which is not final cannot be
appealed. An appeal must be noted within a particular period.98
Review is aimed at the method or procedure by which the judgement was

obtained. Reviews are decisions of the lower courts or tribunals that are
brought into question in higher courts where grave irregularities are
found to be occurring or have occurred in these lower courts o
tribunals.99
In the case of reviews, the applicant is not bound by the record. Often the
applicant’s objections regard irregularities, or bias on the part of the
presiding officer. Furthermore, a review need not be brought within a
fixed period, it must however be brought within a reasonable time.100
98
99
Ibid, p.375.
100
Ibid, p.375.
65
Unit summary
In this unit you learned about the steps to preparation for trial. You have
learned about discovery, how to discover and what steps to take if the
opposing party fails to discover. You have further learned about judicial
case management in the High Court as well as in the Magistrates Court.
Summary Lastly, you have learned about judgement costs and interests.
References
References
Hebstein and Van Winsen (1979) The Civil Practice of the Superior Courts in
South Africa 3rd Ed.
South Africa, ’ Volume 1, The Act and Volume 2, The Rules by Baker,
66
CIVIL PROCEDURE
Unit 6
Debt Collection Procedures

Introduction
In this unit we consider the procedures used to enforce the judgements. In
order to enforce judgement, one may issue a warrant or writ of execution.
A warrant of execution is issued when enforcing a judgement in the
Magistrates Court. If the judgement emanates from the High Court, a writ
of execution is issued in order to enforce a judgement.101
There is another procedure that may be employed for enforcing

judgements, as an alternative to issuing a writ or warrant of execution.
Section 65 procedure is used for collection of debts in the Magistrates
Court. In terms of section 65 of the Magistrates Courts Act,102 a
judgement debtor may be brought to court in order that the court may
conduct an enquiry into his financial affairs. If the court reaches the
conclusion that the debtor can afford to pay the judgement debt in
instalments, the court will make an order to this effect.103
Apart from writs and warrants of execution, and the section 65

procedures, we will also consider settlement, provisional sentence and
arrest tanquam suspectus de fuga as well as consent and confession to
judgement and lastly interpleader proceedings.
 explain writs and warrants of executions;
 explain settlement;

 Outcomes  elaborate provisional sentence;
 describe and discuss the procedure of arrest tanquam suspectus de
101
University Press, and Southern Africa.p.379.
102
Act 32 of 1944.
103
67
Unit 6 Debt Collection Procedures
fuga;
 distinguish between consent and confession to judgement;
 describe interpleader proceedings.
Prescribed reading

Additional reading
Magistrates Court Act of 1944.
Nulla bona return:

Denotes the return of a writ of execution
signifying that the officer made a strict and
diligent search but was unable to find any property
Terminology of the defendant liable to seizure under the writ
Execution:
The execution of judgment is the act of getting an
officer of the court to take possession of the
property of a losing party in a lawsuit, called the
judgment debtor, on behalf of the winner, called
the judgment creditor, sell it and use the proceeds
to pay the judgment.
Attachment: The legal process of seizing property to ensure

satisfaction of a judgment. The document by
which a court orders such a seizure may be called
a writ of attachment or an order of attachment.
68
CIVIL PROCEDURE
1. Writs and Warrants of Execution

1.1.High Court
A.Writ of execution in the High Court
Execution of judgements in the High Court is dealt with by Rules 104 –
110:
1. Rule 104 deals with execution in general
2. Rule 105 deals with execution against movable property in general.
3. Rule 106 deals with execution against incorporeal property, liens and
real rights.
4. Rule 108 and 109 deals with execution against immovable property.
The registrar of the High Court will not issue a writ of execution against a
judgement debtor’s immovable property until he is certain that the
judgement debtor does not possess sufficient movable property to satisfy
the amount of the judgement debt.104 This basically means that before
you issue a writ of execution against judgements debtor’s immovable
property, you must first issue a writ against his movable property. Once
the sheriff finds that the judgement debtor does not have sufficient
movable property to satisfy the judgement debt, he issues a nulla bona
return.105 Once the nulla bona return has been issued by the sheriff, one
may then proceed and issue a writ of execution against the debtor’s
immovable property.106 The judgement debtor’s immovable property
may then be declared specially executable.
B. Attachment and sale of movable property

Once a writ has been issued by the registrar, it must be delivered to the
sheriff of the High Court who is responsible for making the
attachment.107 The sheriff will proceed to the residence or place of
employment of the debtor. Once the sheriff arrives at the judgement
debtor’s residence or place of employment:
104
105
Ibid, p.382.
106
Ibid, p.382.
107
Ibid, p.383.
69
1. He must first demand satisfaction of the writ. If the judgement debtor

responds by paying the full amount set out in the writ, then that is the
end of the matter.108
2. If the judgement fails to satisfy the writ, the sheriff must demand that
the judgement debtor must point out as much of his movable and
disposable property as is sufficient to satisfy the writ.109
3. If no movable property belonging to the judgement debtor is pointed
out to the sheriff, he must search for such property.110
Once the sheriff has located attachable movable property, he must make
an inventory and take the property into his custody. The goods must be
sold by public auction . The details of the auction are advertised in two
local newspapers circulating in the district in which the property has been
attached.111
C.Attachment and sale of immovable property

In terms of Rule 108 of the High Court, in order to execute against
immovable property, the debtor’s movable property must have been
executed or the immovable property must have been declared specially
executable.
Once the immovable property has attached, the execution creditor must
instruct he sheriff to proceed with the sale. The sheriff will then appoint a
date for the sale of the property.
The execution creditor must publish the notice of sale in one newspaper
that circulates in the district in which the property is situated as well as
the Government Gazette, not less than five court days and not more than
15 court days before the date of sale.
Not less than 20 days before the date of the sale the execution creditor
must prepare conditions of sale, which must be submitted to the sheriff
for approval. The sheriff must be provided with two copies of the
conditions of sale. One copy will lie for inspection by any interested party
at the sheriff’s office.
On the date of the sale, the property will be sold by public auction.
108
109
Ibid, p.383.
110
Ibid, p.383.
111
Ibid, p.383.
70
CIVIL PROCEDURE
2. Magistrates Court
A. Warrant of execution in the Magistrates Court
In the Magistrates court, warrants of execution are used as opposed to
writs of execution in the High Court. There are three types of warrants in
the Magistrates court:
 Warrant of ejectment112 deals with a claim for ejectment of a person
from a property, the sheriff removes the person from the premises.
 Warrant for delivery of goods:113 the claim is for delivery of certain
property- the sheriff removes the property from the defendant and
gives it to the plaintiff.
 Warrant of execution against property:114 this is a normal money
claim, the sheriff attaches the property which is then sold in execution
and proceeds of the sale are given to the plaintiff.
In terms of rule 36 of the Magistrates Court, the process for execution of

any judgement for the payment of money, for the delivery of property,
movable or immovable, for ejectment shall be by warrant issued and
signed by a clerk of court, addressed to the messenger.
Section 66 stipulates that a warrant of execution against movable

property may be issued after judgement and if no sufficient movable
property is found, a warrant against the immovable property may then be
issued.
The execution creditor may issue a warrant against the immovable

property immediately after judgement where the court on good cause has
authorised such a warrant or if the creditor has sued for the outstanding
balance on a mortgage bond and the court has ordered the mortgaged
property specially executable.
In practice, a warrant of execution is lodged with the clerk of court

together with the request for default judgement.
B.Attachment
Once the warrant has been issued and handed to the sheriff for execution,
the sheriff will proceed to the residence or the place of employment of the
judgement debtor. Once the sheriff arrives at the judgement debtor’s
112
113
Ibid, p.388.
114
Ibid, p.388.
71
residence or place of employment, the following procedure is

followed:115
1. The sheriff must first demand satisfaction of the writ by exhibiting
the original warrant of execution and hand a copy to the judgement
debtor. If the judgement debtor responds by paying the full amount,
that is the end of the matter.
2. If the judgement debtor fails to satisfy the writ, the sheriff must
demand that the judgement debtor point out as much of his movable
property as is sufficient to satisfy the writ.
3. If no movable property belonging to the judgement debtor has been
pointed out to the sheriff, he must search for the property.
The sheriff will issue a nulla bona return which indicates that insufficient
movable property exist to discharge the debt.
After attachment, the property is sold in execution on a date, appointed

by the sheriff, which is not less than 15 days after the attachment. The
sheriff will appoint a day for the sale and a notice of sale will be
advertised. If the sheriff is of the opinion that the value of the goods
exceeds N$ 5 000, then the notice must be published in a newspaper
circulating in the district at least 10 days before the sale. Notice of
attachment should be given to interested parties.116
Describe the process for execution in the High Court?
What is nulla bona return?

Activity 1
What are the three types of warrants in the Magistrates Court?
115
116
Ibid, p.391.
72
CIVIL PROCEDURE
1. In the High Court, a writ of execution has to be issued against the

movable property first, once the sheriff finds that there are no or
insufficient property to satisfy the debt after demanding satisfaction
of the judgement, he searches the residence for any disposable
Feedback property that may attached. If no property has been found, he then
issues a nulla bona return. The judgement creditor will then proceed
with issuing a writ of execution against the immovable property of
the judgement debtor in order for the immobile property to be
declared specially executable.
2. It denotes the return of a writ of execution signifying that the officer
made a strict and diligent search but was unable to find any property
of the defendant liable to seizure under the writ
3.
4. There are three types of warrants in the Magistrates court:
i Warrant of ejectment deals with a claim for ejectment of a person
from a property, the sheriff removes the person from the premises.
ii Warrant for delivery of goods: the claim is for delivery of certain
property- the sheriff removes the property from the defendant and
gives it to the plaintiff.
iii Warrant of execution against property: this is a normal money
claim, the sheriff attaches the property which is then sold in
execution and proceeds of the sale are given to the plaintiff.
73
3. Section 65 proceedings
3.1.Section 65A
Section 65 proceedings creates the procedure to bring a debtor before the
court for a financial inquiry to enable the court make an order for the
payment of a debt in instalments.117
In section 65A(1) Notice must be served on the debtor by the sheriff at

least 7 days before the hearing. Notice must be served on the debtor by
the sheriff
In terms of section 65A(2), the creditor must send a letter by registered

mail. The letter must set out the terms of the judgement and require the
debtor to pay the debt within 10 calendar days from the date of posting
the letter. After expiration of the 10 days the creditor may issue a notice
in terms of section 65A(1).118
The notice calls on the judgement debtor to come to court to attend an

enquiry into his financial position. The notice must be supported by an
affidavit by the judgement creditor or a certificate by his attorney stating
in what respect the judgement debtor has failed to comply with the
judgement or the order referred to in Section 65A(1) of the Act, the
amount in arrears and outstanding balances on the date upon which the
notice is issued.119
The financial enquiry is held in the Magistrates chambers. If the

judgement debtors ignores the notice to attend the financial enquiry and
fails to appear in court for the financial enquiry on the date set out in the
notice, the judgement creditor may request the court to authorise the issue
of a warrant directing the sheriff to arrest the judgement debtor. If the
court authorises the warrant, the judgement creditor may prepare a
warrant, have it signed by the clerk of court and then deliver it to the
sheriff, who will go out and arrest the judgement debtor.120
Once the judgement debtor has been arrested he must be brought before
court, a summary enquiry will be conducted, after the summary enquiry
has been held, the court will proceed with the enquiry into the debtor’s
financial affairs.121
If the court establishes that the debtor can afford to pay off a certain
amount per month, it will order him to do so.
117
118
Act 32 of 1944.
119
120
Ibid, p.403.
121
Ibid, p.403.
74
CIVIL PROCEDURE
3.2.Section 65J122
An emolument attachment order may not be issued in terms of this
section:
a Unless the debtor has consented thereto in writing or the court
has so authorized, whether on application to the court or
otherwise and such authorization has not been suspended.
b The judgement creditor shall at the reasonable request of the
garnishee or judgement debtor, furnish him or her free of
charge with a statement containing particulars of the payment
received up to date concerned and the balance owing.
3.3.Section 65M123
Any High Court judgement sounding in money may be transferred to a
Magistrates court having jurisdiction in respect of the debtor.
The following documents are necessary:

 A certified copy of the High Court judgement
 Certificate by the creditor reflecting the outstanding amount in terms
of the judgement
 N$ 5.00 revenue stamps
 Certificate duplicate copy of the allocator of taxed bill of costs.
4. Additional Procedures
4.1.Settlement
A.Magistrates Court
In the Magistrates’ Court, when the defendant tries to settle a case he
does not pay the money to the clerk. He makes a settlement offer either
unconditionally or without prejudice.
The settlement offer is signed by either the defendant personally or by his

attorney if he has been authorised thereto in writing by his client.
122
123
Ibid.
75
An unconditional offer of settlement124 is made with regard to the entire

claim; the opposite party may accept this offer and still continue with
litigation in respect of the balance of the claim.
A settlement offer without prejudice means the party who makes the offer
denies liability. The offer is made only to try and settle the case out of
court. If the opposite party accepts this offer, litigation comes to an end
and the plaintiff cannot continue with litigation for the balance of the
claim.
A. High Court
In most instances, once discovery takes place, it creates an opportunity
for settlement discussion. Mediation is in most instances compulsory.
Parties can request for mediation; the managing judge can direct.
Mediation is conducted by a mediator, who facilitates discussion between
the two opposing parties in a friendly environment with the intention to
reach a compromise.125
The intention is not to obtain what plaintiff wanted initially, but to reach
a compromise. If mediation fails, the matter goes to court, the mediator
recommends to the managing judge and the matter goes to trial.
Rule 64 of the High Court deals with settlement which is a compromise

between two parties to avoid incurring further legal costs.
4.2.Provisional Sentence
Proceedings are instituted by way of summons calling upon a party to pay
the amount claimed or failing such payment to appear personally on a day
named in the summons not being less than 7 days after the service upon
him of such summons, to admit or deny his liability.
Provisional sentence is an unusual and extraordinary remedy. It may be

described as a hybrid, containing elements of both the action and
application procedures.126
A provisional sentence action is commenced by a provisional summons

but the pleadings at the provisional stage are in the form of affidavits.
Provisional sentence procedure may only be utilised for actions based on

a liquid document. If the defendant chooses to deny liability, he or she is
required to deliver an affidavit setting forth the grounds of his defence to
the claim. The defendant is also required to deny his signature on the
124
125
Study Rule 38 and 39 of the High Court.
126
76
CIVIL PROCEDURE
liquid document, if the defendant denies liability and delivers an affidavit

the plaintiff is required to deliver a replying affidavit.127
The court will then decide the defendant’s liability on the affidavits only.
No oral evidence may be tendered or heard during the provisional stage,
unless the defendant denies the authenticity of the signature. If
authenticity of the signature is in dispute, then oral evidence may be
heard on that respect.128
If the court refuses to grant the provisional sentence, it may mean the end
of the action. If the court grants provisional sentence, the defendant is
required to satisfy judgement before being permitted to defend the matter.
The defendant has 60 days to satisfy the judgement and give notice of his
intention to enter upon the principal case.
Requirements for the grant of provisional sentence:
i The plaintiff’s claim must be based on a liquid document.
ii The plaintiff must satisfy the court as to the onus upon him or her.
iii The defendant is unable to satisfy the court in respect of the onus
upon him.
4.3.Arrest tanquam suspectus de fuga129

Where a debtor owes money to a creditor who holds no security for the
payment of the debt, and there are reasonable grounds for believing that
the debtor is about to leave the country in order to avoid paying creditors,
the creditor could make use of a procedure known as arrest tanquam
suspectus de fuga. This literally translated means ‘an arrest as if being
suspected of being a fugitive’. The purpose of the procedure was to
prevent a person against whom a creditor intends to institute, or has
already instituted, an action, from fleeing from the jurisdiction of the
court with the purpose of avoiding or delaying payment of the claim. The
object of the arrest was not to force the debtor to pay the claim but to
ensure that he remained within the jurisdiction of the court until the court
had given judgement in the matter.130
127
Ibid, p. 428.
128
Ibid, p.428.
129
Ibid, p.438.
130
Section 30, Magistrates Court Act 32 of 1944.
77
Unit summary
In this unit you learned about debt collection procedures such as warrants
and writs of execution, provisional sentence and section 65 proceedings.
These procedures are used by the judgement creditor to ensure
satisfaction of the judgement and to compel the judgement debtor to
Summary make payment.
Other additional procedures include settlement and arrest tanquam

suspectus de fuga.
References
References
78

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STUDY GUIDE

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Getting around this study guide 6

About this study guide

How this study guide is structured

 If the course is suitable for you;

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The overview also provides guidance on:

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Your constructive feedback will help us to improve and enhance this

Welcome to CIVIL PROCEDURE

Exit Learning Outcomes

 Distinguish between the jurisdiction of the Supreme, High Court and

 Identify at least five different sources of law in civil procedure;

Exit Learning Outcomes  Describe the different stages in civil proceedings;

 List at least three kinds of reactions of defendant on receipt of

 Scrutinize section 11 of the Prescription Act 68 of 1969 with regards

Essentially, you will be taking control of your learning environment. As a

We recommend that you take time now—before starting your self-

For further assistance you can go to your nearest Regional UNAM

Please see tutorial letter for instructions on the submission of

Getting around this study guide

A complete icon set is shown below. We suggest that you familiarize

Activity Additional Answers to Assessment

Assignment Audio Case study Discussion

Exit Learning Feedback Group Activity Help

References Reflection Study skills Summary

Terminology Tip Video

Civil Procedure is part of civil law, and it is concerned with disputes

Civil Procedure is wider in scope than Criminal Procedure and more

Upon completion of this unit you should be able to:

 define cause of action;

Outcomes  define locus standi;

 explain how locus standi is determined; and

 highlight different sources of civil procedure.

Pete, S. et al (2013) Civil procedure: A practical guide (3rd.). Oxford

Paterson TJM (2005) Eckard’s principles of civil procedure in the

Rules of the High Court

Liability never originates in vacuo (in a vacuum). It is always based on a

The term cause of action is defined by means of reference to a distinction

Watermeyer J stated as follows in Abrahamse & Sons v SAR & H:3

‘The proper legal meaning of the expression “cause of action”

plaintiff must set out in his declaration (summons) in order to

Before instituting a claim, the cause of action has to be complete. To