Civ Exam Packs

CIV 3701
CIVIL
PROCEDURE
LATEST COMPLETE
REVISION EXAM STUDY
PACK
2020
CIVIL PROCEDURE
1
CIV3701
CIVIL
PROCEDURE
2020 EXAM PACK

Consists of
1. All assignments with the Memos

from 2017 up until the last
assignment of Semester 1 - 2020
2. Case Studies
3. Mock Examination Paper with
Memo
4. Longer Questions and Answers
from the previous years exam
papers
5. Civil Procedure notes already
summarised for you
2
2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S
QUESTION 1
Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor

vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in
Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due
to the collision in the amount of R500 000.
Bear these facts in mind and answer the following questions. Give full reasons for each
answer.
(a) May Peter institute proceedings for damages against Portia in the Johannesburg
High Court? (2)
When a defendant is domiciled or resident within the Republic, he or she is an
incola of the Republic, and the court where the defendant is domiciled, or resident
will have jurisdiction to hear the matter based on the principle actor sequitur forum
rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the
Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1
and 8.2.)
(b) May Peter institute proceedings for damages against Portia in the Durban High
Court? (1)
Under common law, a court will be vested with jurisdiction in respect of monetary
claims ratione rei gestae if the delict on which the claim is based was committed
within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle
accident) occurred in Durban, and Peter may thus institute proceedings. The
Durban court will have jurisdiction ratione delicti commissi. (See study guide unit
6.1.) (1)
(c) May Peter institute proceedings for damages against Portia in the Cape Town High
Court? (2)
Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court
concerned, such defendant is a peregrinus of that particular court, but because he or she is
still domiciled or resident somewhere in the Republic, such defendant is termed a local
peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts,
Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus
to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of
action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property
is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding
in money, and not a property claim. (See study guide unit 8.3.)
(d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same
facts, Portia is now an American citizen who is domiciled in New York and the flat is
situated in Pretoria? (4)
Where a defendant is neither domiciled nor resident within the borders of the
Republic, such defendant is a foreign peregrinus. In instances where the
defendant is a peregrinus of the whole Republic, a court will assume jurisdiction
only if attachment of the defendant’s property occurs. One such form of
attachment is when the plaintiff is an incola of the court concerned and
attachment of the defendant’s property has taken place (this is known as
3
attachment ad fundandam iurisdictionem). For an order of attachment to found
ANNEjuXrU
isR
diEct1i on, it is not necessary for the cause of action to have arisen within the
court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone
constitutes the ground on which the assumption of jurisdiction is justified.
On the given facts, the defendant is a peregrinus of the Republic of South Africa
and has attachable immovable property (a flat) situated within the Pretoria High
Court’s jurisdictional area. Therefore, the Pretoria High Court will have jurisdiction
to hear the matter ad fundandam iurisdictionem. (See study guide unit 8.4.2.) (4)
COMMENT:
From the above, you will note that a particular approach was adopted in answering the
questions: we started off by stating the applicable legal principle(s), then we applied
the legal principle(s) to the given facts, and finally we reached a conclusion. This
method ensures a logical and well-constructed answer, and we strongly suggest that
you adopt this approach when answering all problem-type questions.
QUESTION 2
Donald, who lives in Pietermaritzburg, buys electronic equipment from Sipho, who lives in
Pretoria. The contract is concluded in Johannesburg and the equipment is stored in a
warehouse next to the harbour in Durban, where delivery mu st take place. Donald pays
Sipho R180 000 for the equipment, but Sipho, despite demand, fails to deliver the
equipment to Donald. Bearing these facts in mind, answer the following questions. Give full
reasons for each answer.
(a) Will the magistrates’ court situated in Johannesburg have jurisdiction to hear the
action instituted by Donald against Sipho? (3)
Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a

magistrates’ court will have jurisdiction over a person if the cause of action arose
“wholly” within the area of a district or regional division. Case law has interpreted
this to mean that in respect of contractual claims, not only must the contract have
been concluded within the district or regional division concerned, but the breach
must have occurred there as well for the court to have jurisdiction.
On the given facts, the contract was concluded in Johannesburg, but the breach of
contract occurred in Durban. Therefore, the Johannesburg (district) magistrates’
court will not have jurisdiction in terms of section 28(1)(d) of the Act, as the cause of
action did not “wholly” arise within this court’s area of jurisdiction. (See study guide
unit 11.4.2.) (3)
(b) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action
instituted by Donald against Sipho? (1)
Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a
magistrates’ court will have jurisdiction to hear the matter in respect of any person
who “resides, carries on business or is employed” within its district or regional
4
division.
On the given facts, the defendant “resides” in Pretoria, and therefore, the Pretoria
(district) magistrates’ court will have jurisdiction in terms of section 28(1)(a) of the
Act to hear the matter. (See study guide unit 11. 4.2.)
(c) Will the magistrates’ court situated in Durban have jurisdiction to hear the action
instituted by Donald in terms of section 28(1)(g) of the Magistrates’ Courts Act 32 of
1944? (2)
Section 28(1)(g) of the Magistrates’ Court Act 32 of 1944 provides that the
magistrates’ court will have jurisdiction to hear a matter in respect of any person
who owns immovable property within the district or regional division in actions in
respect of such property or in respect of the mortgage bonds thereon (our
emphasis).
On the given facts, the matter is clearly of a contractual nature and does not relate
to immovable property within the district or regional division as required by section
28(1)(g) of the Act. Therefore, the Durban magistrates’ court will not have
jurisdiction in terms of this section. (See study guide unit 11.4.2.)
(d) Will any magistrates’ court have jurisdiction to hear the action instituted by Donald
to force Sipho to deliver the equipment to him without claiming damages in the
alternative? (2)
A magistrates’ court is prohibited by section 46 of the Magistrates’ Court Act 32 of
1944 to adjudicate matters in which specific performance is sought without an
alternative claim for payment of damages. However, this prohibition is subject to
the exceptions contained in section 46(2)(c)(i)-(iii), and does therefore not apply
when the delivery or transfer of property, movable or immovable, and not
exceeding in value of the amount determined by the Minister from time to time by
notice in the Gazette, is claimed. “Specific performance” has been interpreted by
the courts to refer to the performance of a contractual act only.
Equipment is clearly movable property, and as its delivery falls within the
exception provided for in section 46(2)(c)(ii), the court may, on the given facts,
make an order directing a defendant to deliver the equipment. (See study guide
unit 11.2.3.2.) (2)
QUESTION 3
Z wishes to issue summons against his neighbour, B, for defamation. Answer the following
questions. Give reasons for your answers where required.
(a) Explain why Z may not use an ordinary application to institute action against B. (2)
When legislation or the rules of court neither prescribe nor prohibit the use of application
proceedings, the final test to apply is whether there is a material dispute of fact. If there is a material
dispute of fact (or can be reasonably anticipated), the use of application proceedings is
inappropriate and will normally be penalised by way of an adverse costs order. In the present
matter, use of the application procedure is clearly inappropriate, as it stands to reason th at a
defamation case will involve a material dispute of fact. Since such a dispute can only be resolved by
hearing oral evidence, summons proceedings will be appropriate. (See study guide unit 12.6.2 and
5
12.6.3.)
(b) If B gives notice of intention to defend within the dies induciae, explain fully why Z
may not apply for summary judgment. (2)
Rule 32 of the Uniform Rules of Court and magistrates’ courts rule 14 set out the types of claim in
respect of which summary judgment may be applied for. Damages are claimed in a defamation
case, and the nature of such a claim is unliquidated. (These types of claim also fall within the
definition of a “debt or liquidated demand”.) A claim for damages clearly falls outside the
categories of claims contained in the said court rules, and therefore Z may not apply for summary
judgment. Furthermore, the rules of court provide that a plaintiff may only after receipt of a plea
on the merits apply for summary judgment. This provides a second reason why Z cannot apply
for summary judgment. (See study guide unit 23.4.)
(c) B does not wish to continue litigating, and wishes to end the litigation as soon as
possible, but without paying the full amount of the claim. Advise B how to achieve
this objective. (1)
B may offer to settle either in terms of Uniform Rule 34 or magistrates’ courts
Rule 18.
(d) Briefly explain to Z and B what the purpose is of a pre-trial conference in terms of
Uniform Rule 37. (1)
The primary purpose of Uniform Rule 37 is the shortening of the trial (thus promoting the effective
disposal of litigation). (See study guide unit 24.4.2.)
(e) When the trial starts, Z learns that an important witness is in the hospital and unable
to testify in court. Advise Z of any two possible methods by which a witness may
place his or her evidence before court. (2)
(a) Other methods by which evidence may be given if a witness cannot give evidence
in person, are –
• by affidavit;
• on commission; and
• by way of interrogatories.
Note: Naturally, factual and practical considerations will determine the most appropriate method to be
used in practice. (See study guide unit 24.5.2.)
6
ASSIGNMENT 02
QUESTION 1
Indicate the most accurate statement:
(1) The South African High Courts are creatures of statute because they are subject to
the provisions of the Superior Courts Act, 2013.
(2) The Uniform Rules of Court are a common set of rules that uniformly regulate the
conduct of proceedings in the magistrates’ courts.
(3) Since the rules exist for the courts, a court may condone a litigant’s non-
compliance with its rules.
(4) The Minister of Justice and the Rules Board may make rules relating to the manner
in which the Constitutional Court may be engaged.
ANSWER
The most accurate statement is: (3)
The rules exist for the sake of a court. This means that the rules of court are intended
to facilitate the work of the courts. Therefore, a court may condone any procedural
mistakes or determine any point of procedure. However, this does not mean that
parties may be slack in observing the rules of court, but generally the court will not be
overly formalistic and will assist parties where there is no prejudice. (See Pete et al 11
and study guide unit 2.3.2.)
Statement (1) is incorrect. The South African High Courts are said to exercise “inherent
jurisdiction”, meaning its jurisdiction is derived from common law and not from statutes
(although statutes, in certain cases, may limit or increase this jurisdiction). Lower
courts are sometimes called “creatures of statutes” simply because their exercise of
jurisdiction depends on the extent to which their enabling statutes permit them to
exercise jurisdiction. (See Pete et al 11-12 and study guide unit 2.3.1.)
Statement (2) is incorrect. The Uniform Rules of Court are a common set of rules that
regulate the conduct of proceedings in the High Court uniformly (hence, “Uniform
Rules”) and the name is of historic origin. The rules regulating the conduct of
proceedings of the magistrates’ courts are simply referred to as the magistrates’ courts
rules. (See Pete et al 12 and study guide unit 2.3.1.)
Statement (4) is incorrect. Previously, it was provided that the President of the
Constitutional Court in consultation with the Chief Justice were to make rules relating to
the manner in which the Constitutional Court may be engaged. This position has since
changed, and in terms of section 29(1) of the Superior Courts Act, 2013 (SCA) the
Chief Justice, after consultation with the Minister, may now make such rule.
7
QUESTION 2
(1) Unlike the Supreme Court of Appeal, the Constitutional Court may never be
approached directly.
(2) Disputes concerning the constitutional status, powers or functions between

organs of state in the national or provincial spheres may only be adjudicated
by the Constitutional Court.
(3) The Supreme Court of Appeal is competent to hear only non-constitutional matters.
(4) A magistrate’s court is not competent to adjudicate upon the validity of any
legislation but may pronounce upon the validity of the exercise of executive powers
by the President.
ANSWER
Section 167(4)(a) of the Constitution of the Republic of South Africa, 1996 (“the
Constitution”) specifically contains this provision, and it is one of the matters that fall
within the exclusive jurisdiction of the Constitutional Court. (See Pete et al 9 and
study guide unit 4.1.)
Statement (1) is incorrect. Section 167(6)(a) of the Constitution provides that the
Constitutional Court may, when it is in the interests of justice and with leave of the
Constitutional Court, grant direct access. On the other hand, the Supreme Court of
Appeal is a court of appeal only and is approached only after leave to appeal has been
granted. (See Pete et al 9 and study guide unit 4.1 and 4.2.)
Statement (3) is incorrect. In terms of section 168(3) of the Constitution, the Supreme
Court of Appeal may hear appeals in any matter arising from a High Court (or a court of
similar status), which includes both constitutional and non -constitutional matters. (See
Pete et al 9 and study guide 4.2.)
Statement (4) is incorrect. The Constitution, 1996 does not confer any constitutional
jurisdiction upon magistrates’ courts but provides that legislation may confer
constitutional jurisdiction on these courts, provided that they may not enquire into or
rule on the constitutionality of “any legislation or any conduct of the President”.
Furthermore, section
110 of the Magistrates’ Courts Act 32 of 1944 provides that these courts may not pronounce
on the validity of “any law” or on the validity of any conduct of the President.
8
QUESTION 3
A High Court may exercise jurisdiction to obtain an order for:
(1) Attachment ad confirmandam iurisdictionem if the defendant is a peregrinus of the

court concerned, the plaintiff is an incola of the court concerned, and attachment
has taken place.
(2) Attachment ad confirmandam iurisdictionem if both the plaintiff and the defendant
are incolae of the court concerned and attachment has taken place.
(3) Attachment ad fundandam iurisdictionem if the plaintiff is a peregrinus of the court

concerned, the defendant is a peregrinus of the whole Republic, the cause of action
occurred within the area of jurisdiction of the court concerned, and attachment has
taken place within the jurisdictional area of the court.
(4) Attachment ad fundandam iurisdictionem if the plaintiff is an incola of the

court concerned, the defendant is a peregrinus of the Republic, the cause of
action took place outside the jurisdictional area of the court concerned, and
attachment has taken place.
ANSWER
This statement satisfies all the requirements for attachment ad fundandam jurisdictionem. In regard
to attachment ad fundandam jurisdictionem, the following requirements must be met:
• the defendant is a peregrinus of the whole Republic
• attachment of the defendant's property has taken place
• the plaintiff is an incola of the court concerned, even in instances where the cause of action
has arisen outside the court's area of jurisdiction. (See Pete et al 110-111 and study guide unit
8.4.2.)
Statement (1) is incorrect. Attachment ad confirmandam jurisdictionem occurs where the defendant
is a foreign peregrinus, the cause of action arose within the court’s area of jurisdiction and
attachment of defendant’s property has taken place. A “peregrinus of the court concerned” implies
that the defendant is a local peregrinus, not a foreign peregrinus. Section 28 (SCA) also prohibits
the attachment of the property of an incola of the Republic. (Note that in this form of attachment, the
status of the plaintiff is irrelevant.) (See Pete et al 110-111 and study guide unit 8.3.)
Statement (2) is incorrect. See comments under statement (1) above.
Statement (3) is incorrect. For attachment ad fundandam jurisdictionem the plaintiff must be an
incola of the court concerned, not a peregrinus. Where the cause of action arose is irrelevant in this
instance.
(1) Section 2(1) of the Divorce Act, 1979 read with section 1(1) of the Domicile Act,
1992 provides that a court may exercise jurisdiction only if the wife is domiciled and
resident in the area of jurisdiction of a High Court on the date when the action is
instituted.
9
(2) The Roman-law rule actor sequitur forum rei means that the plaintiff must institute
action against the defendant in the High Court within whose area of jurisdiction the
defendant is a citizen.
(3) The High Court in whose area of jurisdiction immovable property is situated, has
exclusive jurisdiction in an action for the delivery of such property.
(4) A High Court will accept submission to its jurisdiction in regard to a claim sounding
in money if both parties to the action are foreign peregrini and the cause of action
occurred outside the particular court’s area of jurisdiction.
QUESTION 5
(1) A magistrates’ court may only exercise jurisdiction over the person of a defendant if
the defendant is domiciled in its area of jurisdiction.
(2) The magistrates’ court for the district of Pretoria is competent to exercise jurisdiction
if the conclusion of the contract occurred in Pretoria and the contract was breached
in the magisterial district of Johannesburg,
(3) A magistrates’ court would be competent to exercise jurisdiction if the cause

of action did not occur wholly within its district, but there is compliance with
the provisions of sections 29 and 46, and the defendant raises no objection.
(4) Section 31 of the magistrates’ Courts Act 32 of 1944 provides that an interdict
prohibiting the removal of furniture or other effects from the leased premises only
becomes effective after application is made to court in this regard.
ANSWER
Section 45 of the Magistrates’ Courts Act 32 of 1944 (MCA) gives parties the opportunity to
consent to a magistrate’s court hearing a matter between them, despite the fact that such a court
does not have jurisdiction in terms of either section 28 or 29 of the Act. However, it is important to
note that this section clearly provides that parties cannot consent to a court hearing a matter that
is excluded from jurisdiction by section 46. (See study guide unit 11.6.3.)
Statement (1) is incorrect. Section 28(1)(a) provides that a magistrates’ courts will have
jurisdiction over a defendant who “resides, carries on business or is employed” within its area of
jurisdiction. The section does not provide for domicile! In fact, domicile as a jurisdictional factor is
used only in the High Court, and students will be penalised for using incorrect terminology in the
examination. (See study unit 11.4.2.)
Statement (2) is incorrect. Section 28(1)(d) (MCA) provides that a magistrate’s court may
exercise jurisdiction if the “whole cause of action” arose in the district or regional division of a
court. This phrase has been interpreted by our courts to mean that both conclusion of contract
10
and breach thereof must occur within the same jurisdictional area of a particular court for the
cause of action to occur “wholly”. Therefore, neither of the courts mentioned has jurisdi ction in
terms of this section of the Act. (See study unit 11.4.2.)
Statement (4) is incorrect. The purpose of section 31 (MCA) is precisely to avoid having to
approach a court to obtain an interdict, and therefore a notice prohibiting the removal of
household effects from the leased premises is included in the summons: this notice acts as an
interdict and becomes effective when a summons is issued (hence the name “automatic rent
interdict”).
QUESTION 6
D, who lives in Gauteng, wishes to divorce her husband, F. F lives in a caravan and drifts
around the KwaZulu-Natal south coast where he works as a handyman, doing repairs to
holiday homes. D does not know his exact whereabouts. The summons must be served on
F by way of -
(1) Substituted service
(2) Normal service
(3) Edictal citation
(4) A combination of substituted service and edictal citation.
ANSWER
Substituted service is used when normal service cannot be effected on a defendant

who is believed to be within the borders of the Republic, but whose exact whereabouts
are unknown. In the given facts, the defendant (F) is believed to be within the Republic
(KwaZulu-Natal south coast). However, D does not know his exact whereabouts as he
“drifts” around. (See Pete et al 141; study unit 14.2.2; and Uniform Rule 4(2).)
Statement (2) is incorrect. Normal service is effected when the defendant’s

whereabouts are known within the Republic and the sheriff is able to deliver a copy of
the summons to the defendant (often personally). In the given facts, normal service in
terms of the rules of court by a sheriff will not be possible, since the defendant’s
whereabouts are unknown. (See Pete at al 134-140 and study units 14.1 and 14.2.1.)
Statement (3) is incorrect. Edictal citation is a form of service that is effected on a

defendant who is believed to be outside the Republic, even when his/her exact
whereabouts are known, and personal service is possible. The service is effected by a
person in the foreign country who is authorised by the law of such country to serve
processes and documents. On the given facts, the defendant is believed to be within
the Republic, and therefore, edictal citation will not be appropriate. (See Pete et al 141
and study unit 14.2.3.)
Statement (3) is incorrect. There is no provision for such service method in the rules of
11
court. See also the discussion of edictal and substituted service above under options
(1) and (3) above.
QUESTION 7
(1) The basic rule for the drafting of pleadings is that the material facts upon which the
claim or defence is based must be fully pleaded. Evidence is thus also pleaded.
(2) A notice of intention to defend is the first pleading delivered by a defendant who
wishes to defend an action.
(3) Whether an action is instituted by way of a combined or a simple summons,

the prescribed dies induciae for the delivery of a plea (with or without a
counterclaim) is the same.
(4) In the High Court, pleadings are deemed to be closed as soon as the plaintiff has
delivered a replication.
ANSWER
The rules of court lay down the dies induciae for the delivery of a plea on the merits,
regardless of the summons by which action is commenced. It is merely the starting
point for calculating the dies induciae which differs according to the summons used:
thus, either after service of a declaration, or after delivery of a notice of intention to
defend, as the case may be. (See Uniform Rule 22; rule 17 of the magistrates’ courts
rules; Pete et al 202-203; and study guide unit 20.3.)
Statement (1) is incorrect. The basic rules for the drafting of pleadings require that the
material facts upon which a claim, defence or reply is based, must be clearly and
concisely stated, and evidence must not be pleaded. (See Uniform Rule 18;
magistrates’ courts rules 17 and 20; and study guide unit 19.4.)
Statement (2) is incorrect. A notice of intention to defend is a notice that informs the
plaintiff that the defendant intends to defend the action. It is therefore not a pleading,
but a process, as it contains no averments by the defendant to an action relating to the
factual basis of his or her defence. (See Pete et al 198-199 and study guide unit 20.2.
See also study guide unit 19.2 for a discussion of the distinction between a pleading
and a process.)
Statement (4) is incorrect. Uniform Rule 29(b) specifically states that pleadings are
considered closed if the last day allowed for filing a replication or subsequent pleading has
elapsed and filing has not taken place.
12
QUESTION 8
“A court has a wide discretion when awarding costs after passing judgment.” This
statement implies the following:
(1) A party who loses a case will be ordered to pay the winner’s costs.
(2) A party who wilfully destroys documents beneficial to his opponen t’s case, may be
ordered to pay costs de bonis propriis.
(3) A party who continues to defend a matter during trial despite knowing that he
or she is liable for payment of the full amount claimed, may be ordered to pay
attorney- and-client costs.
(4) A party may be awarded party-and-party costs if the court is of the opinion that it is
unreasonable to deprive such a party of costs reasonably incurred before issue of
summons.
ANSWER
Attorney-and-client costs is awarded to a party when the party has conducted himself or herself in a
reckless, vexatious or malicious manner, or where the party has been dishonest or fraudulent in
conducting the trial. Therefore, a party who continues to defend a matter during trial despite kn owing
that he or she is liable for full payment, is conducting himself or herself in a reckless or vexatious
manner and may be ordered to pay attorney- and-client costs. (See Pete et al 333 and study guide
unit 25.4.1.)
Statement (1) is incorrect. That the party who loses a case will automatically be ordered to pay the
winner’s costs, is by no means a foregone conclusion. The awarding of costs is in the court’s
discretion. Thus, a “successful party” (that is usually awarded costs) is not necessarily the party in
whose favour judgment is given. (See Pete et al 327 and study guide unit 25.4.)
Statement (2) is incorrect. Costs de bonis propriis is awarded against a person who acts in a
representative capacity (such as a legal representative or an executor). Therefore, a party (not
acting in a representative capacity) who wilfully destroys documents beneficial to his opponent’s
case may be ordered to pay attorney-and-client costs, not costs de bonis propriis. (See Pete et al
335 and study guide unit 25.4.3.)
Statement (4) is incorrect. Party-and-party costs are costs that have been incurred by a party during
legal proceedings which the court orders the other party to pay him or her. The costs are awarded
for legal proceedings that have commenced. Therefore, costs incurred before the issue of summons
are costs incurred for a party’s own account and payable to his or her attorney in terms of the
mandate given to the attorney.
13
QUESTION 9
In the High Courts the position is as follows --
(1) Pleadings are deemed closed only after the plaintiff has filed his or her replication.
(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a

replication in reconvention.
(3) An exception may be raised only against a declaration or the particulars of claim.
(4) It is possible to inspect a clearly specified document or tape recording in a

party’s possession and relating to a reasonably anticipated issue in the
action before the close of pleadings.
ANSWER
Uniform Rule 35(14) specifically provides for this situation where an opponent refers to
documents or tape recordings in pleadings and affidavits, and a party would need
copies thereof for purposes of pleading. This provision forms an exception to the rule
that discovery is possible only after close of pleadings. (See Pete et al 226; Uniform
Rule 35(14); and study guide units 24.3.6 and 24.4.4.)
Statement (1) is incorrect in two respects. Uniform Rule 29 sets out four instances
when pleadings are deemed closed. Therefore, it is clearly incorrect to state that
pleadings are deemed closed “only” (after a certain event occurs). Be careful of so-
called absolute statements. (Statements containing words such as “only”, or “always”
are absolute statements and should be carefully considered, because, depending on
the statement, more often than not exceptions may apply or there may be several
options, etcetera available, thus rendering the statement incorrect.) Furthermore,
Uniform Rule 29(b) specifically states that pleadings are considered closed if the last
day allowed for filing a replication or subsequent pleading has elapsed and filing
has not taken place. This particular instance was thus stated in too narrow terms, and
this option could only have been eliminated had students consulted the particular court
rule. (See Pete et al 223-224 and study guide unit 20.4.)
Statement (2) is incorrect. When a defendant files a counterclaim, the claim in

reconvention is introduced. The plaintiff (who is now the defendant in reconvention),
should respond to the counterclaim of the defendant (now the plaintiff in reconvention),
by filing a plea on the merits in reconvention (and not a replication in reconvention!).
As in the case in convention where a defendant must respond to the plaintiff’s claim, so
must a defendant in reconvention also respond to the claim in reconvention. If not, he
or she runs the risk of having a default judgment being granted against him or her.
Note: a replication is used only when a defendant (either in convention or
reconvention) raises new facts in a plea on the merits which require a response from
the plaintiff (either in convention or in reconvention). (See Uniform Rule 25(1) and (2),
as well as study unit 20.4.)
14
Statement (3) is incorrect. A party may in terms of the court rules raise an exception to any pleading if
that pleading is (a) vague and embarrassing, and/or (b) does not disclose a cause of action or defence.
Clearly the ambit of the statement is too narrow, as a defence is raised in a plea on the merits. Again, note
the word “only”!
QUESTION 10
(1) The heads of argument, as the name suggests, simply consists of the advocate’s
main points of argument to the court.
(2) Both appeals and review proceedings are instituted by way of notice of motion.
(3) A party who is dissatisfied with the result of a trial may take the matter on review.
(4) Only proceedings of lower courts and quasi-judicial bodies are subject to review.
ANSWER
Section 21(1)(b) of the Superior Courts Act, 2013 authorises the High Court to review
the proceedings of lower courts, while the High Courts have inherent jurisdiction to
entertain all causes arising within their jurisdictional areas. This includes the reviewing
of proceedings of any body or tribunal empowered to perform statutory duties, as well
as of quasi-judicial bodies. (See study guide units 27.3.1 and 27.3.2.)
Statement (1) is incorrect. The heads of argument comprise the main points to be
made in counsel’s address to court, as well as a list of the authorities to be quoted in
support of each point. Clearly, heads of argument comprise more than the option
statement suggests. (See study guide unit 28, activity question (4)).
Statement (2) is incorrect. An appeal must be noted and prosecuted according to

statutory provisions, supplemented by the rules of court. Reviews, on the other hand,
are brought on notice of motion. (See s 16 and 21 of the Superior Courts Act, 2013;
Pete et al 362- 365; and study guide units 27 and 28.)
Statement (3) is incorrect. An appeal is aimed at the result of a trial, whereas a review is aimed at the
method by which results is obtained (in other words, the proceedings of a court are reviewed).
Consequently, a party who is dissatisfied with the result of a trial must lodge an appeal
15
2019-ASSIGNMENT 1
SEMESTER 1
QUESTION 1
Briefly explain in which important respects ADR processes are distinguished from formal
litigation. [7]
ADR processes are distinguished from formal litigation in the following important
respects:
• Unlike the process of litigation which is based on strict rules of procedure for
the conduct of proceedings, ADR processes are informal as the disputants
themselves determine the rules for the specific process
• ADR processes are flexible in the sense that they can be adapted to suit the
needs of types of disputes, whereas litigation processes are not only formal,
but highly technical
• Except where ADR processes are court connected, they are described as
voluntary because the disputants choose to enter the process, unlike in
litigation
• In ADR processes the outcome is reached through the consent of both

disputants (it is thus consensual), whereas the outcome in litigation (typically
the judgment) is imposed on the litigants by a judicial officer (and is enforced
by execution proceedings)
• ADR processes deal with the interests of the disputants, while in litigation the
rights of litigants are protected and enforced
• ADR processes emphasis the relationship between the disputants 9 is thus

relational) and strive to maintain such relationships. Litigation is often
criticized for its adversarial nature and the consequent breakdown in
relationships that often occur
• Apart from arbitration, ADR processes do not concentrate on and apportion

blame for past events, but rather seek to establish or re-establish future
relationships between disputants. It is thus future orientated. By contrast, the
purpose of litigation is to obtain a judgment against the litigant who caused the
injury or other wrong.
COMMENT:
From the above it is evident that because litigation is a process that is provided by
the state through the court system, it may be characterized as a public process.
By comparison, ADR processes are clearly private processes.
16
QUESTION 2
X, who lives in Cape Town, owns a fishing trawler. Y, who provides several restaurants and
hotels in Durban with pre-packaged fish, lives in Durban. X and Y conclude a contract in
Durban in terms of which X has to deliver 800kg of fish to Y in Durban on the first day of
every month. After keeping strictly to the agreement for six months, X suddenly fails to
deliver sufficient fish, and two months later fails to deliver any fish. As a result of X’s breach
of the terms of the contract, Y suffers damages in the amount of R440 000 and wishes to sue
X.
Answer the following questions, giving full reasons for each answer.
(a) Could Y institute proceedings against X in –
(i) the Cape Town High Court (1)

Under common law, when a defendant is an incola of the Republic, the
court in whose jurisdiction area the defendant is either domiciled or
resident has jurisdiction to hear a claim sounding in money. This is
known as the exercise of jurisdiction ratione domicilii.
On the given facts, X, the defendant, is a resident of Cape Town.

Therefore, Y can institute proceedings against him/her in the Cape Town
High Court ratione domicilii.
(ii) the Durban High Court (1)

In regard to a claim relating to a contract, the court in whose area of jurisdiction the
contract was concluded, or where the contract was to be performed, or where the
contract is breached, will have jurisdiction. This is known as the exercise of
jurisdiction ratione contractus. (Under common law, this falls within the ambit of
ratione rei gestae).
On the given facts, not only was the contract concluded in Durban, it was also
where performance had to take place and where breach of contract occurred.
Therefore, Y could institute the proceedings in the Durban High Court, ratione
contractus.
(b) If the Durban High Court has jurisdiction, could Y –
(i) obtain an order for the attachment of X’s trawler for jurisdictional purposes? (1)
(i) Section 28(1) of the Superior Courts Act, 2013 (hereafter SCA) prohibits the attachment of the
property of a person domiciled or resident anywhere within the Republic for jurisdictional purposes.
Stated differently: the attachment of the property of an incola of the Republic is prohibited by this
section.
On the given facts X is an incola of the Republic (X is a resident of Cape Town). Therefore, Y may
not obtain an order for the attachment of X’s trawler for jurisdictional purposes, as it is prohibited.
(ii) issue the summons out of the Durban High Court and have it served on X in
Cape Town? (1)
17
Section 42(2) of the SCA provides that a civil process of a Division runs
throughout the Republic and may be served or executed within the
jurisdiction of any Division within the Republic. This means that the
process issued by a particular court (such as a summons or a notice of
motion) may be served within the jurisdiction of any (other) Division of the
High Court within the Republic. It also means that the judgment or order
of a particular court is enforceable within the jurisdiction of any Division of
the High Court within the Republic.
On the given facts, Y may therefore issue summons out of the Durban
High Court and have it served on X in Cape Town.
COMMENT:
Although in this instance, Durban was the centre for the conclusion, breach and the
required performance, any one of these occurrences is normally sufficient to
establish jurisdiction.
Question 2
If the action concerned a dispute over the trawler which is docked in Cape Town
harbour and X lives in Pretoria, could Y institute proceedings against X in either of the
High Courts situated in these areas? (3)
(a) Where the object of relief is a movable property, the court within whose
territorial area the movable property is situated has jurisdiction
• to determine the title of the property
• for delivery of the movable property
• to determine a real right in respect of such property
Whether the jurisdiction is exclusive, is unclear, and it is considered that the

forum domicilii of the possessor should also exercise jurisdiction.
On the given facts, the movable property (the trawler) is situated in Cape
Town. Therefore, Y may institute proceedings in Cape Town High Court
ratione rei sitae. Y may possibly also institute proceedings in the Pretoria High
Court as the defendant (as owner of the trawler) resides in the court’s area
(the forum domicilii).
COMMENT:
Our courts have not yet pertinently decided the question whether the forum rei sitae
is exclusive as far as movable property is concerned.
18
Question 3
(a) C wishes to institute action against D in the High Court in the amount of R500 000 for
goods sold and delivered to D. On the basis of these facts, determine whether the
procedures used by either C or D are correct or incorrect. Give reasons for each
answer and state what the correct procedure should be.
(i) C issues a combined summons against D. (1)
(i) The procedure is incorrect (a combined summons is used in respect of

unliquidated claims). A claim for goods sold and delivered is a claim
which falls within the definition of a “debt or liquidated demand”.
Therefore, C should have issued a simple summons.
(ii) D alleges that C owes him an amount of R40 000 in his plea on the merits. (2)
(ii) The procedure is incorrect. A plea on the merits contains the basis for the
defendant’s defence to the plaintiff’s claim as set out in the particulars of claim
or declaration. D’s allegation amounts to a claim against the plaintiff. D should
therefore have alleged that C owes him money in a counterclaim.
(iii) C raises an exception to D’s plea on the merits because it contains an allegation
that “C is a liar and a cheat”. (2)
(iii) The procedure is incorrect. An exception is raised when a pleading is vague or

embarrassing or does not disclose a cause of action or a defence. The
statement (that C is a liar and a cheat) may be termed “scandalous, vexatious
or irrelevant”. Therefore, C should have made an application to strike out the
offending portion of the pleading, instead of raising an exception.
(iv) D makes an offer to settle the matter over the telephone in order to achieve a
settlement of C’s claim in terms of Uniform Rule 34(1). (1)
(iv) The procedure is incorrect. Uniform Rule 34(1) provides that in any action in
which a sum of money is claimed, the defendant may at any time
unconditionally or without prejudice make a written offer to settle the plaintiff’s
claim. Therefore, an offer to settle the matter over the telephone (an oral offer)
cannot be made in terms of this Rule.
(v) D fails to file his plea on the merits within the required time limits. C immediately applies
for default judgment. (1)
The procedure is incorrect. In the first instance, a plea on the merits is a
pleading. Secondly, in terms of Uniform Rule 26, if a party fails to deliver “any
other pleading” (that is, other than a replication or subsequent pleading)
within the required dies inducia, the other party may deliver a notice to the
defaulting party (the so-called notice of bar), requiring him or her to deliver
such pleading within 5 days. Failure to do so will only then result in default
judgment. Therefore, C first has to serve a notice of bar on D requiring delivery
of the plea on the merits before applying for a default judgment.
19
COMMENT:
Please note that a notice of bar applies only to pleadings, and thus not to
processes. For example, should a defendant fail to timeously deliver a notice of
intention to defend, a notice of bar is not required prior to a request for default
judgment, as a notice is not a pleading.
(b) ) X, a plaintiff, and Y, a defendant, prepare for a trial in the magistrates’ court. Name
the procedure which must be followed in each instance.
(i) X notices a factual error in his summons and wishes to correct it. (1)
(i) X may file a notice of intention to amend the factual error and serve it
on Y.
(ii) Y wishes to find out what documents X intends using to prove her case. (1)
Y may require X to discover the documents relating to any matter in the

action.
(iii) X wishes to ensure that a witness will be present in court to give evidence on
his behalf. (1)
X may serve a subpoena on the witness to ensure his/her presence at
the trial.
(iv) Y wishes to obtain more particulars from X regarding the matter to enable her to
prepare for trial. (1)
Y may request further particulars to enable him to prepare for trial.
COMMENT:
Please note the instruction in the question. You were simply required to name the
applicable procedure. Adding a discussion in the examination in such an instance
will take up time that you could rather have spent on questions requiring full reasons
for answers.
20
2. ASSIGNMENT 02
QUESTION 1
(1) The Supreme Court of Appeal is competent to hear only non-constitutional matters.
(2) Only the Constitutional Court may adjudicate on any alleged violation of a fundamental
right entrenched under Chapter 2 of the Constitution, 1996.
(3) A magistrate’s court is not competent to adjudicate upon the validity of any legislation
but may pronounce upon the validity of the exercise of executive powers by the
President.
(4) Disputes concerning the constitutional status, powers or functions between

organs of state in the national or provincial spheres may only be adjudicated by
the Constitutional Court.
ANSWER
Section 167(4) of the Constitution, 1996 sets out the matters in respect of which the
Constitutional Court has exclusive jurisdiction. The disputes referred to in this
particular instance is contained in section 167(4)(a) and may thus only be heard by
the Constitutional Court.
Statement (1) is incorrect. Section 168 of the Constitution, 1996 provides that the
Supreme Court of Appeal may decide appeals in any matter arising from the High
Court or a court of similar status (except in respect of labour or competition
matters), provided it is an appeal. Also, section 167(5) of the Constitution, 1996
provides that any finding regarding the constitutionality of legislation or the conduct
of the President will only have any force after the order has been confirmed by the
Constitutional Court. The wording of this section clearly envisages such a finding by
a court other than the Constitutional Court.
Statement (2) is incorrect. Section 167(4) of the Constitution, 1996 does not make
provision for exclusive jurisdiction in this regard. In fact, section 8 of the
Constitution, 1996 specifically provides that the Bill of Rights “applies to all law, and
binds … the judiciary …”. Furthermore, section 8(3) provides that when applying a
provision of the Bill of Rights in order to give effect to a right in the Bill, “… a court
…” must apply (and develop, if necessary) the common law.
Statement (3) is incorrect. Section 170 of the Constitution, 1996 does not confer
any constitutional jurisdiction upon magistrates’ courts but provides that legislation
may confer constitutional jurisdiction of these courts, provided that it does not
confer jurisdiction to determine the validity of “any legislation or any conduct of the
President”. Furthermore, section 110 of the Magistrates’ Courts Act 32 of 1944
provides that these courts may not pronounce on the validity of “any law” or on the
validity of any conduct of the President.
21
QUESTION 2
(1) Small claims courts have inferior status because the amount of the claim is so low.
(2) The principle of party presentation applies in the small claims court because the
commissioner plays an active role in assisting the litigants to present their case during
the trial.
(3) In small claims courts a party is entitled to cross-examine his or her opponent.
(4) A small claims court may entertain an action for the delivery of movable
property not exceeding R15 000.
ANSWER 2
Section 15(a) of the Small Claims Courts Act 61 of 1984 provides for actions for the
delivery or transfer of any property, movable or immovable, which does not exceed
the quantitative jurisdiction of the court. The quantitative jurisdiction is currently set
at R15 000.
(See section 15 of the Small Claims Courts Act 61 of 1984; and Study Guide unit
4.5.)
Statement (1) is incorrect. Small claims courts are not inferior courts; they are
simply courts that appear lower down in the hierarchical structure of the court
system. The low value of the claims can also not be seen to indicate an inferior
status – the purpose of these courts is to improve access to justice by creating a
forum for the settling of minor civil disputes in a speedy and cost-effective manner.
A wide range of matters are heard in these courts, and the legal issues involved are
not necessarily simple, despite the low value.
Statement (2) is incorrect. Party presentation is one of the cornerstones of the

adversarial system. Although the relationship between the litigants in a small claims
court remains adversarial, compared to the other courts, the small claims courts are
more inquisitorial by nature, inter alia because the commissioner plays an active
role in assisting the litigants to present their respective cases at the trial.
Statement (3) is incorrect. In terms of section 26(3) of the Small Claims Courts Act
61 of 1984 a litigant in a small claims court may not question or cross-examine any
other litigant to the proceedings (or a witness called by such litigant).
QUESTION 3
(1) A court may exercise divorce jurisdiction only if both or either of the parties are/is
domiciled in the Republic on the date on which the action is instituted.
(2) A court may exercise divorce jurisdiction only if both or either of the parties are/is
resident in its area of jurisdiction on the date on which the action is instituted and 22
has/have been ordinarily resident in the Republic for a period of not less than one year
immediately prior to the institution of the action.
(3) A court may exercise divorce jurisdiction if both or either of the parties are/is
ordinarily resident in its area of jurisdiction on the date on which the action is
instituted and has/have been ordinarily resident in the Republic for a period of
not less than one year immediately prior to the institution of the action.
(4) A court may exercise divorce jurisdiction if both or either of the parties are/is domiciled
in the Republic on the date on which the action is instituted and the parties are/is
resident in its area of jurisdiction on the date on which the action is instituted and
has/have been ordinarily resident in the Republic for a period of less than one year
immediately prior to the institution of the marriage.
ANSWER 3
A careful reading of section 2(1)(b) of the Divorce Act 70 of 1979 indicates that
statement (3) accurately reflects the content of the said section. It is important to
read sections attentively – in this instance you should note that this particular
section requires compliance with the requirement of “ordinarily resident” in two
distinct situations: in the particular court’s area of jurisdiction (when commencing
action) and in the Republic (for a particular period). Both these aspects must be
addressed when answering an examination question.
Statement (1) is incorrect, because the wording in section 2 of the Divorce Act 70 of
1979 clearly requires either domicile, or ordinary residence for the establishing of
divorce jurisdiction. Note the word “or” which separates section 2(1)(a) and section
2(1)(b): this indicates that domicile and residence are alternative grounds for divorce
jurisdiction. It is therefore incorrect to state that “only” domicile establishes
jurisdiction.
Statement (2) is incorrect in two respects. In the first instance, as in the commentary
under statement (1) above, it is incorrect to state that there is “only” one ground for
jurisdiction (in this instance, residence). Secondly, section 2(1)(b) does not refer to
“resident”, but “ordinarily resident”. Again, read legislation accurately.
Statement (4) is incorrect, because the two jurisdiction grounds (domicile and
ordinary residence) are not stated in the alternative – see the comments under
statement (1) above. Due to the use of the word “and”, the impression is created
that both grounds are required for a court to exercise jurisdiction, which is clearly
incorrect.
QUESTION 4
(1) A magistrate’s court within whose area of jurisdiction a defendant resides, is vested
with jurisdiction solely by virtue of the common -law principle actor sequitur forum rei.
(2) A claim for delivery of specific movable property without an alternative claim for
damages, even though the claim does not exceed R400 000, cannot be instituted in
any magistrate’s court because it is a claim for specific performance.
23
(3) Splitting of claims occurs when more than one claim, each based on a separate cause
of action, is contained in a single summons.
(4) The jurisdictional connecting factor ratione rei sitae is relevant only in respect
of property claims in the High Court.
ANSWER 4
The jurisdiction grounds that apply in the High Court are based on the common law,
and do not apply in the magistrates’ courts – ratione rei sitae is one such
jurisdiction ground. Magistrates’ courts are so-called “creatures of statute”, which
means that their competencies (such as the grounds upon which they may exercise
jurisdiction), are contained in particular sections of the Magistrates’ Courts Act 32 of
1944. In this instance, the approximate jurisdiction ground is contained in section
28(1)(g) which provides that a magistrates’ court will have jurisdiction if the
defendant owns immovable property within the court’s area and the action is in
respect of such property or in respect of mortgage bonds thereon.
Statement (1) is incorrect. It has already been pointed out above under the
commentary relating to statement (4) that the common law jurisdiction grounds do
not apply in the magistrates’ courts. In this instance, the approximate jurisdiction
ground is contained in section 28(1)(a) which provides that a magistrates’ court will
have jurisdiction if the defendant “resides, carries on business or is employed”
within the court’s area of jurisdiction. Note: Students may under no circumstances
refer to ratio domicilii or actor sequitur forum rei (nor to an incola or peregrinus)
when answering jurisdiction questions relating to jurisdiction in the magistrates’
court. Such answers are wrong, and no marks are awarded.
Statement (2) is incorrect. Section 46(2)(c)(i)-(iii) of the Magistrates’ Courts Act 32

of 1944 clearly sets out three exceptions to this position, and the statement
specifically falls within the ambit of section 46(2)((c)(ii).
Statement (3) is incorrect. Splitting of claims occurs in the exact opposite situation
described in the statement. Section 40 of the Magistrates’ Courts Act 32 of 1944
prevents one cause of action from being split in such a way that separate claims
can be brought in separate actions, each of which falls within the district or regional
court’s jurisdiction.
QUESTION 5
C and D enter into a con tract in Durban in terms of which C has to deliver goods to D’s
business premises in Bloemfontein. Despite demand C fails to deliver the goods. C lives in
Pietermaritzburg and D lives in Johannesburg. D intends issuing summons against C for
delivery of the goods.
Indicate the statement which is the most accurate:
(1) only the magistrates’ courts of Johannesburg and Pietermaritzburg will hear the
matter.
(2) only the magistrates’ courts of Durban and Pietermaritzburg will have jurisdiction to
hear the matter.
24
(3) only the magistrates’ courts of Durban, Pietermaritzburg and Bloemfontein will have
jurisdiction to hear the matter.
(4) only the magistrate’s court of Pietermaritzburg will have jurisdiction to hear the
matter.
ANSWER 5
The magistrate’s court of Pietermaritzburg has jurisdiction based on section 28(1)(a)

of the Magistrates’ Courts Act 32 of 1944 (the Act) which provides that a court has
jurisdiction over a defendant who “resides, carries on business or is in the employ”
within that court’s area of jurisdiction. In this instance the defendant, C, lives in
Pietermaritzburg, and therefore “resides” in terms of this section. Because the
cause of action did not “wholly” arise in either Durban or Bloemfontein (see below),
Pietermaritzburg is the only court vested with jurisdiction in terms of section 28 of
the Act.
Statement (1) is incorrect. Although Pietermaritzburg does have jurisdiction to hear

the action (see statement (1) above), there is no ground of ju risdiction on which the
magistrate’s court of Johannesburg can exercise jurisdiction. Although section 28 of
the Act refers to “any person”, in all instances referred to in this section, “person”
means the defendant only – the position of the plaintiff is not relevant for
jurisdictional purposes.
Statement (2) is incorrect. Although Pietermaritzburg does have jurisdiction to hear the action
(see statement (1) above), there is no ground of jurisdiction on which the magistrate’s court of
Durban can exercise jurisdiction. Section 28(1)(d) of the Act provides that a magistrate’s court
will have jurisdiction over an action “if the cause of action arose wholly” within the court’s area
of jurisdiction. The meaning of “wholly” has been held by the courts to mean, in the case of a
contract, that the conclusion of the contract, as well as the breach of contract must occur within
the same court’s area of jurisdiction. In this instance, only the conclusion of the contract
occurred in Durban, and therefore the cause of action did not “wholly” arise within the Durban
court’s area of jurisdiction.
Statement (3) is incorrect. As discussed in the commentary above, although the

magistrate’s court of Pietermaritzburg has jurisdiction, the Durban magistrate’s court
does not. The Bloemfontein magistrate’s court also does not have jurisdiction in
terms of section 28(1)(d), because only breach of contract (the failure to deliver the
goods) occurred in Bloemfontein. Again, the cause of action did not arise “wholly” in
the court’s area of jurisdiction.
QUESTION 6
Indicate the most accurate statement.
(1) Whether a material dispute of fact exists between parties is the only factor which
determines whether proceedings may be instituted by way of application proceedings,
or by way of summons proceedings.
(2) The three sets of affidavits which are usually exchanged between the parties in
application proceedings are the supporting affidavit, the answering affidavit and the
replication.
(3) A power of attorney usually seeks to define the extent of an attorney’s mandate. 25
(4) Urgent applications are used when the relief sought is a preliminary step in the
proceedings.
ANSWER 6
Most litigants instruct an attorney to act on their behalf in litigation proceedings, and
these instructions are confirmed and set out in a document known as a “power of
attorney”. Should an attorney’s mandate be disputed, a properly executed power of
attorney will offer proof of such mandate.
Statement (1) in incorrect, as other factors also need to be considered. Legislation

or the Uniform Rules of Court may in certain instances prescribe the use of
application proceedings, while summons proceedings are compulsory in instances
such as divorce and claims for damages. When a matter falls outside the ambit of
these instances (i.e., it is neither prescribed nor forbidden), application proceedings
may be used if there is no material dispute of fact (or is there is such a dispute, it
can satisfactorily be decided without the necessity of oral evidence).
Statement (2) is incorrect. The third type of affidavit in the set of affidavits that may
be exchanged between the parties, is called the “replying affidavit” – a replication is
a pleading which is only used in summons proceedings, never in application
proceedings.
Statement (4) is incorrect. Urgent applications are used when relief is needed
urgently and there is not enough time to obtain the relief by following the prescribed
procedures to place the matter before court. An example is when a person wishes
to stop the imminent demolition by a neighbor of a high boundary wall that could
collapse onto a building on his adjoining property, causing its possible destruction.
On the other hand, an ex parte application is used if the relief sought is a
preliminary step in the proceedings and necessary in order to bring the other party
before court. An example is when an order for the attachment of the property of a
peregrine of the Republic is sought to vest a court with jurisdiction.
QUESTION 7
(1) An interlocutory application is brought by way of a notice of motion.
(2) If a party wishes to oppose an application, he or she must deliver a notice of intention
to defend within the stated dies induciae.
(3) Ordinary application proceedings always commence with a notice of motion.
(4) An ex parte application is used when after a divorce, one of the parents applies for an
amendment of access rights in respect of the minor children.
26
ANSWER 7
Uniform Rule 6 and magistrates’ courts rule 55 both prescribe the use of a notice of
motion when using application proceedings to commence proceedings.
Statement (1) is incorrect. An interlocutory application does not commence

proceedings but is used when proceedings have already commenced. This
application is therefore not brought on notice of motion, but only “on notice”.
Statement (2) is incorrect. If a party wishes to oppose an application, he or she

must deliver a notice of intention to oppose. A notice of intention to defend is used
only in respect of action/summons proceedings.
Statement (4) is incorrect. An ex parte application is used only when the rights and
interests of the applicant is affected by the relief sought. In this instance the access
rights of one of the parents are clearly in danger of being affected negatively, and
the audi alteram partem principle dictates that such a party must be given notice of
the proceedings to enable him or her to heard in the matter. Clearly an ordinary
application would be the correct application to use in these circumstances.
QUESTION 8
Summary judgment is relevant in the following circumstances:
(1) Where a claim is for breach of contract and the defendant gives notice of intention to
defend simply to delay proceedings.
(2) Where the claim is for goods sold and delivered and the plaintiff contends that
the defendant does not have a bona fide defence and that appearance to defend
was simply entered to gain time.
(3) Where the claim is for specific performance and the defendant does not have a
bona fide defence.
(4) Where the claim is for the delivery of ten specially marked items and the defendant
fails to timeously deliver a notice of intention to defend.
ANSWER 8
Uniform Rule 32(1) and magistrates’ courts rule 14(1) set out the types of claim
which would allow the bringing of an application for summary judgment. One such
claim is for “a liquidated amount in money”. The claim referred to in the statement is
for the payment of a specified amount (usually as per an invoice) and can thus be
described as a claim for a liquidated amount of money. Note that the types of claim
contained in the above court rules, are examples of claims falling within the
definition of a “debt or liquidated demand”.
27
(See Uniform Rule 32(1) and magistrates’ courts rule 14(1); Study Guide unit 23.4;
and Pete et al 252-259.)
Statement (1) in incorrect. In a claim for breach of contract damages are normally
claimed. Damages are by their nature unliquidated and fall outside the ambit of the
claims set out in the court rules above.
statement (3) in incorrect. A claim for specific performance falls outside the ambit of
the court rules above. However, summary judgment could be brought in the
magistrates’ court on a claim for specific performance, provided the claim fell within
the exceptions set out in section 46(2)(c)(i)-(iii).
Statement (4) is incorrect. Although the claim is for the delivery of specified movable
property as provided for in Uniform Rule 32 and magistrates’ courts rule 14,
summary judgment is only considered once notice of intention to defend is
delivered. Where a defendant fails to deliver such notice timeously, the plaintiff may
thus consider applying for default judgment, not summary judgment.
Question 9
In the High Courts the position is as follows --
(1) Pleadings are deemed closed only after the plaintiff has filed his or her replication.
(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a

replication in reconvention.
(3) An exception may be raised only against a declaration or the particulars of claim.
(4) It is possible to inspect a clearly specified document or tape recording in a

party’s possession and relating to a reasonably anticipated issue in the action
before the close of pleadings.
ANSWER 9
In term of Uniform Rule 35(14), after an appearance to defend has been entered,
any party may for purposes of pleading require from the other party to make
available for inspection within five days, a clearly specified document or tape
recording in his or her possession which is relevant to a reasonable anticipated
issue in the action, and to allow a copy or transcription to be made. This rule thus
facilitates inspection before the close of pleadings, but it must be noted that it is
for a very specific purpose – therefore, do not confuse this with inspection to assist
with the preparation for trial which occurs only after close of pleadings.
Statement (1) is incorrect in two respects. Uniform Rule 29 sets out four instances
when pleadings are deemed closed. Therefore, it is clearly incorrect to state that
pleadings are deemed closed “only” (after a certain event occurs). Be careful of so-
called absolute statement. Statements containing words such as “only”, or “always”
are absolute statements and should be carefully considered, because, depending
on the statement, more often than not exceptions may apply or there may be
several options, etcetera available, thus rendering the statement incorrect.
Furthermore, Uniform Rule 29(b) specifically states that pleadings are considered
closed if the last day allowed for filing a replication or subsequent pleading has
elapsed and filing has not taken place. This instance was thus stated in too narrow
terms, and this option could only have been eliminated had students consulted the
particular court rule. 28
Statement (2) is incorrect. When a defendant files a counterclaim, the claim in
reconvention is introduced. The plaintiff (who is now the defendant in reconvention),
should respond to the counterclaim of the defendant (now the plaintiff in
reconvention), by filing a plea on the merits in reconvention (and not a replication in
reconvention!). As in the case in con vention where a defendant must respond to the
plaintiff’s claim, so must a defendant in reconvention also respond to the claim in
reconvention. If not, he or she runs the risk of having a default judgment being
granted against him or her. Note: a replication is used only when a defendant
(either in convention or reconvention) raises new facts in a plea on the merits which
require a response from the plaintiff (either in convention or in reconvention).
Statement (3) is incorrect. A party may in terms of the court rules raise an exception
to any pleading if that pleading is (a) vague and embarrassing, and/or (b) does not
disclose a cause of action or defence. Clearly the ambit of the statement is too
narrow, as a defence is raised in a plea on the merits.
QUESTION 10
(1) A High Court derives the power to review the proceedings of inferior courts
from the Superior Courts Act, 2013.
(2) The Constitutional Court is the highest court of appeal in respect of certain civil
matters.
(3) Lower court proceedings are reviewed by way of the summons procedure.
(4) Both appeal and review must take place within a reasonable time.
ANSWER 10
The proceedings of a lower court and quasi-judicial bodies are subject to review.
Section 21(1)(b) of the Superior Courts Act of 2013 authorises the divisions of the
High Court to review only proceedings of the lower courts. The procedure pertaining
to review is set out in Uniform Rule 53.
Statement (2) is incorrect. The Constitution Seventeenth Amendment Act, 2012

provided that the Constitutional Court is the so-called apex court or the highest
court in all matters. This means that the Constitutional Court may decide not only
constitutional matters, but also any other matter. The Supreme Court of Appeal is
no longer the court of final instance in non-constitutional matters, and a matter can
now be appealed from the Supreme Court of Appeal to the Constituti onal Court.
Statement (3) is incorrect. Uniform Rule 53 provides that “an application” (thus
motion proceedings) must be used when the review of a decision of any inferior
court or quasi-judicial body is sought.
Statement (4) is incorrect. Only review mu st take place within a reasonable time. In
the case of an appeal, very specific time limits are set out in the rules of court – for
example, see Uniform Rule 49(1)(b) and Uniform Rule 50(1).
29
2019 – SEMESTER 2 - ASSIGNMENT 01
QUESTION 1
Briefly explain why the introduction of the small claims courts was successful in increasing
access to justice for litigants in South Africa. (6)
The introduction of the small claims court is successful in increasing access to

justice for litigants in South Africa for the following reasons:
• It makes the administration of justice more accessible to all South Africans;
• It provides a forum for the settling of minor civil disputes;
• It removes time-consuming, formalistic and expensive procedures;
• It introduces informal and simplified procedures to reduce the cost of

litigation and provide for a speedy determination of small claims;
• It establishes a consumer-oriented court.
COMMENT:
When using the expression “administration of justice”, one generally understands it

to refer to the process by which a legal system provides for the just and fair
treatment of individuals.
QUESTION 2
(a) An action for damages for breach of contract which occurred in Johannesburg is
instituted in the Johannesburg High Court. The plaintiff is an incola of the court, and
the defendant is an American businessman resident and domiciled in America. The
defendant owns a flat in Johannesburg.
(i) Will the plaintiff succeed with an application for the attachment of the
defendant’s property in the Johannesburg High Court? Explain fully. (3)
Where the defendant is a peregrinus of the whole Republic (in other words, a foreign
peregrinus), a South African court will exercise jurisdiction over such a person only
after attachment of his or her property has taken place, either as attachment ad
confirmandam iurisdictionem (requiring the cause of action to have occurred within
the particular court’s area of jurisdiction apart from the attachment), or attachment ad
fundandam iurisdictionem (where the plaintiff is an incola of the court and the
attachment of the defendant’s property has taken place).
On the given facts, the defendant is a peregrinus of the whole Republic as

he is resident and domiciled in America. He also owns attachable property
(a flat in Johannesburg, thus within the court’s area of jurisdiction).
Furthermore, the plaintiff is an incola of Johannesburg.
Therefore, the Johannesburg High Court will have jurisdiction on the basis of:
30
- Attachment ad confirmandam (cause of action within the area of the
court concerned) plus attachable property; and Attachment ad
fundandam iurisdictionem (plaintiff an incola of the court concerned)
plus attachable property.
(See Pete et al 110-112 and study guide unit 8.4.3.)
(i) Would your answer to (i) change if the defendant was no longer living or
domiciled in America, but was a South African citizen permanently living in
Cape Town? Explain fully. (2)
Yes. In this instance, the defendant is now an incola of the Republic and therefore,
the common law rules relating to jurisdiction will be applicable. Accordingly,
when dealing with a claim relating to a contract, the court in wh ose area of
jurisdiction the contract was concluded or breached or where the contract
was to be performed, will have jurisdiction. This is known as the exercise of
jurisdiction ratione contractus. (Under common law, this falls within the
ambit of ratione rei gestae). Also, a court in whose area of jurisdiction a
defendant is an incola, will have jurisdiction ratione domicilii (based on the
principle actor sequitur forum rei). Finally, section 28(1) of the Superior
Courts Act, 2013 prohibits the attachment of property for jurisdictional
purposes of a person domiciled or resident anywhere in South Africa.
On the given facts, the breach of contract occurred in Johannesburg and

therefore, the Johannesburg High Court will have jurisdiction for instituting
the proceedings ratione contractus. However, since the defendant resides
in Cape Town, this court will also have jurisdiction, ratione domicilii.
The answer will thus differ from that in (i) above, both in respect of the
particular court having jurisdiction, and the jurisdiction grounds
applicable.
(b) Determine whether the following statements are true or false in regard to the
exercise of jurisdiction in the magistrates’ court. Explain the reasons for your
answers.
(i) Where a contract has been concluded in Pietermaritzburg, but performance

has to take place in Bloemfontein, the magistrates’ courts situated in both
Pietermaritzburg and Bloemfontein will have jurisdiction to hear an action
arising from the breach of contract in terms of section 28(1)(d) of the
Magistrates’ Courts Act 32 of 1944. (2)
False. Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a
magistrates’ court will have jurisdiction over any person if the cause of action arose
“wholly” within the area of a district or regional division. This has been interpreted by
the courts to mean that not only must the contract have been concluded within the
area of the district or regional division concerned, but also that the breach of
contract must have occurred there as well for the court to have jurisdiction.
31
On the given facts, the contract was concluded in Pietermaritzburg, but breach of
contract occurred in Bloemfontein. Therefore, neither the Pietermaritzburg
magistrates’ court, nor the Bloemfontein magistrates’ court will have jurisdiction to
hear action in terms of section 28(1)(d) of the Act, as the cause of action did not
“wholly” arise within either court’s area of jurisdiction.
(i) A magistrate’s court is prohibited by section 46 of the Magistrates’ Courts Act

32 of 1944 from making an order directing a defendant to deliver 10 cattle in
terms of a contract after the defendant failed to do, without an alternative claim
for damages. (2)
False. A magistrate’s court is prohibited by section 46 of the Magistrates’
Court Act 32 of 1944 to adjudicate matters in which specific performance is
sought without an alternative claim for payment of damages. However, this
prohibition is subject to the exceptions contained in section 46(2)(c)(i)-(iii),
and does therefore not apply when the delivery or transfer of property,
movable or immovable, and not exceeding in value of the amount
determined by the Minister from time to time by notice in the Gazette, is
claimed. “Specific performance” has been interpreted by the courts to refer
to the performance of a contractual act only.
As cattle are clearly movable property, and as their delivery falls within the
exception provided for in section 42(2)(c)(iii), the court may, on the given
facts, make an order directing a defendant to deliver the cattle.
QUESTION 3
(a) Q is a landlord and Z his tenant. Z is in arrears with his rental. Q issues a summons
against Z for the arrear rental. With regard to these facts, determine –
(i) the appropriate summons with which to institute the action. (1)
Simple summons.
A simple summons is employed when the plaintiff’s claim is for a debt or
liquidated claim/demand, as is the case when rental is in arrears (in other
words, is owing).
(ii) the form of service of the summons if Z vacates the property in the dead of
night without leaving a forwarding address but is believed to be living
somewhere in the same province. (1)
Substituted service.
Substituted service is used where a person is believed to be within the

Republic, but service cannot be effected on him or her in terms of the rules
of the court, because it is not known precisely where such person is to be
found.
(iii) the procedure that Q could use if Z fails to respond to the summons within the
time stated in the summons. (1)
Q may apply for default judgment against Z.
(iv) the procedure that Q would use if Z files a notice of intention to defend within
32
the time stated in the summons, and Q believes that Z has done so for no
good reason but simply to delay the proceedings. (1)
(ii) Q may apply for summary judgment.
The summary judgment procedure is designed to protect the plaintiff who

has a claim against the defendant who 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.
(v) whether it is necessary for Q’s attorney to file a power of attorney with the
court when instituting the action on Q’s behalf. (2)
Q’s attorney is not required to file a power of attorney when issuing a summons. The
filing of a power of attorney is, however, required for the conduct or defence of a civil
appeal in terms of Rules 7(2) and 7(3) in the High Court.
(b) ) In terms of section 167 of the Constitution of 1996, the Constitutional Court is
only a court of appeal in constitutional matters and is also the only court which
may hear appeals in constitutional matters. Discuss this statement [4]
The statement is incorrect in so far as the Constitutional Court is not “only a court of
appeal in constitutional matters”:
- It is the highest court of appeal in respect of both constitutional and

non- constitutional matters (s 167(3)(a));
- It is the “only” court, only in that it has exclusive jurisdiction to hear

disputes between organs of state at national or provincial level; hear
certain applications by the legislature over the constitutionality of
parliamentary and provincial bills and Acts; take decisions on whether
parliament or the President has failed to comply with a constitutional
duty; and certify provincial constitutions (s 167(4));
- The court may, in exceptional circumstances, grant anyone direct

access when it is in the interests of justice to do so (s 167(6)(a);
- Where the Supreme Court of Appeal, High Court or court of a similar

status has made an order of invalidity in respect of an Act of Parliament,
the Constitutional Court must confirm such an order made by other
courts otherwise it has no force (s 167(5)).
COMMENT:
It is important to note that, in view of the above, the Constitutional Court can
function as either a court of first instance or as a court of appeal.
33
2019 – SEMESTER 2 - ASSIGNMENT 02
QUESTION 1
Indicate the most accurate statement relating to attachment ad confirmandam

jurisdictionem:
(1) Where both the plaintiff and the defendant are foreign peregrini of the court and
(2) Where the plaintiff is an incola of the court, the defendant is a foreign
peregrinus of the Republic, the cause of action arose within the courts’ area of
jurisdiction and attachment has taken place within the court’s area.
(3) The defendant is a peregrinus of the court concerned, the plaintiff is an incola of the
court concerned and attachment has taken place.
(4) Both the plaintiff and the defendant are incolae of the court concerned and
ANSWER 1
Attachment ad confirmandam iurisdictionem is permissible where the defendant is

(a) a peregrinus of the whole of the Republic; (b) attachment of the defendant’s
property has taken place within the particular court’s area of jurisdiction; and (c) the
cause of action has occurred in this court’s area of jurisdiction. Although the plaintiff
may be an incola of the court concerned, it is not a requirement, and it thus makes
no difference whether the plaintiff is an incola or a peregrinus of this court.
Statement (1) is incorrect. For a court to be vested with jurisdiction in respect of

such parties, the cause of action must have arisen within its jurisdiction area. The
statement does not include this requirement, and therefore attachment cannot in
any event confirm partial or imperfect jurisdiction.
Statement (3) is incorrect. The statement does not specify that the defendant is a
foreign peregrinus, and therefore he or she may very well be a local peregrinus, in
which event attachment is prohibited under section 28 of the Superior Courts Act of
2013. This section prohibits the attachment of property of an incola of the Republic.
Statement (4) is incorrect. In view of the comments regarding (3) above, attachment
cannot take place as it is prohibited. Furthermore, since the defendant is an incola of
the court concerned, this court would have jurisdiction ratione domicilii, also
rendering attachment unnecessary, apart from being prohibited.
(See study guide unit 8.2.)
34
QUESTION 2
In terms of the provisions of section 2(1) of the Divorce Act of 1979 read with section 1(1) of
the Domicile Act of 1992, a court may exercise divorce jurisdiction on the following grounds:
(1) if the wife is resident in the jurisdictional area of the same High Court where her
husband is resident;
(2) if the wife is domiciled and resident in the area of jurisdiction of a High Court at the
time of the institution of the action;
(3) if one spouse is domiciled in the area of jurisdiction of a High Court on the date
on which the action is instituted;
(4) if both or either of the spouses are ordinarily resident in the area of jurisdiction of a
High Court on the date on which the action is instituted and have or has been ordinarily
resident in the area of the court for one year immediately prior to the institution of the
action.
ANSWER 2

The wording of section 2(1) of the Divorce Act 70 of 1979 makes it clear that a court
shall have jurisdiction if both or either of the parties comply or complies with the
domicile or the residence requirements: see section 2 that provides “… if the
parties are or either of the parties is …”.
COMMENT:
It is important to note that only one spouse needs to comply for the court to
jurisdiction in divorce matters in terms of section 2(1)(a) and (b) of Divorce Act 70 of
1979.
Statement (1) is incorrect. The wife does not necessarily have to reside in the same
jurisdiction area for the court to have jurisdiction. It is important to note that a court
may exercise jurisdiction in the case of a divorce if only one of the parties is either
domiciled or resident in its area of jurisdiction.
Statement (2) is incorrect. Domicile and residence are alternative grounds for
jurisdiction: note the wording of section 2 which refers to domicile ‘’or’’ residence as
jurisdiction grounds.
Statement (4) is incorrect. The provisions of section 2(1)(b) of Divorce Act 70 of

1979 requires that both or either of the parties must be an ordinary resident in the
area of jurisdiction of the court on the said date and must have been ordinary
resident “in the Republic for a period of not less than a one year immediately prior
to that date”.
35
COMMENT:
It is important that the precise wording of the Act is followed, and it is therefore
incorrect to state that the requirement is” one year”.
QUESTION 3
(1) The district magistrates’ courts can adjudicate on divorce matters according to the
jurisdiction of the Regional Magistrates’ Courts Amendment Act.
(2) A court may exercise divorce jurisdiction only if the wife is resident in the jurisdictional
area of the court and the husband is resident outside the Republic.
(3) Section 28(1A) of the Magistrates’ Courts Act provides the regional
magistrates’ courts with divorce jurisdiction.
(4) A court may exercise divorce jurisdiction only if the wife is domiciled in the court’s
area of jurisdiction at the time of the institution of the action.
ANSWER 3
Section 28(1A) of the Magistrates’ Court Act 32 of 1944 provides that a regional
magistrates’ court shall have divorce jurisdiction over both parties who are or either
party who is domiciled in the court’s area of jurisdiction on the date on which the
proceedings are instituted, or ordinarily resident in the court’s area of jurisdiction on
the said date and has or have been ordinarily resident in the Republic for a period of
not less than one year immediately prior to that date.
Statement (1) is incorrect. Section 28(1A) confers divorce jurisdiction on the

regional magistrates’ court, and not on the district magistrates’ court. The district
magistrates’ court does not have jurisdiction to adjudicate divorce matters.
Statement (2) is incorrect as it is not “only” the wife’s residence that determines
jurisdiction. The regional magistrates’ court shall have divorce jurisdiction over both
who are or either party who is domiciled in the court’s area of jurisdiction on the
date on which the proceedings are instituted or ordinarily resident in the court’s area
of jurisdiction on the said date and has been ordinarily resident in the Republic for a
period of not less than one year immediately prior to that date.
Statement (4) is incorrect. Again, it is not “only” the wife’s domicile that determines
jurisdiction. The regional magistrates’ court shall have divorce jurisdiction over both
or either party who are or is domiciled or resident as stipulated in the section.
36
QUESTION 4
(1) When it is said that a court exercises “inherent jurisdiction”, this means that its
jurisdiction is derived from statute.
(2) South African civil procedure is inquisitorial in nature.
(3) The jurisdictional connecting factor (nexus) ratione rei sitae is relevant only in respect
of money claims.
(4) The doctrine of effectiveness means that a court will be competent to exercise
jurisdiction if compliance with the judgment can be expected.
ANSWER 4
The doctrine of effectiveness is one of the common law principles on which the
exercise of jurisdiction is based. A court will not exercise jurisdiction unless it is able
to give an effective judgment; in other words, unless compliance with the judgment
can be expected. Although the purpose of the doctrine of effectiveness is to ensure
that court proceedings are not completely futile from the start, it is important to note
that it does not guarantee compliance with all judgments.
Statement (1) is incorrect. The term “inherent jurisdiction” means that the court’s
jurisdiction is derived from common law, and not from statute (although statute, in
certain cases, may limit or increase this jurisdiction). One of the implications of a
superior court’s exercising its inherent jurisdiction is that it has discretion regarding
its own procedure.
Statement (2) is incorrect. The South African system of civil procedure adheres to
the adversarial system of litigation because it forms part of the Anglo-American
system of civil procedure. All South African courts, except the small claims court,
apply adversarial principles and procedures.
Statement (3) is incorrect. The jurisdiction ground ratione rei sitae is relevant only in
respect of property claims. Under common law the court where the property is
situated is the court that has jurisdiction to hear claims relating to such property. If
the property is immovable, the relevant court will have exclusive jurisdiction.
QUESTION 5
(1) The Roman-law rule actor sequitur forum rei means that the plaintiff must institute
action against the defendant in the High Court within whose area of jurisdiction the
defendant is a citizen.
37
(2) The ratione rei gestae applies when a court, in whose area of jurisdiction property or
a person is situated/resident, has exclusive jurisdiction over that property or person.
(3) An application for attachment must be brought before the main action
commences, and the applicant must show that, prima facie, he or she has a
cause of action.
(4) On the basis of the ratione domicilii, a High Court may not exercise jurisdiction unless
the defendant is physically present within its area of jurisdiction.
ANSWER 5
The correct procedural stage for such an application is before the main action
commences, and the applicant must show that, prima facie, he or she has a cause
of action. This application is separate from the main action and is thus decided
separately.
Statement (1) is incorrect. The Roman-law rule actor sequitur forum rei means that
the plaintiff must institute action against the defendant in the area in which the
defendant is domiciled or resident. (Its literal meaning is that one must follow a
defendant to his or her court.) Citizenship of a country is not relevant for purposes of
jurisdiction when determining whether someone is an incola or a peregrinus.
Statement (2) is incorrect. The jurisdiction ground ratione rei gestae under common
law applies in respect of monetary claims in the following instances: if the contract
that is the subject of litigation was concluded, was to be performed or was breached
within the court’s area of jurisdiction. Any of these grounds will be sufficient to vest a
court with jurisdiction. If the delict on which the claim is based was committed within
a court’s area of jurisdiction, a court is vested with jurisdiction ratione delicti
commissi.
Clearly this jurisdiction ground does not relate to property or to a person, nor does it
give exclusive jurisdiction. The jurisdiction grounds ratio domicilii relates to a
person, and ratione rei sitae relates to property. Only when the latter applies to
immovable property, does a court have exclusive jurisdiction.
Statement (4) is incorrect. Ratione domicilii does not require the physical presence
of a defendant, but requires that the defendant must technically “reside” within a
court’s area of jurisdiction. This amounts to more than mere physical presence, but
less than domicile and speaks to a defendant’s intention as it relates to his or her
place of residence.
COMMENT:
Please remember that common law jurisdiction grounds apply only to superior
courts (in particular, the High Court), and never to the magistrates’ courts. These
common law jurisdiction grounds may thus never be used to describe jurisdiction
grounds in a magistrates’ court, and you will be penalised in the examination for
doing so. Remember, magistrates’ courts are creatures of statute, so therefore the
38
Magistrates’ Courts Act 32 of 1944 contains the various grounds for exercising
jurisdiction in a particular instance.
QUESTION 6
If the plaintiff’s claim is based on a dishonoured cheque, the action may be instituted by way
of the following type of summons:
(1) only the simple summons
(2) either the provisional sentence summons or the simple summons
(3) the combined summons
(4) only the provisional sentence summons
ANSWER 6
A cheque is an example of a liquid document. Although the provisional sentence

summons was specifically designed for use when a claim is based on a liquid
document, Uniform Rule 32(1) and magistrates’ courts rule 14(1) provide that,
where the defendant has delivered a notice of intention to defend, the plaintiff may
apply to court for summary judgment on each of such claims in the summons as is
only-
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment;
together with any claim for interest and costs.
Clearly both procedures may be used.
COMMENT:
In practice a plaintiff’s choice between the two procedures will be determined by the
question which procedure in the particular circumstances provides the quickest and
cheapest relief.
Statement (1) is incorrect. See the explanation in respect of option (2) above.
Although a simple summons may be used, it is clearly not the “only” procedure
available.
39
Statement (3) is incorrect. The combined summons is used where the plaintiff’s
claim is unliquidated, that is, where it is not a claim for a debt or liquidated demand.
Matters for which a combined summons is used often involve serious factual
disputes that require the leading of oral evidence to prove the quantum of the claim.
Statement (4) is incorrect. See the explanation in option (2) above. Although a
provisional sentence summons may be used, it is clearly not the “only” procedure
available.
QUESTION 7
(1) An offer to settle in terms of Uniform Rule 34 can be used in both

summons and application proceedings.
(2) A judgment can only be delivered at the end of a trial, because the court is
only competent to deliver a judgment after hearing and properly considering
the evidence.
(3) If a party intends instituting an action and a document which is vital in support
of the claim is in the possession of a party who is to become the defendant in
such an action, the prospective plaintiff may request the prospective
defendant to make discovery thereof in terms of Uniform Rule 35.
(4) Only viva voce evidence may be given by a witness in open court.
ANSWER 7
The Uniform Rules 34(14) provides that this rule shall apply mutatis mutandis where
the relief is claimed on motion or a claim in reconvention or in terms of Rule 13. An
offer to settle is thus clearly applicable also in application (motion) proceedings.
Statement (2) is incorrect. Judgment is not “only” delivered at the end of a trial.
There are various instances in which a party may approach the court for judgment
prior to a trial, such as consent to judgment; default judgment and bar; summary
judgment and summary dismissal.
Statement (3) is incorrect. In terms of Uniform Rule 35(14) and magistrates’ courts
rule 23 discovery may not be requested until after the close of pleadings.
Discovery relates to all documents and tape recordings relevant to any matter in
dispute in the action.
Statement (4) is incorrect.
40
Although the general rule is that a witness must give evidence viva voce (orally) and
in open court (Uniform Rule 38(2)), there are exceptions to the rule where special
circumstances exist. A witness may then be allowed to give evidence in the
following ways: on commission; by way of interrogatories and by way of affidavit.
QUESTION 8
(1) The discovery of documents in the magistrates’ courts is important because it allows
a litigant to set down his or her case for trial.
(2) A defendant may consent to judgment for a smaller amount than claimed in the
summons, but he or she may then defend the action in respect of the balance
of the claim.
(3) A party may request further particulars for purposes of pleading in the magistrates’
courts in terms of rule 16 of the Magistrates’ Courts Rules.
(4) In terms of rule 21A of the Magistrates’ Courts Rules, the court only may declare
pleadings closed, and parties may not agree that pleadings have closed.
ANSWER 8
A defendant may consent to judgment for a smaller amount than claimed in the
summons, but he or she may then defend the action in respect of the balance of the
claim.
Statement (1) is incorrect. Discovery is not only important in the magistrates’ court,
but also in the High Court because it enables a litigant to prepare for his or her trial.
The procedure does thus not in any way relate to the setdown of a matter for trial.
Statement (3) is incorrect. Magistrates’ courts rule 16 clearly provides that unless
such further particulars as are strictly necessary to enable the requesting party to
prepare for trial is sought, further particulars may not be requested. Furthermore, it
follows that a request for further particulars may be requested only after close of
pleadings.
Statement (4) is incorrect. Apart from the fact that parties may agree in writing that
pleadings are closed (magistrates’ courts rule 21A(c)), pleadings shall be
considered closed if
- either party has joined issues without alleging any new matter, and without
adding any further pleading;
- the last day allowed for filing a replication or subsequent pleading has elapsed
and it has not been filed; or
- the parties are unable to agree as to the close of pleadings, and the court
41
upon the application of a party declares them closed.
QUESTION 9
Bar may be raised in the following circumstances:
(1) The defendant does not timeously give notice of intention to defend
(2) A party fails to appear at the trial
(3) A party fails to timeously deliver a declaration
(4) A party fails to timeously request further particulars for purposes of trial
ANSWER 9
Bar applies only to pleadings (see Uniform Rule 26 and magistrates’ courts rule
21B). A declaration is of course a pleading (as opposed to a process – see study
unit 19 for the various definitions!). Hence, a plaintiff who fails to timeously deliver a
declaration and persists in such failure after receiving a notice of bar, will be in
default in respect of such a declaration and ipso facto barred (magistrates’ courts
rule 15(5)).
COMMENT:
It is important that you are able to distinguish between a pleading and a process.
Within this context, “process” refers to a document, and not to an ongoing state
(such as a litigation process which would refer to litigation from start to finish). The
distinction is important, inter alia, because certain rules and procedures apply only
to pleadings (such as bar).
Statement (1) is incorrect. A notice of intention to defend is a process and not a

pleading. Bar applies only to pleadings.
Statement (2) is incorrect. Failure of a party to appear at a trial may result in default
judgment.
Statement (4) is incorrect. A party is not compelled to request such particulars, nor
may a party as a matter of course request it – he or she may only do so in very
particular circumstances (see the feedback in respect of Question 8, option (3)
above). However, if a party may request such particulars and fails to do so, there
are certain consequences for his or her case. A party who fails to timeously request
further particulars places himself or herself at risk of not being fully and properly
prepared for trial. The purpose of the request for further particulars is to inform a
party more fully about what facts the opponent intends to prove, and to put to him or
her in a position to prepare for trial.
42
QUESTION 10
(1) The proceedings of all courts and quasi-judicial bodies are subject to review.
(2) A court hearing an appeal from a lower court, as in the case of a court of first
instance, consists of a single judge.
(3) A litigant who is dissatisfied with the outcome of a matter in a magistrates’

court always has one appeal as of right.
(4) Both appeal and review must take place within a reasonable time.
QUESTION 10
Section 83 of the Magistrates’ Court Act 32 of 1944 provides a party with a right to
appeal, which means leave to appeal need not be obtained.
Statement (1) is incorrect. The proceedings of all courts are not subject to review. In
terms of section 21(1)(b) of the Superior Courts Act, 2013 the High Court is
authorised to review the proceedings of lower courts. Superior courts also have
inherent jurisdiction to entertain all causes arising within their area of jurisdiction.
This means that a superior court has the jurisdiction to review the proceedings of
any body or tribunal empowered to perform statutory duties, as well as to review the
proceedings of quasi-judicial bodies.
Statement (2) is incorrect. Section 14(3) of the Superior Courts Act, 2013 provides
that a court hearing an appeal from a lower court consists of two judges.
Statement (4) is incorrect: The rules governing civil appeals provide that an appeal
must be noted within a stipulated number of days, and that the steps to prosecute it
must be taken within a further limited period. However, there is no fixed period
within which the review of proceedings must be brought, but it must be done within
a “reasonable time”.to keep our students up to date with new developments, so that
they are aware of these changes when they enter practice. This is particularly
important for students who are currently in their final year of study, or who are
entering practice shortly.
In some instances, the amendments published in the Government Gazettes amount

to cosmetic changes (improved wording; the removal of sexist language; the
replacement of Latin phrases with plain language; etcetera) and these changes will
not be indicated below. We confine this notification only to substantial changes to
the court rules. We reiterate, amendments that must be studied for examination
purposes are clearly indicated.
43
4.1 Amendments to the Study Guide
4.1.1 Ad study unit 3.8
Since its publication in the Government Gazette ( GG No 38022 of 22 September

2014), the Legal Practice Act 28 of 2014 has come into operation piecemeal. This
Act provides, inter alia, for the restructuring of the legal profession; the
establishment and functioning of a single South African Legal Practice Council and
Provincial Councils in order to regulate the affairs of legal practitioners and their
conduct to ensure accountable conduct; and the admission and enrolment of legal
practitioners.
The South African Legal Practice Council was only recently established, and in
future attorneys and advocates will be admitted and enrolled in terms of this Act. As
the Act repeals the Attorneys Act, 1979 as well as the Admission of Advocates Act,
1964 in toto, any reference to these repealed acts or to law societies and bar
councils (in particular in study unit 3.8), should be read to refer to the Legal
Practice Act, 2014 and the South African Legal Practice Council and Provincial
Councils respectively.
Please note that while the Act refers to attorneys and advocates, section 24 makes
provision only for the admission and enrolment of a “legal practitioner”, and all legal
practitioners must comply with the requirements contained in section 24(2), read
with section 26 regarding the required qualifications.
The quantitative jurisdiction limit for the small claims courts has been increased with
effect from 1 April 2019: see GG No 42282 of 5 March 2019.
Delete the reference to “R15 000” in line 17, page 25, and replace with “R20 000”.
Study this amendment for purposes of the examination. Ad study unit 21.8
Note the following:
Uniform Rule 30A no longer only enforces compliance with the Uniform Rules, but
now also provides that an order or direction made in a judicial management process
referred to in Uniform Rule 37A be complied with. As in the case of a court rule,
failure to comply with such an order or direction may lead to the striking out of the
claim or defence (as the case may be).
Please note that the procedure regarding summary judgment in the High Court has
undergone a drastic amendment.
Rule 32(2) now provides that a plaintiff may, after a defendant has delivered a plea
on the merits (no longer a notice of intention to defend!), apply for summary
judgment. In the accompanying affidavit, the plaintiff must no longer aver that the
defendant has no bona fide defence and that appearance has simply been filed to
44
delay the action. Instead, the plaintiff must now (a) verify the cause of action (and
the amount claimed); (b) identify any point of law relied upon and the facts upon
which the claim is based; and (c) briefly explain why the defence as pleaded does
not raise any issue for trial.
The rest of the procedure has essentially remained the same, and the information in
the textbook in this regard is self-explanatory.
4.1.4 Ad study unit 24.3.4
Note that the timeframes for giving notice of intention to call an expert and for
delivery of the summary of an expert’s opinion and the reasons therefor have
changed. In both cases, the time periods for compliance start to run after close of
pleadings (and are no longer determined with reference to the trial date). However,
both must be delivered on the opposing party before a first case management
conference is held in terms of Uniform Rule 37A.
In keeping with the objective of the Rule, Rule 36(9A) now requires that the parties
must endeavour to appoint a single joint expert and to file a joint minute of experts.
Insert the following as a new study unit 24.3.7:
“24.3.7 Judicial case management
A new Uniform Rule 37A now introduces a judicial case management system into
our system of civil procedure. This is an attempt to alleviate congested trial rolls,
and to address the problems that cause delays in the finalisation of cases. In other
words, this system aims to improve the efficiency of the civil judicial system by
expediting adjudication and thus, in so doing, improve access to justice.
This system shall apply at any stage after a notice of intention to defend has been
filed in –
(a) those categories of defended actions as determined by the Judge President of

any Division in a Practice Note or Practice Directive; and
(b) in any other proceedings that the Judge President determines of own accord
or upon the request of a party to be appropriate for case management (Rule
37A (1)).
It should be noted that the provisions of Rule 37 relating to a pre-trial conference do

not apply to matters under case management (Rule 37A (3)) which is
understandable, since both these procedures aim to expedite adjudication.
Should a party in a defended matter which falls within a category designated by the
Judge President, apply for a trial date after close of pleadings, the Registrar must
issue an electronic notice to all parties, informing them –
• of the date, time and place of a case management conference to be presided

over by a case management judge;
45
• that they must hold a meeting (similar to a pre-trial conference) prior to the
case management conference and must consider the issues identified in Rule
37A (10) relating to the conduct and trial of the action. These issues relate to
matters such as soliciting admissions with a view to narrowing issues and
curtailing the need for oral evidence; expert witnesses and the feasibility of the
appointment of a single expert; the identity of witnesses; discovery, and other
matters that may expedite the trial-readiness of the case;
• that the plaintiff must, not less than two days before the case management
conference, ensure that the court file has been ordered, secured, paginated
and indexed, and that a minute of the preceding meeting referred to above,
has been delivered, detailing what had transpired at that meeting and what
further steps, if applicable, remain to be taken to render the matter trial-ready
with a timetable indicating when these steps will be taken.
In addition to the above minute, the parties are also required to deliver a detailed
“statement of issues” setting out the issues not in dispute, as well as issues in
dispute and the parties’ respective contentions in this regard (Rule 37A (9)). The
Rule allows a judge a wide scope to engage at a case management conference to
enable him or her to explore settlement of all or some of the issues, including
enquiring whether mediation has been considered; to try and limit the number of
witnesses by agreement; to eliminate unnecessary evidence; and identify and
record the issues to be tried (Rule 37A(11)).
Rule 37A(12) empowers the case management judge to act in a number of ways at
the case management conference, such as certifying the case as trial-ready; refuse
certification; direct that a further case management conference be held; strike the
matter from the case management roll; give a variety of directions, and make any
order as to costs (including de bonis propriis). Unless a matter has been certified
trial-ready, it may not proceed to trial (rule 37A(6)(a)).
A matter will not be certified as trial-ready until the case management judge is
satisfied that
• the case is indeed ready for trial;
• the unresolved issues have been adequately defined;
• the requirements regarding discovery and expert testimony (Rules 35 and 36)
have been complied with; and
• any potential causes of delay in commencing or conducting the trial have been
pre-empted as far as possible (Rule 37A(12)).
The record of the case management conference, the minutes submitted by th e

parties and any directions issued by the case management judge, must be included
in the court file and placed before the trial judge (who will ordinarily be a different
judge). However, no record of any settlement discussion or offers may be placed in
the file. Otherwise, the trial judge is entitled to have regard to all documents
included in the court file during the conduct of the trial and in considering any
application for postponement and issues of cost. Failure to comply with the
46
requirements of Rule 37A may attract an adverse costs order. (Rule 37A(13)-(16)).
Note that the pre-trial conference now applies only in cases not subject to case
management as contemplated in Rule 37A.
Make a note of the following on page 147 of the Study Guide:
Uniform Rule 38(1) previously referred to “any deed, instrument, writing or thing”
which a party had in his or her possession or over which the party had control. This
description of the object has now been extended to refer to “any deed, document,
book, writing, tape recording or electronic recording” (collectively referred to as a
“document”) or “thing”. The procedure for the production and inspection (as well as
the copying or photographing thereof) of the document or thing is now provided for
in this Rule.
4.2 Amendments to certain rules of court for general noting
Amendments to the Uniform Rules of Court as well as the magistrates’ courts rules
were published in Government Gazette No 42064 of 30 November 2018, well after
the print date of the current Study Guide for CIV3701.
Although you are not required to study these amendments for purposes of the
coming examinations, our policy is to keep our students up to date with new
developments, so that they are aware of these changes when they enter practice.
This is particularly important for students who are currently in their final year of
study, or who are entering practice shortly. In some instances, the amendments
amount to cosmetic changes (improved wording; the removal of sexist language;
the replacement of Latin phrases with plain language; etcetera) and these changes
will not be indicated below. We confine this notification to substantial changes to the
court rules.
4.2.1 Uniform Rules of Court
• Rule 16 Representation of parties
Rule 16(2)(b) now provides that when a party terminates his or her attorney’s
authority to act for him or her, but does not appoint a further attorney to act, such
party must appoint an address within 15 kilometres of the office of the Registrar for
the service of all documents in the proceedings.
When an attorney ceases to act for a party, such attorney may now give notice to
the party by facsimile or electronic mail (instead of by registered post): Rule
16(4)(a). The formerly represented party must within 10 days after the notice of
withdrawal notify the Registrar of a new address for service. Failure to do so will
render such party liable for the payment of costs occasioned by subsequent service
(Rule 16(4)(b).
47
• Rule 31 Judgment on confession and by default and rescission of judgments
In respect of Study Guide unit 23.3.2, please note that Uniform Rule 31 has been
amended by the insertion of Rule 31(6). The heading of the Rule has also been
amended to include “and rescission of judgments”.
Further instances of rescission of a default judgment is now provided for. This Rule
provides, first, that if a plaintiff consents in writing to a default judgment being
rescinded (set aside), any person affected by such judgment that has been granted,
may apply to court to have the judgment rescinded (Rule 31(6)(a)). Secondly,
provision is now also made that a judgment debtor against whom a default
judgment has been granted (or any affected person) may apply for rescission if the
judgment debt plus interest plus costs granted in the judgment have been paid
(Rule 31(6)(b)). An application for rescission in this instance must be accompanied
by “reasonable proof” of such payment and may, after service of the application on
the judgment creditor, be heard by a judge in chambers (Rule 31(6)(c) and (d)).
• Rule 38 Procuring evidence for trial
In the event of a subpoena duces tecum, the description of that which the witness is
required to produce at trial has been redefined: previously the Rule referred to “any
deed, instrument, writing or thing”, and Rule 38(1)(a) now refers to “any deed,
document, book, writing, tape recording or electronic recording (hereinafter referred
to as a “document”) or thing”.
The request for the production of a document must be done by using a new form,
Form 16A, which has been included in the First Schedule. The procedure for the
production of a document or of a thing is con tained in Rule 38(b) and Rule 38(c)
respectively and provides for the Registrar to be informed of the whereabouts of the
document or thing; the conditions upon which inspection, copying or photographing
may take place; and the return of the document or thing.
• Rule 43
This Rule has been substituted for a new Rule 43.
While the procedure contained in this Rule is not specifically included in the syllabus
of this module, you need to take note that the title of the Rule has been changed
from “Matrimonial matters” to “Interim relief in matrimonial matters”, which more
accurately describes the procedure. Importantly, you should also note that “interim
custody” has been substituted for “interim care” (Rule 43(1)(c)) and “interim access”
to “interim contact” (Rule 43(1)(d)). The changed terminology will in particular affect
the phrasing used in pleadings and settlement agreements in divorce matters.
4.2.2 Magistrates’ courts rules
In recent years, the Rules Board has sought to start aligning the court rules for the
High Courts and the magistrates’ courts. To this end, rule 52A was inserted after
rule 52 to provide for the withdrawal, appointment or substitution of an attorney of
record.
48
• Rule 52A Notice of withdrawal, appointment or substitution as attorney of
record
When an attorney ceases to act for a party, provision is now made in rule 52A(1)(a)
for an attorney to inform such party of the fact by delivering a notice at the party’s
last known address, the registrar/clerk of the court, and all other parties to the
proceedings.
Rule 52A(1)(b) requires the attorney to inform the said party to appoint within 10
days a physical address for service within 15 kilometres of the courthouse, and
notify all other parties and the registrar/clerk of the court of the fact, as well as of a
postal address, facsimile and electronic address. As in the case of Uniform Rule 16,
failure to do so will render the said party liable for the payment of the costs
occasioned by subsequent service (rule 52A(1)(d).
49
2018 - SEMESTER 1
ASSIGNMENT 01
QUESTION 1
(a) X and Y conclude a contract in Pretoria. Y is to sell his car to X for an amount of
R500 000. X is a resident of Benoni, Johannesburg. According to the contract, Y is
supposed to deliver the car to X in Benoni and Y is to make payment of the
purchase price to X upon delivery. X delivers the car and Y fails to pay the agreed
amount. X wants to sue for the damages suffered. With these facts in mind answer
the following questions:
(i) May X institute proceedings in the South Gauteng High Court, Johannesburg?
(1)
Under common law, the court where the defendant is either domiciled or
resident has jurisdiction to hear a claim sounding in money. This is known as
the exercise of jurisdiction ratione domicilii.
On the given facts, X is a resident of Johannesburg and therefore, South

Gauteng High Court, Johannesburg will have jurisdiction to institutes the
proceedings ratione domicilii. See TL 501/3/2018 unit 2.2.1 and page 100 of
the textbook.
(ii) May X institute proceedings in the North Gauteng High Court, Pretoria (1)
In regard to a claim relating to a contract, the court in whose area of jurisdiction the contract was
concluded or where the contract was to be performed, or where the contract is breached will
have jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under
common law, this falls within the ambit of ratione rei gestae).
On the given facts, the contract was concluded in Pretoria, therefore, North Gauteng High
Court, Pretoria will have jurisdiction to institute the proceedings ratione contractus.
(b) Q is a citizen of Namibia residing in Namibia and he also owns a house in Cape
Town. Q is invited to a business conference in Durban. Whilst in Durban on his way
to the conference, Q collides with another car driven by Y. Y resides in Pretoria and
is also attending the conference. Y alleges that the sole cause of the collision is Q.
Y suffers damages in the amount of R500 000. Y wants to sue Q for the damages
suffered.
(i) Advise Y as to whether the KwaZulu-Natal Local Division, Durban will have jurisdiction to
hear the matter? (2)
(i) Where the defendant is a peregrinus of the whole Republic (foreign

peregrinus), a South African court will exercise jurisdiction over such a
person only after attachment of his or her property has taken place,
attachment ad confirmandam jurisdictionem (requiring the cause of action to
have occurred within the particular court’s area of jurisdiction apart from the
attachment).
50
On the given facts, the defendant is a peregrinus of the whole Republic (he
resides in Namibia). The High Court in whose area of jurisdiction the cause
of action (collision) occurred will be able to exercise jurisdiction ad
confirmandam jurisdictionem, provided that the defendant has attachable
property within the Republic, especially within the particular court’s area of
jurisdiction. In this instance it is irrelevant whether the plaintiff is an incola or
peregrinus of the court. The attachment confirms or strengthens the partial or
imperfect jurisdiction that the court has by reasons of the fact that the cause
of action arose within its area.
Therefore, KwaZulu-Natal Local Division, Durban does not have jurisdiction

on the basis of attachment ad confirmandum, since the attachable property
is situated within the Cape Town court’s area of jurisdiction, and not within
the Durban High Court’s area. See TL 501/3/2018 unit 2.2.3 and page 110 of
textbook.
COMMENT:
Although the cause of action arose in the court’s area of jurisdiction, it only has partial
jurisdiction as we are dealing with a foreign peregrinus. It will thus not be competent to
exercise jurisdiction unless attachment (ad confirmandum jurisdictionem) has also taken
place. Please note that the attachment has to happen with the court where cause of
action arose. The attachment strengthens the partial or imperfect jurisdiction that the
court has by reason of the fact that the cause of action (delict) arose within its area of
jurisdiction.
(i) Advise whether the Western Cape Division Cape Town will have jurisdiction?
(2)
(ii) Where the defendant is a peregrinus of the whole Republic (foreign
peregrinus), a South African court will exercise jurisdiction over such a
person only after attachment of his or her property has taken place, eith er in
the form of attachment ad fundandam jurisdictionem (requiring the plaintiff to
be an incola of the court concerned apart from the attachment) or
attachment adconfirmandam jurisdictionem (requiring the cause of action to have
occurred within the particular court’s area of jurisdiction, apart from the attachment).
On the given facts, the defendant is a peregrinus of the whole Republic. The property (the
house) is located in the Western Cape Division, Cape Town. Furthermore, the plaintiff is an
incola of Pretoria. However, the court does not meet the requirements for either attachment ad
fundandam and ad confirmandam jurisdictionem. Therefore, the Western Cape Division, Cape
Town will not have jurisdiction on the basis of attachment.
51
(ii) Suppose the issue related to the house Q owns in Cape Town, would your
answer to (ii) above change? (2)
(iii) In regard to a claim relating to immovable property, the court where the
immovable property is situated has exclusive jurisdiction in actions to
determine the title to immovable property or the transfer of property. This is
known as the exercise of jurisdiction ratione rei sitae.
On the given facts, the immovable property is situated in Cape Town.

Therefore, the Western Cape Division, Western Cape has jurisdiction ratione
rei sitae. This answer will be different from (ii) above as the issue now
involves immovable property. It does not matter that the defendant is a
foreign peregrinus. See TL 501/3/2018 unit 2.3.1 and page 106 of textbook.
COMMENT:
Exclusive jurisdiction applies only to immovable property, as the question whether the
forum rei sitae is exclusive in terms of movable property has not been settled: see study
guide unit 16.
(c) X and Y have been married to each other for 2 years. They both reside in
Botswana. Y is sent to Durban by his work. Whilst in Durban for 8 months, Y
decides to divorce X. With these facts in mind answer the following question:
(i) Will the KwaZulu-Natal Local Division, Durban have jurisdiction on the matter?
(2)
(b) There are two main grounds on which South African courts may exercise divorce
jurisdiction, namely:
• domicile OR
• residence, based on either section 2(1)(a) or (b) of the Divorce Act
70 of 1979
Section 2 provides that, a court shall have jurisdiction in a divorce action if

the parties are or either of the parties is domiciled in the area of jurisdiction of
the court on the date on which the action is instituted (s 2(1)(a) or ordinarily
resident in the area of the jurisdiction of the court on the said date and have
or has been ordinarily resident in the Republic for a period of not less than
one year immediately prior to that date (s 2(1)(b).
On the given facts, X is domiciled in Botswan a. However, Y has been

ordinarily resident in Durban (the Republic) for a period of 8 months.
However, this is less than one year, as required. Therefore, an action for
divorce cannot be brought in the KwaZulu-Natal Local Division, Durban as
neither, s 2(1)(a) or (b) applies.
52
QUESTION 2
Y rents a flat from X. When Y’s contract expires, Y refuses to vacate the flat. X approaches
the court for an ejectment order. Answer the following questions. (Please note because
your understanding of only procedu ral principles is tested, you should ignore the
provisions of the so-called “PIE” legislation.)
(a) Name the type of summons that X should use to obtain the above order. (1)
A simple summons. A claim for ejectment is a claim for a fixed or definite thing. As
such, it can be classified as a liquidated claim (demand or a debt). See page 254 of
textbook.
(b) Y gives notice of intention to defend within dies induciae. Name the procedure that
X may now use. (1)
X may apply for summary judgement within 15 days of receiving the notice of
intention to defend. See page 255 of the textbook.
(c) Explain in detail what action Y may take in response to the procedure referred to in
(b) above. (3)
Y may give security to the plaintiff to the satisfaction of the registrar or clerk of the court (as the
case may be) for any judgment including costs, which may be given or satisfy the court by
affidavit or with leave of the court by oral evidence that he has a bona fide defence to the
action.
(d) Explain in detail the procedure X may follow if Y fails to file a notice of intention to
defend within dies induciae. (2)
X may apply for a default judgement. In terms of High Court rule 31(2) and Magistrates’ Courts
rule 12(1)(a), default judgment may be granted against a defendant if he fails to deliver a notice
of intention to defend within the time set out in the summons (dies induciae).
(e) Explain in detail whether the combined summons is a pleading or a process. (3)
A combined summons is regarded as a pleading. However, although the summons part
is strictly speaking a process and the particulars of a claim a pleading, these two parts
are inseparably linked (hence a “combined” summons), thus forming a single unit.
[10]
QUESTION 3
(a) X enters into a contract with Y in Pretoria. Y will build a house for X in Soweto. X
pays Y R400 000 for the project. Y resides in Krugersdorp. Y fails to finish building
the house and refuses to do so. X wants Y to finish the building the house. Will any
magistrates’ court mentioned herein be competent to force X to finish building the
house? (5)
This is a claim for specific performance. Section 46(2)(c) Magistrates’ Courts Act,
1944 provides that a magistrate’s court may not hear claims for specific
performance without an alternative claim for damages. Specific performance is the
performance of an act that a person has contractually undertaken to perform.
According to the courts’ definition of specific performance, what is referred to is the
53
performance of an act that was contractually undertaken (i.e. ad factum
praestandum) and does not include ad pecuniam solvendam: this was confirmed in
Maisel v Camberleigh Court (Pty) Ltd 1953 4 SA 371 (C).
On the given facts, X wants the court to compel Y to finish building as per agreement. Therefore,
directing Y to finish building would amount to an order for specific performance, which, without an
alternative claim for damages, cannot be heard by a magistrate’s court. Therefore, neither of the courts
mentioned will have jurisdiction in the matter.
(b) Name the way in which a defendant, in his plea on the merits, must deal with the
material averments contained in the plaintiff’s particulars of claim. (3)
Magistrates’ courts rule 17(2) provides that the defendant shall in his plea either
admit, or deny, or confess and avoid all material facts alleged in the combined
summons or declarations. See page 203-206 of the textbook.
(c) Briefly explain the purpose of the pre-trial conference in the magistrates’ courts. (2)
A pre-trial conference in the magistrates’ court is regulated by section 54 of the
Magistrates’ Courts Act read with Magistrates’ Courts rule 25. Its purpose is to
shorten the trial. To achieve this, the following issues should be dealt with the
simplification of the issues; the necessity to amend pleadings; the possibility of
obtaining admission of facts and avoid delays; the limitation of the number of expert
witnesses and any issue which may aid in the disposal of the matter expeditiously and in
a less costly manner.
54
2018 – ASSIGNMENT 2
QUESTION 1
X and Y are involved in a car accident. X alleges that the accident was solely caused by
the negligence of Y. X has suffered bodily injuries in the amount of R50 000 and damages
to the car in the amount of R100 000. With the above facts, choose the most appropriate
statement:
(1) X can institute a civil claim against Y for damages suffered.

(2) When instituting the claim for damages, X is regarded as the plaintiff and Y is
regarded as the accused.
(3) Y is found liable for damages and is ordered to pay a fine.
(4) In Civil Proceedings, the liability of a defendant or respondent needs to be
proved only on the balance of probabilities.
ANSWER 1
The onus of proof in civil proceedings is on a balance of probabilities. Therefore, the

court must be satisfied that the version put forward by the plaintiff is more probable than
that put forward by the defendant. See page 1 of the prescribed textbook and TL
501/3/2018 unit
1.4 and page 1 of the textbook.
Statement (1) is incorrect. The subject matter of the court proceedings can either be of a
civil or criminal nature. In this instance, either criminal or civil proceedings may be used.
From the given statement, it seems to suggest that P may not “only” institute a claim for
damages arising out of the delict (motor collision), but P may also lay criminal charges in
respect of S’s contravention of the National Road Traffic Act. See page 1 of the textbook.
Statement (2) is incorrect. The parties in criminal proceedings are the complainant or
victim (the party who lays the criminal charges), represented by the state, and the
accused (the party against whom the charge is laid). The parties in civil proceedings (in
action proceedings) are the plaintiff (the party who initiates the proceedings by issuing
the summons) and the defendant (the party against whom the claim is instituted). In
application proceedings, the parties are the applicant (the party bringing the application)
and the respondent (the party opposing the application). Therefore, when instituting the
claim for damages, X, is regarded as the plaintiff and Y is regarded as the defendant.
See page 1 of the textbook.
Statement (3) is incorrect. An accused who is found guilty of a criminal offence is usually
punished by means of either a fine or imprisonment or both. A defendant or respondent
who is found liable in a civil matter usually pays damages. Therefore, Y if found liable will
be ordered to pay damages. See page 1 of the textbook.
17
55
QUESTION 2
Choose the most appropriate statement
(1) The three primary processes of alternative dispute resolution are arbitration,
mediation and litigation.
(2) Because mediation is a primary process, it is also regarded as a command process.
(3) Arbitration is an alternative dispute resolution process that has much in
common with litigation.
(4) A mini trial is a derivative of the processes of litigation and mediation.
ANSWER 2
Arbitration is an alternative dispute resolution process that has much in common with
litigation. See page 505 of the textbook.
Statement (1) is incorrect. The three primary ADR processes are negotiation, mediation
and arbitration. Litigation is the mainstream model of dispute resolution, against which
ADR processes are posed as an alternative. See TL 501/3/2018 unit 4.1.
Statement (2) is incorrect. Mediation is a process. The fact that mediation lacks the
formalities of a process does not detract from the fact that is a process. It is not a
command process as it requires the intervention of a neutral third party to assist the
parties to reach a mutually acceptable resolution to their dispute. See page 504 of
textbook.
Statement (4) is incorrect. A mini trial is a derivative of the processes of litigation and
negotiation. See page 507 of textbook.
QUESTION 3
Indicate the most accurate statement regarding the small claim’s courts:
(1) Legal representation is now allowed in the small claim’s courts.

(2) A small claim court is not regarded as a court of record.
(3) In the small claims court, the summons are the first documents to be changed
between the parties.
(4) The small claim court does not have jurisdiction to deal with the dissolution of
marriages or customary marriages.
ANSWER 3
Section 16 of the Small Claims Courts Act,1984 (hereinafter the “SCCA”) provides that
the small claims court does not have jurisdiction in matters of dissolution of marriages or
customary unions. See page 485 of the textbook and section 16 of the SCCA.
Statement (1) is incorrect. Section 7(2) of SCCA provides that a plaintiff must appear in
56
person before the court and may not be represented by any person during proceedings.
This means that legal representation is prohibited in the small claims court. See
TL501/3/18 unit 1.2.5 and page 484 of the textbook.
Comment
Note that the section does not prohibit a plaintiff to seek legal assistance prior to the
commencement of the proceedings.
Statement (2) is incorrect. A small claims court is not a court of record. This means that
during trial, the proceedings are not put into writing. However, the commissioner must
record his or her judgment or order and sign it. See page 487 of the textbook.
Statement (3) is incorrect. The letter of demand is the first document to be delivered to
the defendant in the small claims court. In terms of section 29(1)(a) of the SCCA, the
defendant is given 14 days to satisfy the plaintiff’s claim. Section 29(2) confirms that a
summons is not the first document in small claims court proceedings. See TL501/3/2018
unit 1.2.5 and page 487 of the textbook.
QUESTION 4
(1) The constitutional court may not confirm a decision regarding the constitutionality of
any legislation of the High Court before such legislation can acquire force.
(2) The decisions on whether parliament or President has failed to comply with a
constitutional duty may be adjudicated by the Constitutional Court.
(3) The Supreme Court of Appeal is the highest court of appeal and also the highest
court in respect of all causes of action.
(4) In exceptional circumstances, the Supreme Court of Appeal may be approached
directly.
ANSWER 4
Section 167(4) of the Constitution provides that the Constitutional Court has exclusive
jurisdiction on decisions whether parliament or President has failed to comply with a
constitutional duty. See TL 501/3/2018 unit 1.2.1 and page 10 of the textbook.
Statement (1) is incorrect. Statement (3) is incorrect. The Constitutional Court must
confirm a decision by the High Court or a court of similar status regarding the
constitutionality of an Act of Parliament or of a province before such decision has any
force. See section 167(5) of the Constitution, as amended by the Constitution
Seventeenth Amendment Act of 2012. Also see section 167(4) of the Constitution and
page 9 textbook.
Statement (3) is incorrect. The Supreme Court Appeals is the in termediate appeal court.
It can hear appeals on both constitutional and non-constitutional matter. See page 9 and
TL 501/3/2018 unit 1.2.2.
Statement (4) is incorrect. The Supreme Court of Appeal may never be approached
directly.
57
QUESTION 5
(1) The Rules Board has the power to amend or repeal rules for both the High Courts
and lower courts.
(2) The rules of the court are a means in themselves rather than an end to the
means.
(3) Since the rules exist for the courts, a court may not condone a litigant’s non-
compliance with its rules.
(4) Magistrates’ courts rules are referred to as Uniform Rules of the court.
“The rules exist for a court and not the court for the rules”. This means that the rules are
not an end in themselves, but rather a means to an end. The rules of court have statutory
force and are binding on a court. However, the purpose of the rules is to facilitate
inexpensive and efficient litigation, and not to obstruct the administration of justice. See
TL 501/3/2018 unit 1.6
Statement (1) is incorrect. The Rule Boars have powers to make, amend or repeal rules
for the efficient, expeditious and uniform administration of justice in the Supreme Court of
Appeal, The High Court and the Magistrate’s courts. See TL501/3/2018 unit 1.6 and
section 6(1) Rules Board).
Statement (3) is incorrect. A court may condone any procedural mistakes or determine
any point of procedure. This means that a cou rt, subject to its competence to do so,
may condone non-compliance with procedure that would lead to substantial injustice to a
litigant, or grant relief for a matter that is not covered by a rule or where a rule is so strict
that it causes substantial prejudice to a litigant. See TL 501/3/2018.
Statement (4) is incorrect. The Magistrates’ Courts Rules are referred to as Magistrates’
Courts Rules. High Court Rules are the referred to as Uniform Rules of Court. See
TL501/3/2018 unit 1.5.1.
QUESTION 6
(1) An interlocutory application is brought by way of a notice of motion.

(2) If a party wishes to oppose an application, he or she must deliver a notice of
intention to defend within dies induciae.
(3) Ordinary application proceedings always commence with a notice of motion.
(4) Ex parte application is always brought after a divorce when one of the parents
applies for an amendment of access rights in respect of minor children.
58
Ordinary application proceedings are used when notice of the proceedings must be given to
other parties. Such notice must conform to Form 2(a) of the Uniform Rules of Court and it is
brought on Notice of Motion. See TL 501/3/2018 unit 6.2 and page 155 of textbook.
Statement (1) is incorrect. An interlocutory application does not initiate proceedings and is
therefore brought only by notice. See page 156 of the textbook.
Statement (2) is incorrect. If a person wishes to oppose an application, he or she must

deliver a notice of intention to oppose the application. A notice of intention to defend applies
only to action proceedings. See page 166 and 167 of textbook.
Statement (4) is incorrect. An ex-parte application is brought were the order sought will not
affect someone else’s interest. Therefore, an application for the amendment of access
QUESTION 7
Judgment by default is relevant in the following circumstances:
(1) If the defendant fails to give timeous notice of his intention to defend.
(2) If a party fails to deliver an exception.
(3) If a party fails to deliver a special plea timeously.
(4) If a party fails timeously to request further particulars for the purposes of trial.
Question 7
A default judgment order can be obtained if the defendant has failed to deliver a notice of
intention to defend within the time stipulated in the summons. (Default judgement may also
be granted where the defendant fails to appear at the trial in terms of rule 32(2) of the
Magistrates’ Court rules). No other instances apply. See textbook page 243-249.
Statement (2) is incorrect. See Comment for statement (1) above.
59
QUESTION 8
The following are all examples of a “debt or liquidated demand”:
(1) A claim for the payment of an amount reflected in a written quotation.

(2) A claim for a divorce order.
(3) A claim for the payment of an amount reflected in a taxed and finalised bill of
costs.
(4) A claim for delivery of ten farm animals.
Question 8
A claim for a debt or liquidated demand is where the claim is for a fixed, certain or
ascertainable amount or thing. A claim for payment of an amount reflected in a taxed and
finalised bill of costs is a debt or liquidated demand as the amount on the bill is fixed or
ascertainable. See page 182 of the textbook.
Statement (1) is incorrect. A claim for payment of an amount reflected on a written quotation
is not a claim for a debt or liquidated demand. The amount claim must be fixed or
ascertainable, and a quotation reflects an estimate amount. See comments to statement
(3) above.
Statement (2) is incorrect. A claim for a divorce order is a claim for an unliquidated claim.
An unliquidated claim refers to a claim in respect of which the quantum must be determined
or where status of the parties is affected. See page 181 of the textbook.
Statement (4) is incorrect. Ten farm animals could refer to any animals or even a
combination of animals. “Ten specifically selected and marked cows” would for example,
have been “fixed and definite” as per definition. See page 182 of the textbook.
QUESTION 9

(1) The rules of court allow only for three sets of affidavits to be exchanged between
the parties in opposed application proceedings.
(2) If the plaintiff’s claim is based on a duly executed acknowledgment of debt,
the action may be instituted by way of a provisional sentence summons.
(3) The commencement of action proceedings must always be preceded by a letter of
demand.
(4) In accordance with the audi alteram partem maxim, and in order to satisfy
defendants of the proceedings instituted against them, notice of motion and
summonses must be served on the defendants personally.
60
ANSWER 9
A provisional sentence summons is used in cases where the plaintiff’s claim is based or founded
on a liquid document such as an acknowledgment of a debt. See page 185 of the textbook.
Statement (1) is incorrect. The rules generally provide for three sets of affidavits. However, further
affidavits may be filed. Therefore, the rules do not only allow three sets of affidavits to be
exchanged between the parties in an opposed application. See pages 166-168 of the textbook.
Statement (3) is incorrect. The summons itself may constitute a legal demand and it need not be
preceded by a letter of demand. However, there are circumstances wh ere a demand must be
made. See page 122-123 of the textbook.
Statement (4) is incorrect. There are different types of service used to accord with the maxim of
audi alterm partem. The maxim means that every person is entitled to be heard before an order or
judgment is granted against him or her. The fundamental rule is that the court must be satisfied that
the defendant or respondent has received the document and is aware that legal proceedings are
being brought against him or her. See TL501/3/2018 unit 5.5, 5.7 and page 143 of the textbook.
QUESTION 10
(1) A combined summons is a unique document because the summons and the
declaration are inextricably linked.
(2) In action proceedings, a counterclaim is always served with aa plea on the merits.
(3) A power of attorney usually seeks to define the extent of an attorney’s mandate.
(4) As an attorney, it is not possible to represent the client without first producing a
power of attorney in all courts
Question 10
A power of attorney usually seeks to define the extent of an attorney’s mandate. See page
55 of the textbook.
Statement (1) is incorrect. The combined summons consists of the summons and particulars
of claim which are inextricably linked. See page 181 of the textbook.
Statement (2) is incorrect. Obviously the defendant must deliver his counterclaim to plaintiff’s
claim together with the plea if he or she has a counterclaim. If there is no counterclaim such
a step would not make sense. See page 219-222 of the textbook.
Statement (4) is incorrect. A legal representative of a party need not, as a general rule, file
a power of attorney in order to prove that he/she possesses the necessary authority to act.
However, should the mandate of the attorney be disputed, it must be proved.See page 56-
58 of the textbook.
61
SECOND SEMESTER
ASSIGNMENT 01
QUESTION 1
Briefly explain why it can be said that court-annexed mediation contributes to the reform of
the adversarial system of civil procedure in the Anglo-American legal system.
Court annexed mediation was introduced into the legal system to enhance access to
justice in civil claims. It is said to contribute to the reform of the adversarial system of the
civil procedure in the Anglo-American system in that:
• It helps litigants to determine at an early stage of litigation whether formal litigation is in

their best interests; this assist in that dispute can be submitted to mediation prior to and/or
after commencement of litigation.
• It facilitates expeditious and cost-effective resolution; this is because the delay of formal
litigation is avoided and as a result curb costs of litigation.
• It helps to phase out bad claims. See TL 501/3/2018 unit 4.2 and Pete et al 504.
X has a claim against Z in the amount of R600 000 on the grounds of breach of contract
which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria.
With these facts in mind, answer the following questions. Give detailed reasons for your
answers.
(a) Explain why X can institute proceedings against Z in the Cape Town High Court. (2)
In regard to a claim relating to a contract, the court in whose area of jurisdiction the contract
was concluded or where the contract was to be performed, either in whole or in part will
have jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under
common law, this falls within the ambit of ratione rei gestae).
On the given facts, the breach of contract occurred in Cape Town, therefore, the
Western Cape High Court, Cape Town will have jurisdiction to institutes the
proceedings ratione contractus. See unit 2.2.2 in TL501/3/2018 and Pete et al
103.
COMMENT:
Please note the presentation of the answer, as well as the content thereof. Also note that
a specific conclusion was arrived at, based on the relevant question. Read questions
carefully and ensure your answer addresses the question!
(b) If Z is on holiday in Durban for three weeks, may X issue summons out of Cape
Town High Court, and have the summons served on Z while in Durban? (3)
Section 42(2) of the SCA, 2013 provides that a civil process of a Division runs throughout
62
the Republic and may be served or executed within the jurisdiction of any Division. This
means that the process issued by a particular court (such as a summons or notice of
motion) may be served within the jurisdiction of any division of the High Court in the
Republic. It also means that the judgment or order of a particular court is enforceable within
the jurisdiction of any division of the High Court in the Republic
On the given facts, X may issue summons in the Western Cape High Court and
have them served on Z whilst on holiday in Durban.
COMMENT:
Please note that court processes were interpreted in the case of Dorfman v
Deputy Sherriff, Witwatersrand 1908 TS 703as something which proceeds from
the court; some step-in legal proceedings which can only be taken with the court
or with one of its officers. (eg subpoenas, summons, notice etc.)
(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and the cause
of action arose in Durban? (3)
Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South
African court will exercise jurisdiction over such a person only after attachment of his or her
property has taken place, attachment ad confirmandam jurisdictionem (requiring the cause
of action to have occurred within the particular court’s area of jurisdiction apart from the
attachment).
On the given facts, the defendant is a peregrinus of the whole Republic (he
resides in Namibia). The High Court in whose area of jurisdiction the cause of
action (collision) occurred will be able to exercise jurisdiction ad confirmandam
jurisdictionem, provided that the defendant has attachable property within the
Republic, especially within the particular court’s area of jurisdiction. In this
instance it is irrelevant whether the plaintiff is an incola or peregrinus of the court.
The attachment confirms or strengthens the partial or imperfect jurisdiction that the
court has by reasons of the fact that the cause of action arose within its area.
Therefore, KwaZulu-Natal Local Division, Durban will not have jurisdiction on the
basis of attachment ad confirmandum, since there is no attachable property
within the Republic especially in the Durban area of jurisdiction and not within
Durban.
COMMENT:
Although the cause of action arose in the court’s area of jurisdiction, it only has
partial jurisdiction as we are dealing with a foreign peregrinus. It will thus not be
competent to exercise jurisdiction unless attachment (ad confirmandum
jurisdictionem) has also taken place. Please note that the attachment has to
happen with the court where cause of action arose. The attachment strengthens
the partial or imperfect jurisdiction that the court has by reason of the fact that the
cause of action (breach of contract) arose within its area of jurisdiction.
63
d)Would your answer to (a) differ if the claim related to the registration of fixed
property, and the property was situated in Johannesburg? (2)
In regard to a claim relating to immovable property, the court where the immovable
property is situated has exclusive jurisdiction in actions to determine the title to immovable
property or the transfer of property. This is known as the exercise of jurisdiction ratione rei
sitae.
On the given facts, the property is situated in Johannesburg. Therefore, South

Gauteng High Court, Johannesburg for the claim on registration of the house
ratione rei sitae. This will be different from (a) above as the issue now involves
property. It does not matter whether the defendant is a foreign peregrinus. See
TL501/3/2018 unit 2.3.1 and Pete et al 106.
COMMENT:
Exclusive jurisdiction applies only to immovable property, as the question whether

the
forum rei sitae is exclusive in terms of movable property has not been settled.
QUESTION 3
(a) C disputes the mandate of D’s attorney because no written power of attorney was
filed with the Registrar of the High Court. Briefly di scuss the merits of C’s
contention. (3)
In terms of Rule 7(1) of the Uniform Rules, the filing of a power of attorney is not required to
issue summons or to enter an appearance. It also provides that a power of attorney to act
need not be filed unless the authority to act is disputed. If the authority is disputed, the legal
representative may file the power of attorney with the Registrar of the High Court within 10
days after it has come to his/her notice.
In terms of the given facts, C disputes the mandate of D’s attorney due to the fact
that the power of attorney has not been filed with the Registrar. Rule 7(1) of the
Uniform Rules does not require that a power of attorney be filed in certain
circumstances as stated above. Therefore, D’s attorney must only file a power of
attorney if his/her mandate is disputed. If C disputed the authority of D’s attorney
to act, then D’s attorney needs to file his/her power of attorney with the Registrar
of the High Court. See page 56 of the textbook and pa.
(b) Briefly explain how the audi alteram partem principle finds application in the
ordinary application procedure. (2)
The audi alteram partem principle requires that notice of litigation be given to everyone
whose rights are affected by any order in the legal proceedings or who has an interest
in any such order. Therefore, in an ordinary application procedure, notice will be given to
the other person or to a person whose rights/interest will be affected by the order of the
court. Such person or persons receives notice of the application in that it is “served” on
him/her after it has been issued
64
QUESTION 4
N, who lives in Johannesburg, buys a truck for R190 000 from T in Bloemfontein. T lives in
Bloemfontein. N pays T R160 000 of the purchase price and undertakes to pay the
balance of R30 000 on delivery of the truck. T delivers the truck to N’s home, but despite
demand, N fails to pay the balance of the purchase price. Will any magistrates’ court in all
the centres mentioned above have jurisdiction to hear an action instituted by T against N
for the return of the truck? Give detailed reasons for your answer. (5)
Section 28(1)(a) of the MCA provides that a magistrate’s court will have jurisdiction over
any person who resides, or carries on business, or is employed within its district or
regional division.
Section 28(1) (d) of the MCA provides that a magistrate’s court may exercise jurisdiction
over any person, whether or not he or she resides, carries on business or is employed
within the district, if the cause of action arose wholly within the particular jurisdictional
area or district of the court. For the cause of action to have arisen “wholly” in the
particular jurisdictional area of district of a court, conclusion of a contract and breach of
contract must have occurred within the same jurisdictional area.
On the given facts, N (the defendant) resides in Johannesburg. The contract (to purchase
a truck) was concluded in Bloemfontein. However, the breach (failure to pay the balance)
occurred in Johannesburg. Therefore, in terms of section 28(1)(a) Johannesburg district
magistrate’s court will have jurisdiction as N reside there. However, in terms of section
28(1)(d), neither the Bloemfontein nor the Johannesburg district magistrate’s court where a
part of the cause of action arose will have jurisdiction.
QUESTION 5
S wishes to sue R in the amount of R120 000 for goods sold and delivered, which R,
despite demands, refuses to pay. Answer the following questions.
(a) Briefly discuss the type of summons S may use to commence the action. (2)
A simple summons. A claim for good sold and delivered is a claim for a fixed or definite
thing. As such, it can be classified as a liquidated claim (demand or a debt). See Pete et
al 254.
(b) Briefly explain the purpose of a pre-trial conference in the magistrates’ courts. (3)
Pre-trial conference in the magistrate’s court are dealt with by section 54 of the Magistrates’
Courts Act read with Magistrates’ Courts rule 25. Its purpose is to ascertain the simplification of
the issues, for the necessity to amend pleadings, the possibility of obtaining admission of facts
and avoid delays, the limitation of number of expert witnesses and any issue which may aid in
the disposal of the matter expeditiously and less costly manner.
65
2018 - ASSIGNMENT 02
QUESTION 1
(1) The court may interfere with civil proceedings during the pre-trial and trial
stages on the request of either of the parties.
(2) The state has an interest in civil proceedings since it provides the parties with
infrastructure and court time.
(3) Every citizen is able to afford litigation because court time and administration are
paid by the state.
(4) The objective of civil proceedings is to establish liability beyond reasonable doubt.
Although the court generally plays a passive role during both the pre-trial and the trial
stages in the adversarial system of civil procedure (such as our system) and does not
interfere in the proceedings, it may do so upon the request of one of the parties. This is of
course contrary to the position in the Continental systems which follow the inquisitorial
system where the cou rt participates directly in the process of litigation, from the
commencement of the proceedings until the conclusion of the hearing.
Statement (2) is incorrect. Civil proceedings are entirely voluntary and at the discretion of
an aggrieved party. It is up to a party to either institute, defend, abandon or settle a
matter, and parties to civil proceedings conduct these proceedings independently and
without interference by the state. The state merely provides the infrastructure within
which disputes may be resolved, and if necessary, may enforce a court order or
judgment. However, this does not mean that the state has an interest in civil proceedings.
See Pete et al 1-2.
Statement (3) is incorrect. Unfortunately, although the state provides the infrastructure
and the court time, it does not mean that litigation is affordable to all: parties are liable to
pay the costs incurred by their lawyers who conduct litigation on beh alf of their clients.
Although a litigant may appear in person, the complexity of legal issues and the intricacy
of court procedure normally make representation by a lawyer essential. The fees charged
for these professional services often place litigation beyond the means of the average
citizen. See Pete et al 1-2.
Statement (4) is incorrect. In civil proceedings the burden of proof is on a balance of probabilities. This
means that the court must be satisfied that the version put forward by the plaintiff/applicant is more probable
than that put forward by the opposing party. “Beyond all reasonable doubt” is the burden of proof in criminal
matters
66
Question 2
Indicate the most accurate statement relating to attachment ad confirmandam
jurisdictionem:
(1) Where both the plaintiff and the defendant are foreign peregrinus of the court and
(2) Where the plaintiff is incola of the court, the defendant is a foreign peregrinus
of the Republic, the cause of action arose within the courts’ area of
jurisdiction and attachment has taken place within the court’s area.
(3) The defendant is a peregrinus of the court concerned, the plaintiff is an incola of the
court concerned and attachment has taken place.
(4) Both the plaintiff and the defendant are incola of the court concerned and
Question 2
Attachment ad confirmandam iurisdictionem is permissible where the defendant is (a) a

peregrinus of the whole of the Republic; (b) attachment of the defendant’s property has
taken place within the particular court’s area of jurisdiction; and (c) the cause of action
has occurred in this court’s area of jurisdiction. Although the plaintiff may of course be (or
happen to be) an incola of the court concerned, it is not a requirement, and it thus makes
no difference whether the plaintiff is an incola or a peregrinus of this court. See Pete et al
110-112.
Statement (1) is incorrect. For a court to be vested with jurisdiction in respect of such
parties, the cause of action must have arisen within its jurisdiction area. The statement
does not include this requirement, and therefore attachment cannot in any event confirm
partial or imperfect jurisdiction. See Pete et al 110-112.
Statement (3) is incorrect. The statement does not specify that the defendant is a foreign
peregrinus, and therefore he or she may very well be a local peregrinus, in which event
attachment is prohibited under section 28 of the Superior Courts Act of 2013. This
section prohibits the attachment of property of an incola of the Republic. See Pete et al
110.
Statement (4) is incorrect. In view of the comments regarding (3) above, attachment
cannot take place as it is prohibited. Furthermore, since the defendant is an incola of the
court concerned, this court would have jurisdiction ratio domicilii, also rendering
attachment unnecessary, apart from being prohibited. See Pete et al 100-110.
QUESTION 3
Indicate the most accurate statement
(1) The district magistrates’ courts can adjudicate on divorce matters according to the
jurisdiction of the Regional Magistrates’ Courts Amendment Act.
(2) A court may exercise divorce jurisdiction only if the wife is resident in the
jurisdictional area of the same court where the husband is resident.
67
(3) Section 28(1A) of the Magistrates’ Courts Act provides the regional
magistrates’ courts with divorce jurisdiction.
(4) A court may exercise divorce jurisdiction only if the wife is domiciled in the court’s
area of jurisdiction at the time of the institution of the action.
Section 28(1A) of the Magistrates’ Courts Act 32 of 1944 expressly provides that a regional
magistrate’s court may exercise divorce jurisdiction. To this end the definition of “court” in section
1 of the Divorce Act of 1979 includes a reference to a regional magistrate’s court division. See
TL501 unit 2.4.
Statement (1) is incorrect. The Jurisdiction of Regional Courts Amendment Act 31 of 2008
extended divorce jurisdiction to regional courts only, and not to district courts. Districts courts
may thus not adjudicate divorce matters. See TL501 unit 2.4.
Statement (2) is incorrect. Both section 2 of the Divorce Act of 1979 and section 28(1A) of the
Magistrates’ Courts Act of 1944 make it clear that domicile and residence are separate and
alternative grounds for jurisdiction and establishes the independent domicile or residence of
either the husband or the wife as grounds for jurisdiction. Clearly not “only” the wife is required to
be resident in a court’s area of jurisdiction, and she certainly is not required to be so where the
husband is resident. See TL501 unit 2.4 Pete et al 113-114.
Statement (4) is incorrect. In view of what has already been stated in respect of statement (2), it is incorrect
to require “only” the wife to be domiciled in the court’s area of jurisdiction. Furthermore, residence is an
alternative ground for jurisdiction
QUESTION 4
(1) The three primary ADR processes are litigation, arbitration and mediation.
(2) Arbitration permits disputants more control over the process than in the case
of litigation.
(3) Facilitation, final-offer arbitration and arb/med are all derivative ADR processes.
(4) ADR processes are formal and involuntary.
Litigation is primarily based on rules and statutory provisions that prescribe how
proceedings must be conducted. Litigation also takes place within the formal court
structure. In comparison, arbitration is an extremely flexible process, making it possible to
adapt the process to suit the needs of different situations, and it allows a great deal of
party control over the process. The disputants may select the arbitrator on the grounds of
his or her expertise; choose the rules of arbitration that must be applied by the arbitrator;
determine the issues in their submission to arbitration; and arrange matters relating to the
arbitration venue, the date for the hearing and the payment of costs. See Pete et al 505.
Statement (1) is incorrect. Because ADR processes are dispute resolution processes
which are alternatives to litigation as a dispute resolution process, it is clearly incorrect to
include litigation in the processes referred to as primary ADR processes. Negotiation,
arbitration and mediation are in fact the primary ADR processes. See Pete et al 504.
Statement (3) is incorrect. A derivative process can be traced back to a primary process.
68
Thus, facilitation is a derivative of mediation, and final-offer arbitration can be traced back
to arbitration. However, arb/med is a hybrid process, and original within the system of
ADR. (A hybrid process is formed when elements of one primary process is combined
with elements of another process to form a completely new process.) See Pete et al 504.
Statement (4) is incorrect. ADR processes are in fact the complete opposite: they are informal (neither
bound by strict rules of procedure, nor constrained by technicalities) and voluntary (disputants are not
compelled to enter into the process).
QUESTION 5
(2) The principle of party representation does not apply in the small claims court
because the commissioner plays an active role in assisting the litigants to
present their case during the trial.
(3) A small claims court can adjudicate a claim for wrongful imprisonment or for
wrongful arrest.
(4) A small claims court can entertain an action for the delivery of movable property not
exceeding R17 000.
Party presentation refers to the competence of a litigant to not only investigate his or her
own cause or defence and to formulate the issues in dispute, but also to present and
conduct his or her case before a court. This is done without judicial interference.
However, although the plaintiff in the small claims court institutes the action and
formulates his or her claim, no pleadings are required, and the commissioner plays an
active role in the proceedings. He or she acts inquisitorially to establish the facts, and in
so doing, the commissioner may question any litigant or witness at any stage of the
proceedings. It is also the commissioner, and not the litigant, who decides that sufficient
evidence has been adduced on which a decision can be made, and that no further
evidence may be led. See Pete et al 486.
Statement (1) is incorrect. The small claims court should not be regarded as inferior to
other courts because of the low value of the claims submitted. The legal issues involved
in these matters are not necessarily simple; in fact, the opposite is often true: complex
issues of law may arise in any civil matter, and the value of a claim is no indication of
complexity or simplicity. See TL501/3/2018 unit 1.2.5.
Statement (3) is incorrect. Section 16(f) of the Small Claims Courts Act of 1984
specifically places a matter in which damages in respect of wrongful imprisonment or
wrongful arrest is claimed, beyond the jurisdiction of the Small Claims Court. See section
16 of the Small Claims Courts Act of 1984; Pete et al 485.
Statement (4) is incorrect. Although the court can entertain an action for the delivery of movable
property, the quantitative jurisdiction limit is R15 000, and not R17 000.
69
QUESTION 6
Indicate the most accurate statemen t:
Summary judgment is relevant in the following circumstances:
(1) Where a claim is for breach of contract and the defendant gives notice of intention
to defend simply to delay proceedings.
(2) Where the claim is for goods sold and delivered and the plaintiff contends that the
defendant does not have a bona fide defence and that appearance to defend was
simply entered to gain time.
(3) Where the claim is for specific performance and the defendant does not have a
bona fide defence.
(4) Where the claim is the delivery of ten specially marked items and the defendant fails
to timeously deliver a notice of intention to defend.
The claim for goods sold and delivered constitutes a claim for the payment of a
“liquidated amount of money” as contained in Uniform Rule 32(1) (mcr 14(1)). As such it
is one of the types of claim upon which summary judgment may be requested if the
plaintiff is of the opinion that the defendant does not have a bona fide defence and has
defended the matter simply to delay proceedings. Note that summary judgment may be
requested only in respect of the four types of claim set out in the above court rules.
See Pete et al 252.
Statement (1) is incorrect. A claim for breach of contract would be a claim for damages,
and damages constitute an unliquidated claim. In other words, the amount of the claim is
not fixed or definite and will only be determined by the court after hearing evidence to
prove the amount payable. Therefore, regardless of the intention of the defendant when
defending the claim, summary judgment cannot be applied for as the claim does not fall
within the ambit of Uniform Rule 32(1) or magistrates’ courts rule 14(1). See Pete et al
252-253.
Statement (3) is incorrect. See the comments above in (1) and (2) regarding the claims
specified in the particular court rules.
Statement (4) is incorrect. Although the claim falls within the ambit of the court rules referred to above,
summary judgment is not the correct procedure to follow when a defendant fails to timeously deliver a
notice of intention to defend. In such an instance a plaintiff may request default judgment under Uniform
Rule 31 or magistrates’ courts rule 12. Please ensure that you carefully distinguish between these two
judgments: although they are both pre-trial judgments, the circumstances under which each may be
sought are completely different.
70
QUESTION 7
B wants to evict his tenant C from a residential property that B rents in terms of a contract
of lease. The exact nature of the claim that B will have against C is …
(1) an illiquid claim.

(2) a liquid claim.
(3) a debt or liquidated demand.
(4) an unliquidated claim.
The expression “liquidated claim” has been interpreted as ‘‘a claim for a fixed or definite
thing, as, for instance, a claim for transfer or ejectment, for the delivery of goods, for
rendering an account by a partner, for the cancellation of a contract or the like’’. The
courts have also indicated that the debt is liquidated where it is admitted or where the
monetary value is capable of being ascertained speedily. The meaning of the phrase
“liquidated demand” may be understood more fully if it is contrasted with what is known
as an “unliquidated claim”. Simply stated, an unliquidated claim is incapable of speedy
ascertainment or mathematical calculation. Often a trial court is able to dispose
speedily of the legal aspects relating to liability since the relevant law is clear and settled.
However, a great deal of time is consumed by leading evidence to ascertain the
quantum of damages, which in most instances involves highly technical evidence that is
adduced from expert witnesses. See Pete et al 182.
Statement (1) is incorrect. There is no such thing as an “illiquid claim”. The illiquid
summons proceedings are instituted by means of a simple summons or a combined
summons. The simple summons and the combined summons may be distinguished from
each other on the basis of the nature of the claim in respect of which each is applied for.
The simple summons is used where the plaintiff’s claim is for a debt or a liquidated
demand and the combined summons is used where the plaintiff’s claim is unliquidated;
hence the concept of an illiquid summons procedure. See Pete et al 181-184.
Statement (2) is incorrect. A liquid claim must be based on a liquid document such as a
cheque. A liquid document may be defined as a document in which the debtor
acknowledges by means of his/her signature (or a duly authorised representative),
his/her liability for the payment of a certain and ascertainable amount of money, or is
legally deemed to have acknowledged such liability without signature in question having
in reality been appended thereto. See Pete et al 185.
Statement (4) is incorrect. An unliquidated demand or claim refers to any demand or

claim where the quantum must be determined, such as a claim for damages or where the
status of the parties is affected, such as a divorce action. The nature of the claim is
unliquidated, because the damages are determined by the court after hearing evidence.
A claim for ejectment falls within the definition of a “debt or liquidated demand” (see the
discussion under (3) above) and is thus clearly incorrect. See Pete et al 181.
71
QUESTION 8
(1) A rule nisi applies only to ex parte applications.

(2) An affidavit in application proceedings may, as a rule, not contain hearsay evidence,
and if it does, it may not on application be amended.
(3) An interlocutory application is brought by way of a notice.
(4) All types of application must be served by the sheriff.
Interlocutory applications are brought purely by way of a notice. It is brought where a

party approach the court for a relief in respect of a matter relating to the proceedings that
have already been instituted. Therefore, only a notice is used to institute the proceedings.
See Pete et al 155 and Uniform Rule 6(11).
Statement (1) is incorrect. A rule nisi applies to ex parte applications as well as in urgent
applications. Where the right of other persons may be affected by any order granted in
terms of ex parte application, the court will not grant a final order, but it will issue a rule
nisi. The rule nisi is an order calling upon the respondent, or all other interested persons
to show cause on a day fixed in the rule known as “a return day of the rule nisi” why relief
stated in the rule nisi should not be made final. See Pete et al 155-157.
Statement (2) is incorrect. An affidavit may not save in exceptional cases of urgency
contain hearsay evidence and if it does, the opposing party may apply to have the
application struck out of court. See Pete et al 161.
Statement (4) is incorrect. Notice of legal proceedings is facilitated by service of the

documentation personally by a party or his legal representative or by the sheriff. An
urgent application or ex parte application is the exception to the audi alteram partem rule
that notice of the litigation should be given to everyone whose rights may be affected by
any order in the legal proceedings or who has an interest in any such order. Uniform Rule
6(4) provides that every application brought ex parte shall be filed with registrar and set
down. The application does not have to be served as only the interest of the applicant are
affected by the order. Uniform Rule 6(12)(a) provides that in an urgent application the
court may dispense with forms and service provided for in the rules and may dispose
such matter at such time and place and in a manner and in accordance with such
procedure as it seems meet. Therefore, all types of application are not served by the
sheriff. See Pete et al 157.
72
QUESTION 9
D lives in Pretoria, South Africa. D wishes to divorce his wife, F. F lives and works as a
model in New York, USA and D knows her exact whereabouts. The summons must be
served on F by way of …
(1) Substituted service.

(2) Personal service.
(3) Edictal citation.
(4) Service at F’s employment.
Edictal citation service is effected on a defendant who is believed to be outside the

Republic, even when his/her exact whereabouts are known and where personal servi ce
is possible. See Uniform Rule 5; mcr 10 and Pete et al 142.
Statement (1) is incorrect. Substituted service is effected on the defendant who is

believed to be in the Republic however his or her exact whereabouts are unknown. See
Uniform Rule 4(2); mcr 10 and Pete et al 141-143.
Statement (2) is incorrect. Person al service is effected when the defendant whereabouts
are known and he or she is within the Republic and the sheriff of the court delivers a copy
of the summons to the person (personally). In the given facts, personal service by a
South African sheriff will not be possible since the defendant is outside the Republic. See
Uniform Rule 4(1); mcr 10(1) and Pete et al 134.
Statement (4) is incorrect. Uniform Rule 4(1)(a)(iii) (mcr 9(3)(c)) provides that service
may be effected at defendant’s place of employment. This falls under the provisions of
personal service and as mentioned in statement (2) above, this service will not be
possible by a South African sheriff. See Pete et al 135.
QUESTION 10
(1) Where a temporary interdict is sought, the court is approached by way of the
summons procedure.
(2) It is an accepted rule that offer to settle in terms of Rule 34 and a tender may not be
disclosed in court before judgment has been given.
(3) The failure by an advocate to sign the particulars of a claim renders the document
defective and the defendant may raise a special plea to rectify the defect.
(4) A party may lawfully in terms of Uniform Rule 35 refuse to disclose
correspondence exchanged “without prejudice”.
73
Uniform Rule 35(2)(b) provides that a party must separately specify in his or her
discovery notice the “documents and tape recordings in respect of which he has a valid
objection to produce”. A party may validly object to the discovery of a document if he or
she is able to claim privilege for its contents. Examples are communications made
“without prejudice”, documents which fall under legal professional privilege, incriminating
documents and documents that affect the security of the state. (Privilege is usually seen
as a matter falling within the law of evidence, so see your study guide for the Law of
Evidence in this regard.) See Uniform Rule 35(1) and (2) an d Pete et al 266.
Statement (1) is incorrect. Where a temporary interdict is sought, the applicant always
approaches the court by way of notice of motion, and thus the application procedure is
used. Final interdicts are usually sought by way of action, but they may also be sought by
way of notice of motion where the facts are not in dispute. See Pete et al 464.
Statement (2) is incorrect. Although an offer to settle under Uniform Rule 34 may not be
disclosed to the court prior to judgment (see Rule 34(10)), tender (common-law tender)
must be pleaded. See Pete et al 416.
Statement (3) is incorrect. While it is correct that the failure by counsel to sign the
particulars of claim renders the pleading defective (see Uniform Rule 18(1)), it amounts to
an irregular proceeding under Uniform Rule 30 which may be set aside on application by
the defendant, provided he or she has not taken a “further step” in the proceedings. See
Uniform Rule 30(1) and 30(2)(a) and Pete et al 211.
74
2017 - SEMESTER 1
GENERAL PRINCIPLES
QUESTION 1
Briefly explain why it can be said that court-annexed mediation contributes to the reform of the
adversarial system of civil procedure in Anglo-American legal systems. [5]
The purpose of the reform of the adversarial system is inter alia, to address perceived
shortcomings such as lack of access to justice and to make it less adversarial. Court-annexed
mediation contributes to the reform in this regard in that it introduces a process of mediation into
all litigation matters, promotes restorative justice, facilitates expeditious and cost-effective
resolutions and phases out bad claims from the court system. It should curb the high costs of
litigation as disputes can be submitted to mediation prior to and after commencement of litigation,
provided that a judgment or order has not been made.
COMMENT:
You were only asked to discuss how court-annexed mediation contributes to reforming the
adversarial system in the Anglo-American legal system, and therefore any discussion of other
arears where reform is needed in the system was ignored.
JURISDICTION OF THE HIGH COURTS
QUESTION 2
X has a claim against Z in the amount of R600 000 on the ground of breach of contract which
occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these
facts in mind, answer the following questions. Give full reasons for your answers.
(a) Explain why X can institute proceedings against Z in the Cape Town High Court. (2)
• In regard to a claim relating to a contract, the court in whose area of jurisdiction the cause
of action arose will have jurisdiction. In other words, the place where the contract was
concluded, breached, or was to be performed, will vest a court with jurisdiction. This is
known as the exercise of jurisdiction ratione contractus. (Under common law, this falls
within the ambit of ratione rei gestae).
On the given facts, the cause of action arose in Cape Town and therefore the Cape
Town High Court will have jurisdiction ratione contractus. See study guide units
10.1 and 13.3.
COMMENT:
Please note that in regard to contractual claims no further requirement needs to be met
before a court in whose area the cause of action arose may exercise jurisdiction. In this
instance, the cause of action arose when the breach of contract occurred. Unless a claim
relates to immovable property (exclusive jurisdiction), one jurisdictional ground is not
superior to another, and therefore, the fact that ratione domicili does not apply here does
not prevent the Cape Town High Court from exercising jurisdiction.
(b) If Z is on holiday in Durban for three weeks, may X issue summons out of the Cape Town
1 75
High Court, and have the summons served on Z while in Durban? (3)
Section 42(2) of the Superior Courts Act, 2013 provides that a civil process of a division runs
throughout the Republic and may be served or executed within the jurisdiction of any Division
(Service thus need not only take place within the court’s area of jurisdic tion). This is a procedural
enactment to make execution and service of process more convenient.
On the given facts, section 42(2) therefore enables X to institute proceedings

against Z in the Cape Town High Court and to have them served on Z in Durban
(where he/she temporarily visits). See TL 102/3/2017 and s 42(2) of SCA, 2013.
COMMENT:
Please see the definition of domicile and residence in study unit 10.2. Note that being on
holiday does not meet the requirements of domicile or residence.
(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and the cause of
action arose in Durban? (3)
• Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South
African court will exercise jurisdiction over such a person only after attachment of his
or her property has taken place, either in the form of attachment ad fundandam
jurisdictionem (requiring the plaintiff to be an incola of the court concerned apart from
the attachment) or attachment ad confirmandam jurisdictionem (requiring the cause of
action to have occurred within the particular court’s area of jurisdiction apart from the
attachment).
On the given facts, the defendant is a peregrinus of the whole Republic. The High
Court in whose area of jurisdiction the cause of action (breach) occurred, will be
able to exercise jurisdiction ad confirmandam jurisdictionem, provided that the
defendant has attachable property within the Republic, especially within the
particular court’s area of jurisdiction. In this instance it is irrelevant whether the
plaintiff is an incola or peregrinus of the court.
Therefore, Durban High Court will have jurisdiction on the basis of attachment ad
confirmandum, provided there is an attachable property within the court’s area of
jurisdiction. Accordingly, the answer to (a) will differ as attachment of property takes
place, and the court will no longer have jurisdiction on the basis of common law
rules (ratione contractus), but of attachment ad confirmandam jurisdictionem. See
TL 102/3/2017.
COMMENT:
Although the cause of action arose in the court’s area of jurisdiction, it only has partial
jurisdiction as we are dealing with a foreign peregrinus. It will thus not be competent to
exercise jurisdiction unless attachment (ad confirmandum jurisdictionem) has also taken
place. The attachment strengthens the partial or imperfect jurisdiction that the court has
by reason of the fact that the cause of action (the breach of contract) arose within its
area of jurisdiction.
(d) )
Would your answer to (a) differ if the claim related to the registration of fixed property, and
the property was situated in Johannesburg? (2)
(a) In regard to a claim relating to immovable property, the court where the immovable
76
property is situated has exclusive jurisdiction in actions to determine the title to immovable
property or the transfer of property. This is known as the exercise of jurisdiction ratione rei
On the given facts, the property is situated in Johannesburg. Cape Town High Court would
therefore no longer have jurisdiction, as the court where the relevant immovable property is
located will have exclusive jurisdiction. X may institute proceedings against Z in the
Johannesburg High Court for the transfer and registration of the house in Johannesburg
ratione rei sitae. See study guide unit 16.2.
COMMENT:
Exclusive jurisdiction applies only to immovable property, as the question whether the forum rei
sitae is exclusive in terms of movable property has not been settled: see study guide unit 16.
QUESTION 3
B and D marry each other in Lesotho. Their communal home is in Lesotho where both parties
are domiciled. B, the husband, resides in Pretoria where he has been working for over 10 years.
The couple later decide to divorce. On the basis of these facts, determine
(a) whether B may institute proceedings in the High Court, Pretoria; (2)
There are two main grounds on which South African courts may exercise divorce jurisdiction,
namely:
• domicile OR
• residence, based on either section 2(1)(a) or (b) of the Divorce Act 70 of 1979
Section 2 of the Act provides that a court shall have jurisdiction in a divorce action if the
parties are or either of the parties is domiciled in the area of jurisdiction of the court on
the date on which the action is instituted (s 2(1)(a)) or ordinarily resident in the area of
the jurisdiction of the court on the said date and have or has been ordinarily resident in
the Republic for a period of not less than one year immediately prior to that date (s
2(1)(b)).
On the given facts, the parties are domiciled in Lesotho. However, B is ordinarily resident within the North
Gauteng High Court, Pretoria and has been ordinarily resident in the Republic (Pretoria is in the Republic) for a
period of “not less than” one year (10 years). Therefore, an action for divorce can be brought in the North
Gauteng High Court, Pretoria. See study guide unit 18.3.
(b) whether D may institute proceedings in the High Court, Pretoria; (1)
Section 2(1) of the Divorce Act, as mentioned above, stipulates that the domicile or residence of
“either” spouse is sufficient to confer jurisdiction, even if the other spouse is domiciled or
resident outside the Republic. Therefore a spouse who is domiciled or resident outside the
Republic and who has never had any personal links with the Republic may, as a plaintiff,
institute divorce proceedings in a particular court in South Africa on the grounds that the other
spouse resides or is domiciled within that court’s area.
Therefore, in terms of section 2(1) of the Act, D will be able to institute divorce
proceedings in the High Court, Pretoria, since B (the other spouse) has been
ordinarily resident within the court’s area and in the Republic for a period of “not
less than” one year in the Republic (Pretoria is in the Republic). See study guide
unit 18.3.
3
77
(c) whether D may institute proceedings in the High Court, Lesotho for the declaration of
nullity of the marriage. (2)
In terms of the common law, the court of the place where the marriage was entered into or
the court where the plaintiff or defendant (or both parties) is/are domiciled at the time when
nullity proceedings are instituted will have jurisdiction as forum loci celebrationis.
On the given facts, the marriage was entered into in Lesotho and both parties are domiciled
in Lesotho. Therefore, D may institute the proceedings for the declaration of nullity of the
marriage in the High Court, Lesotho. See study unit 18.4.
COMMENT:
Note that the declaration of nullity of marriages falls outside the scope of the definition of divorce.
See the definition in section 1 of the Divorce Act, 1979. Therefore, in terms of common law, only
the domicile of the parties is taken into account, and residence is not included.
LOWER COURTS JURISDICTION
QUESTION 4
N who lives in Johannesburg, buys a truck for R190 000 from T in Bloemfontein. T lives in
Bloemfontein. N pays T R160 000 of the purchase price and undertakes to pay the balance of
R30 000 on delivery of the truck. T delivers the truck to N’s home, but despite demand, N fails to
pay the balance of the purchase price. Will any magistrate’s court in all the centres mentioned
above have jurisdiction to hear an action instituted by T against N for the return of the truck?
Give full reasons for each answer. [5]
Section 28(1)(a) of the Magistrates’ Courts Act, 1944 (MCA) provides that a magistrate’s court
will be competent to exercise jurisdiction over any person who “resides, carries on business or is
in the employ” within the court’s jurisdictional area/district.
Section 28(1)(d) of the MCA provides that a magistrate’s court may exercise jurisdiction over 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 particular jurisdictional area or district of the court. To
have arisen “wholly”, conclusion of the contract as well as breach of contract must have occurred
within the same jurisdictional area.
On the given facts, N “resides” in Johannesburg, the conclusion of the contrac t (to purchase a
truck) occurred in Bloemfontein and the breach occurred in Johannesburg (failure to pay the
balance).
The Johannesburg district magistrate’s court will have jurisdiction in terms of section 28(1)(a)
of the Act as N “resides” there. The court will not have jurisdiction in terms of section 28(1)(d) as
only breach of contract occurred there (thus not “whole” cause of action).
The Bloemfontein district magistrate’s court does not have jurisdiction, as not only is it
irrelevant that T, the plaintiff lives there, but also as only conclusion of the contract occurred
there (thus also not “whole” cause of action). See study guide units 22.2.1 and 22.2.4.
COMMENT:
Please note that although the Act (s 28) refers to “a person”, it means the defendant only, not
either of the parties. In other words, the situation of the defendant, not the plaintiff, will give a
court jurisdiction.
78
2017 - ASSIGNMENT 02
QUESTION 9
QUESTION 1
P and S are involved in a car accident. S drives though a red traffic light whilst texting on his
cellphone. P sustains damages in the amount of R120 000 in respect of his motor vehicle and
his medical costs amount to R100 000. P alleges that his damages are due solely to S’s
negligence.
Indicate the statement which is the most ACCURATE:
(1) P may institute a claim for damages arising out of a delict.
(2) If P laid criminal charges, he would be called the plaintiff and S would be known as the
respondent.
(3) P is compelled by the state to institute civil proceedings against S.

(4) In civil proceedings between P and S, the court may interfere in the manner in
which they conduct proceedings during the pre-trial stage.
The most accurate statement is (4).
The state has no direct interest in civil proceedings and simply provides the infrastructure for
dispute resolution. This is because the parties to a civil dispute conduct the proceedings
independently without interference from the state. The state will only interfere during the pre-trial
stage on application of one of the parties to the proceedings. This illustrates the principles of
party prosecution and party presentation, which underpin the adversarial process. See study
units 2.6 and 5.2.1.
Statement (1) is incorrect. The subject matter of the court proceedings can either be of a civil or
criminal nature. In this instance, either criminal or civil proceedings may be used. P may not
“only” institute a claim for damages arising out of the delict (motor collision) but may also lay
criminal charges in respect of S’s contravention of the National Road Traffic Act. See study unit
2.3 in the study guide.
Statement (2) is incorrect. The parties in criminal proceedings are the complainant or victim (the
party who lays the criminal charges), represented by the state, and the accused (the party
against whom the charge is laid). The parties in civil proceedings (in action proceedings) are the
plaintiff (the party who initiates the proceedings by issuing the summons) and the defendant (the
party against whom the claim is instituted). In application proceedings, the parties are the
applicant (the party bringing the application) and the respondent (the party opposing the
application). Therefore, J would be called the complainant and P would be called the accused.
See study unit 4.3.2 in the study guide.
Statement (3) is incorrect. Civil proceedings are voluntary in the sense that the aggrieved party is
not compelled to commence the proceedings. Instituting civil proceedings is entirely at the
discretion of the aggrieved party. Because the state has no direct interest in civil proceedings, P
is not compelled by the state to institute such proceedings. See study guide unit 2.6.
79
QUESTION 2
(1) The three primary ADR processes are litigation, arbitration and mediation.
(2) Arbitration permits disputants more control over the process than in the case of
litigation.
(3) Facilitation, final-offer arbitration and arb/med are all derivative ADR processes.
(4) ADR processes are formal and involuntary.
Arbitration allows a great deal of party control over the process. The disputants may select the
arbitrator, determine the issues and arrange matters. Litigation, by contrast, does not allow party
control in that it is regulated and controlled by external rules. See study guide units 6.1.2 and
6.2.4.
Statement (1) is incorrect. The three primary ADR processes are negotiation, mediation and
arbitration. Litigation is the mainstream model of dispute resolution, against which ADR
processes are posed as an alternative. See study guide units 6.1.2 and 6.2.
Statement (3) is incorrect. Facilitation and final-offer arbitration are derivative ADR processes
whereas arb/med is a hybrid process. A derivative process is one in which the form of a primary
process has been retained, but its function has been adapted to suit specific circumstances. A
hybrid processes is one in which the elements of one primary process are combined with the
elements of another process to form a completely new process. Facilitation, final-offer arbitration
and arb/med are therefore not all derivative processes. See study units 6.3 and 6.4.
Statement (4) is incorrect. ADR processes are informal, not bound by strict rules and voluntary,
because the disputants are not compelled to enter into the process. See study guide unit 6.1.1.
QUESTION 3
(2) The principle of party presentation does not apply in the small claims court
because the commissioner plays an active role in assisting the litigants to
represent their case during the trial.
(3) A small claims court can adjudicate a claim for wrongful imprisonment or for wrongful
arrest.
(4) A small claims court can entertain an action for the delivery of movable property not
exceeding the value of R12 000.
Party presentation refers to the competence of a litigant to investigate his/her own

cause/defence, to formulate issues in dispute, as well as to present the material facts concerned
and to prove these facts and raise legal arguments in support of them before court. The principle
80
confirms that a litigant has control over the content of his/her cause or defence, as the case may
be. The principle follows the Anglo-American system of civil procedure, in which the presiding
QUESoTffIiO
ceNr 9plays a mostly passive role during proceedings. However, section 26(3) of the Small
Claims Courts Act 61 of 1984 introduces elements of the inquisitorial system into the small
claims courts that allow the commissioner to play an active role (such as allowing the
commissioner to question the witness or put questions to any witness to establish relevant facts).
Therefore, party presentation does not apply in the small claim’s courts. See study guide units
5.2.4 and 7.7.
Statement (1) is incorrect. Small claims courts should not be regard ed as inferior to other courts
because of the low value of the claims allowed as low value does not indicate that complex legal
issues cannot be adjudicated by these courts. See study guide unit 7.1.
Statement (3) is incorrect. Section 16(f)(iii) and (iv) of the Small Claims Courts Act, 1984,
expressly provides that a court shall have no jurisdiction in matters in which is sought damages
in respect of wrongful imprisonment and/or wrongful arrest. See study guide unit 7.5.
Statement (4) is incorrect. Section 15(a) of the Small Claims Courts Act, 1984, provides that a
court shall have jurisdiction in respect of causes of action for delivery of any property, movable or
immovable, not exceeding in value the amount determined by the Minister from time to time. The
value currently is R15 000. See study guide unit 7.5 and TL 102/3/2017.
QUESTION 4
(1) In Continental civil procedure, the judicial officer is only actively involved during the trial
stage of the proceedings.
(2) In Anglo-American civil procedure, the judge is never active during the pre-trial stage of
the proceedings.
(3) Orality is a dominant characteristic of Anglo-American civil procedure.
(4) The principle of bilaterally means in theory and in practice that both litigants have
a fair and balanced opportunity to present their respective claims or defences.
The principle of bilaterality assumes that both litigants will have a fair and a balanced opportunity
to present their respective claims or defences. The belief inherent in the principle is that the truth
will emerge if each party presented his or her own biased view of the issues in dispute. See
study guide unit 5.2.2.
Statement (1) is incorrect. In Continental civil procedure, the judicial officer participates directly in
the process of litigation, from the commencement of the proceedings to the conclusion of the
hearing. See study unit 5.1.
Statement (2) is incorrect. In Anglo-American civil procedure, the judge plays a passive role
during the pre-trial and trial stages. The judicial officer is passive in the system and can only
interfere in the proceedings at the request of one of the parties. See study guide unit 5.1.
Statement (3) is incorrect. The trial in Anglo-American civil procedure is marked by its orality.
The proceedings are characterised by distinct pre-trial and trial stages; during the pre-trial stage
pleadings are exchanged between the litigants in order to define the issues in dispute that will
7
81
have to be presented (orally) and proved at trial. Therefore, the Anglo-American system is not
dominated by its oral characteristics only.
QUESTION 5
Determine which one of the following situations a High Court will be competent to exercise
jurisdiction.
(1) The plaintiff is an incola of the court in which the cause of action arose, and the
defendant is an incola of the Republic.
(2) Both parties to the action are peregrini and the cause of action arose outside the court’s
jurisdictional area. The defendant submits to the jurisdiction of this court.
(3) A spouse who is domiciled in the United Kingdom may not independently institute
proceedings in a South African High Court in which the other spouse is domiciled.
(4) A contract is concluded between X and Z in Bloemfontein for the sale of property
situated in Durban. X may institute proceedings against Z in the Durban High Court
for registration of the property in his name.
The jurisdictional connecting factor ratione rei sitae is a common-law principle relevant only in
respect of property claims in the High Court. With regard to immovable property, a court in whose
area of jurisdiction the immovable property is situated have exclusive jurisdiction to hear
claims relating to such property. Therefore, when instituting proceedings for registration of
property situated in Durban, X may institute such proceedings against Z in the KwaZulu-Natal
High Court, Durban, only. No other court will have jurisdiction. See study guide units 10.1 and
16.2.
Statement (1) is incorrect. The general principles of jurisdiction regarding claims sounding in
money are that the courts of the area where a defendant is resident OR is domiciled (ratione
domicili), or where the cause of action arose (ratione rei gestae), will have jurisdiction. The
plaintiff’s domicile or residence is therefore irrelevant for jurisdiction purposes. See study guide
unit 10.1.
Statement (2) is incorrect. If the defendant is a peregrinus of the whole Republic (foreign
peregrinus), a South African court will exercise jurisdiction over such a person only after
attachment of his or her property has taken place, either in the form of attachment ad fundandam
jurisdictionem (requiring the plaintiff to be an incola of the court concerned, apart from the
attachment) or attachment ad confirmandam jurisdictionem (requiring the cause of action to have
occurred in the particular court’s area of jurisdiction, apart from the attachment), provided that the
defendant has attachable property in the Republic (specifically in the particular court’s area of
jurisdiction). A foreign peregrinus can submit to a court’s jurisdiction, provided the cause of action
arose within the court’s area of jurisdiction. Therefore, a division of the South African High Court
would not have jurisdiction if both parties were peregrini and the cause of action arose outside
the court’s area of jurisdiction, and neither could submission take place. See study guide unit
15.2.4 and Tutorial Letter 102/3/2017.
Statement (3) is incorrect. Section 2(1) of the Divorce Act 70 of 1979 provides that a court may
exercise jurisdiction if “the parties are or either is” domiciled or resident in the court’s area of
jurisdiction. Thus, the domicile or residence of one spouse alone is sufficient to confer
competence on the court to exercise divorce jurisdiction over the other spouse, even if the other
82
spouse is domiciled or resident outside the Republic. Therefore, a spouse who is domiciled in the
United Kingdom may independently institute proceedings in a division of the South African High
Court in9whose area the other spouse is domiciled. See study guide unit 17.3.
T ION
QUESTION 6
A High Court may exercise jurisdiction on the basis of an order for attachment ad confirmandam
iurisdictionem if -
(1) the defendant is a peregrinus of the court concerned, the plaintiff is an incola of the court
concerned and attachment has taken place;
(2) both the plaintiff and the defendant are incolae of the court concerned and attachment
has taken place;
(3) the plaintiff is a peregrinus of the court concerned, the defendant is a peregrinus
of the whole Republic, the cause of action occurred within the area of jurisdiction
of the court concerned, and attachment has taken place within the jurisdictional
area of the court;
(4) attachment has taken place; the defendant is a peregrinus of the Republic and the cause
of action took place outside the jurisdictional area of the court concerned.
This statement satisfies all the requirements for attachment ad confirmandam jurisdictionem. In
regard to attachment ad confirmandam jurisdictionem, the following requirements must be met:
• The defendant must be a peregrinus of the Republic (foreign peregrinus)

• The cause of action must have arisen within the area of jurisdiction of the court
• The property of the defendant must be attached within the court’s area of jurisdiction
The status of the plaintiff is irrelevant for the purposes of attachment ad confirmandam
jurisdictionem. The plaintiff may be either an incola or a peregrinus of the court or the Republic.
See Tutorial Letter 102/3/2017.
Statement (1) is incorrect. The defendant must be a foreign peregrinus, and not a local
peregrinus. Furthermore, the cause of action must have arisen within the court’s area of
jurisdiction. See Tutorial Letter 102/3/2017.
Statement (2) is incorrect. The defendant must be a foreign peregrinus and the attachment of the
defendant’s property must have occurred within the court’s area of jurisdiction. An order for
attachment to found jurisdiction is not permissible in respect of an incola of the Republic. See
Tutorial Letter 102/3/2017 and section 28 of the Superior Courts Act, 2013.
Statement (4) is incorrect. The cause of action must have arisen within the court’s area of
jurisdiction.
83
QUESTION 7
(1) The Constitutional Court cannot be approached directly, even in exceptional

circumstances.
(2) A High Court may hear a dispute of a constitutional nature between organs of state.
(3) The Constitutional Court need not confirm a decision regarding the constitutionality of
any legislation by a High Court before such decision can acquire force.
(4) Although the Supreme Court of Appeal may hear appeals in respect of both
constitutional and non-constitutional matters, it is not the final court of appeal in
the case of constitutional matters.
The Supreme Court of Appeal may hear an appeal on both constitutional and non-constitutional
matters, but a decision on a constitutional matter may be taken on further appeal to the
Constitutional Court. See Tutorial Letter 102/3/2017.
Statement (1) is incorrect. Section 167(6)(a) of the Constitution provides that the Constitutional
Court may, when it is in the interests of justice, grant any person direct access to the Court. See
Tutorial Letter 102/3/2017.
Statement (2) is incorrect. The High Court of South Africa may hear any matter that it is not
prohibited from hearing by the Constitution or an Act of Parliament. The Constitutional Court has,
in certain instances, exclusive jurisdiction in terms of section 167(4), which provides inter alia that
only the Constitutional Court may adjudicate disputes concerning the constitutional powers or
functions of organs of state. Therefore, the High Court may not hear a dispute of a constitutional
nature between organs of state. See study guide unit 17.2 and Tutorial Letter 102/3/17.
Statement (3) is incorrect. The Constitutional Court must confirm a decision by the High Court or
a court of similar status regarding the constitutionality of an Act of Parliament or of a province
before such decision has any force. See section 167(5) of the Constitution, as amended by the
Constitution Seventeenth Amendment Act of 2012. Also see section 167(4) of the Constitution
and Tutorial Letter 102/3/2017.
QUESTION 8
X, a resident of Bloemfontein, wishes to institute proceedings against Y, a resident of Durban,

for an amount of R70 000 being damages sustained to his truck arising from a collision between
his vehicle and Y’s vehicle which took place in Johannesburg. The collision was due solely to
Y’s negligence. Y is the owner of a holiday home in Cape Town and carries on business in
Pietermaritzburg.
Indicate the statement that is most ACCURATE:
(1) only the magistrates’ courts of Cape Town, Durban and Pietermaritzburg will have
jurisdiction;
(2) only the magistrates’ courts of Durban and Cape Town will have jurisdiction;
(3) only the magistrates’ courts of Durban, Pietermaritzburg and Johannesburg will
have jurisdiction;
84
(4U
Q ) ESToInOlyNth9e magistrates’ courts of Bloemfontein and Durban will have jurisdiction.
According to the given facts, the defendant is a resident of Durban and therefore, in terms of
section 28(1)(a) of the Magistrates’ Courts Act 32 of 1944, the Durban magistrate’s court has
jurisdiction as Y” reside” there. The accident (delict/the cause of action) took place wholly in
Johannesburg, so in terms of section 28(1)(d) of the Act the Johannesburg magistrate’s court
has jurisdiction. Pietermaritzburg magistrate’s court has jurisdiction in terms of section 28(1)(a) of
the Act as Y “carries on business” there. The amount of R70 000 falls within the jurisdictional limit
of the magistrates’ courts in terms of section 29 of the Act. See study guide units 21 and 22.
Statement (1) is incorrect. The magistrates’ courts in Durban and Pietermaritzburg will have
jurisdiction in terms of sections 28(1)(a) of the Act, but the magistrate’s court in Cape Town will
not have jurisdiction, because the holiday home in Cape Town is not related to the claim for
damages. See section 28(1)(g) of the Magistrates’ Courts Act, which requires the action to be in
respect of that particular immovable property or in respect of a mortgage bond registered
over the property, which is not the case here. See study guide unit 22.2.7.
Statement (2) is incorrect. See the comments in statement (1) above.
Statement (4) is incorrect. The magistrate’s court in Durban may be competent to exercise
jurisdiction in terms of section 28(1)(a). However, section 28 applies to defendants only, and
not to plaintiffs, so no magistrate’s court (i.e. neither a district nor a regional court) in
Bloemfontein will have jurisdiction, as the plaintiff, X, is resident in Bloemfontein. See study
guide unit 22.
QUESTION 9
(1) A magistrate’s court within whose area of jurisdiction a defendant resides, is vested with
jurisdiction by virtue of the common -law principle of actor sequitur forum rei.
(2) A claim for delivery of specific movable property without an alternative claim for
damages, even though the value of the property does not exceed R200 000 cannot
be instituted in any magistrate’s court.
(3) Splitting of claims occurs when more than one claim, each based on a separate cause
of action, is contained in a single summons.
(4) The jurisdictional connecting factor ratione rei sitae is relevant only in respect of
property claims in the High Court.
The jurisdictional connecting factor ratione rei sitae is a common-law principle relevant only in
respect of property claims in the High Court. Common law principles do not apply to claims in the
magistrates’ courts, as the magistrate’s court is a “creature of statute” which means that
jurisdictional grounds are contained in the MCA. See study guide units 10.1 and 16.2.
Statement (1) is incorrect. Actor sequitur forum rei is the Roman-law maxim on which the
common-law ground of jurisdiction known as ratione domicilii is based but applies only to claims
sounding in money in the High Court. Also see comments under statement (4) above. See study
guide units 10.1.
85
Statement (2) is incorrect. Section 46(2)(c) of the Magistrates’ Courts Act, 1944, provides that a
court shall have no jurisdiction in matters in which specific performance is sought without an
alternative claim of the payment of damages, except when claiming the
(i) rendering of an account; or

(ii) delivery or transfer of property, movable or immovable; and
(iii) delivery or transfer of property, movable or immovable, exceeding in value the amount
determined by the Minister from time to time, where consent has been obtained in terms of
section 45.
Therefore, a claim for delivery of specific movable property without an alternative of the payment
of damages, even though the value of the property does not exceed R200 000, can be instituted
in any magistrate’s court as it falls within the exception provided for in section 46(2)(c)(iii).
Statement (3) is incorrect. Section 40 of the Magistrates’ Courts Act, 1944, prohibits one cause of
action from being split in such a way that separate claims are brought in separate actions, each
of which falls within the district or regional court’s jur isdiction. Splitting claims occurs when more
than one claim based on the same cause of action is instituted.
QUESTION 10
Indicate the statement that is the most ACCURATE:
(1) A claim instituted by a registered company in the small claims court may not exceed the
quantitative jurisdiction of R15 000 imposed by the Small Claims Courts Act, 1984 as amended.
(2) In small claims courts, a party is entitled to cross-examine his or her opponent.
(3) A small claims court can hear an action for seduction or breach of promise to marry.
(4) Proceedings in a small claims court must be commenced by a letter of demand.

The letter of demand is the first document to be delivered to the defendant in the small claims
court. In terms of section 29(1)(a) of the Small Claims Courts Act 61 of 1984, the defendant is
given 14 days to satisfy the plaintiff’s claim. Section 29(2) confirms that a summons is not the
first document in small claims court proceedings.
Statement (1) is incorrect. Only natural persons are allowed to institute actions in small claims
courts. A juristic person (such as a company and a close corporation) may not commence
proceedings in the small claims courts as a plaintiff. A juristic person can become a party to the
action only as a defendant.
Statement (2) is incorrect. A party may not question or cross-examine any other party to the
proceedings in question or a witness called by such party. Only the commissioner may proceed
inquisitorially to establish the relevant facts. However, in terms of section 26(3) of the Small
Claims Courts Act, 1984, the commissioner may, in his or her discretion, allow any litigant to put
a question to the other litigant or to any witness.
Statement (3) is incorrect. In terms of section 16(f) of the Small Claims Courts Act, 1984, a small
claims court is not competent to hear an action for damages in respect of seduction or breach of
promise to marry. Section 16 set out the matters in which a small claims court has no jurisdiction.
86
2. CASE STUDIES
JURISDICTION: HIGH COURT
CASE STUDY: 1
Facts
An action for damages on the grounds of breach of contract was instituted in the then
Witwatersrand Local Division (WLD). The plaintiff, Ewing McDonald & Co Ltd, was an incola
of the WLD; the defendant, M & M Products Co, was a peregrinus of the whole Republic.
The contract was concluded outside the Republic but it was implemented throughout the
Republic so that Johannesburg was the locus solutionis (i.e. place of performance of an
obligation) and the WLD, the forum solutionis. The plaintiff obtained an order in the WLD
authorising the attachment ad fundandam jurisdictionem, (and in the alternative, attachment
ad confirmandam jurisdictionem) of the defendant's right and title to certain trade marks
registered in the Republic. The trademarks were subsequently attached in accordance with
the order, by the sheriff for the jurisdictional area of the then Transvaal Provincial Division
(TPD).
The defendant challenged the order of attachment, arguing that all the trademarks were
registered in Pretoria and as such, outside the area of jurisdiction of the WLD. The
defendant's application was granted and the order of attachment set aside.
The plaintiff appealed against the order setting aside the attachments on the following
grounds, inter alia, that section 26(1) of the Supreme Court Act of 1959 permitted an order
of one division to be executed on assets found outside the jurisdictional area of that
division, thereby rendering its judgment effective. Because an attachment after judgment
would render that court's judgment effective, an attachment before judgment would endow
the court with the required jurisdiction to adjudicate the matter.
Source: Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A)
ANALYSIS
(1) What are the requirements for an order for attachment ad fundandam
jurisdictionem?
A court will assume jurisdiction over a peregrine defendant of the whole Republic if
attachment of the defendant’s property ad fundandam jurisdictionem has taken place
within the court’s area and the plaintiff is an incola of the court concerned.
In this instance, the attachment founds or establishes jurisdiction. It is on the basis of

the attachment that the court assumes jurisdiction over the peregrine defendant. That
the cause of action occurred outside the jurisdiction of the court is not relevant. For
details regarding the formulation of this requirement through the decided cases, see
pg 110of the textbook and study unit 2.2.3 of Tutorial letter 501/3/2018.
(2) What are the requirements for an order for attachment ad confirmandam
jurisdictionem?
In an instance where the defendant is a peregrinus of the whole Republic, a court

may exercise jurisdiction if the cause of action has taken place within the court's area
of jurisdiction and attachment ad confirmandam jurisdictionem of the defendant’s
property has occurred. On account of the fact that the cause of action has arisen
87
within the court's jurisdictional area, the attachment confirms (ie in the sense of
completing) the already existing, but imperfect, jurisdiction of the court. In this
instance, it is irrelevant whether the plaintiff is an incola or peregrine of the court.
(3) In terms of the given facts, is an order of attachment ad confirmandam

jurisdictionem competent in view of the fact that the contract was concluded
outside the Republic?
At common law it is not required that the whole cause of action must arise within the
jurisdictional area of a court. Section 28(1)(d) of the Magistrate’s Courts Act of 1944
waives the common law in this respect. However, in the High Court, the common law
rule applies. Therefore, for the purposes of the exercise of jurisdiction in the High
Court, it is sufficient that either the conclusion of a contract, its performance or its
breach should have occurred within the jurisdictional area of a division; any one of
these events will establish a valid cause of action.
In terms of the given facts, it is irrelevant that the contract was concluded outside the
Republic. The fact that the place of performance of the contract was within the
jurisdictional area of the WLD establishes a cause of action that could justify an order
for attachment ad confirmandam jurisdictionem.
JURISDICTIONAL ISSUE
May an order of attachment for the purposes of jurisdiction be executed outside the
jurisdictional area of a division in terms of section 26(1)?
On the facts, the order of attachment granted by the WLD was executed by the Deputy-
Sheriff for Pretoria in respect of trademarks registered in the jurisdictional area of then
Transvaal Provincial Division. The order for attachment was subsequently set aside on
appeal by the WLD per Nienaber AJA on the ground that section 26(1) did not extend the
jurisdiction of a division so as to enable it to order an attachment of property situated
outside its own jurisdictional area which it otherwise was not competent to do so.
Section 26 therefore only applies to the service of a process outside a division, once it has
been established that the division concerned is competent to exercise jurisdiction, for
example the service of a summons.
Note: For the benefit of those students who have not yet studied the Law of Things, we
point out that trademarks can be classified as incorporeal matter and therefore can be
attached.
Note further: Section 26(1) of the Supreme Court Act 59 of 1959 has now been replaced
by section 42(2) of the Superior Courts Act 10 of 2013. See Tutorial letter 501/3/2018
which explains the historical context of this case.
JURISDICTION: LOWER COURTS
CASE STUDY: 2
Facts
The plaintiff (Rotary Motors (Pty) Ltd) issued summons against the defendant (Seyer) for
goods sold and services rendered, alleging that the whole cause of action arose within the
jurisdictional area of the magistrate's court for the district of Mariental. The defendant raised
a special plea in the following terms (620 G-J):
88
Special plea
Defendant raises the following special plea to plaintiff’s summons as amplified by the
further particulars thereto. Defendant avers that this honourable court does not have
jurisdiction in this action over the person of the defendant inasmuch as plaintiff’s cause of
action did not, as is required by the provisions of section 28(1)(d) of Magistrates’ Courts Act
32 of 1944, as amended, arise wholly within the district of this honourable court as is
alleged by plaintiff, by reason of the fact that plaintiff agreed to accept payment from
defendant for the goods and services allegedly supplied by plaintiff to defendant, in the form
of a cheque payable to plaintiff drawn by defendant on the George branch of Trust Bank.
Plaintiff accordingly agreed that it was a material term of the contract between the parties
that payment for the goods and services on which plaintiff’s claim is based would have
been made in George, outside the jurisdiction of the above honourable court.
At the hearing of the special plea, the plaintiff stated the following under cross-examination:
"Ek het voorwaardelik aanvaar dat tjek betaal sal word deur die bank."
The magistrate dismissed the special plea and the defendant took the matter on appeal.
Source: Seyer v Rotary Motors (Edms) Bpk 1989 (4) SA 619 (SWA)
ANALYSIS
(1) State the provisions of section 28(1)(d) of Magistrates’ Courts Act.
Section 28(1)(d) provides that a district magistrate's court (or regional magistrate’s
court) will be competent to exercise jurisdiction over the person of a defendant if the
whole cause of action arose within the district of the court, irrespective of whether or
not the defendant resides, carries on business or is employed in the district or
regional division (ie, whether the provisions of s 28(1)(a) apply or not). Hence, the
cause of action (and not the physical presence of the defendant) forms the nexus
between the defendant and the area of the court.
(2) What is the meaning of the term "whole cause of action"?
Compared to the requirements at common law, as applied for the purposes of

jurisdiction in the High Court, the term "cause of action" is given a restricted meaning
in regard to the exercise of jurisdiction by a magistrate's court. In the High Court,
either the conclusion of a contract or its performance or its breach would be regarded
as a sufficient cause of action for the exercise of jurisdiction. In the magistrate's court,
the whole cause of action must have arisen within the district (or regional division)
concerned, for example, the conclusion and breach of a contract.
You must study the McKenzie's and King's Transport case in this context.
(3) If a court does not have jurisdiction in terms of section 28(1)(d) to hear a matter,
does it mean that the court cannot hear the matter at all?
No, nor does it necessarily mean that no other court (ie a court for another district or
regional division) can hear the matter. It is important to realise that section 28
contains various grounds for jurisdiction, and that one ground is not more important
than another. Each one is an alternative and independent ground. Jurisdiction in
terms of section 28(1)(d) is therefore not a prerequisite for jurisdiction in terms of
section 28.
89
Jurisdiction in terms of one of the grounds also does not rule out jurisdiction in terms of
another ground. In theory and based on a given set of facts, it is therefore quite possible for
various courts to have jurisdiction and on different grounds (eg, one in terms of s 28(1)(a),
another in terms of s 28(1)(d) or even s 28(1)(b)). In such an instance, the circumstances of
the case (such as costs, convenience, etc) will dictate in which court the plaintiff, as master
of the suit, will choose to institute action.
Did the whole cause of action arise within the jurisdictional area of the district
magistrate's court of Mariental for the purposes of section 28(1)(d)?
On the facts, the conclusion and performance of the contract occurred in Mariental. The
important question is whether its breach occurred in Mariental or in George, the cheque
being drawn at a bank in George.
On evidence under cross-examination, the plaintiff stated that he had accepted the cheque
subject to the condition that it would be paid by his bank in Mariental. The implication was
that if the cheque were dishonoured, the breach would occur in Mariental.
On appeal, the court found that the whole cause of action had arisen within the district of
Mariental and that the magistrate had correctly dismissed the special plea.
CASE STUDY: 3
Facts
Badenhorst bought Theophanous' café, situated in the magisterial district of Albertinia.

Clause 11 of the written deed of sale contained a restraint of trade clause forbidding
Theophanous directly or indirectly to compete with Mrs Badenhorst within a 10 km radius of
Albertinia.
Approximately nine months later, Theophanous began trading in a café 300 metres from
the café he had sold to Mrs Badenhorst. Mrs Badenhorst accordingly brought an urgent
application on notice of motion in the Albertinia magistrate's court for an order restraining
Theophanous from directly or indirectly doing business for his own benefit or managing any
business on the specified premises.
At the hearing, Theophanous raised a point in limine (ie a preliminary point at the outset of
the hearing) that a magistrate's court did not have jurisdiction to grant the order requested
by Badenhorst.
The magistrate upheld Theophanous' argument on the ground that Badenhorst was
seeking an order for specific performance, even though her claim was couched in the form
of a prohibitory interdict, and because there was no claim in the alternative for damages,
section 46(2)(c) prohibited a magistrate's court from granting such an order. The application
was dismissed with costs.
On appeal to then Cape Provincial Division (CPD), Badenhorst contended that the
magistrate's decision was incorrect because the order sought was for an interdict, and that
in terms of section 30(1), a magistrate's court is competent to grant such an order,
notwithstanding the provisions of section 46(2)(c).
Source: Badenhorst v Theophanous 1988(1) SA 793 (C)
90
ANALYSIS
(1) What is the jurisdictional purpose of section 46 of the Magistrates’ Courts Act?
The purpose of section 46 is to exclude totally the competence of a lower court to

exercise jurisdiction in respect of the specific causes of action stated therein.
(2) What are the particular requirements of section 46(2)(c)?
Subject to the exceptions stated in section 46(2)(c) (i)-(iii), a district magistrate's court
is prohibited from granting an order for specific performance unless the payment of
damages is also sought in the alternative. The implication is that a magistrate's court
may grant an order for specific performance only if the payment of damages is
sought as an alternative. Example: "The plaintiff prays that the defendant be directed
to build the wall as agreed, alternatively, payment of damages in the sum of R160
000."
(3) What is a prohibitory interdict?
A prohibitory interdict is an order restraining a person from committing a threatened

wrong or from continuing to commit an existing wrong.
(4) In what instances is a court reluctant to issue an order for specific

performance?
The answer is adequately set out in study unit 3.2.3 of Tutorial letter 501/3/2018 and
pages 81-83 of prescribed textbook. Further comment is unnecessary.
(5) What is an order ad factum praestandum?
Literally translated, the term ad factum praestandum means the performance

(praestandum) of an act (ad factum). Hence an order ad factum praestandum refers
to a judgment in which a person is ordered to perform or to refrain from performing
some act.
In context, an order ad factum praestandum is associated with an order for specific

performance. It is important to realise that specific performance is one of the
established remedies for breach of contract. However, judicial practice is not clear on
this. Should the specific performance mean only the order given for the fulfilment of a
contractual obligation and whether, in relation to specific performance, a distinction
should be made between a claim ad factum praestandum and a claim ad pecuniam
solvendam (ie the payment of an amount which is due and payable?). See further
question 6 below.
(6) Does the decision in Tucker's Land and Development Corporation (Edms) Bpk
v Van Zyl 1977 (3) SA 1041 (T) in any manner relate to the above facts?
In Tucker's Land, a distinction was drawn between orders ad factum praestandum

and orders ad pecuniam solvendam, and the conclusion was correctly drawn that in
relation to the performance of a contract, an order ad pecuniam solvendam is not an
order for specific performance, whereas an order ad factum praestandum is an order
for specific performance, thereby falling beyond the scope of jurisdiction of a
magistrates' court.
On the given facts, Badenhorst, under the guise of a prohibitory interdict, is in fact
requesting the enforcement of a contractual obligation, that is, the restraint-of-trade
91
agreement contained in clause 11 of the contract. In terms of Tucker's Land, the
granting of such an order is an order ad factum praestandum, and therefore in reality
an order for the specific performance of a contractual obligation that falls beyond the
jurisdictional competence of a district magistrate’s court.
Do the provisions of section 46(2)(c) prohibit the exercise of jurisdiction by a district

magistrate's court in respect of the enforcement of a restraint-of-trade agreement,
notwithstanding the provisions of section 30(1)?
The competence of a district magistrate's court to grant an interdict in terms of the

provisions of section 30(1) is subject to the jurisdictional limitations prescribed by the
Magistrates’ Courts Act 32 of 1944. Section 46(2)(c) provides that a magistrate's court is
prohibited from granting an order for specific performance without an alternative for
damages.
On the facts, Badenhorst's application for a prohibitory interdict to restrain Theophanous

from trading in Albertinia in terms of a restraint-of-trade agreement in fact amounts to a
request for the enforcement of a contractual obligation. An order so granted would be one
ad factum praestandum and hence, in practice, be the equivalent of an order for specific
performance without the alternative for damages. Such an order would therefore be
contrary to the provisions of section 46(2)(c), and therefore beyond the jurisdictional
competence of a district magistrate's court.
CASE STUDY: 4
Facts (in brief)
The appellant (Oosthuizen) sustained serious bodily injuries as a result of a motor vehicle
collision on 1 March 2003. The appellant issued summons in the magistrate’s court in
respect of a claim of damages against the respondent (the Fund) in the Pretoria
magistrate’s court a year later (2004). The claim was found to exceed the monetary
jurisdiction of the magistrate’s court (then R100 000). However, the plaintiff was unable to
withdraw the case from the magistrate’s court and issue fresh summons in the North
Gauteng High Court, Pretoria, as the claim had prescribed. The appellant then applied to
have the case transferred from the magistrate’s court to the High Court having jurisdiction.
The High Court found in favour of the Fund. The court held that there is no statutory
provision authorising such transfer. Section 173 of the Constitution of the Republic of South
Africa, 1996, was found not to be applicable to the case. The case went on appeal.
The appellant contended that the “interests of justice” required the High Court to use its
inherent jurisdiction to order a transfer of the case to the High Court. The appeal court
found that section 173 does not give any court, including High Courts, carte blanche to
meddle or interfere in the affairs of inferior courts. A High Court may not use its inherent
jurisdiction to create a right. It was found that the appellant has a right to institute action in
the appropriate forum to the full extent of his claim. It was found that the appellant’s
attorneys were to blame for the prescription of part of his claim. However, the appellant was
not without a remedy and he could institute a claim for compensation against his attorneys
to recover the difference between what might be recovered in the magistrate’s court and the
full extent of his claim. The appeal was dismissed with costs.
Source: Oosthuizen v Road Accident Fund (258/10) [2011] ZASCA 118 793 (C); 2011 (6)
SA 31 (SCA)
92
ANALYSIS
(1) State the provisions of section 50(1) of the Magistrates’ Court Act.
Section 50(1) of the Magistrates' Court Act allows for a defendant to request a
transfer of a case from a magistrate’s court to a high court having jurisdiction. Read
section 50(1).
(2) Does the plaintiff have recourse to the transfer of a case from the lower courts
to the High Court?
There is no statutory equivalent for the plaintiff. A plaintiff chooses the forum in which
to litigate and therefore he or she must bear the consequences of doing so. A plaintiff
who has instituted an action in the magistrate’s court is free to change his or her mind
and abandon the action in the lower court, and commence proceedings in a High
Court, with resulting cost implications.
(3) State the provisions of section 173 of the Constitution.
This section states that the Constitutional Court, Supreme Court of Appeal and the
High Court of South Africa (or a Division of the High Court) have the inherent power
to protect and regulate their own process, and to develop the common law, taking into
account the interests of justice.
Was the appellant successful in transferring the case from the magistrate’s court to
the High Court having jurisdiction?
The appellant was not successful and his appeal was dismissed with costs. The Supreme
Court of Appeal found that a High Court may not use its inherent jurisdiction to create a
right. Therefore, section 173 was not applicable to the case. The appellant had a right to
institute action in the appropriate forum to the full extent of his claim. It was found that the
appellant’s attorneys were to blame for the prescription of part of his claim. However, the
appellant could institute a claim for compensation against his attorneys to recover the
difference between what might be recovered in the magistrate’s court and the full extent of
his claim.
COURT PROCEDURE
CASE STUDY: 5
Facts
In its summons a commercial firm, Neves Builders, claimed the following

(540-541 B):
(a) Payment of the sum of R6 500, being plaintiff’s fair and reasonable charge
for work done and materials supplied by plaintiff for and on behalf of
defendant at defendant's specific instance and request during December and
January 1984 and which amount defendant has despite demand refused
and/or neglected to pay although the said amount is due and payable;
(b) interest at the rate of 11% per annum a tempore morae;
93
(c) alternative relief;
(d) costs of suit.”
De la Cour, the defendant, entered an appearance to defend whereupon the

plaintiff applied for summary judgment which the defendant opposed. The
defendant’s opposing affidavit contained the following allegations summarised as
follows (541 B- F):
In outline the defence is as follows. The plaintiff is a builder. In November 1983

defendant engaged him to do some alteration work at a block of flats which is
divided into sectional titles. The work was not undertaken on the basis of a "fair
and reasonable" charge as alleged by plaintiff, but in terms of two quotations for
R1 360 (alterations to office accommodation) and R2 600 (alterations to a flat). The
work was required to be finished before 1 January 1984. The defendant avers that
the alterations did not go well. Plaintiff’s workmen did some damage; some of the
work was poorly executed and had to be re-done by another contractor; some of
the work was not done at all; work continued beyond 1 January 1984, exposing
defendant to a damages claim by an incoming tenant; and various items were
removed from the site by plaintiff or his workmen. Annexed to the papers is a
detailed list of the "damages" which defendant claims to have suffered by
reason of the aforegoing. He subtracts the total damages from the aggregate of
the two contract prices and arrives at a balance in favour of the plaintiff in the sum
of R2 708,10. He then says in his affidavit:
“I am accordingly prepared to acknowledge liability to plaintiff in the

amount of R2 708.10, which I accordingly tender him in full and final
settlement of his claim."
At the hearing plaintiff’s counsel moved for summary judgment in the amount of R2
707,90 on the basis that the defendant in his opposing affidavit had
acknowledged his liability to that amount, had shown no defence to that portion of
the claim and that the tender to pay in full and final settlement was ineffective.
Source
Neves Builders & Decorators v De La Cour 1985 (1) SA 540 (C)
ANALYSIS
NOTE: Please note the date of the judgment – the quantitative jurisdiction
for courts was then much lower than today! Your focus should be on the
principles illustrated, not the amount in dispute!
(1) Judging from the nature of the claim set out above, what type of
summons did the plaintiff issue?
The plaintiff issued a simple summons, the reason being that on the face of it the
claim is for a liquidated demand.
94
(2) Why does the plaintiffs claim only set out the bare essentials and not
describe all the material facts of the claim? (Rules 17 and 20)
The Uniform Rules of Court simply do not require a description of all the material
facts of the claim. Rule 17 requires that all such material facts be described only in
respect of an unliquidated claim. The reason is clear: in the case of a simple
summons, the claim is fixed or easily determinable. These claims are often left
undefended thereby allowing default judgment to be granted against the defendant
or if defended, would sustain an application for summary judgment. It is therefore
unnecessary to give a full statement of the claim and all that is required is that
the cause of action be concisely described in the summons. Details of the claim
only become necessary if the defendant has entered an appearance to defend and
an application for summary judgment has been refused. (Obviously the same
applies where the matter is defended by agreement between the parties and where
an application for summary judgment was not made timeously.) Only at this
stage is the plaintiff compelled to furnish the defendant with a declaration. (See
Uniform Rule 20(1).) The declaration must state the nature of the claim and those
conclusions of law that the plaintiff is entitled to deduce from the facts. (See
Uniform Rule 20(2).)
(3) What is the purpose of an application for summary judgment?
The purpose of an application for summary judgment is to obtain judgment speadily

against a defendant who has no bona fide defence against the plaintiffs claim and
who has entered an appearance to defend solely for the purpose of delaying the
action.
(4) What types of claim can give rise to an application for summary
judgment? (Rule 32)
The types of claim are set out in Rule 32 of the Uniform Rules of Court and need
not be repeated. However, it is important to understand the following.
Application for summary judgment is restricted to these types of claim. Moreover,

each of the grounds for summary judgment fall within the scope of a "debt or
liquidated demand". As has been stated in (1) above, a simple summons must
be issued if the claim is for a "debt or liquidated demand". This indicates the
procedural relationship between a simple summons and the application for
summary judgment. What is also evident is that application for summary judgment
cannot be brought on an unliquidated claim.
(5) Why is a notice of intention to defend particularly important for an

application for summary judgment?
Uniform Rule 32(2) states that an application for summary judgment may only be
brought after the defendant has entered an appearance to defendant. The
underlying reason is that defendant indicates by entering the notice of intention to
defend that he plans to raise a defence against the claim stated in the plaintiff’s
simple summons. Only at this stage is the plaintiff sufficiently informed about the
defendant's true intentions and may protect his interest by means of an application
for summary judgment to show that the defendant does not have a bona fide
defence and that he is raising a defence merely as a tactic to delay the action.
However, the plaintiff has a choice: on receipt of the notice of intention to defend
95
he or she can either apply for summary judgment or may accept the said notice and
file a declaration within the prescribed time, in which case the normal litigation
process will follow.
(6) Does the defendant’s opposing affidavit described above, disclose a

bona fide defence?
Obviously, every bona fide defence raised against an application for summary
judgment must be assessed on its own merits.
In the present instance, the bona fide defence raised by the defendant attempts
to show that the plaintiff’s claim is unliquidated. If you read the summary of the
defendant’s opposing affidavit carefully, you will notice that the defendant raised
the following issues in this respect:
(a) The terms of the contract are in dispute; the plaintiff contends that the
contract price is for a fair and reasonable charge whereas the defendant
alleges that the contract price was based on two quotations in fixed amounts.
(b) The defendant lists a number of complaints about the quality of work
performed by the plaintiff (e.g., damages done, work not done, work done
late, items removed, etc) that are relevant to the nature and extent of the
plaintiffs claim.
What may also be inferred is that the contract was not in writing and therefore
its terms would have to be proved. These issues show that the defendant could
raise a bona fide defence in the main action. (See, further, 7 below.)
(7) Is the plaintiff’s claim capable of speedy and prompt ascertainment?
The defence raised by the defendant indicates that the plaintiff’s claim is not
capable of speedy and prompt ascertainment. Oral evidence would have to be
heard in order to clarify the areas of dispute between the parties and to determine
the amount of the claim. (See further PROCEDURAL ISSUE below.)
PROCEDURAL ISSUE
Does the plaintiff's claim sustain an application for summary

judgment?
On account of the issues raised in the defendant’s opposing affidavit (see (6)
above), it is clear that proof of the plaintiff’s claim would be difficult and protracted
and that it would be necessary to rely on oral evidence. The plaintiff’s claim is
therefore not expressly capable of speedy and prompt ascertainment which is an
essential requirement for a claim to be liquidated. A liquidated claim is one of the
grounds for an application for summary judgment and formed the basis of the
application in the present instance. Because the plaintiff’s claim is not liquidated,
the application for summary judgment should be set aside.
96
CASE STUDY: 6
Facts
In a contested application the applicant sought the ejectment of the respondent

company from certain premises in Laudium. In the founding affidavit the
deponent of the applicant company alleged that it was the owner of certain
premises situated in Bengal Street, and that the respondent was in unlawful
possession thereof, in that it unlawfully occupied a portion thereof. The resolution
which empowered the deponent of the applicant company to proceed with this
application provided, inter alia, that the lease between the applicant company and
the present tenant of the promises, one M, not be renewed and that should the
tenant not vacate the premises, that the necessary steps be taken to evict such
tenant and anyone else occupying the premises.
A notice of motion was served on the respondent to which the latter replied by way
of a lengthy answering affidavit. The court was consequently confronted with a vast
number of pages of conflicting testimony. At the hearing of the matter counsel for
the respondent addressed argument in limine in terms of which he sought the
dismissal of the application. Counsel argued in the first instance that a proper
cause of action had not been disclosed in the founding papers as respondent was
a sub-lessee of M and the company resolution referred expressly to M. He
submitted that motion procedure was inappropriate where ejectment is sought.
Secondly, it was argued that if an applicant sought an alternative order that the
matter be referred for viva voce evidence, the applicant must make its election at
the outset.
Source
Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd 1994 2 SA
342 (T)
ANALYSIS
(1) On the facts of the matter, what type of application did the applicant use
to commence proceedings?
The applicant used an "ordinary" application (Form 2(a)) as notice of the

proceedings to another person was necessary because that party’s rights or
interest are affected by the relief claimed. (A claim for ejectment threatens a
person's occupational rights and therefore notice of such proceedings is obviously
necessary.)
(2) Identify the documents which the parties are allowed to exchange in
opposed proceedings in terms of the Uniform Rules of Court.
Rule 6 provides for the following documents: (a) A notice of motion to which the
supporting affidavit is attached; (b) the answering affidavit (Rule 6(5)(ii)); (c) the
replying affidavit (Rule 6(5)(e)). (The court has the discretion to permit the filing of
further sets of affidavits, but only in exceptional circumstances: see Rule 6(5)(e).)
97
(3) Are the documents referred to in question (2) above classified as
"pleadings" or as "processes"?
They are classified as “processes". The textbook explains the courts’ definition of
a process and i t is therefore not repeated here. It is necessary to distinguish
these concepts as different rules and principles apply in each instance, and certain
steps to rectify technical mistakes in documents can only be taken in respect of
either of these types of documents.
(4) The court indicated that action proceedings are the usual form of
proceedings where ejectment is sought. What type of summons would
be appropriate in such an event and why
The simple summons, as ejectment falls within the definition of a "debt or liquidated
demand". This is confirmed by the fact that ejectment is one of the grounds for
summary judgment as set out in Rule 32 of the Uniform Rules of Court.
(5) When does a dispute of fact arise?
It arises when
(a) the respondent denies material allegations made on the applicant’s behalf
and produces positive evidence to the contrary
(b) the respondent admits the allegations contained in the applicant’s affidavit,
but alleges other facts which the applicant disputes
(c) the respondent concedes that he/she has no knowledge of the main facts
stated by the applicant, but may deny them, putting the applicant to the proof
thereof, while giving evidence to show that the applicant (and his/her
deponents) are biased and untruthful or unreliable and that certain facts upon
which the applicant relies to prove the main facts, are untrue.
(6) Did a real dispute of fact arise on the facts of this matter?
Although the court does not expressly rule on this point, it would appear that it did
not: despite the fact that the respondent denied the cause of action (as set out in
the founding affidavit), it produced no positive evidence to the contrary. In fact,
the court specifically indicated that the allegation of the existence of a sublease
(and the applicant’s denial thereof) did not establish a different cause of action; nor
was there a conflict between the founding affidavit and the applicant company’s
resolution.
(7) What orders may a court make where a genuine dispute of fact arises
which cannot be settled without the hearing of viva voce evidence?
The court may:
(a) dismiss the application.

(b) order that oral evidence be heard on specified
issues
(c) order the parties to trial with appropriate directions as to pleadings, et cetera.
(Rule 6(5)(g)).
98
PROCEDURAL ISSUE
Is motion procedure inappropriate if ejectment is sought?
Deciding the correct form of procedure to use is by process of elimination. Neither

the Uniform Rules of Court nor the Supreme Court Act prescribes or prohibits a
particular procedure in this instance. Consequently, one has to determine
whether or not there is a real dispute of fact regarding any material question of
fact, or, if such a dispute does exist, whether or not it can nevertheless be
satisfactorily determined without the aid of oral evidence.
In the present instance the court was of the opinion (at 343J) that although action
may be the usual form of proceedings where ejectment is sought, there is no
indication in reported cases that motion proceedings are incompetent; it would
depend on the facts of the particular case.
The court also pointed out that the practice of using motion proceedings has in
recent years been extended, rather than limited. Turning to the facts of the case,
the court pointed out that even though respondents answering affidavit referred
to the existence of a sublease and the applicant's replying affidavit denied such
allegation, this was not sufficient to establish a different cause of action: it is still the
applicant's ownership and the respondent's alleged unlawful occupation which is in
issue. (Note: The applicant is prima facie entitled to possession by virtue of his/her
ownership. The cause of action arises out of the fact that the applicant is owner and
therefore entitled to possession.)
99
SAMPLE EXAMINATION PAPER
CIVIL PROCEDURE
Duration: 1 hour Marks: 50
PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THE SAMPLE
EXAMINATION PAPER:
Answer all THREE questions:
(a) Please ensure that you give FULL reasons for each answer.
(b) Please ensure that the time you devote to each question is proportionate to the marks allotted.
HIGH COURT PROCEDURE
QUESTION 1
(a) Ace Bank is liquidated due to fraud committed by its directors. Two hundred
and thirty-four plaintiffs, each of whom has a legally valid claim, get together
because they do not want to institute individual claims against the liquidators
of Ace Bank, for financial reasons. With these facts in mind, advise these
potential plaintiffs on the manner in which they could litigate against the
liquidators of Ace Bank. (6)
(b) The provisional sentence summons procedure is an executory procedure

which may be used after hearing prima facie only. Name and discuss the
three protective mechanisms built into the procedure for the sake of the
defendant. (6)
(c) Determine whether the following are pleadings or process documents –
(i) a combined summons (2)
(ii) a declaration (2)

[4]
(d) X issues a combined summons against Y for damages arising out of breach of
contract. Y responds with a notice of intention to defend. With these facts in
mind, answer the following questions.
(i) May X bring an application for summary judgment in response to Y’s

notice of intention to defend? (2)
(ii) Discuss the procedure that X may follow if Y fails to file a plea on the
merits. (3)
(iii) Discuss the procedure that X may follow if Y fails to file a plea on the
merits, despite the procedure discussed in (ii) above. (5)
[10]
(e) M issues a combined summons against N for damages arising out of breach
of contract. N responds with a notice of intention to defend. Thereafter, within
100
the dies induciae N files a plea on the merits along with a counterclaim. With
these facts in mind, answer the following questions.
(i) Name the pleading that must be filed by M if N in his plea on the
merits responds to one of the allegations contained in M’s particulars
of claim by means of confession and avoidance. (1)
(ii) Name the pleading that M must file in response to the allegations
contained in N’s counterclaim. (1)
(iii) Name the pleading that N may use if M’s pleading referred to in (ii)
above does not disclose a valid defence. (1)
(iv) Name the procedure that M may use if M believes that N is in

possession of a tape recording of the negotiations between M and N
and which gave rise to the conclusion of the contract. (1)
[4]
[30]
MAGISTRATES' COURTS PROCEDURE
QUESTION 2
(a) Set out the requirements for the content of an offer to settle as contained in
rule 18 of the Magistrates’ Courts Rules. (5)
(b) Name the three requirements for the supporting affidavit that must be filed by
the plaintiff together with the notice for the summary judgement. (5)
[10]
APPEAL, REVIEW AND VARIATION OF JUDGMENT
QUESTION 3
(a) Name the four grounds for review. (4)
(b) Discuss the circumstances when judges will entertain an application for leave
to appeal against a decision of a High Court. (4)
(c) Name the procedure that must be followed when variation of judgment is
sought
(i) in terms of Rule 42 of the Uniform Rules of Court; (1)

(ii) in terms of the common law. (1)
[10]
[50]
101
ANNEXURE B: COMMENTARY
ANSWERS TO QUESTIONS ABOVE
Question 1(a)
They can be voluntarily joined as plaintiffs. The requirements are that each person must have a claim,
against the same defendant, and one or more of the plaintiffs must be entitled to institute a separate
action. The claim must depend upon substantially the same question of law or fact and this question
must arise in each potentially separate action. (Joinder can also occur conditionally, in other words, if an
action of any other plaintiff fails.) (Study unit 4.3.2)
Question 1(b)
• The judgment is provisional: the defendant can therefore within two months of date of judgment
enter into the main action (provided he paid the judgment debt and the taxed costs)
• Although payment can immediately be required, the plaintiff can only do so against security de
restituendo
• Although execution can be levied against the property of the defendant if he/she fails to pay
the judgment debt, this can only be done against security de restituendo. (Study unit 7).
Question 1(c)
(i) A combination of the two: the summons itself is a process (it simply represents a step in the
process), while the particulars of claim is a pleading (it contains the material facts which are
relied upon in support of the claim).
(ii) A pleading: it contains the material facts which are relied upon in support of the claim.
See study unit 8.1 for a full discussion of these concepts. Please note that each answer has been fully
substantiated. It should be clear that an answer without full reasons is generally not worth more than half
a mark.
Question 1(d)
(i) No. An application for summary judgment can only be brought if the claim falls within the
provisions of Rule 32 of the Uniform Rules of Court. Each of these types of claims falls within the
definition of a debt or liquidated demand. In casu the nature of the claim falls within the definition
of an unliquidated claim, and therefore it falls outside the ambit of Rule 32(1). (Study unit 12.4.1
read with study unit 6.3.2.)
(ii) If Y fails to file a plea on the merits, X must first serve and file a notice of bar on Y in terms of
which Y is directed to serve and file his plea within the stated further dies induciae. Should Y
persist in his failure to do so, he will be in default and ipso facto barred from delivering his plea.
(Study unit 12.3.1.)
(iii) The plaintiff may set the matter down and apply for default judgment. As the claim is unliquidated,
judgment will only be given after presentation of evidence to prove the quantum. (The court also
has the discretion to make any other order.) (See Rule 31(2) and study unit 12.3.2.1.)
102
Question 1 (e)
(i) Replication
(ii) Plea in reconvention (or also called the plea on the counterclaim)
(iii) Exception
(iv) Inspection in terms of Rule 35(14) of the Uniform Rules of Court. (Study unit 10.2)
Question 2
Question 2(a)
The following must be set out:
• Whether the offer is unconditional or without prejudice as an offer to settle

• Whether it is accompanied by an offer to pay all or only part of the costs of the party to whom the
offer or tender is made, and further whether it shall be subject to such conditions as may be
stated therein
• Whether the offer or tender is made by way of settlement or both claim and costs or of the claim
only; and
• Whether the defendant disclaims liability for the payment of costs or for part thereof, in which
case the reasons for such disclaimer shall be given (and the action may then be set down on the
question of costs alone).
(See rule 18.)
Question 2(b)
The three requirements are:
• It must be signed by the plaintiff personally and he/she must state that he/she has personal
knowledge of the facts. In the case of a legal person, it must be signed by a duly authorised
person who must also allege that he/she has personal knowledge of the facts
• The plaintiff must confirm the amount or cause of action
• The deponent must state that in his/her belief the defendant has no bona fide defence and that
appearance has been entered solely for the purpose of delaying the action.
(See rule 14(2) as well as activity question 2 at the end of study unit 22.)
Question 3
Question 3(a)
The grounds are:
• Absence of jurisdiction on the part of the court

• Interest in the cause, bias, malice or corruption on the part of the presiding officer
• Gross irregularity in the proceedings
• The admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence (section 22(1) of the Superior Courts Act, 2013)
(These grounds are set out verbatim in study unit 31.2.1.)
103
Question 3(b)
It is important to note that leave to appeal will only be given if the judge(s) concerned is/are of the
opinion that
• the appeal would have a reasonable prospect of success, or that there is some compelling
reason why the appeal should be heard
• it cannot be said that the issues are of such a nature that the decision will have no practical effect
or result, and
• the appeal would lead to a just and prompt resolution of the real issues between the parties (s
17(1) of the Superior Courts Act, 2013).
(Study unit 32.3.1; Tutorial letter 102/3/2017)
Question 3(c)
(i) Application proceedings
(ii) Action proceedings
(See study unit 30, specifically activity questions 5 and 6 at the end of the study unit.)
104
CIVIL PROCEDURE QUESTIONS AND
ANSWERS PACK
GENERAL DIRECT QUESTIONS:
1. Answer the following questions.

(a) Discuss representation by power of attorney, including when a
power of attorney is necessary and why a power of attorney is
drawn up. (5)
Every natural person who is a party to civil proceedings is

entitled to represent himself personally. Such a person would
usually instruct an attorney to act on his behalf.
These instructions are confirmed and specified in a document
known as a power of attorney.
A power of attorney is a written document in which an agent is
given the authority to act on behalf of his principal either in a
specified situation or to act on behalf of such principal in respect
of all actions which the principal could perform himself. A client
may terminate his mandate to an attorney at any time, but an
attorney may, after accepting a client’s brief, withdraw only with
sound reasons.
When is a power of attorney required in litigation?
There is no need for a power of attorney for issuing a summons
or a notice of intention to defend, but is required to conduct or
defend a civil appeal. The rules of the Supreme Court provide
that a power of attorney need not be filed with the registrar
unless the authority of a legal practitioner to act on behalf of a
party is disputed.
Why is a power of attorney drawn up?
A carefully drawn up power of attorney is essential for the
protection of both the attorney and the client, and to determine
the extent of the attorney’s brief. Therefore, there should always
be a power of attorney kept on the client’s file. The power of
attorney generally contains details of the action to be instituted
and of the relief to be claimed.
The client does not wish to be involved, unknowingly or
unwillingly, in expensive litigation, or in an appeal which he
never contemplated.
On the other hand, the attorney is entitled to protection as far as
his own costs are concerned. Should the attorney conduct
litigation without the authority of the client, he will not be
entitled to recover the costs incurred from his client, since there
is no contractual relationship will exist.
(b) State the four requirements laid down in Rule 34(5) with
which an offer to settle must comply.
105
(8)
Ito Rule 34, a defendant may, at any time, unconditionally or
without prejudice, offer to settle a plaintiff’s claim where
1. payment of a sum of money is claimed, or

2. the performance of an act is claimed
Claim for payment of a monetary sum
The offer to pay a monetary sum must be in writing and must be
signed by the defendant or by the defendant’s duly authorized
attorney.
For the purposes of this Rule, a defendant includes any person
joined as a defendant or as a third party, as well as a defendant
in reconvention or a respondent in application proceedings.
In terms of the Rule, the following expressions have the following
meanings:
• unconditional = liability in respect of the claim is accepted
• without prejudice = liability is denied
The plaintiff may, within 15 days of receiving the notice of the
offer, accept the offer by delivering a notice of acceptance at the
address of the defendant indicated for the purposes hereof.
If the plaintiff fails to accept the offer within the period, it may
thereafter be accepted only with the written consent of the
defendant, or with the courts consent.
The defendant must, within 10 days of delivering the acceptance,
effect payment as offered.
If he fails, the plaintiff may, after giving 5 day’s written notice to
this effect, apply through the registrar to a judge for judgment in
terms of the offer, plus costs,
To receive payments, the plaintiff would then have to take steps
to obtain execution against the defendant.
2. Answer the following questions. Ensure that your answer is in

proportion to the marks allotted.
(a) Set out the processes and pleadings in convention and

reconvention exchanged in opposed proceeding where the claim
is unliquidated. (Do not deal with pre-trial judgments). (10)
A claim which is unliquidated means no quantum has yet

been determined, and thus a combined summons must be
issued and served by the pl, attached to which is a POC, to
set out the pl’s claim. A combined summons is served for a
divorce or a claim for damages. The summons is served on
the defendant who has the dies induciae to send his NOITD
(a process). This is not a means of raising a defence but to
state to the pl that he intends defending the action. The
def must then, after the dies induciae in the NOITD, send
his plea on the merits (a pleading), which sets out the def’s
defence, which may be one of admit, deny, or confess and
106
avoid. This plea answers the claims in the pl’s POC. If
issues are joined in the plea, pleadings are closed and
preparation for trial may begin, however, if a defence of
confess and avoid was pleaded by the def, or if issues are
not joined in the plea, the pl may respond to a new issue in
the plea by sending a replication. To which the def may
answer with a rejoinder. Pleading are then closed. The def
may add to his plea on the merits (or in a separate doc)
send a counter claim. Pleadings then go from “in
convention” to become “in reconvention”. Thus the pl in
convention becomes the def in reconvention and the def in
convention becomes the pl in reconvention. The def in
reconvention then needs to answer the pl in reconvention’s
claim with a plea on the counterclaim (or a plea in
reconvention). Pleadings in convention then continue in
reconvention.
(b) Discuss the differences between the special plea and the
exception. (8)
Difference between the special plea and the exception
An exception is limited to an attack on the allegations in

the pleading as a whole, on the assumption that such
allegations are true.
A special plea assumes the truth of all the allegations in the

declaration, and does not deal with the merits of the action
at all.
It differs from an exception in 2 aspects.

It alleges fact unconnected with the merits of the action as
a result of which the action is either destroyed or
postponed. (defendant only)
A special plea may only be pleaded to a declaration or
particulars of claim, whereas an exception can be brought
against any pleading. (any party may use)
(c) State the various ways in which evidence may be placed before
the trial court. (6)
(a) The plaintiff will issue a combined summons to the

defendant – this is the summons (process) and the POC
(pleading) attached (setting out the pl’s claim). The defendant
has the choice then to defend the action by sending a NOITD
(process) within the dies induciae stated in the summons (or
thereafter pays the costs of the pl’s application for DJ and
107
within 20 days of the summons being served), or the
defendant can ignore the summons and run the risk of DJ
being granted against him, or he can offer to settle. The
defendant has to then send his plea on the merits – which
sets out the defendants defence. Pleadings are then usually
closed, but if the def raises a new issue in his plea, or issues
are not joined in the plea, the pl can reply with a replication
(pleading), and if new issues are raised in the replication, the
def may send a rejoinder (pleading). The defendant can also
send, along with, or after, the plea on the merits, a special
plea (which raises an issue totally unconnected with the
facts of the action – raising an issue like no jurisdiction, or
res iudicata), or he can attach to or send after the plea on
the merits, a counterclaim (if he has a claim against the
plaintiff) and this creates pleadings in reconvention, where
the defendant in convention becomes the plaintiff in
reconvention, and the plaintiff in convention becomes the
defendant in reconvention. The defendant in reconvention
must then answer the CC with a plea on the counterclaim,
setting out his defence to the CC. If the plaintiff in
convention wishes to answer this, he may send a replication
on the CC etc.
(b)
i. A special plea is raised only against the
declaration or the particulars of claim.
ii. An exception is raised against any pleading.
iii. An exception is raised on matters in pleading,
while a special plea raises facts outside
pleadings.
(c) Unless special circumstances exist, a witness must give

evidence viva voce and in open court.
If a person is within the republic, such person can be
compelled to attend any high court in the republic by using a
subpoena from the office of the registrar and by having it
served on the witness required by the sheriff. Where a
witness is required by a subpoena to make available at the
trial a document, instrument or object, which is in his
possession, such a subpoena is termed a subpoena duces
tecum.
If a witness cannot give evidence in person, and if the

necessary circumstances are present, he may be allowed to
give evidence in the following ways:
o on commission
o by way of interrogatories
o Interrogatories differ from commissions in that,
while in the latter case evidence is given generally, in the
former case specific evidence only is taken and for this
108
purpose specific questions are formulated which must be put
to the witness by the commissioner.
o by way of affidavit
The courts are reluctant to grant such leave, and are usually
disposed to do so only when the evidence so required is of a
formal nature.
Rule 38(2) states
The witness at the trial of any action shall be examined viva
voce but the court can for sufficient reasons order evidence
to be given on affidavit (unless the witness is needed for
cross-examination).
3. Name four instances in which an ex parte application may be

used. (8)
(1) When the applicant is the only person who is interested or

affected by the relief sought, for example an application for
admission as a sworn translator.
(2) Where the relief sought is a preliminary step in the
proceedings, for example an application to sue by edictal
citation or to attach property ad fundandam jurisdictionem.
(3) Where this procedure (ie an ex parte application) has been
laid down by Act of Parliament or the Uniform Rules of Court.
(4) Where, though other persons may be affected by the order
sought, immediate relief is essential because a delay could be
dangerous, or because, if notice were given to the person
affected, such notice would in fact lead to the very harm which
the application is endeavouring to prevent, for example an
application for an urgent interdict.
(5) Sometimes, even though other parties could be affected by
the order, a court will grant an order without notice to the
respondents where they are so numerous that it would be highly
inconvenient, very expensive and time-consuming to serve the
application on them all.
When any application is made ex parte, an onerous duty rests
upon the applicant to disclose fully all material facts which
may affect the decision of the court, even though such facts
could be detrimental to the success of the application.
4. Explain substituted service. (6)
Where a person is believed to be in the Republic, but service

cannot be effected on him in terms of the Rules of the court
because it is not known precisely where such person is to be
found, an application may be made to the High court for leave
to sue by substituted service, and the court will then give
directions as to how such service is to be effected.
Substituted service is an extraordinary method of service.
109
It deviates from the normal method of service provided for in
the Rules.
Consequently, an application to court must be made on notice
of motion seeking the court’s permission to serve the
summons by means of substituted service, and requesting the
court to give directions as to how the summons must be
served.
The abbreviated summons must accompany the application for
consideration thereof by the court.
On hearing the application, and on being satisfied that it is a
proper case for substituted service, the court will give
direction as to how service is to be effected, for example by
publication in the government gazette, service on a relative,
registered mail or a combination of the abovementioned.
5. State the grounds for summary judgement. (4)
Rule 32(1) states:

Where a defendant has delivered a NOITD, the plaintiff can
apply to court for summary judgment, only if the summons is
on a liquid document or for a liquidated amount in money,
for delivery of movable property or ejectment. Thus, it should
be clear that an application for summary judgment may
follow only from a simple summons. Procedure and content of
affidavit: Rule 32(2) provides that the plaintiff must, within a
specified period after receipt of a notice of intention to
defend, deliver a notice of application for summary
judgment, together with an affidavit made by himself, or by
someone else who can confirm the fact upon which the cause
of action and the amount (if any) are based.
The affidavit must indicate
** that, in his opinion, there is no bone fide defence to the
action
** that the purpose of entering appearance is merely to delay
the action.
No further averments are permitted.
6. Briefly discuss in what two important ways attorney and client

costs and party and party and costs differ from each other. (6)
Attorney and client costs arise out of the contractual

relationship between client and attorney and are not at all
related to possible litigation. Party and party costs, however,
are those costs which a party incurs on taking legal steps and
which are payable by an opposing party in terms of a court
order. However, these costs are only estimated costs and
expenses, while attorney and client costs are remuneration for
all professional services and expenses flowing from the
110
attorney's mandate and are not statutorily fixed. Party and
party costs are taxed by the Taxing Master in accordance with a
fixed prescribed scale, thus ensuring that only such charges
and costs actually incurred in the course of litigation are
allowed. Attorney and client costs are a form of punitive
measure for improper behaviour.
7.
(a) Discuss the following:

(i) ex parte applications
(ii) Ordinary applications
(iii)Urgent applications
(iv) Interlocutory applications (10)
(i) An ex parte application can be heard by a court without

notice being given to anyone, it can be said that in this
respect, this form of application is an exception to the
general rule. When any application is made ex parte, an
onerous duty rests upon the applicant (and equally so on
the applicant's attorney and counsel) to disclose fully all
material facts, which may affect the decision of the court,
even though such facts could be detrimental to the success
of the application.
(ii) Notice of the application is given to another person or
persons. Such person or persons receive notice of the
application in that it is served on them after it has been
issued, that is, a copy of the application is handed to them
(iii) Relief is needed urgently but that there is simply not
enough time for following prescribed procedures in placing
a matter before court. This does not mean that an applicant
may disregard the usual requirement for applications
entirely. The principle is that, as far as possible, the
normal rules of procedure should be followed, and that any
departure from such normal rules of procedure must be
justified by the urgency of the matter. In other words, the
mere fact that an applicant views the matter as urgent does
not mean that he or she may bring the application in any
form and at any time and place, or with too short a time
limit for responses by the respondent. If a departure cannot
be justified, the court may strike the application off the roll
with costs, or may postpone the matter to afford the
respondent more time to respond to the application.
(iv) In the preceding sections we looked at the two forms of
notice of motion used to institute legal proceedings.
However, often a party may want to approach the court for
relief in respect of matters related to proceedings that have
already been instituted. This is particularly the case in
respect of summons proceedings.
111
Interlocutory applications are therefore brought purely by
way of notice. As a result, the parties are not bound by the
severity of the Rules.
8. Name the four methods by which normal service can be affected.

(4)
* service must, if possible, be personal; * If personal service

cannot be affected, the summons may be serviced at the
defendant’s place of residence or business by leaving a copy
thereof with the person in charged of the premises. This
person must be older than 16; * service may be effected at
the defendant’s place of employment; * service on a company
may be effected by the service on a responsible employee at
the company’s registered office or at its principal place of
business within the courts jurisdiction, or , if the foregoing
is not possible, by affixing a copy to the main door of such
office or place of business; * service on a partnership, firm or
voluntary association is effected in terms of Rule 4(1)
* As regards matrimonial actions, the Rules make no specific
mention of service in such actions. Personal service is
preferred.
9. Compare the plea on the merits and the special plea. (4)
A plea on merits deals with the merits of the plaintiff’s

case as set out in the plaintiff’s particulars of claim or
declaration, as the case may be. In a plea on merits, the
plaintiff’s allegations are admitted, are denied, are placed
in issue, or are confessed or avoided, and all the material
facts upon which the defendant relies are stated clearly
and concisely. In brief, a plea on merits raises a defence
against the plaintiff’s claim. On the other hand, a special
plea is a means of raising an objection on the basis of
certain facts, which do not appear in the plaintiff’s
declaration or particulars of claim, and has the effect of
destroying the action.
10. Discuss the nature and purpose of the exception. (8)
An exception is a legal objection to the opponent’s

pleading in terms of Rule 23(1) of the Uniform Rules of
court. The exception contends that there are some defects
or incompleteness inherent in the pleading; the pleading
does not disclose either a cause of action or a defence, or
112
the pleading is vague and embarrassing. The exception is
taken to the pleading as a whole and not to a portion of
the pleading as is the case with striking-out. The purpose
of an exception is twofold: in the case of a pleading that is
vague and embarrassing, an exception is taken in order to
prevent the person excepting from being taken by surprise
or being prejudiced in his pleading, or at the trial. Where
the pleading discloses no cause of action or defence, an
exception provides a speedy method of determining the
issue without having to embark on the lengthy and
expensive procedure of a full trial. See unit 10.5.
11. Indicate what is meant by “sound reasons” in regard to setting

aside an order for default judgment. (3)
The courts have held that ‘sound reasons’ mean that

(1) A reasonable explanation must be given for the
failure
(2) The application must be bona fide and not merely a
delaying tactic
(3) The defendant must have a bona fide defence
12. Describe fully the grounds for a temporary interdict. (7)
1. There must be a clear right or, if it can’t be established, 1

that is prima facie established, though open to some
doubt.
2. If the right is established only prima facie, the applicant
must show in addition, that, if the interdict is refused, he
will suffer irreparable harm, whereas, if the interdict were
to be granted, the respondent would suffer such
irreparable harm.
3. The balance of convenience must favour the granting of
the interdict. The court must weigh up the prejudice that
each party will suffer if the interdict is granted or
refused.
4. There must be no other statutory remedy available to the
applicant.
13. Distinguish between automatic bar and notice of bar; (7)
NOB is sent by the plaintiff if the defendant’s plea on the

merits is not filed within the dies induciae, for simple and
combined summons procedures, and for a simple summons
procedure, the defendant may send a NOB to the plaintiff if
his declaration is not filed on time. The automatic bar
applies when the day for the filing of the replication or
subsequent pleading has come and gone and this doc has not
been filed. This means the party whose doc is late (the
113
plaintiff for the replication and the def for the rejoinder) is
automatically barred from sending it, and pleadings are
deemed to be closed (ipso facto barred).
14. Discuss the ways in which evidence may be placed before the
trial court; (7)
Unless special circumstances exist, a witness must give
evidence viva voce and in open court.
If a person is within the republic, such person can be
compelled to attend any high court in the republic by using a
subpoena from the office of the registrar and by having it
served on the witness required by the sheriff. Where a
witness is required by a subpoena to make available at the
trial a document, instrument or object, which is in his
possession, such a subpoena is termed a subpoena duces
tecum.
necessary circumstances are present, he may be allowed to
give evidence in the following ways:
o on commission
o Interrogatories differ from commissions in that, while in
the latter case evidence is given generally, in the former
case specific evidence only is taken and for this purpose
specific questions are formulated which must be put to
the witness by the commissioner.
The courts are reluctant to grant such leave, and are

usually disposed to do so only when the evidence so
required is of a formal nature.
Rule 38(2) states

The witness at the trial of any action shall be examined
viva voce but the court can for sufficient reasons order
evidence to be given on affidavit (unless the witness is
needed for cross-examination).
15. Discuss party and party costs; (7)
Party and party costs are those costs which have been
incurred by a party to legal proceedings and which the
court orders the other party to pay him or her. These
differ from attorney and client costs, in that they do not
include all the costs which the party to litigation may
have incurred, but only such costs, charges and expenses
as were incurred in the actual litigation and which are
allowed by the Taxing Master.
114
The Taxing Master is a civil servant who is attached to the
office of the Registrar of each Supreme Court and whose
function it is to check bills of costs. This he or she does
according to a tariff, in which is laid down the maximum
fee permitted for each item in the litigation process (for
example taking instructions to sue, issue of summons,
attending court, per hour etc. According to this Taxing
Master's view of the complexity of the case, he or she
decides whether or not the fee charged by the attorneys is
reasonable. Once a reasonable figure has been
ascertained, the bill of costs is then presented to the other
party for payment.
16. The different types of interdicts and the purpose of each. (7)
Prohibitory interdict: This is an interdict in the more
literal and restricted sense of the word, and may be
described as an order requiring a person to abstain from
committing a threatened wrong, or from continuing an
existing one.
Mandatory interdict: It’s an order compelling a person to
perform some positive act in order to remedy a wrongful
state of affairs which the respondent has brought about, or
to do something which he is in law obliged to do if the
complainant is not to be deprived of his rights. Where the
act is to be performed by a public official, the order is
called a mandamus. Restitutory interdict: Where a person is
unlawfully disturbed in the possession of property, he is
entitled to immediate restitution – even before the merits
of the dispute are investigated by the court. This order
restores the status quo and is known as a mandamenten
van spolie.
17. Explain the purpose of the third party procedure contained in

Rule 13 of the Uniform Rules of Court. (3)
This enables a litigant to avoid instituting multiple actions in

respect of the same matter and it enables a third party's
liability (if any) to be determined by a court at the same time
that the liability of the other party is determined.
Any party (ie a plaintiff or a defendant) to an action may
employ this procedure. However, such procedure may be
resorted to only in the following circumstances, namely where a
party claims that:
* he or she is entitled to a contribution or indemnity from the
third party in respect of any payment which he or she may be
ordered to make or
* a question or matter in dispute in the action is
substantially the same as that which arose, or will arise,
115
between him or her and the third party, and should be decided
not only between the parties to the action (ie the plaintiff and
the defendant), but also between one or more of them and the
third party.
The effect of the third-party notice is that, after service on the
third party, such party becomes a party to the action.
18. Explain fully whether a subpoena is a pleading or a process. (5)
Process: There is a difference between a pleading and a process.

Although process is not defined in the Act, the phrase process of
the court was interpreted in Dorfman to mean “something which
‘proceeds’ from the court; some step in legal proceedings which
can only be taken with the aid of the court or of one of its
officers”. Included in this concept are, inter alia, subpoenas,
notices and the like.
19. Briefly indicate the requirements which an offer to settle must

meet in terms of Rule 34(5) of the Uniform Rules of Court. (4)
* unconditional = liability in respect of the claim is
accepted
* without prejudice = liability is denied
The plaintiff may, within 15 days of receiving the notice
of the offer, accept the offer by delivering a notice of
acceptance at the address of the defendant indicated for
the purposes hereof. The plaintiff fails to accept the offer
within such period, it may thereafter be accepted only
with the written consent of the defendant, or with the
court's consent.
The defendant must, within 10 days of delivery of the
notice of acceptance, effect payment as offered. If he or
she fails to do so, the plaintiff may, after giving five days'
written notice to this effect, apply through the Registrar
to a judge for judgment in terms of the offer, plus costs. To
receive payment, the plaintiff would then have to take
steps to obtain execution against the defendant, which is
an unsatisfactory aspect of this procedure (compared to
the situation prior to the November 1987 amendments
where the amount offered was actually paid into court).
Not only may finalisation of the matter be delayed, but a
plaintiff may find in the end that a defendant does not
have sufficient means to satisfy the judgment. Apart from
these matters, such further steps also have cost
implications for both parties. An offer has been made may
not be disclosed in court before judgment has been given,
and no reference to such offer may appear on any file in
the office of the Registrar containing the papers of the
case. Any party acting contrary to this Rule will be liable
116
to have costs given against him or her, even if he or she is
successful in the action. The offer is, however, brought to
the attention of the judge concerned before any order as to
costs is made, since the fact that an offer was made is
relevant to the apportionment of costs.
20. Indicate and discuss under what circumstances a court will use
it’s discretion to set aside a default judgment in terms of Rule
31 of the Uniform Rules of Court. (4)
In terms of Rule 31(2)(b) a defendant may, in respect of a
claim not for a debt or liquidated demand, within 20 days
after he or she has knowledge of a default judgment,
apply to court to set aside such judgment. In terms of Rule
31(5)(d) a defendant may, in respect of a claim for a debt
or liquidated demand set the matter down for
reconsideration by the court. The court has a discretion
whether or not to set aside a judgment. The defendant
must also advance sound reasons for the failure
concerned. The courts have held that sound reasons mean
that
(1) a reasonable explanation must be given for the failure
(2) the application must be bona fide and not merely a
delaying tactic (3) the defendant must have a bona fide
defence. Application refers to a notice + SA (interlocutory).
20. Describe the information that must be contained in a discovery

affidavit. (4)
(1) those documents relating to the matter in dispute in

the action which are in his possession or under his
control
(2) those documents, although relating to the matters in
dispute in the action and being in the party’s control or
possession, the party objects to producing, and the
reasons for such objection must be stated
(3) those documents which he had in his possession or
which were under his control, but which he does not
now have in his possession or which are now not under
his control. Such party must also state when such
documents were last in his possession or under his
control, and where such documents now are.
117
HIGH COURT:
1. Betty wishes to sue her husband, Koos, for a divorce in a High

Court.
(a) (i) Why is it appropriate for Betty to issue a combined

summons in this instance?
(2)
A combined summons is used for divorce and damages. A
simple summons is only used when the claim is for a
debt or liquidated demand. Thus, here, there is a divorce
and the claim will thus be unliquidated (which means
the judge decides on the amounts claimed in the court)
and is not a liquidated claim where one would have to
use a simple summons.
(ii) Name the usual processes and pleadings that will be

exchanged between the parties if the action is opposed.
(8)
The plaintiff sends the summons attached with the POC.
The defendant sends his NOITD within the dies induciae.
The defendant then sends the plea on the merits which
answers the POC (within the dies induciae). If a new
matter is raised in the plea, the plaintiff can respond
with a replication.
(c) Koos, the husband, has always refused to settle down in any
one place and prefers to travel around South Africa doing
odd jobs and selling homemade pizza. Briefly identify and
discuss the procedure that Betty will have to follow to effect
service of summons upon Koos under these circumstances.
(8)
Plaintiff will have to apply for substituted service. Where
a person is believed to be in the Republic, but service
cannot be effected on him in terms of the Rules of the
court because it is not known precisely where such
person is to be found, an application may be made to the
High court for leave to sue by substituted service, and
the court will then give directions as to how such service
is to be effected.
Substituted service is an extraordinary method of
service.
It deviates from the normal method of service provided
for in the Rules.
Consequently, an application to court must be made on
notice of motion seeking the court’s permission to serve
the summons by means of substituted service, and
118
requesting the court to give directions as to how the
summons must be served.
The abbreviated summons must accompany the
application for consideration thereof by the court.
On hearing the application, and on being satisfied that it
is a proper case for substituted service, the court will
give direction as to how service is to be effected, for
example by publication in the government gazette.
(c) Koos fears that Betty may leave the country, taking their two
minor children with him. Koos approaches the court for a
temporary interdict to prevent such an occurrence.
(i) Name the type of proceedings that Koos would use to obtain
the interdict. (1)
Ordinary application. Notice of motion attached with an
affidavit.
(ii) Name the documents that the parties must exchange if B

opposes the proceedings. (5)
Applicant sends a NOM and supporting affidavit.

Respondent sends an answering affidavit to the
supporting affidavit. The applicant can answer with a
replying affidavit. The court, in its discretion can allow
the filing of more affidavits upon application.
(24)
2. Cammy issues and serves summons in a High Court against

Dodgy for Dodge’s ejectment from certain property owned by
Cammy. With these facts in mind, point out on the correctness of
the procedure followed. Give reasons for your answers and where
necessary, state what the correct procedure should be and why.
(a) Although Dodge fails to serve and file a notice of intention to

defend within the stipulated dies induciae, Cammy serves and
files his particulars of claim. (5)
This step is incorrect. The type of claim above is for a debt

or liquidated demand (ejectment) and thus a simple
summons must be issued to the defendant and not a
combined summons. A POC is only attached to a combined
summons and thus Cammy serving and filing his POC is
incorrect. If the defendant fails to send his NOITD within
the dies induciae, the plaintiff should apply for default
judgement.
119
(b) Dodge reacts to the summons by serving and filing a notice of
intention to defend outside the stipulated dies induciae. Cammy
immediately responds by claiming Dodge has ipso fact
(automatically) been barred from delivering the notice of
intention to defend. (6)
The defendant can serve and file his NOITD outside the dies
induciae provided its within 20 days of the summons being
served, that he pays the plaintiffs costs for the application
for DJ and that the NOITD was notes before default
JUDGEMENT was granted. The court may then allow the
filing of the late NOTID. The plaintiff may then apply to
have the NOITD set aside as an irregular proceeding.
(c) Dodge reacts to the summons by serving and filing a notice of

intention to defend within the stipulated dies induciae. Cammy
reacts
by applying for default judgment. (4)
This step is incorrect as the plaintiff may only apply for DJ if

the NOITD has not been received within the dies induciae or is
late. The defendant sent his NOITD on time. Thus, the next
correct step would be for the plaintiff to send his declaration.
(d) The matter proceeds to the trial phase. After close of pleadings
and for purposes of shortening the trial, Cammy requests
Dodge to make discovery in terms of Rule 35 of the Uniform
Rules of Court of all documents pertaining to the action.
Discuss discovery briefly. (3)
Discovery may not be requested until after the close of
pleadings.
The purpose is to ascertain from other parties what
documents and tape recordings are in existence which might
be relevant to the action.
This enables a party to prepare fully and properly for trial and
prevents him from being taken by surprise.
Discovery is obtained by written notice addressed to any party

to the action to make discovery under oath within 20 days of
such request.
Discovery related to all documents relevant to any matter in

dispute in the action which are, or have at any time been, in
the possession or under the control of such other party.
Discovery must be made within 20 days, and is made by

disclosing the necessary information in an affidavit – known
as a discovery affidavit.
120
In this discovery affidavit the party making the discovery
must set out
(1) those documents relating to the matter in dispute in the
action which are in his possession or under his control
(2) those documents, although relating to the matters in
dispute in the action and being in the party’s control or
possession, the party objects to producing, and the reasons
for such objection must be stated
(3) those documents which he had in his possession or which
were under his control, but which he does not now have in
his possession or which are now not under his control.
Such party must also state when such documents were last
in his possession or under his control, and where such
documents now are.
A party may validly object to the discovery of a document if
he is able to claim privilege for its contents.
Examples are incriminating documents, or documents which

affect the security of the state.
3. F intends to sue G for damages in the amount of R200 000 arising

from breach of contract.
(a) Explain why F should use a combined summons and not a

simple summons to institute his action against G. (4)
The claim for damages is an unliquidated claim. This

means that the quantum still has to be proved by the
leading of evidence. Only then can a court make a finding.
Consequently, the combined summons is the correct
summons to use. A simple summons is only used if a claim
falls within the definition of a “debt or liquidated
demand”; in other words, this refers to a claim that is
fixed and definite or easily ascertainable. If you did not
do well in this question, you gave too little detail or only
partially answered the questions.
(b) Explain why it would not be correct for F to institute the

action by way of application procedure. (3)
There would clearly be a real dispute of fact which cannot

satisfactorily be settled without hearing oral evidence.
Please note that we refer to a real dispute of fact – far too
many of you simply referred to a dispute of fact. Logically
speaking, this cannot be correct, as it would mean that
the existence of frivolous factual disputes would prohibit
application proceedings.
121
(c) Name the options available to G if he wishes to respond
within the prescribed period stated in the summons. (3)
The defendant has various options and can:
a) Obviously admit the claim and pay the amount claimed
b) Give notice of his intention to defend
c) consent to judgment.
If other courses of action were mentioned, they were
treated on merit. Payment into court and tender are not
options; the first is only an option in the magistrate’s
court and the latter must of course be pleaded.
(d) Explain the procedures that F must follow if G fails to deliver

his plea on the merits. (6)
The plea on the merits is not a pleading as envisaged by

Rule 26; namely, a “replication or subsequent pleading”.
The defendant is therefore not automatically barred; the
plaintiff first had to deliver a notice of bar to the
defendant in which he or she is instructed to deliver his or
her plea on merits. Should the defendant fail to do so,
he/she is in default and is automatically barred. The
plaintiff can now request default judgment. Please note
that one cannot apply for a notice of bar; a party simply
issues a notice and this explains the phrase “give notice
to”.
4.
(a) Carol and Tony enter into an agreement of sale in terms of
which Carol has to deliver 15 specific bulls to Tony. The agreed
purchase price is R500 000. Tony pays the purchase price by
cheque. Carol fails to deliver the bulls and Tony issues
summons against Carol for the delivery of the bulls.
(i) Discuss the procedure that Y may use if X delivers a
notice of intention to defend and Y is of the opinion that X
did this to gain time and to prevent Y from obtaining the
relief. (6)
This is a claim for a debt or liquidated demand and thus a
simple summons is used. Summary judgement may only be
used as an extraordinary remedy be a plaintiff in a claim for
a debt or liquidated demand, and only after the NOITD has
been delivered. This has happened in this question and thus
Y may apply for SJ if he feels the NOITD was delivered by the
defendant with the sole purpose of wasting time or if he
knows the defendant does not have a proper defence (a bona
fide defence). Rule 32(1) states:
122
on a liquid document or for a liquidated amount in money,
for delivery of movable property or ejectment. Thus, it should
be clear that an application for summary judgment may
follow only from a simple summons. Rule 32(2) provides that
the plaintiff must, within a specified period after receipt of a
notice of intention to defend, deliver a notice of application
for summary judgment, together with an affidavit made by
himself, or by someone else who can confirm the fact upon
which the cause of action and the amount (if any) are based.
(1) that, in his opinion, there is no bone fide defence to
the action
(2) that the purpose of entering appearance is merely to
delay the action
If the claim is based on a liquid document, a copy thereof
must be attached to the application.
In addition, the application must contain a date on which
the application will be heard.
(ii) During the court proceedings referred to in (i) above, but

before the court delivers its judgment, Tony is informed
that Carol is finalising arrangements to leave the country.
Explain which remedy is available to Tony under these
circumstances as well as its purpose. (5)
Arrest suspectus de fuga: This order is available to a

creditor who fears that a debtor is about to leave the
country to avoid payment of a debt.
The arrest prevents the debtor from leaving the
jurisdiction of the court – unless he can give security for
the debt – so that the court can give an effective judgment.
The arrest of the debtor remains in force only until
judgment is given.
It is thus an arrest to abide by the judgment of the court
and not to perform the judgment. This order will only be
granted if that court has jurisdiction to hear the creditor’s
action, while an arrest to found or confirm jurisdiction
serves to vest a court with jurisdiction.
(iii) Name the process that Tony may use in order to

commence the proceedings referred to in (ii) above. (1)
123
The procedure cannot be used unless the claim has a
minimum value of R400.
Arrest may take place before or after summons has been
issued.
A writ of arrest is issued by the registrar of the court, and
an application to the court is not necessary.
The writ authorizes the sheriff to arrest the debtor and
also authorizes the officer commanding the prison to
which the sheriff takes the debtor, to keep him imprisoned
until security has been provided, or until the date on
which the court hears the creditor’s action .
(iv) If X delivers the bulls but Tony’s cheque is dishonoured by

his bank, name the two types of summons which Carol may
select to institute the action. (2)
A simple summons (as the claim is for a debt or liquidated

demand) or a provisional sentence summons as the claim
is liquidated and thus liquid summons proceedings may be
used.
5. S issues a simple summons against T in which a decree of

divorce is requested. With these facts in mind, answer the
following questions, giving reasons for each answer. (8)
(i) If T is of the opinion that the incorrect form of summons has

been used, can T make use of any procedure to correct the
situation? (2)
An application to set aside the summons as an irregular

proceeding is the correct step to take.
(ii) When does the period commence within which the applicant
must act? (4)
The period within which the applicant must act

commences as soon as a party takes notice that a step has
been taken or that a proceeding has occurred, and not
once the irregularity thereof has come to his notice .
(iii) If T files a notice of intention to defend prior to the taking

of other steps, will this prevent him from using the procedure
you have referred to in your answer (i) above? (2)
No, as the NOITD is not deemed to be a further step. A

further step would therefore include the next sequential
124
exchange of pleadings and any objection to the content of
a pleading.
It would not include the filling of a notice of intention to
defend.
The courts have held that this is merely an act done to
enable the defendant to put forward his defence.
(iv) What form of proceeding must T use in order to approach

the court for relief? (2)
Rule 30(2) provides that an application in terms of this

Rule must be accompanied by notice to all parties.
Such an application is naturally also interlocutory in
nature.
6. Zola wishes to obtain a divorce from her husband Venesh.

Merely state the correct answer to each of the questions that
follow. You must not give reasons for your answers.
(a) What pleading must be attached to the summons? (1)
POC
(b) What form of service is necessary to serve the summons on
Venesh who is at a known address in South Africa? (1)
Normal / ordinary service
(c) What form of service is necessary if venesh is living overseas at
the time when summons is issued? (1)
Edictal citation
(d) What form of proceedings must Zola follow to obtain permission
to use the form of service referred to in (c) above? (1)
Application proceedings, ex parte
(e) What is the first document that Venesh must file if he wishes to
oppose the divorce action? (1)
NOITD
(f) What step must Zola take if Venesh files the document referred
to in (e) above but fails to file a plea? (1)
NOB-send the defendant a notice that if he does not send
the relevant doc within 5 days, he will apply for DJ
(g) What further step may Zola take if Venesh still fails to respond
to the document referred to in (f) above? (1)
Apply for DJ
(h) What procedure should be used if the name of one of the minor
children is stated incorrectly in the plea? (1)
Notice of intention to amend
(i) Which party is responsible for using the procedure referred to
in (h) above? (1)
Defendant
125
(j) What procedure can Zola use if Venesh files a plea that
contains vexatious statements about Zola? (1)
Strike out
(k) What pleading can Venesh use if he has already issued
summons in another court in which he has instituted divorce
proceedings against Zola? (2)
Special plea, dilatory, lis pendens
(l) What pleading can Zola file if Venesh raises new matter in is
plea? (1)
Replication
(m) What may Zola do immediately after pleadings have closed to
ensure a speedy allocation of trial date? (1)
Set down
(n) What procedural step can Zola take, after close of pleadings, if
she feels that the pleadings contain insufficient information to
enable her to prepare for trial? (1)
Request for further particulars
(o) What proceeding are Venesh and Zola compelled to arrange and
attend before the trial in order to attempt to shorten the trial.
(1)
Pre trial conference
7. Connie and Donald enter into a contract for the sale of an

ostrich. Donald breaches the contract and Connie wishes to issue
summons against Donald. With these facts in mind, answer the
following questions, giving adequate reasons for your answer in
each instance.
(i) What type of summons should Connie, the plaintiff, use for
repayment of the contract price, being in the amount of R400
000? (2)
The simple summons, the repayment of the contract price

falls within the definition of a “debt or liquidated demand”
since it is, inter alia, “fixed” and “definite”.
(ii) What type(s) of summons could Connie use if Donald paid the
contract price by cheque but Donald’s cheque was dishonoured
by his bank because of insufficient funds? (4)
The simple summons because a liquid document is an example

of a debt or liquidated claim as well as the provisional
sentence summons since it was specifically designed to
address claims flowing from liquid documents
(iii) What type of summons should Connie use in regard to a claim

for damages in the amount of R120 000 arising from Donald’s
breach of contract. (2)
126
The combined summons. Damages constitute an unliquidated
claim, the extent of which will only be determined or quantified
after a court has heard evidence proving the claim and has
given a ruling
8. Samuel issues a summons against Thomas for containers sold

and delivered in the amount of R150 000, which Thomas
refuses to pay despite demand. With these facts in mind,
answer the following questions, giving adequate reasons for
your answer where necessary.
(i) What should Thomas, the defendant, do if he acknowledges

that part of the claim is due and owing and wishes to settle
this part of the claim immediately? (2)
A written offer to settle in terms of Rule 34
(ii) What procedure should Samuel, the plaintiff, use if Thomas

does not respond to the summons within the period stated
in the dies induciae? (1)
Default judgment
(iii) Should Samuel deliver a notice to bar to Thomas before

Samuel can apply for the procedure stated in (ii) above? (1)
No, the reasons are twofold: since the defendant did not
give a notice of intention to defend, he is not a party to the
matter and therefore does not need to be involved in the
matter any further. Secondly, the notice of intention to
defend is not a pleading and bar applies only in respect of
pleadings
(iv) Name the procedure that Samuel may use if Thomas files a
notice of intention to defend within the period stated in the
dies induciae but does so merely to delay the action? (1)
Application for summary judgment
(v) Indicate the steps that Thomas can take to defend the
proceedings instituted by Samuel in (iv) above. (2)
T can convince the court by way of affidavit that he has a

bona fide defence or, with the leave of the court, by way of
oral evidence.
127
(vi) Discuss the difference in the nature of evidence presented by
both Samuel and Thomas at the hearing of the proceedings
instituted by Samuel in (iv) above. (3)
The plaintiff may not include evidence in support of his

claim in the affidavit, while the defendant must fully
disclose the nature and grounds of his defence.
9. Louis and Manny are involved in a motorbike accident. Louis

suffers some serious injuries to his neck and has to have a
number of major operations. Louis sues Manny and claims
damages. At this stage, the pleadings have closed and both
parties begin to prepare for the trial. With these facts in
mind, answer the following questions.
(i) Name two procedures that may be used to prevent the

parties from being caught unprepared at the trial. (2)
Discovery, request for further particulars for trial,

notice of expert witness, the production of plans,
diagrams, models and photographs, inspection or
production of documents and tape recordings
(ii) Name two steps that may be taken to shorten the trial a
required under the Uniform Rules of Court. (2)
The pre-trial conference and the exchange of the

summaries of expert testimony by experts
(iii) Name two methods by means of which the parties may

present their evidence in court. (2)
Personal or viva voce evidence; otherwise on

commission, by way of interrogatories or on affidavit.
10. D and F enter into a lease agreement, whereby D leases a portion of

his farm to F. However, after the lease is signed, F refuses to pay the
rent since D refuses to give F access to the rented portion of his farm.
F contends that the lease agreement is subject to a servitude of a
right of way, which D denies. Determine the type of proceedings that
F should use in order to approach the court. (6)
There is a dispute of fact in this question and thus when there

is a dispute of fact, the correct proceedings to use is an action
proceeding. An application by means of a notice of motion may
128
be made if (1) there is no real dispute over any fundamental
question of facts or (2) if there is such dispute, it can
nevertheless be decided without the necessity of oral evidence.
When is there a dispute of fact?
There is a dispute of fact when

1. respondent denies material allegations made by the deponents
on the applicants behalf, and produces positive evidence by
deponents to the contrary
2. respondent admits the allegations contained in the applicants
affidavit, but alleges other facts which the applicants disputes
3. respondent concedes that he/she has no knowledge of the
main facts stated by the applicant, but may deny them, putting
applicant to the proof and himself/herself giving, or proposing
to give, evidence to show that the applicant and his/her
deponents are biased and untruthful, or otherwise unreliable,
and that certain facts upon which the applicant and his/her
deponents rely to prove the main facts are untrue.
A dispute of fact does not arise were the respondent merely

states that he disputes the truth of the applicants statement,
but offers no evidential reply to them.
In other words, where there is bare denial. A real dispute has
to occur
Mere fact that the parties are not in agreement on all the facts
does not mean that a real dispute has occurred. Thus, an
action proceeding is applicable.
11. B is totally shocked when he is informed that an order for default

judgment has been granted against him. The claim is for goods sold
and delivered to him in the amount of R140 000 and in respect of
which B has written to the supplier stating that he was withholding
payment because the goods were defective. To B’s knowledge a
summons had not been served on him. However, B’s 18yr old
daughter confesses that she accepted service of the summons and
was so busy with her WITS exams that she forgot to give the
summons to B She finds the summons hidden between her study
material. B consults with you.
i) Explain whether proper service was effected; (2)
Yes, normal service is:

Service must, if possible, be personal.
If personal service cannot be affected, the summons may be
serviced at the defendant’s place of residence or business by
leaving a copy thereof with the person in charged of the
premises. This person must be older than 16.
service may be effected at the defendant’s place of
employment.
129
service on a company may be effected by the service on a
responsible employee at the company’s registered office or at
its principal place of business within the courts jurisdiction,
or if the foregoing is not possible, by affixing a copy to the
main door of such office or place of business.
ii) What steps can be taken to assist B (4)
Ito Rule 31(2) (b) a defendant may, within 20 days after he has
knowledge of a default judgment, apply to court to set aside
such judgment. The court has a discretion whether or not to
set aside a judgment.
The defendant must also advance sound reasons for the
failure concerned.
The courts have held that ‘sound reasons’ mean that:

• A reasonable explanation must be given for the failure
• The application must be bona fide and not merely a
delaying tactic
• The defendant must have a bona fide defence
12. You are acting for the defendant in a divorce matter. On behalf of
your client you receive a summons, attached to which is a
supporting affidavit. With these facts in mind:
i. Explain why summons the is defective; (2)
The summons is defective because this is an action based on

an unliquidated claim of divorce and thus, a combined
summons should be issued, attached to it a particulars of
claim and NOT a supporting affidavit (this is for a NOM
application).
ii) Describe the procedure that you would use to remedy the defect;
(5)
Application to set it aside as an irregular proceeding. Where

the party has taken an irregular step during the course of
litigation, Rule 30 provides the other party with a mechanism
by means of which the irregularity may be set aside or dealt
with. Rule 30(2) states that an application to set aside an
irregular proceeding shall be on notice to all the parties
specifying the particulars of the irregularity and made only if:
the applicant himself has not taken a further step with
knowledge of the irregularity. The applicant has within 10
days of becoming aware of the step by giving notice to his
opponent a chance to remove the complaint within 10 days
and application was delivered within 15 days. The meaning of
an ‘irregular proceeding’: the irregularity concern formal
irregularities. In other words, the noncompliance with formal
130
requirements in respect of procedural matters. Examples of
irregularities are the failure by an advocate to sign the
particulars of claim, the premature set-down of a case, and
the use of the wrong type of summons. The period within
which the applicant must act commences as soon as a party
takes notice that a step has been taken or that a proceeding
has occurred, and not once the irregularity thereof has come
to his notice.
iii) Explain whether the filing of a notice of intention to defend

constitutes a “further step”. (3)
A further step would therefore include the next sequential

exchange of pleadings and any objection to the content of a
pleading. It would not include the filling of a notice of
intention to defend. The courts have held that this is merely
an act done to enable the defendant to put forward his
defence. Rule 30(2) provides that an application in terms of
this Rule must be accompanied by notice to all parties.
13. X consults with you in regards to a cheque he received from his

bank marked “return to drawer” because there were insufficient
funds in Y’s current account. During the consultation you learn
that X had sold computers to the value of R500 000 to Y and that X
needs to recover the money urgently from Y in order to finance
other transactions. With these facts in mind:
i. Determine whether you could commence proceedings by means of
either a simple summons or a provisional sentence summons; (3)
X could commence proceedings using either simple summons

proceedings or provisional sentence summons proceedings as
both may be used regarding a claim based on a liquid
document – simple summons is used for a debt or liquidated
demand (which a cheque is) and the PSS is used for a claim
where a plaintiff is armed with a liquid document. The PSS
procedure is quicker and easier for the plaintiff to use as its a
provisional sentence and he gets his claim paid once he has
paid in to court security de restituendo.
ii. Explain the implications for your client in regard to the use of the
simple summons; (4)
A simple summons is issued in respect of a liquidated claim, it
is not accompanied by any other document setting out the
details of the claim.
The amount and the nature of the claim are set out in the
summons.
131
In the case of a simple summons, the defendant has formally
indicated that he intends to defend the action.
The plaintiff files his declaration only at this stage.
Before a plaintiff delivers a declaration, he will consider
whether or not to apply for summary judgment.
Where such an application is unsuccessful, or where the
application is abandoned, a declaration must be delivered.
Once the summons has been served and, the defendant wishes
to defend the action, he must, within the stipulated time in
the summons, deliver and file a notice of intention to defend.
(If the plaintiff has filed a simple summons, he will now file
his declaration).
Thereafter, the defendant must raise his defence by filing his
plea on the merits.
Alternatively, the defendant may raise a special plea to object
to an issue not apparent in the plaintiff’s declaration or
particular of claim, as the case may be. The defendant may,
together with his pleadings, file a counterclaim.
By means of the counterclaim, the claim in reconvention is
introduced.
The pleadings in reconvention are usually filed with the
pleadings in convention which might follow.
The plaintiff (now defendant in reconvention) responds to the
defendant’s (now plaintiff in reconvention) counterclaim by
means of a plea in reconvention.
Usually, the pleadings close after the defendant’s plea has
been delivered and filed, but this need not necessarily be the
case.
Plaintiff could respond to the defendant’s plea by means of a
replication.
If the issues are not joined hereby, the defendant may reply to
the replication by means of a rejoinder.
The matter is than set down for trail and the pre-trail
preparation stage commences. In the normal course of
pleadings, certain irregularities might need to be corrected,
rectified or be objected to in this respect.
Prior to the trail stage, it is possible to obtain a judgment
known as a pre-trail judgment.
Should the defendant not file a notice of intention to defend
or a plea, as the case may be, timeously, the plaintiff may
apply for default judgment to be granted against the
defendant.
If the defendant has in fact filed a notice of intention to
defend but has no bona fide defence and has done so merely to
delay proceedings, the plaintiff may apply for summary
judgment. When the plaintiff has failed to deliver timeously
his declaration and has been barred from doing so, the
defendant may have the matter set down for hearing; the
132
court may grant absolution from the instance, or make any
order it deems fit. Lastly, the defendant may consent to
judgment.
This is a long, protracted expensive method of obtaining a
claim.
iii. Explain the implications for your client in regard to the use of the
provisional sentence summons. (5)
Provisional sentence summons is an extraordinary procedure.

The exceptional nature of this procedure lies in the fact that
it could be decided before trail, and the court is concerned
with only prima facie proof.
Therefore judgment is given on the assumption that the
documents submitted are genuine and valid.
It accelerates the procedure for granting judgment – although

such judgment is provisional – and entitles a successful
plaintiff to execute the judgment immediately, subject to
giving the defendant the necessary security de restituendo.
Thus it provides the creditor who has sufficient documentary

proof (i.e. a liquid document) with a reedy for recovering his
money without it being necessary to resort to the more
cumbersome, more expensive and frequently protracted
illiquid summons proceedings.
The plaintiff is of right entitled to payment, or, failing such
payment, to take out a writ of execution against the
defendant’s property under security de restituendo. Security
de restituendo is the security which the plaintiff must give for
the restitution of the money he has received from the
defendant in terms of the judgment in the event of defendant
defending and succeeding in the main case.
The judgment is provisional. The defendant may still defend
the main trail, but only within 2 months of the granting of
provisional sentence, and then only if he has paid the
judgment debt and costs.
A defendant who may and who wishes to enter into the
principle case must deliver notice of his intention to do so
within 2 months after provisional sentence has been granted,
in which case the summons will be deemed to be a combined
summons on which the defendant must deliver a plea within
10 days. In default of such notice or plea, the provisional
sentence automatically becomes a final judgment and the
security given by the plaintiff falls away.
133
iv. State the claims that give rise to an application for summary
judgment. (4)
Rule 32(1) states:
on a liquid document or for a liquidated amount in money, for
delivery of movable property or ejectment. Thus, it should be
clear that an application for summary judgment may follow
only from a simple summons. Rule 32(2) provides that the
plaintiff must, within a specified period after receipt of a
notice of intention to defend, deliver a notice of application
for summary judgment, together with an affidavit made by
himself, or by someone else who can confirm the fact upon
which the cause of action and the amount (if any) are based.
• that, in his opinion, there is no bone fide defence to the
action
• that the purpose of entering appearance is merely to delay
the action. No further averments are permitted.
If the claim is based on a liquid document, a copy thereof
must be attached to the application.
In addition, the application must contain a date on which the
application will be heard
14. Explain the meaning of the phrase “claim in reconvention”.

(1)(4)
This is where the claim by the plaintiff, who initiated the
case, is answered by the defendant with a counterclaim. The
plaintiff who initially issued summons is called the plaintiff
in convention and initiated the action by issuing summons =
in convention. The defendant indicated his intention to defend
by sending a NOITD and other pleadings may have been
exchanged (whether the case is one for simple or combined
summons) – the defendant then together with his plea on the
merits, or just after, sends the plaintiff a counterclaim, which
then swaps over the proceedings into reconvention – the
plaintiff in convention now being the defendant in
reconvention and the defendant in convention being the
plaintiff in reconvention. Pleadings exchanged in convention
are not exchanged in reconvention.
15. In terms of section 2(1)(b) of the Divorce Act of 1979, either of the
spouses is competent to institute divorce proceedings. N issues a
summons for divorce against his wife, P, out of the Johannesburg
High Court. P is so infuriated when she learns that N wants to
divorce her, that she instructs her attorney also to issue summons
against N out of the Durban High Court. As N’s attorney, describe
how you would respond to the combined summons issued by P.
134
(2)
One would still send the NOITD as well as the plea on the
merits (because if these are not send, the risk of DJ), but then
send a special plea – one of lis pendens dilatory plea. Lis
pendens. If an action is already pending between the parties,
and the plaintiff brings another action against the defendant
or relating to the cause and in respect of the same subject-
matter, whether in the same or different courts, the defendant
can take the objection of lis pendens
16. You are acting for the defendant. Summons is issued against the
defendant for damages arising out of breach of warranty. Your client
acknowledges that the product is defective and admits full liability.
Furthermore, your client requests you to keep costs to a minimum.
Describe how you would respond to your client’s instructions. (8)
Common law tender: A party to litigation is not obliged to
offer a settlement in terms of the Rules.
A tender can be made even before proceedings are instituted.
If such a tender is satisfactory, it will provide a defendant
with protection against costs, which accrue from the summons
stage.
The concept of tender is derived from common law.
A tender is equivalent to payment by way of an offer of
settlement.
Common law requires that payment be made in money.
The amount offered in settlement need not be paid into court,
and need be available in the form of money or a cheque.
The plaintiff must be notified of the manner of payment.
If the defendant wants to use a tender in order to protect

himself against costs, he must plead a tender, which must be
proved like any other fact.
Where a tender is raised as a defence, it is done to show that
the tender is accepted or that the plaintiff is not entitled to
costs from the date on which the tender is made. It’s
important to know that a tender must be unconditional.
If the tender is not accepted, the tendered amount must be
paid back. If it is accepted, the plaintiff may not sue for the
balance of the claim.
17. State the information that must be contained in a discovery

affidavit. (6)
Done above
18. Judgment is granted against the defendant. Upon the defendant’s

failure to pay the judgment debt, you issue a writ of execution
135
against the defendant’s moveable property. The Sheriff furnishes
you with a nulla bona return. What is the next step that you may
take to enforce judgment? (2)
Immovable property can only be attached and sold in the

following 3 cases:
1. Where a writ has been issued against the movables and
the Sheriff has made a nulla bona return, that is, has
indicated that no movable property exists which can be
attached.
2. Where a special order, setting out that there is no
movable property which can be attached and sold in
execution, has been made by the court on notice of
motion to the debtor.
3. At the time when judgment was obtained, the court made
a special order declaring certain property executable,
for example in the case of provisional sentence in
respect of a mortgage bond.
A debtor’s rights in respect of incorporeal property may also

be attached in execution.
19. Jackpot Bank is liquidated due to fraud committed by its

directors. Two hundred and thirty-four plaintiffs, each of whom
has a legally valid claim, get together because they do not want
to institute individual claims against the liquidators of Ace
Bank, for financial reasons. With these facts in mind, advise
these potential plaintiffs on the manner in which they could
litigate against the liquidators of Ace Bank. (6)
Each person (plaintiff) must have a claim + must act

against the same defendant(s) + one or more of the
plaintiffs must be entitled to act against the defendant(s)
in a separate action.
The legal claim must depend on substantially the same
question of law or fact. This question of law or fact must
be one, which would have originated in each individual
action, which could have been instituted (and which is
now not being instituted on account of the intended
joinder).
A further circumstance is that where joinder occurs
conditionally, that is, where joinder occurs only if the
claim of any other plaintiff fails.
Thus, each plaintiff (customers of the bank) have a claim
against Jackpot Bank (one defendant) based on
substantially the same question of law / fact (liquidation
of Jackpot Bank due to fraud by its directors).
136
20. i) Discuss the meaning of the term “debt or liquidated
demand”. (8)
‘a claim for a fixed or definite thing, as, for instance,
i) a claim for transfer, ii) ejectment, iii) for the delivery of
goods, iv) for rendering an account by a partner,
v) for the cancellation of a contract or the like’.
Courts have also indicated that a debt is liquidated where
it is admitted, or where the monetary value is capable of
being ascertained speedily. In order to be a ‘liquidated
demand’, the demand must be described in such a way
that the amount thereof may be determined merely by
mathematical calculation. What ‘ascertained speedily’
embraces is a question of fact, and the court will thus
exercise their discretion in deciding whether or not a
particular claim is capable of being ascertained speedily.
Neither an action for divorce nor an action for damages
constitute a claim for a debt or liquidated demand.
It is therefore clear that the nature of the claim
determines whether a simple summons must be employed.
ii) Describe the type and form of the summons that must
be issued if the claim is for a ‘debt or liquidated demand”.
(2)
A simple summons should be employed (although a
provisional sentence summons may be employed for a
liquid doc, as can a simple summons). As regards the form
of the summons, such summons must be drawn up so as to
correspond as closely as possible to Form 9 of the First
Schedule of the Rules. From an examination of Form 9 it
clearly appears that only the cause of action need be set
out concisely. In practice, this means that the nature of
the relief requested must be set out.
21. The provisional summons procedure is an enforcement

procedure, which may be used after hearing prima facie
evidence only. Name and discuss the three protective
mechanisms built into the procedure for the sake of the
defendant. (6)
The plaintiff's claim is based on a liquid document, and

the defendant is not able to provide such counter-proof as
to satisfy the court that the probabilities of success in the
principal action will probably not be in the plaintiff's
favour. Although after the granting of sentence, the
plaintiff can immediately go to the enforcement thereof,
137
this can only happen if the plaintiff provides the
defendant with the necessary security de restituendo.
22. Determine whether the following are pleadings or process

documents -
i) A combined summons (2)
Both a pleading (POC attached to the CS) and a

process (the summons).
ii) A declaration (2)
A pleading. This is a written document containing

averments by the parties to an action in which the
material facts on which they rely in support of their
claim or defence are concisely set out, and which is
exchanged between such parties.
23. C issues a summons against D for damages arising out of a

breach of contract. With these facts in mind answer the
following questions:
(i) Name the procedure that D must follow if C issues a simple
summons against D. (1)
Application to have it set aside as an irregular

proceeding. Interlocutory application – notice and SA.
(ii) Discuss briefly the period within which D must commence

the procedure identified in (i) above. (3)

commences as soon as a party takes notice that a step
has been taken or that a proceeding has occurred, and
not once the irregularity thereof has come to his notice.
(iii) Name the type of proceedings that D must follow. (1)
Application proceeding, interlocutory, notice and

supporting affidavit, notice to other side.
(iv) Briefly explain why D acts correctly be serving and filing a

notice of intention to defend, despite the procedure that is
followed in (i) above. (3)
Filing and serving the NOITD is not deemed to be a

“further step”. A further step would therefore include
the next sequential exchange of pleadings and any
objection to the content of a pleading. It would not
include the filling of a notice of intention to defend.
138
enable the defendant to put forward his defence. Rule
30(2) provides that an application in terms of this Rule
must be accompanied by notice to all parties.
Such an application is interlocutory in nature. Rule
30(4) provides that, until the party against whom the
order was made has complied with it, he may take no
further steps in the main action.
(v) Name the orders that a court may make. (2)
That notice or request be complied with,

Or 2. That the claim or defence be struck off
The court may, in its discretion, grant such an order.
24. X issues a combined summons against Y for damages arising

out of breach of contract. Y responds with a notice of intention
to defend. With these facts in mind, answer the following
questions.
i) May X bring an application for summary judgment in
response to Y’s notice of intention to defend? (2)
No, he may ot bring an application for SJ. SJ may

only be applied for if the initial claim by the pl was
for one of a quantified amount, thus only if he had a
claim for a “debt or liquidated demand”, thus upon
issue of a simple summons. This question deals with
a claim for damages arising from breach of contract
and is thus not a claim for a quantified amount, but
an unquantified amount for damages.
ii) Discuss the procedure that X may follow if Y fails to file a

plea on the merits. (3)
If Y fails to file a plea on the merits, X should first

issue and serve a notice of bar on Y, notifying him of
his late plea and giving him 5 days to then send the
plea. If he doesn’t after the 5 days, X may apply for
DJ as Y will be ipso facto barred from sending his
plea.
iii) Discuss the procedure that X may follow if Y fails to file

a plea on the merits, despite the procedure discussed in (ii)
above. (5)
X may then apply for DJ. Interlocutory application,

notice and SA. Where defendant is in default of notice of
intention to defend or plea, the plaintiff can file with
the registrar an application for judgment against the
139
defendant. The registrar may:
(1) grant the judgment required (2) grant judgment
for part of it (3) refuse it in whole or in part (4)
request oral or written submissions (5) Require the
matter be set down for hearing in open court. When
judgment by default is requested in respect of
unliquidated claims, and the defendant is in default
of delivery of a notice of intention to defend or of a
plea, judgment by default may be granted only once
evidence has been led in respect of the amount of the
claim.
25. M issues a combined summons against N for damages arising

out of breach of contract. N responds with a notice of intention
to defend. Thereafter, within the prescribed time-limit, N files a
plea on the merits along with a counterclaim. With these facts
in mind, answer the following:
i) Name the pleading that must be filed by M if N in his plea

on the merits responds to one of the allegations contained
in M’s particulars of claim by means of confession and
avoidance. (1)
Replication
ii) Name the pleading that M must file in response to the

allegations contained in N’s counterclaim. (1)
Plea on the counterclaim (in reconvention)
iii) Name the procedure that N may use if M’s pleading

referred to in (ii) above does not disclose a valid defence.
(1)
Exception
iv) Name the procedure that M may use if M believes that N

is in possession of a tape recording of the negotiations
between M and N and which gave rise to the conclusion of
the contract. (1)
Inspection (Rule 35(14)).
26. X has a claim of R250 000 for payment of goods sold and
delivered to B, which despite demand, B refuses to pay. X has
no option but to institute proceedings in the local High Court.
In each of the instances set out below, the procedure followed
140
by X is incorrect. State briefly what the correct procedure
should be, giving reasons for each answer.
i) X issues a provisional sentence summons against B.
(1) (2)
Provisional sentence summons in issued for a liquid
document – thus when the pl is armed with a liquid doc.
The simple summons is served when the claim is one of a
debt or liquated demand, which is relevant in our
question, as a claim for goods sold and delivered is a debt
or liquidated demand. One would use the provisional
sentence summons is one was armed with, eg. A cheque.
ii) B raises a defence on the merits by means of a notice of

intention to defend. (2)
B must notify X of his intention to defend by sending a

process called a notice of intention to defend. A defence on
the merits is raised solely in a plea on the merits which
the defendant will only send after he has received the
plaintiff’s declaration – as the declaration sets out the
plaintiff’s claim and the plea on the merits sets out the
defendants defence.
iii) Although B has entered his notice of intention to defend

within the time stated in the summons, X applies for
judgement by default. (2)
X may not apply for DJ if the defendant’s (B’s) NOITD is on

time, if he, however, feels that the defendant’s NOITD was
sent solely to waste time or does not have a bona fide
defence, he may apply for summary judgement. But the
correct procedure for a plaintiff who has received a
defendant’s NOITD on time in reply to a simple summons,
is to send a declaration.
iv) X files a replication to B’s counterclaim. (2)
This step is incorrect as one files a replication to a plea on

the merits if the plea contains a new allegation / issue (if
issues were not joined in the plea). The correct answer to a
defendant’s counterclaim is a plea on the counterclaim.
v) Because it appears that B wishes to flee the country so as

not to abide the judgement of the court, X applies for the
arrest of B’s person ad fundandam iurisdictionem. (2)
This is incorrect as the arrest ad fundandum

jurisdictionem is an arrest of a foreign peregrenus for the
purposes of giving a relevant court jurisdiction to hear the
141
action. The correct procedure to have a defendant arrested
for trying to flee to avoid paying his debts is the arrest
tanquam suspectus de fuga – urgent application ex parte.
27. B issues summons against C for R200 000 for defamation.

Answer the following questions.
i) Name the procedure that C must follow is B issues a
simple summons against C. (1)
C should apply to have this set aside as an irregular

proceeding – under Rule 30.
ii) Discuss briefly the time period within which C must

institute the procedure referred to in (i) above. (3)

commences as soon as a party takes notice that a step has
been taken or that a proceeding has occurred, and not
once the irregularity thereof has come to his notice. The
applicant has within 10 days of becoming aware of the
step by giving notice to his opponent a chance to remove
the complaint within 10 days and application was
delivered within 15 days.
iii) Name the type of proceeding that must be used by C. (1)
Rule 30(2) provides that an application in terms of this

Rule must be accompanied by notice to all parties.
Such an application is interlocutory in nature.
iv) Briefly indicate why C acts in the correct manner by

serving and filing a notice of intention to defend despite
the procedure being followed in (i) above. (3)
A further step would therefore include the next sequential

exchange of pleadings and any objection to the content of
a pleading.
It would not include the filling of a notice of intention to
defend.
enable the defendant to put forward his defence .
v) Name the step that B can take if C fails to file a plea on

the merits timeously. (1)
Send B a Notice of Bar giving him 5 days to send the plea

on the merits and a warning that if he does not, C will
apply for default judgement.
142
vi) Name the pleading that B will deliver if C’s plea on the
merits discloses no defence. (1)
Replication.
28. X and Y, with their toddler, emigrate from Poland to South

Africa. After six months X, the husband, decides to leave SA and
settles in Namibia. The wife, Y, remains behind and later decides
to institute divorce proceedings. Answer the following questions,
giving full reasons for each answer where appropriate.
(a) Why is it inappropriate for Y to issue a simple summons in this

instance? (2)
Y would like to divorce X and thus is a claim for a change

in status and the appropriate summons is then the
combined summons, used for divorce and damages claims
– unquantified claims. The simple summons is used for a
debt or liquidated demand.
(b) Why is it inappropriate for Y to use application proceedings to

institute action? (1)
One uses applications when: (1) there is no real dispute

over any fundamental question of facts or (2) if there is
such dispute, it can nevertheless be decided without the
necessity of oral evidence. A divorce requires oral evidence
and the court to quantify the monetary claims and the
change in the status of the parties.
(c) In matrimonial actions it is the practice of most courts to insist

on personal service. Does this mean that Y will not be able to
sue X for divorce in SA? (3)
Rule 5 prescribes how service must be affected on a

defendant who is, or is believed to be, outside the
Republic.
This is so even when his exact whereabouts are known and
even when personal service is possible.
Such a person can not be summonsed before our courts in
any manner other than by means of edictal citation. The
consent of the court must be obtained to serve
o any process or document which initiates
proceedings, or
o any process or document which does not initiate
proceedings
143
(d) Why would it be necessary for Y to deliver a replication if X’s
defence is one of confession and avoidance? (1)
A replication contains the plaintiff’s reply to the

defendant’s plea. Rule 25(2) states that no replication or
subsequent pleadings which would be a mere joinder of
issue or bare denial of allegations in the previous
pleadings shall be deemed necessary and issue shall be
deemed to be joined and pleadings closed. A replication
will be typically relevant in the case where the defendant’s
defence is one of confession and avoidance. A plaintiff
who fails to deliver a replication within the prescribed
dies induciae is barred from replicating. If the plaintiff
raises new averments of fact in the replication, the
defendant is given an opportunity of reacting thereto by
way of rejoinder.
(e) In the Deed of Settlement X has undertaken to pay Y an

amount of R500 000, but pending a divorce order Y is strapped
for cash. Can she make use of the procedure contained in Rule
34A to obtain an interim payment? (3)
X can offer to use Rule 34A. The offer to pay a monetary

sum must be in writing and must be signed by the
defendant or by the defendant’s duly authorized attorney.
For the purposes of this Rule, a defendant includes any
person joined as a defendant or as a third party, as well
as a defendant in reconvention or a respondent in
application proceedings. The plaintiff may, within 15 days
of receiving the notice of the offer, accept the offer by
delivering a notice of acceptance at the address of the
defendant indicated for the purposes hereof.
If the plaintiff fails to accept the offer within the period, it
may thereafter be accepted only with the written consent
of the defendant, or with the courts consent.
The defendant must, within 10 days of delivering the
acceptance, effect payment as offered.
If he fails, the plaintiff may, after giving 5 day’s written
notice to this effect, apply through the registrar to a judge
for judgment in terms of the offer, plus costs.
(f) If X wishes to claim financial support from Y, may he do so in

his plea on the merits? (3)
144
He will have to do so in a counterclaim, which can be sent
in a separate document, or attached to the plea on the
merits.
(g) Y is successful in obtaining an order for divorce. Explain

whether the court is compelled to award Y party and party
costs. (5)
1. As a general rule, the successful party is entitled to his

costs.
2. In determining who the successful party is, the court must
look to the substance of the judgment and not merely its
form.
3. The court may in its discretion, deprive the successful
party of part, or all, of his costs.
In the exercise of this discretion, the judge will take into
account the following circumstances in connection with
the successful party’s conduct:
(a) whether the demands made are excessive
(b) how the litigation was conducted
(c) the taking of unnecessary steps or adoption of an
incorrect procedure
(d) misconduct
29. Q is a landlord and Z is his tenant. Z is in arrears with this

rental. Q issues a summons against Z for the arrear rental and
ejectment. With regard to the given facts, determine the
procedure that Q would use if:
i. Z failed to respond to the summons within the time stated in
the summons (3)
Default judgement application.
ii. Z files a notice of intention to defend within the time stated in

the summons but fails to file his plea on the merits timeously.
(4)
Q has to serve Z with a notice of bar, giving him 5 days in

which to send his plea on the merits, failing which, Q will
apply for default judgement against Z.
30. ZY (Pty) Ltd, trading as a furniture dealer, approaches the local

High Court for the sequestration of C’s estate. B, the authorised
official in the employ of ZY (Pty) Ltd, in his supporting affidavit
states, inter alia, that C is a cheat and a rogue.
i. Indicate briefly why ZY (Pty) Ltd may not use an ex parte
application to institute legal proceedings. (2)
145
ii. C wishes to oppose the proceedings. Indicate how C must set
about opposing the application. (1)
iii. C is offended at the personal remarks contained in B’s
supporting affidavit. Advise C in this regard. (2)
31. In each of the instances given below, indicate briefly in what

way the pleading or process concerned is defective, and
whether there is any procedure the defendant may use to raise
an objection against it.
i. In his particulars of claim, the plaintiff alleges that the parties
concluded an agreement on 1 February 2070, instead of on 1
February 2007. (2)
ii. The plaintiff institutes an action for divorce against the
defendant by way of a simple summons. (2)
iii. The plaintiff claims payment of a specific amount from the
defendant in terms of an agreement on which the defendant
would be liable for such payment if a certain Z were to fail to
pay this amount. In the particulars of claim the plaintiff does
not allege that Z has failed to pay the amount. (2)
iv. The plaintiff issues summons against the defendant in the Cape
High Court to the amount of R500 000 for damages resulting
from a motorcar collision. The court grants judgment to the
amount of R300 000. The defendant subsequently moves to
Pretoria and is sued by the plaintiff in the Pretoria High Court
for the balance of the claim, namely R200 000. (2)
32. In terms of an order for divorce, custody of the minor children is

awarded to the wife, B. The ex-husband is C. A few years after
the divorce, C learns that B has decided to immigrate to
Canada. C receives this information 24 hours before B intends
to depart the RSA with the minor children from Johannesburg
International Airport. B’s departure from the Republic with the
minor children directly infringes Cs rights of access in terms of
the divorce order C wishes to institute proceedings to protect
his rights.
(i) Discuss the type of application that C should use to
protect his rights. (5)
(ii) Name the documents that C must use to commence the
proceedings referred to in (i) above. (2)
(i) The ordinary application, but discussions on the

aspect of urgency and the use of a temporary interdict
were also considered.
(ii) Notice of motion and the supporting affidavit.
32. T has passed his attorney’s admission examination and his

contract as a candidate attorney has expired. T wishes to apply
146
for admission as an attorney. With these facts in mind, answer
the following questions:
i. What factors must be considered to determine the correct
type of application that must be used? (2)
ii. In the light of these factors, explain the type of application
that T may lodge. (2)
iii. Name the documents that comprise the type of
application identified in (ii) above. (2)
iv. Name the official to whom the documents identified in (iii)
above must be addressed. (1)
v. Set out the information that must be contained in the
documents identified in (iii) above. (3)
33. Answer the following questions. Ensure that your answer is in

proportion to the marks allotted.
(a) X and Y are married to each other. A minor son is born

out of the marriage. The husband, X wishes to immigrate
to Australia. However, Y, the wife, refuses to leave South
Africa and insists that the minor child remain with her.
Ten days before X is due to leave for Australia, he abducts
the minor child. Y wishes to obtain an order for the
custody and control of the minor child. Bearing these
facts in mind, answer the following questions:
(i) Should Y use action or application
proceedings? (4)
Application proceedings as there is no dispute of

fact. There is a dispute of fact when
1. respondent denies material allegations made by the
deponents on the applicants behalf, and produces positive
evidence by deponents to the contrary
2. respondent admits the allegations contained in the
applicants affidavit, but alleges other facts which the
applicants disputes
3. respondent concedes that he/she has no knowledge of the
main facts stated by the applicant, but may deny them,
putting applicant to the proof and himself/herself giving,
or proposing to give, evidence to show that the applicant
and his/her deponents are biased and untruthful, or
otherwise unreliable, and that certain facts upon which
the applicant and his/her deponents rely to prove the main
facts are untrue.
A dispute of fact does not arise were the respondent

merely states that he disputes the truth of the applicants
statement, but offers no evidential reply to them.
In other words, where there is bare denial.
147
(ii) If the matter is opposed by B, name and describe
the documents which will be exchanged between
the parties. (4)
As above – supporting, answering and replying affidavits

and court in its discretion can allow the filing of more
affidavits.
(iii) What procedure may X use if Y’s documents

contain inadmissible evidence?
(1)
Application / motion to strike out.
(iv) What type of order is the court likely to grant in

favour of Y?
(1)
Provisional / temporary.
34. In terms of an order of divorce, custody of three minor children

has been awarded to the wife, Ann Marie. For three years after
the divorce, the divorced couple live in JHB. Ann Marie now
wishes to relocate to Cape Town but does not inform her ex
husband of the fact. The ex husband, Peter, hears about the
impending move two days before the time. The move to CT
infringes directly on Peter’s rights of access to the minor children
in terms of the order for divorce.
In regard to the above facts, answer the following questions. Give

full reasons for each answer.
(a) Name the type of proceedings that Peter must use to uphold his
rights of access to the minor children. (2)
Application proceedings, ordinary application, NOM and

supporting affidavit.
(b) Explain why must Peter use the proceedings identified in (a)
above. (2)
There is no dispute of fact, thus no need for action

proceedings. The application proceeding is relevant with
148
notice to the other party.
(c) Name and describe the document that Peter must use to
commence proceedings. (2)
DONE
(d) Name and describe the document that Peter must attach to the
document indentified in (c) above. (2)
NOM AND SA
(e) If Ann Marie opposes Peter’s application, name and describe the
documents that must be exchanges between the parties. (4)
DONE
(f) Explain what a court may do at the hearing if a dispute arises

between Ann Marie and Peter which cannot be resolved without
the hearing of viva voce evidence. (2)
Where a genuine dispute of fact arises which cannot be

settled without a hearing of viva voce evidence, the court
hearing the motion proceedings may
1. dismiss the application
2. order oral evidence to be heard on specified issues
Order the parties to trail with appropriate directions as to
the pleadings, the definition of issues, etc.
35. X brings an application in terms of which he applies for the

sequestration of Y’s estate. In his supporting affidavit X avers,
inter alia, that Y is a liar and a cheat.
i. Indicate which type of application should be used to institute
court proceedings and give reasons for your answer. (2)
Ordinary application, notice to other side, no dispute of

fact.
ii. Indicate how Y will receive notice of X’s application. (1)
Notice of the application is served on him after it has been

issued, that is, a copy of the application is handed to him.
iii. Explain what Y can do if he is dissatisfied with the personal

nature of the remarks made about him in the supporting
affidavit. (1)
149
Motion to strike out
iv. Explain fully the nature of the procedure referred to in (iii) above.
(1) (3)
Such application is brought by means of notice of motion,

upon proper notice to the other side – ordinary
application, NOM and SA.
36. While overseas on a world cruise, judgment by default is granted

against Xandie in the Pretoria High Court. Upon her return to
South Africa, Xandie learns that the plaintiff also applied for a
writ of execution. Xandie approaches you for advice and alleges
that the summons was never served on her, that for the past six
months she was overseas and that the plaintiff was aware of
this fact, because before her departure she arranged with the
plaintiff to pay him the amount owing within seven days after
her return.
i. Advise Xandie on what to do in these circumstances? (4)
Application to have the DJ set aside.Ito Rule 31(2) (b) a

defendant may, within 20 days after he has knowledge of
a default judgment, apply to court to set aside such
judgment.
The court has a discretion whether or not to set aside a

judgment.
The defendant must also advance sound reasons for the
failure concerned
ii. Indicate briefly how the courts interpret the expression

“sound reasons” in this context. (3)

(1) A reasonable explanation must be given for the failure
(2) The application must be bona fide and not merely a
delaying tactic
iii. If the plaintiff may proceed to execute the judgment,

indicate the order in which Xandie’s property may be
attached.
(2)
First attach Xandie’s movable property, then if sheriff

returns with a nulla bona return, proceed upon immovable
property.
150
37. Bonny and Cameron concluded a contract. Bonny commits
breach of contract. Cameron wishes to bring an action for
breach of contract and a claim for damages.
i. Identify the form of proceedings Cameron must use to
approach the court for relief. (1)
Action / summons proceedings
ii. Name the document that will be used to institute the

action. (1)
Combined summons
iii. Name and discuss briefly the essential documents that

Cameron and Bonny would normally exchange in order to
reveal the issues in dispute if the action is opposed.
(6)
The plaintiff issues the combined summons as the claim is

for damages (unquantified and thus unliquidated). The
defendant sends the plaintiff his NOITD if he wishes to
oppose – this is not a means of raising a defence, but a
mere process document indicating hjis intention to defend
the claim. The defendant then, within the dies induciae,
sends his plea on the merits to the plaintiff, this is a
pleading with raises the def’s defence, which is one of
admit, deny or confess and avoid. The mentioned doc’s are
compulsory if the action is opposed. If the def raises a new
issue in his plea (or raises a defence of confess & avoid)
the pl can respond with a replication, and the def can
reply with a rejoinder.
iv. Name any 3 circumstances under which pleadings will be

deemed closed in this action. (3)
Rule 29 states pleadings are closed when:

* the issues are joined in the plea
* the day for the filing of the replication / subsequent
pleading has passed and that doc has not been filed.
* the parties agree in writing pleadings are closed,
* the court deems them closed.
38. Frank is a registered bus operator and the owner of a double-

decker bus. One Friday afternoon while transporting a full load
of passengers in his bus, Frank causes an accident with
another bus. The driver of the other vehicle, Kobus, is seriously
injured while Frank’s passengers mostly suffer damages due to
151
the loss of or damage to their property (such as clothes,
suitcases and groceries).
(a) A panel beater furnishes Kobus with a written quotation for the
repair of his bus in the amount of R140 000. Kobus is satisfied
that the quotation is complete and indicates this by signing the
quotation. If Frank refuses to pay this amount to Kobus,
indicate why a provisional sentence summons is not the
appropriate summons with which to institute an action against
Frank. (3)
The amount in now in dispute and is not liquidated, thus

the combined summons route is needed.
(b) Simply name the procedure that Kobus must follow if he sues
Frank for damages due to physical injuries and he requires
financial assistance as a result of the drawn out litigation
process. (1)
Application for interim payments
(c) Kobus does not aver in his summons that the collision was due
solely to the negligence of Frank. Briefly explain what Frank
should do in these circumstances. (2)
Apply for an exception to Kobus’ summons as the POC thus

did not contain a cause of action.
(d) If Frank decides to defend the action and delivers a notice of

intention to defend, can Kobus apply for summary judgment?
Explain. (2)
Summary judgement may only be applied for when a claim is

for a debt / liquidated demand and thus for simple summons
proceedings. Kobus issued a combined summons for damages
and can thus not apply for SJ.
(e) Frank wishes to deliver a special plea. Explain what the

implications are for Frank if he does not also deliver a plea on
the merits. (2)
A plea on the merits is compulsory once the NOTID has been

served. If he does not send this plea within the dies induciae,
the plaintiff can serve a NOB on defendant giving him 5 days
in which to send it, if he does not in that time, DJ will be
granted against def.
152
(f) Kobus intends calling the panel beater as an expert witness to
prove the damages. Briefly indicate the purpose of the notice
and the summary in respect of this expert witness in terms of
Rule 36(10) of the Uniform Rules of Court. (3)
The purpose of the abovementioned provisions relating to

expert evidence is to prevent a party from being surprised at
the trial, and to give a party the opportunity of arriving in
court prepared to rebut the expert evidence presented by the
opposite party.
If the expert witnesses themselves get together to exchange
opinions, this could shorten the duration of the trial.
(g) It transpires that one of Kobus’ key witnesses cannot attend the
trial to deliver oral evidence. Simply name the 3 ways in which
such a witness may be allowed to present evidence. (3)

necessary circumstances are present, he may be allowed
to give evidence in the following ways:
o on commission
o Interrogatories differ from commissions in that,
while in the latter case evidence is given generally,
in the former case specific evidence only is taken
and for this purpose specific questions are
formulated which must be put to the witness by the
commissioner.
(h) Kobus insists that his advocate asks the court at the end of the
trial for a cost order in his favour on the attorney and client
scale. However, his advocate is of the opinion that an order
based on the party-and-party scale is more appropriate. Briefly
discuss 2 important aspects in which attorney-and-client costs
and party-and-party costs differ from each other. (4)
Attorney and client costs arise out of the contractual

relationship between client and attorney and are not at all
related to possible litigation. Party and party costs, however,
are those costs which a party incurs on taking legal steps
and which are payable by an opposing party in terms of a
court order. However, these costs are only estimated costs
and expenses, while attorney and client costs are
remuneration for all professional services and expenses
flowing from the attorney's mandate and are not statutorily
fixed. Party and party costs are taxed by the Taxing Master
153
in accordance with a fixed prescribed scale, thus ensuring
that only such charges and costs actually incurred in the
course of litigation are allowed. Attorney and client costs are
a form of punitive measure for improper behaviour.
39. Discuss the method of service of a summons where the defendant is

within the Republic, but his or her exact whereabouts are unknown.
(5)
Substituted service is necessary, permission from the court

is needed via ex parte application, and service of the
summons will be made on a relative, publication in the
Government Gazette, registered mail or a combination of
the abovementioned.
40. Name the 3 requirements for a final interdict. (3)
1. a clear right established on a balance of probabilities

2. an actionable wrong or interference already committed, or
at least, a reasonable apprehension that such an act will
be committed
3. An absence of any other ordinary and satisfactory remedy
affording similar protection to the applicant.
41. Briefly explain what is understood by in forma pauperis

proceedings. (2)
This is a procedure in terms of which indigent persons may

obtain free legal aid by approaching the registrar after
which legal representatives are appointed.
The following requirements are laid down:

1- the person must have household goods, clothes and tools
of his trade to the value of R10 000
2- he must lodge an affidavit with the registrar proving that
he only has a value of R10 000
3- And with regards to costs, the attorney includes his bill of
costs, fees and disbursements to the registrar and then to
the deputy sheriff.
42. Explain the purpose of the third party procedure contained in

Rule 13 of the Uniform Rule of Court. (3)
154
The term third party refers to a person who is not initially a
party to a suit, but who is latter involved in such a suit. The
purpose of third party is twofold:
▪▪ To avoid the institution of multiple actions in respect of

the same matter. Rule 13 procedure is in broad terms
similar to the consolidation of actions under Rule 11 in
that issues which are substantially the same are tried at
a single hearing so as to avoid the disadvantages
associated with a multiplicity of trials. In brief, Rule 13
affects a joinder of a third party as a party to the action.
▪▪ To enable the third party’s liability (if any) to be
determined by a court at the same time that the liability
of the other party is determined.
43. Explain fully whether a subpoena is a pleading or a process.

(5)
A ‘pleading’ is a written document containing averments by
parties to an action in which material facts on which they rely
in support of their claim or defence are consciously set out, and
which is exchanged between such parties. A ‘process’ on the
other hand has been interpreted by the court in Dorfman as
“something which ‘proceeds’ from the court; some step in legal
proceedings which can only be taken with the aid of the court
or of one of the officers.”. A subpoena is clearly process and not
a pleading. It is a step in legal proceedings which compels the
witness to present himself or herself at a civil trail.
44. Briefly indicate the requirements which an offer to settle must

meet in terms of Rule 34(5) of the Uniform Rule of Court. (4)
The notice of an offer to settle must state:
o If the offer is unconditional or without prejudice as an

offer to settle;
o If it is accompanied by an offer to pay all or only part of
the costs of the party to whom the offer is made, subject
to such conditions as may be stated therein;
o If the offer is made by way of settlement of both claim and
costs or of the claim only;
o If the defendant disclaim liability for the payment of costs
or for part thereof, in which case the reasons for such
disclaimer shall be given.
45. Indicate and discuss under what circumstances a court will use
its discretion to set aside a default judgment in terms of Rule
31 of the Uniform Rules of Court. (4)
155
The court will use its discretion to set aside default judgment
if the defendant furnished the court with ‘sound reasons’ for
the failure concerned. In terms of the courts ‘sound reasons’
mean:
o A reasonable explanation is given for the failure

o Providing the court with a reasonable explanation is
important in assisting the court to determine if the
default was wilful or not. The default will be considered
wilful where it can be shown that: the party had
knowledge that the action is being brought against him;
that the party deliberately refrained from entering an
appearance, though free to do so; and harboured a certain
mental attitude towards the consequences of the default.
o The application is bona fide and not merely a delaying

tactic;
o The defendant has a bona fide defence

o The task of the applicant here is to set forth the grounds
of defence with sufficient detail to enable the court to
determine that there is a bona fide defence. The applicant
shows the existence of a substantial defence. According to
the courts, the showing of a substantial defence does not
mean to show a probability of success. It suffices if the
applicant prima facie case, or the existence of an issue
which is fit for trial.
46. Name the ways in which evidence may be placed before the trial
court (4)
o Viva voce, that is, oral presentation of evidence;
o On commission (commission de bene esse)
o By way of interrogatories;
o By way of an affidavit
47. Set out what a court, hearing motion proceedings, may do

where genuine dispute of fact arises which cannot be settled
without hearing of viva voce evidence. (3)
Where a genuine dispute of fact arises which cannot be

settled without a hearing of viva voce evidence, the court
hearing the motion proceedings may
3. Order the parties to trail with appropriate directions as to
the pleadings, the definition of issues, etc.
156
48. B issues summons against C for R300 000 for defamation.
(i) Name the procedure that C must follow if B issues a
simple summons against C. (1)
Application to have it set down as an irregular proceeding.
(ii) Discuss briefly the time period within which C must

institute the procedure referred to in (i) above. (3)
The period within which the applicant must act commences

as soon as a party takes notice that a step has been taken or
that a proceeding has occurred, and not once the irregularity
thereof has come to his notice, the applicant himself has not
taken a further step with knowledge of the irregularity
The applicant has within 10 days of becoming aware of the
step by giving notice to his opponent a chance to remove the
complaint within 10 days and application was delivered
within 15 days.
(iii) Name the correct type of summons that B should have

used to institute the action and give the reason for your
answer. (2)
B should have used a combined summons, as this is a claim
for damages, which is unquantified and needs to be
quantified by the court.
(iv) Indicate what procedure B must follow if C fails to file her

plea on the merits within the dies induciae, and B wishes
to obtain judgment against C. (3)
B has to send C a NOB giving him 5 days in which to send his

plea, thereafter if he does not do so, apply for default
judgement. He must send a NOB first as the late document is
a pleading.
(v) Name the pleading that C will deliver if she is of the

opinion that the court does not have jurisdiction to hear
the matter. (1)
Special plea, plea in abatement, destroys the case – plea in
bar
49. X leases a flat to Y. Y’s contract has expired, but Y refuses to

vacate the flat. X approaches the court for an ejectment order.
(i) Name the type of summons that X should use to obtain
the above order. (1)
157
Simple summons – this is deemed a “debt or liquidated
demand” and can comprise of ejectment, delivery, transfer,
rendering of an account or cancelling of a contract.
(ii) Y Gives notice of intention to defend. Name the procedure

that X may now use. (1)
X may apply to court for summary jugement as Y giving his

NOITD is to waste time / he has no bona fide defence – his
contract of lease expired and thus the ejectment order is
justified as he cant defend it – it expired. Rule 32(1) states:
apply to court for summary judgment, only if the summons is on
a liquid document or for a liquidated amount in money, for
delivery of movable property or ejectment.
Thus, it should be clear that an application for summary
judgment may follow only from a simple summons.
(iii) Explain what action Y, the defendant, may take in

response to the procedure mentioned in (ii) above. (3)
Rule 32(3) states

Upon hearing the application for summary judgment, the
defendant may:
(a) give security for the satisfaction of the registrar
(b) Satisfy the court by affidavit, to swear he has bona fide
defence and the affidavit will disclose the nature and
grounds of the defence and the material facts relied upon.
Although the plaintiff is not permitted to include evidence in
support of his claim in the affidavit, the defendant must fully
disclose the nature and grounds of his defence.
The reason for this is related to the nature of the claim, which,
in turn, results in the fact that the court grants summary
judgment on the assumption that the plaintiff’s claim is
unimpeachable.
Consequently, the defendant must convince the court that this is
not the case.
50. B issues a combined summons against C for damages arising

from a breach of contract. C responds with a notice of intention
to defend, and hereafter files a plea on the merits. Answer the
following questions.
(i) If C wishes to file a counterclaim, state briefly when and
how C may do so. (2)
158
He may do so after he has sent his NOTID and along with his
plea on the merits. Rule 24(1) states that a defendant who
counterclaims shall together with his plea, deliver a claim in
reconvention setting out the material facts thereof. A claim in
reconvention shall be set out in a separate document or a
portion of the document containing the plea but headed ‘claim
in reconvention’. This rule further provides that a defendant
may, together with his plea, or at a latter stage with the leave
of the plaintiff, or if refused, the court, deliver a claim against
the plaintiff. This is known as a counterclaim
(ii) Name the pleading that B should file if B is of the opinion

that C’s plea on the merits does not disclose a defence. (1)
Special plea
(iii) Name the procedure that B must follow if B believes that

C is in possession of a tape recording of the negotiations
between B and C, which give rise to the conclusion of the
contract. (1)
Inspection Rule 35(14)
(iv) B’s action is unsuccessful, and the court awards costs to

the defendant, C. Name the type of cost order that will be
awarded. (1)
Party and party costs
MAGISTRATE’S COURTS:
1. Name any eight (8) particulars that must be contained in a

summons in terms the NCA
• citation of the parties
• that the NCA applies to the agreement
• type and category of the credit agreement
• date when the agreement is concluded
• details regarding the principal debt
• alleged compliance with the Act
• other material terms of the agreement
159
• locus standi : that the plaintiff (or credit provider) is duly
registered with the National Credit Regulator
in accordance with section 40 (or exempt from registration),
and has paid the renewal fees or applied
for registration which has not been refused
• that the consumer is in default under the relevant agreement
for a period of 20 business days or
longer
• that written notice in terms of section 129(1)(a) has been
properly served on the consumer
• that 10 or more business days have elapsed since the delivery
of the notice
• that the consumer either did not respond to the section
129(1)(a) notice or rejected it
• that the consumer did not refer the credit agreement to a debt
counsellor, alternative dispute
resolution agent, consumer court or an ombudsman with
jurisdiction
• that there is no pending matter before the Consumer Tribunal
that relates to the credit agreement
3. State the grounds on which a defendant in a magistrate’s court

action may except to a plaintiff’s summons. (2)
a) vague and embarrassing

b) discloses no cause of action
4. Explain absolution from the instance at the close of the

defendant’s case. (6)
Absolution from the instance at the close of the defendant’s

case: this arises in 2 situations, namely when the burden of
proof rests on the plaintiff, and when the burden of proof
rests on the defendant.
** onus on plaintiff
Where the court is unable to find that the plaintiff has
proved his case on a balance of probabilities at the close of
the defendant’s case, and the court cannot also find that the
defendant has established his defence on a balance of
probabilities, it must grant absolution from the instance.
Therefore, if the court cannot decide on which side the truth
lies, after hearing the evidence of both parties, the proper
judgment is absolution.
But if the court finds against the plaintiff, judgment for the
defendant, rather than absolution, must be granted. If the
final decision of a case depends entirely upon the credibility
of witnesses, and the court cannot find that either set of
witnesses is untruthful, it should also grant absolution.
160
**onus on defendant
Where the onus is on the defendant, the court can never
grant absolution from the instance at the end of the entire
case.
Where the defendant fails to discharge this onus on a
balance of probabilities, the court must grant judgment for
the plaintiff. Where the defendant does discharge this
onus on a balance of probabilities, the court must give
judgment in his favour. Thus there is no room for a
judgment of absolution in this situation.
5. Discuss the four instances when default judgment may be granted

against a party in a magistrate’s court. (8)
Default judgment may be granted in the following instances:

i. If the defendant fails to enter an appearance to defend
within the dies induciae.
ii. Where the defendant enters appearance to defend, but
fails to deliver a plea within the time stipulated in the
notice of bar in terms of Rule 12(1) (b). Speelman v Duncan
1997 is authority for the preposition that five days written
notice in terms of rule 12(1) (b) means five days from the
date of receipt of the notice within which the defendant
may comply with it, and not five days from the date on
which the notice was delivered to the clerk of the court.
iii. If the plaintiff or applicant does not appear at the time set
down for the hearing in the trial of the action or in the
application. The action or application may be dismissed
with costs.
iv. If a party fails to comply with a court order obliging him
to comply with the provisions of the rules of court in terms
of rule 60(2) and (3). The court may for example, have
ordered a plaintiff to supply further particulars ad he
fails to furnish further particulars within the time
stipulated in the court order. The judgment is granted on
application in terms of rule 60(3).
6. Name three matters that may be discussed at a pre-trial

conference. (6)
At such conference, the parties try to limit the point at issue

by, making admissions not already contained in the
pleadings.
The parties further tries to curtail the time taken up by the
conduct of the trial.
They try to reach agreement on matter that may be mutually
admitted and the precise points in issue between them.
161
This also helps curb the leading of unnecessary evidence.
7. Name the judgments that the court may make at the conclusion of
a trial in terms of section 48 of the Magistrate’s court Act of 1944.
(10)
S48 sets out the judgments which a magistrate’s court may

make in the action – plaintiff wins, defendant wins or
absolution: The effect of an absolution from the instance is to
leave the parties in the same position as if the case had never
been brought.
The plaintiff may take out a summons and sue on the identical
cause of action. Absolution from the instance may be given at
the close of the plaintiff’s case or at the close of the
defendant’s case.
Absolution from the instance at the close of the plaintiff’s
case:
Absolution will be granted if there is insufficient evidence upon
which the court may reasonably find for the plaintiff.
It should be refused where there is evidence on which a
reasonable person may find for the plaintiff.
The principles regarding absolution from the instance were
laid down in Riviera.
It was held that the plaintiff has to make out a prima face
case regarding all the elements of the claim in order to survive
absolution. Absolution at the end of the plaintiff’s case should
be granted sparingly, but when the occasion arises a court
should order it in the interests of justice.
Absolution from the instance at the close of the defendant’s
case:
This arises in 2 situations, namely when the burden of proof
rests on the plaintiff, and when the burden of proof rests on
the defendant.
Onus on plaintiff
Where the court is unable to find that the plaintiff has proved
his case on a balance of probabilities at the close of the
defendant’s case, and the court cannot also find that the
defendant has established his defence on a balance of
probabilities, it must grant absolution from the instance.
Therefore, if the court cannot decide on which side the truth
lies, after hearing the evidence of both parties, the proper
judgment is absolution.
But if the court finds against the plaintiff, judgment for the
defendant, rather than absolution, must be granted.
If the final decision of a case depends entirely upon the
credibility of witnesses, and the court cannot find that either
162
set of witnesses is untruthful, it should also grant absolution.
Onus on defendant:
Where the onus is on the defendant, the court can never grant
absolution from the instance at the end of the entire case.
Where the defendant fails to discharge this onus on a balance
of probabilities, the court must grant judgment for the
plaintiff. Where the defendant does discharge this onus on a
balance of probabilities, the court must give judgment in his
favour. Thus there is no room for a judgment of absolution in
this situation.
8. Name any four documents that must be forwarded to court in

order to obtain judgment by default. (8)
The original summons with return of proper service.

The written request for default judgment in duplicate.
In the case of unliquidated claims (eg damages as a result of
motor-vehicle collision) affidavits which prove the nature and
extent of the damages must be attached.
In the case of a claim based on a liquid document, the
original document duly stamped or an affidavit setting out
reasons to the court's satisfaction why such original cannot
be filed.
In the case of an action based on a credit agreement which is
subject to the Credit Agreements Act, the agreement and
certain affidavits must be lodged.
In the case of an action based on a written agreement, the
agreement duly stamped must be lodged.
9. Name the instances when a defendant may deliver his/her plea in

terms of rule 19(1) of the Magistrate’s Courts Rules. (7)
Rule 19 embodies precisely formulated provisions governing

the form, content, time and manner of pleadings.
The following provisions governing the form and content of
the plea are important, namely it must
(1) have a case number
(2) be in writing
(3) be dated and signed by the defendant or his attorney
(4) It must comply with the provisions of sub rules 19(4) and
19(6).
10. Discuss discovery of documents in terms of rule 23 of the

Magistrate’s Courts Rules. (10)
This is a process whereby each party can compel the other to

reveal the documentary evidence which it hopes to adduce at
163
trial, and also to reveal other documents in its possession
which tends to prove or disprove its case. In order that the
parties may prepare for the trial and not to be taken by
surprise, it is deemed expedient that each party should
know what books and documents the other has in his
possession, or under his control.
He is entitled to be informed only of those books in the
custody or under the control of his adversary which the
latter intends using in the action, or which tends to prove or
disprove either case. Rule 23 sets out the application for
such information and the way in which such information is
to be furnished.
Documents in respect of which privilege is claimed must be
listed separately in the schedule, and the grounds for each
particular claim of privilege must be specified.
Legal professional privilege applies to communication
between attorney and client in the following circumstances:
• where the communication pertains to the professional,
or intended professional, relationship,
• made for the dominant purpose of seeking or giving
legal advice,
• whether written or oral, or even
• Where the client confesses to the attorney the
commission of a prior crime or fraud.
Rule 23(2) refers to the consequences of a failure to
disclose.
However, 1 party can compel the other to disclose by
means of rule 60(2).
If the party called upon to make discovery fails to comply
with this request to do so, the party calling for discovery
may make an application in terms of rule 60(2) before the
trial to compel compliance with the request.
If an order is made compelling discovery within a certain
period and the other party persists in his default, a
further application can be made for judgment against the
defaulting party. Rule 23(4) provides that the parties may
be compelled to produce the books or documents disclosed
in their schedules, and any other books or documents
specified in a notice to that effect, at the trial.
Rule 23(3) provides that each party is allowed to inspect and

make copies of the documents so disclosed, and of the
documents specified in rule 23(4).
11. Answer ALL the following questions:
(a) Name six particulars that must be included in a summons in

terms of rules 5 and 6 of the Magistrate’s Court rules. (6)
164
1. the dies induciae
2. a warning of the consequences which will result if the
defendant fails to comply with the request in the
summons
3. a notice of consent to judgment
4. a notice of intention to defend
5. a notice drawing the defendant’s attention to the
provisions of S109 of the act
6. a notice in which the defendant’s attention is drawn to
S57, 58, 65A and 65D
7. the address at which the plaintiff will receive pleadings
8. a description of the parties
9. averment in respect of jurisdiction
10. particulars of claim
11. the prayers
THIS IS ALL RULE 5 AND 6
(b) Write a short note on the provisions governing the form and
content of a plea on the merits in the Magistrate’s courts.(8)
The most common way of defending a matter is to raise a

defence on the merits. The plea contains the defence.
It contains the defendant’s answer to the plaintiff’s
averments in the particulars of claim attached to the
summons. Rule 19 embodies precisely formulated
provisions governing the form, content, time and manner
of pleadings. The following provisions governing the form
and content of the plea are important, namely:
*it must
*have a case number
*be in writing
*be dated and signed by the defendant or his attorney
* It must comply with the provisions of sub rules 19(4) and
19(6).
(c) Discuss absolution from the instance when the onus is on

the defendant at the close of the case. (3)

case.
the plaintiff.
Where the defendant does discharge this onus on a balance

of probabilities, the court must give judgment in his favour.
165
Thus there is no room for a judgment of absolution in this
situation.
1. Describe the steps that the defendant may take to oppose a

summary judgment application in terms of rule 14(3). (7)
Steps which the defendant may take to ward off a

summary judgment application
(a) He may pay into court the amount for which he or she
is sued together with such costs as the court may
determine or may give security to the satisfaction of the
plaintiff for such sum.
(b) The defendant may give security that he will satisfy
whatever judgment may be given against him in the
action.
(c) The defendant may give evidence that he or she has a
bona fide defence or counterclaim against the plaintiff
2. Describe the amendment of pleadings in the Magistrate’s

Courts. (8)
Rule 55A & s111(1)
14. As clerk of the court, state

i. the formalities with which you must comply in order to
issue the summons (4)
The clerk of the civil court issues the summons by furnishing

the summons with a serial number, and by signing and
dating it.
The clerk may refuse to issue a summons in which an

excessive amount is claimed for attorney’s cost and court
fees, or if the addresses of service does not comply with the
provisions of the act.
In a decided case, a summons was issued by the clerk in

spite of the fact that such summons had not been signed by
the plaintiff or his attorney.
The court decided that, although the summons was invalid,
the defendant would be running the risk of default judgment
against him if he did not take steps to defend the action.
166
Thus the court awarded costs in favour of the defendant
ii. What you must do if the plaintiff amends the summons

before it is served (1)
Amendments to the summons may be effected at any time

before service, provided that they are
initialled by the Clerk of the court. If the amendments are
not initialled, they have no effect (rule 7(2)).
Amendments to the summons after service may be brought
about only by following the
procedure set out in rule 55(A) (rule 7(3)(b)).
However, amendments concerning the defendant's first name
or initials can be brought about at the plaintiff's request
without the court's intervention (rule 7(3)(a)).
15. S is a rich spinster, who goes on an extended holiday overseas.

When she returns she discovers that summons has been served
on her. She consults with her attorney who informs her that the
dies induciae has expired. Nevertheless, S instructs her
attorney to file a notice of intention to defend. Determine
whether the notice of intention to defend is valid. (5)
Even if the defendant does not timeously give notice of

intention to defend, his or her notice will nevertheless be
valid, provided that it is submitted before a request for
default judgment. If the notice of intention to defend and
the request for default judgment are delivered on the same
date, the notice remains valid, provided that judgment has
not been granted.
Therefore, the defendant is allowed to submit a late notice
of intention to defend, provided that default judgment has
not been granted, and such notice will be considered valid
in spite of its
late delivery. In the High Court, the plaintiff may, in terms
of Uniform Rule 30, apply for rescission of a late notice of
intention to defend.
16. Your client instructs you to bring an application for summary

judgment. In order to do so, describe:
i) The type of document that must be attached to the
application; (1)
An affidavit
167
ii) The content of this document (4)
The cause of action and the amount (if any) claimed

must be confirmed and the plaintiff must aver that
in his or her belief there is no bona fide defence to
the claim and that the notice of intention to defend
has been given solely for the purpose of delaying the
action.
If the claim is based on a liquid document, the
plaintiff is required to attach a copy of the liquid
document to the application. However, the original
liquid document must be handed in at the hearing of
the application.
17. You represent the defendant. The plaintiff serves a

summons on your client. You read through the summons
and notice that it contains averments that are so vague that
you are unable to prepare a plea on the merits on behalf of
your client. With these basic facts in mind:
i) State the step that you could take to rectify the situation;
and (1)
Exception
ii) Explain the procedure that must be used. (4)
An exception is taken by way of notice without an

affidavit.
It must be taken within 10 days of the filling of notice of
intention to defend or within 10 days of the delivery of
further particulars.
Alternatively, the exception may be taken within 10 days
after the defendant has given the plaintiff notice in terms
of rule 17(5)(c) that the summons is vague and
embarrassing and the plaintiff is given 10 days to remove
the cause of complaint.
Exception will only be taken if the court is satisfied that

the defendant would be prejudiced in his defence, if the
summons were allowed to stand.
When an exception is taken on the ground that the

summons is vague and embarrassing, the defendant must,
before taking exception, deliver a notice to the plaintiff
setting out the passages in the summons which are vague
and embarrassing, and notifying the plaintiff that, if he
does not remove the cause of complaint from his summons,
the defendant intends excepting to it.
168
18. You are a magistrate. The onus rests on the defendant and at
the end of the defendant’s case it is evident that he has not
discharged the onus on the balance of probabilities. Under
these circumstances would you be justified in granting an order
of absolution of the instance? (3)

case.
the plaintiff.
Where the defendant does discharge this onus on a

balance of probabilities, the court must give judgment in
his favour.
Thus there is no room for a judgment of absolution in this
situation.
19. Answer all the following questions:
(a) Name the five particulars that must be contained in a summons

according to the NCA. (5)
Done
(b) Name five documents that must be forwarded to a court in

order to obtain a judgment by default. (5)
(a) The original summons with return of proper service.

(b) The written request for default judgment in duplicate.
(c) In the case of unliquidated claims (eg damages as a
result of motor-vehicle collision) affidavits which prove the
nature and extent of the damages must be attached.
(d) In the case of a claim based on a liquid document, the
original document duly stamped or an affidavit setting out
reasons to the court's satisfaction why such original cannot
be filed.
(e) In the case of an action based on a credit agreement
which is subject to the Credit Agreements Act, the
agreement and certain affidavits must be lodged.
(f) In the case of an action based on a written agreement,
the agreement duly stamped must be lodged.
169
(c) Set out the three requirements for the supporting affidavit that
must be filed by the plaintiff together with the notice for
summary judgment. (5)
- The application for summary judgment may be made only

after the defendant has entered appearance to defend.
- The plaintiff is required to bring the application for
summary judgment on at least 10 days' notice to the
defendant and the application must be brought not more
than 10 days after the defendant's appearance to defend
has been delivered.
- The plaintiff proceeds by way of application.
- If the claim is based on a liquidated amount of money or
for the delivery of specified movable property or for
ejectment, the plaintiff must attach a copy of an affidavit
made by him or her by someone else who is able to confirm
the facts under oath. The cause of action and the amount
(if any) claimed must be confirmed and the plaintiff must
aver that in his or her belief there is no bona fide defence
to the claim and that the notice of intention to defend has
been given solely for the purpose of delaying the action.
- If the claim is based on a liquid document, the plaintiff is
required to attach a copy of the liquid document to the
application. However, the original liquid document must
be handed in at the hearing of the application.
e) Name five judgments that a court may grant after the plaintiff
and defendant have closed their respective cases and presented
argument. (5)
In favour of plaintiff, in favour of defendant, absolution at

the close of the plaintiff’s case, absolution from the
instance at close of def’s case where onus on plaintiff or
absolution at close of def’s case where onus on def.
20. X, the plaintiff, and Y, a defendant, are preparing for a trial in the
Magistrate’s court. Merely name the procedure which must be
followed in each instance:
i. X notices a factual error in his summons and wishes to
correct it. (1)
Amendment (rule 55)
ii. Y wishes to find out what documents X intends to use to

prove his case. (1)
170
iii. X wishes to ensure that a witness will be present in court to
give evidence on his behalf. (1)
Subpoena
iv. Y wishes to obtain particulars regarding X’s state of health to

enable him (Y) to determine the correctness of the amount
claimed by X for damages due to personal injury. (1)
Medical examinations
v. X fails to give notice of trial within the prescribed time limit.

(1)
The defendant may decide not to pursue the matter
further, and may allow the matter to die a natural
death. The defendant also has an option to apply for
dismissal of the plaintiff's action in terms of rule 27(5).
21. Answer the following questions:

(a) Set out five matters that can be discussed at a pre-trial
conference. (5)
o At such conference, the parties try to limit the point

at issue by, making admissions not already
contained in the pleadings.
o The parties further tries to curtail the time taken up
by the conduct of the trial.
o They try to reach agreement on matter that may be
mutually admitted and the precise points in issue
between them.
o This also helps curb the leading of unnecessary
evidence.
(b) List any five examples of special pleas. (5)
- the court has no jurisdiction

- the plaintiff’s claim has become prescribed
- the defendant or the plaintiff has no locus standi
- lis pendens
- res judicata
- arbitration
- splitting of claims
(c) Discuss the requirements for the supporting affidavit

which must be filed by the plaintiff together with the
notice for summary judgment. (5)
Done
171
(d) Briefly discuss the ex parte application in magistrate’s
court procedures. (5)
This application is one in which no notice is given to

the person against whom the relief is sought, prior to
the initial hearing.
In order to succeed:
o the applicant must show that it is really necessary to
bring the application
o without notice to the respondent that is he must show
some urgency or some other good reason.
o If the application is brought with undue haste and
without good reason, the court will not grant the
application and the applicant will have to bear the
costs of the failed application.
o The founding affidavit contains the applicant’s reasons
for his application, namely the facts upon which his
cause of action is based and why no notice has been
given to the respondent.
Powers of the court: The ex parte application is an
exception to the audi alteram partem rule which
literally means ‘hear the other side’.
Thus the court will not issue a final order without this
person concerned being given an opportunity to put his
case. After hearing the application, the court grants a
temporary order and determines a return day on which
the respondent must give reasons why the order should
not be made final – rule nisi. The court may, when
hearing the application, require the applicant to
provide security for any losses which may be caused.
The court may also require additional evidence it
deems relevant. Discharge of the ex parte order: Any
person affected by the order may apply to court, after
at least 12 hours’ prior notice, to have the order
discharged. However, the order is ipso facto discharged
upon security being provided by the respondent for the
amount to which the order relates. In the case of a
mandamenten van spolie, the respondent cannot, by
merely providing security, effect the discharge of the
order if he is still in possession of the property to
which the order relates.
22. Discuss payment without prejudice of rights by way of an offer

in settlement. (6)
172
Payment without prejudice of rights by way of an offer in
settlement: this is usually referred to as ‘payment into
court’.
If the plaintiff does not accept the payment made, and
does not, at the trial, succeed in proving that he is
entitled to more than the amount of the payment, he will
be liable for all costs incurred after the date of payment.
This procedure is yet again used only in cases where the
claim sounds in money.
When payment is accepted, litigation is terminated as the
whole cause of action is destroyed.
23. Name the five documents that have to be sent to a magistrate’s

court in order to obtain default judgement. (5)
Done
24. Are all ex parte applications in the magistrate’s court

necessarily urgent applications? (5)
No, not necessarily. This application is one in which no

notice is given to the person against whom the relief is
sought, prior to the initial hearing. In order to succeed,
the applicant must show that it is really necessary to
bring the application without notice to the respondent
that is he must show some urgency or some other good
reason.
If the application is brought with undue haste and
without good reason, the court will not grant the
application and the applicant will have to bear the costs
of the failed application. The founding affidavit contains
the applicant’s reasons for his application, namely the
facts upon which his cause of action is based and why no
notice has been given to the respondent. Powers of the
court: the ex parte application is an exception to the audi
alteram partem rule which literally means ‘hear the other
side’.
Thus the court will not issue a final order without this
person concerned being given an opportunity to put his
case. After hearing the application, the court grants a
temporary order and determines a return day on which
the respondent must give reasons why the order should
not be made final – rule nisi.
25. C and D are involved in a motor vehicle collision in JHB. C

estimates his damages at R80 000. D wishes to defend the
action.
173
(a) D notices that the summons contains insufficient information.
What steps can D take to rectify the error in the summons?
(1)
Rule 55A
(b) Name 5 particulars that C’s summons must contain in terms of

Rules 5 and 6 of the Magistrate’s Court rules. (5)
o the dies induciae

o a warning of the consequences which will result if the
defendant fails to comply with the request in the
summons
o a notice of consent to judgment
o a notice of intention to defend
o a notice drawing the defendant’s attention to the
provisions of S109 of the act
o a notice in which the defendant’s attention is drawn to
S57, 58, 65A and 65D
o the address at which the plaintiff will receive pleadings
o a description of the parties
o averment in respect of jurisdiction
o particulars of claim
(c) D avers that C was also negligent and is of the opinion that C is
liable for payment of his (D’s) damages. Name the document
that D must also use to institute this claim. (1)
Counterclaim
(d) C is of the opinion that D’s plea on the merits is excipiable and
raises an exception. Explain when a court will uphold an
exception, (3)
Vague & embarrassing; no cause of action; no defence
(e) Indicate the grounds upon which an exception can be raised by

the defendant in terms of the Magistrate’s Court Rules. (5)

(use to be a different answer, thus this has the same
answer now, due to amendments, as above)
(f) C and D appear at the pre-trial conference. Set out which

matters can be discussed at such a conference. (5)
o At such conference, the parties try to limit the point

at issue by, making admissions not already
contained in the pleadings.
174
o The parties further tries to curtail the time taken up
by the conduct of the trial.
o They try to reach agreement on matter that may be
mutually admitted and the precise points in issue
between them.
o This also helps curb the leading of unnecessary
evidence.
(g) C succeeds with his claim and D fails to pay the judgment debt.
C obtains a writ of execution against the property of D. Name
any 5 items that are exempt from execution in terms of section
67 of the Magistrate’s Court Act 1944. (5)
“Section 67 refers to certain property which is exempt from execution.

However, you need not study the provisions of this exclusionary
section” CIP STUDY GUIDE UNISA
26. Set out five (5) matters that can be discussed at a pre-trial
conference. (5)
The court may at any stage in any legal proceedings in its

discretion or upon the request in writing of either party
direct the parties or their representatives to appear before
it in chambers for a pre-trial conference. The following
issues/matters are addressed at a pre-trial conference:
1. the simplification of issues;

2. the necessity or desirability of amendments to the
pleadings;
3. the possibility of obtaining admissions of fact and
documents with a view to avoiding unnecessary
proof;
4. the limitation of the number of expect witnesses;
5. Such other matters as may aid the disposal of the
action in the most expeditious and least costly
manner.
27. Discuss the requirements for the supporting affidavit which

must be filed by the plaintiff together with the notice for
summary judgment. (5)
There are three requirements which must be complied with

in terms of Rule 14(2) of the Magistrates’ Court Rules:
175
(1) firstly the affidavit must be signed by the plaintiff
personally and he or she must state that he or she has
personal knowledge of the facts; or in the case of a
legal person, it must be signed by someone who alleges
that he or she is duly authorised to make the affidavit;
in addition, he or she must state his or her capacity in
respect the plaintiff and that he or she has personal
knowledge of the facts.
(2) Secondly the plaintiff must verify or confirm the
amount or cause of action.
(3) Lastly, the deponent must state that in his or her belief
there is no bona fide defence to the claim and that
appearance has been entered solely for the purposes of
delaying the action.
28. Briefly discuss the ex parte application in magistrates’ court

procedure. (5)
Ex parte applications may be brought only in those

instances where the applicant cannot request an order
against a person. Rule 56 provides an exception in that
applications for arrest tanquam suspectus de fuga,
interdicts, attachments to secure claims, and
mandamenten van spolie may be made by means of ex
parte applications. The reason is that a speedy remedy,
where relief is urgently required, will be frustrated if
the other party is notified of the intended application
in advance.
The court grants a temporary order and determines a

return day on which the person against whom the order
is made must give reasons why the order should not be
made final (rule nisi). The court may also require the
applicant to provide security for ay losses suffered and
may require any additional evidence where relevant.
Any party affected by the ex parte order may apply to
court after 12 hours’ prior notice to have the order
discharged. The order is ipso facto discharged upon
security being provided by the respondent for the
amount to which the order relates.
APPEAL, REVIEW AND RECISSION:
1. State the main differences between appeal and review. (4)

2. Name two instances when a court will interfere with a decision
taken by a quasi judicial body. (2)
176
3. Name the procedure to be followed when variation of judgment
in terms of Uniform Rule 42 is sought. (1)
4. Briefly explain what is meant by a right of appeal. (1)
5. Indicate when an appellant would have the right referred to in
(d) above. (1)
6. Briefly explain whether an appeal on a non-constitutional
matter may be noted against a decision of the Supreme Court of
Appeal to the Constitutional Court. (1)
7. What essential information must be included in a notice of
appeal in an appeal from the magistrate’s court? (3)
8. Name the step that an appellant must take as soon as leave to
appeal has been granted by the Supreme Court of Appeal. (2)
9. X, the plaintiff, institutes proceedings in a magistrate’s court

against B, the defendant. Judgment is granted against B. B is
dissatisfied and takes the matter on appeal to a High Court.
Bearing these facts in mind, answer the following questions,
giving brief reasons for each answer.
(a) With reference to the given facts, state any two reasons why B
cannot take the matter on review. (4)
(b) How many judges must hear the appeal? (1)
(c) If B is dissatisfied with the judgment given by the court a quo,
which court(s) does a further appeal lie, if any? (3)
(d) Does a right of appeal exist in respect of (c) above? (1)
(e) May X execute the original judgment given in his favour in the
magistrate’s court before the appeal is finalised? (3)
(f) What information must be contained in the notice of appeal?
(3)
10. X, the plaintiff, institutes proceedings in a magistrate’s court

against B, the defendant. Judgment is granted against B. B is
dissatisfied and takes the matter on appeal to a High Court.
Bearing these facts in mind, answer the following questions,
giving brief reasons for each answer.
(a) How many judges must hear the appeal? (1)

(b) If B is dissatisfied with the judgment given by the court a quo,
which court(s) does a further appeal lie, if any? (4)
(c) Does a right of appeal exist in respect of (c) above? (1)
In regard to the facts stated in (a) above, B wishes to appeal against a

judgement of a High Court. With this in mind, answer the following
questions:
(ii) Name the procedure that the defendant must follow in order
to appeal to the Supreme Court of Appeal. (1)
177
(iii) Name the next step that the defendant must take, if the
procedure in (i) above is granted. (1)
(iv) What essential information must be included in a notice of
appeal? (2)
11. Name two (2) instances when a court will interfere with a
decision taken by a quasi-judicial body. (2)
12. State the grounds for reviewing the proceedings of any lower
court as set out in Section 24 of the Supreme Court Act 1959.
(4) (4)
13. Describe the procedure to be followed when noting an appeal as
prescribed by rule 51 of the magistrate’s courts rules. (9)
14. Z institutes proceedings in a magistrate’s court against X. The

magistrate grants judgment against X, X is dissatisfied and
takes the matter in appeal. On the basis of these facts answer
the following questions, giving reasons where necessary.
(a) Must X apply for leave to appeal to a High Court? (1)

(b) How many judges must hear the appeal? (1)
(c) How must X note his appeal to the High Court I terms of rule
51(3)? (5)
(d) May X still conduct the appeal if he satisfies any part of the
judgment against which the appeal is brought? (1)
(e) Will execution of the judgment given in the magistrate’s court
be suspended pending the decision of the appeal in the High
Court? (2)
(a) No: there is an automatic right of appeal

(b) At least two
(c) X must note the appeal within 20 days of the date of the
judgment appealed against or within 20 days of the clerk
of the court providing a copy of the written judgment,
whichever is the longer. An appeal is noted by delivering a
notice, and, unless the court of appeal directs otherwise,
by furnishing security for the costs of appeal to an amount
of R1000. No security is required from the state.
(d) No, section 85 specifically provides that an appellant does
not lose his right of appeal.
(e) The noting of an appeal automatically suspends the
execution of the judgment. However, the court may, on
application, order that the judgment be put into effect.
178
CIVIL PROCEDURE QUESTIONS
AND ANSWERS PACK 2:
1. By comparison to High Courts, explain the reason for magistrate’s courts
being described as “creatures of statute”. (7)
Magistrates’ courts are termed “creatures of statute”. This means not only that
they have been created by statute, but also that they can only do what some
statute permits them to do.
Because the magistrates’ courts may exercise only statutory jurisdiction, the
common-law principles which you applied when determining jurisdiction in the
high courts, are not relevant when determining jurisdiction in magistrates’ courts.
Example:
A good example is the principle of forum domicilii: the high court of which a
defendant is an incola may exercise jurisdiction in respect of money claims. The
Magistrates’ Courts Act contains a similar provision in section 28(1) (a), which
provides that the magistrate’s court where a defendant resides, carries on
business or is employed has jurisdiction. A person is an incola where he is
domiciled or resident; a person can be domiciled at a completely different place to
that where he works or is employed, and so you could find that completely
different courts have jurisdiction depending on whether you have referred to
common law or what is often incorrectly viewed as its statutory equivalent.
2. Explain the inherent jurisdiction of superior courts. (6)
The courts jurisdiction is derived from common law.

When it is said that a court exercises “inherent jurisdiction”, this simply means
that its jurisdiction is derived from common law and not from statute (although
statute, in certain cases, may limit or increase this jurisdiction). One of the
implications of a superior court exercising its inherent jurisdiction is that it has
discretion in regard to its own procedure. In other words, a court may condone
any procedural mistakes or determine any point of procedure. The Constitution
confirms the continued existence of this common-law power of superior courts.
Section 173 states: The Constitutional Court, the Supreme Court of Appeal and
the High Courts have the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice.
3. State any six aspects of process and procedure in terms of which the Rules
Board is competent to make, amend or repeal rules in terms of section 6 of
the Rules Board for Courts of Law Act 107 of 1985. (6)
In terms of Section 6(1) of the Rules Board of courts of law act, the rules board
have the power to regulate and amend the following rules:
1. The procedures of litigation
2. Regulate the form and the content of pleadings and processes
3. Regulate the practice of service of processes (the summons)
4. Regulates the procedures and practices of execution of pleadings and
processes
5. Regulates the appointment and duties of the sheriff
6. Appointment of commissioners to take evidence where the witness
179
cannot appear in court
7. The appointment and admission of sworn translators
8. The manner or recording or noting evidence and proceedings
9. The appointment of assessors in proceedings in lower courts
4. Koos purchases a fruit farm situated in Durban from Piet. Piet lives in
Johannesburg. Despite continuous demands from Koos, Piet refuses to take
steps to have the property registered in Koos’ name. With reference to these
facts, answer the following questions.
(a) Discuss whether Koos may institute the application for registration of
the property in the Johannesburg High Court or in the Durban High Court.
(6)
The Durban hc - this is due to the fact that the case concerns immovable property
and the registration thereof into Koos’ name – thus forum rei sitae is applicable
and this gives Durban exclusive J. JHB won’t have J due to the forum rei sitae
principle.
(b) Giving reasons, state whether your answer to (a) would differ if Koos
institutes an action for damages on the grounds of breach of contract.
(2)
Yes my answer will change as the action now is a claim sounding in $ and that
one may use ratione domicilii of the def and sue in jhb.
5. State the provisions of section 2(1) of the Divorce Act of 1979 in regard to
the requirements for the exercise of divorce jurisdiction. (6)
An independent domicile for married woman is now conferred under section 1(1) of
the Act, in the following terms:
Every person who is of or over the age of 18 years, and every person under the age
of 18 years who by law has the status of a major…shall be competent to acquire a
domicile of choice, regardless of such person’s sex or marital status. The Domicile
Act not only amended the concept of domicile in the context of divorce jurisdiction,
but also introduced new grounds for the exercise of divorce jurisdiction. The
Domicile Act amended the Divorce Act by establishing both domicile and residence
as separate grounds for the exercise of divorce jurisdiction. The current legislative
position is that the domicile or ordinary residence of either spouse within the area
of a particular high court is enough to confer jurisdiction on that court.
The effect of this amendment is that the word “domicile” when used in the context
of divorce jurisdiction, must be interpreted in accordance with the definition
contained in section 1(1) of the Domicile Act and not in accordance with its
common-law definition
6. State three matters set out in section 167(4) of the Constitution of the
RSA in respect of which the Constitutional Court has exclusive
jurisdiction. (6)
Disputes between organs of state at national or provincial level concerning their

constitutional status, powers or function; the constitutionality of parliamentary or
provincial bills; whether or not parliament or the President has failed to comply
with a constitutional duty
180
7. Johan is a watch dealer who lives in Bloemfontein. Johan sells a valuable
Rolex to Pat, a jeweller, for a purchase price of R300 000. Pat lives in
Pretoria, but conducts his business from an office in Cape Town. The
contract is signed in Johannesburg but the Rolex must be personally
delivered to Pat’s Cape Town office and the purchase price will be paid on
delivery. After taking delivery of the Rolex, Pat refuses to pay the
purchase price.
Answer the following questions, in each instance giving brief reasons for
your answer.
(a) Johan wishes to sue Pat for an amount of R300 000, being the purchase
price of the Rolex. Explain whether the Johannesburg High Court and
the Cape Town High Court will be competent to exercise jurisdiction.
(4)
(b) Explain whether or not summons may be issued out of either of the High
Courts identified in (a) above during a period when Pat is in Durban for
business purposes. (3)
(c) The original facts remain the same, except that, Pat, the purchaser, is a
peregrinus of the Republic and his only asset in SA is his business in
Cape Town. Explain whether the Johannesburg High Court and the
Bloemfontein High Court will be competent to exercise jurisdiction.
(8)
(d) The original facts remain the same. However, Johan decides to sue Pat
for the return of the Rolex, which is stored in Pat’s safe in Cape Town,
Explain why both the Cape Town High Court and the Pretoria High Court
may exercise jurisdiction. (5)
(a) Both the Johannesburg HC and the Cape Town HC may hear the matter on
the basis that they are vested with jurisdiction ratione contractu.
(b) Summons may be issued by any court vested with jurisdiction and the
defendant’s whereabouts are irrelevant in this regard. His whereabouts are
relevant for purposes of service but as section 26(1) provides that processes
runs throughout the country, service may be effected on the defendant
anywhere in the country.
(c) As Pat is a foreign peregrine, arrest of his person or attachment of his
property will always be necessary before a court may exercise jurisdiction.
Section 19(1) (c) provides that attachment may take place anywhere in SA, so
his assets in CT may be attached to found or confirm jurisdiction. The
Bloemfontein High Court may exercise jurisdiction provided attachment ad
fundandam jurisdictionem is possible because John the plaintiff is an incola
of that court. The Johannesburg HC may exercise jurisdiction provided
attachment ad confirmandam jurisdictionem takes place, as this will
strengthen the partial jurisdiction it has because the cause arose in its
jurisdiction.
(d) This is now an action concerning property, not a claim sounding in money.
The place where the property is situated always has jurisdiction ratione rei
sitae. So the Cape Town HC has jurisdiction because the diamond is stored in
a bank vault there. As the property is moveable, this jurisdiction is not
necessarily exclusive and the place where the defendant is domiciled may
also be able to exercise jurisdiction, it is for this reason that the Pretoria HC
may possibly also exercise jurisdiction.
181
8. Tammy wishes to obtain a divorce from her husband Liam. The parties
were married in Durban. They then lived in Pretoria until two years ago,
when Liam left Tammy for another woman, Kim. Immediately afterwards,
Liam moved permanently to Bloemfontein to live there with Kim.
Answer the following questions, in each instance giving brief reasons for
your answer:
(a) Explain why both Liam and Tammy can institute a divorce action in
the Bloemfontein HC. (6)
A court may exercise divorce jurisdiction if both or either of the parties are
domiciled in its area of jurisdiction on the date on which the action is instituted.
Alternatively, a court may also exercise jurisdiction if both or either of the parties
are ordinarily resident in its area of jurisdiction on the date on which the action is
instituted, and have/has been ordinarily resident in the Republic for a period of
not less than one year immediately prior to the institution of the action. Liam
moved to Bloem and if he has the intention to be domiciled there, Bloem can hear
their divorce based on s2(1)(a) = domicile.
(b) Explain the concept “domicile” in the context of divorce jurisdiction.

(7)
domicile of choice, regardless of such person’s sex or marital status.The Domicile
Act not only amended the concept of domicile in the context of divorce
jurisdiction, but also introduced new grounds for the exercise of divorce
jurisdiction. The Domicile Act amended the Divorce Act by establishing both
domicile and residence as separate grounds for the exercise of divorce jurisdiction.
The current legislative position is that the domicile or ordinary residence of either
spouse within the area of a particular high court is enough to confer jurisdiction
on that court.
common-law definition
(c) Tammy wishes to have her marriage declared void as she has
discovered that Liam was already married to Kim when he purported
to marry her. Which court/courts will have jurisdiction to hear this
action? (4)
An action for the declaration of nullity of a void marriage does not alter the status
of the parties, because, in reality it is merely of a declaratory nature. In such a
case no valid marriage in fact existed and the parties are only seeking legal
confirmation of this fact before, for instance, marrying other persons.
In accordance with our common law, as interpreted by our courts, the following
courts have jurisdiction:
The forum loci celebrationis (the court of the place where the marriage was entered
into) – Durban.
The court where the plaintiff or the defendant is domiciled at the time nullity
proceedings is instituted – Bloem for Liam or Pretoria for Tammy.
182
(d) After having the marriage declared void, Tammy and Liam need to
determine ownership of the house that they bought together in
Pretoria. Which court/courts must they approach for this purpose?
(3)
The general common-law principle is that the forum rei sitae (court in whose area the
property is situated) has jurisdiction to hear claims relating to such property.
The court in whose territorial area the immovable thing is situated has exclusive
jurisdiction in actions:
 To determine the title of immovable property
 For the transfer of immovable property
 For the partition of immovable property
 Where a real right is in dispute
 Where possession of immovable property is claimed
 Where rescission of a contract for the transfer of immovable property is claimed.
It does not matter whether the defendant is an incola or a peregrinus. Thus, in
Pretoria.
9. Give a detailed explanation of the term “jurisdiction”. (6)
Two requirements must be met, first a court must have the authority to adjudicate or
determine matters that come before it. Second, it must have the authority to enforce
its judgements. These requirements are confirmed in the Ewing McDonald decision.
A court will not exercise jurisdiction until both requirements are met. The first
necessitates some or other jurisdictional connecting factor between the court and the
parties or the cause of action. The second requirement flows from the doctrine of
effectiveness.
10. Name any three matters set out in section 167(4) of the Constitution of
the RSA in respect of which the Constitutional Court has exclusive
jurisdiction. (6)
i) disputes between organs of state at national or provincial level concerning their

constitutional status,
ii) powers or function;
iii) the constitutionality of parliamentary or provincial bills;
iv) whether or not parliament or the President has failed to comply with a
constitutional duty
11. Discuss briefly the domicile of a married woman for the purposes of
divorce jurisdiction. (6)
Common law provided that a woman adopted the domicile of her husband on
marriage and retained it for the duration of the marriage. In other words, on
marriage, she lost her domicile of choice. Section 3 of the Domicile Act abolished this
principle and granted an independent domicile to married women. This amendment
also resulted in new grounds for the exercise of jurisdiction: domicile and residence
are now independent grounds; in fact, the domicile or residence of either spouse in
the jurisdictional area of the court is enough to vest that court with divorce
jurisdiction.
183
12. Explain the significance of the decisions in Briscoe v Marais for the
doctrine of submission. (4)
In the Briscoe decision, the court held that, irrespective of whether the plaintiff was
an incola, parties could not submit to the court’s jurisdiction unless the cause of
action arose within the court’s jurisdictional area. The earlier Veneta decision had
stated obiter that, although courts exercised jurisdiction if the plaintiff is an incola
and the defendant a peregrinus of the republic, provided that arrest or attachment to
found jurisdiction could be effected, this was not a traditional ground for the exercise
of jurisdiction but merely a development to help incolae to litigate at home. The
current position, post-Briscoe, is that a peregrinus defendant cannot avoid arrest or
attachment to found jurisdiction by submitting to the jurisdiction of the court.
13. Explain the term “ratione rei gestae”. (6)
claims in the following instances:
1) If the contract which is the subject of the litigation, was concluded, was to be
performed or was breached within the court’s area of jurisdiction, any of these
grounds will be sufficient to vest a court with jurisdiction – ratione contractus
2) If the delict on which the claim is based was committed within a court’s area of
jurisdiction, a court is vested with jurisdiction ratione delicti commissii.
Collectively, termed ratione rei gestae.
14. Name any three matters set out in section 167(4) of the Constitution of
the RSA in respect of which the Constitutional Court has exclusive
jurisdiction. (6)
* Disputes between organs of state at national or provincial level concerning their

constitutional status, powers or function; * the constitutionality of parliamentary or
provincial bills; * whether or not parliament or the President has failed to comply with
a constitutional duty.
15. Discuss briefly the domicile of an incola defendant within the area of
the court as a ground for the exercise of jurisdiction in regard to claims
sounding in money. (8)
This ground of jurisdiction is known as ratione domicilii, and is based on the

maxim actor sequitur forum rei.
A court has jurisdiction over a defendant who is an incola of its area at the time
when the action is instituted.
It is irrelevant whether the plaintiff is an incola or a peregrinus, or where the
cause of action arose.
The rule states that a defendant must be domiciled or resident within the court’s
area of jurisdiction at the time the action is instituted.
Pollak states that the action is instituted when the summons is issued and served.
This view was confirmed in (Mills)
16. Explain the significance of section 1(1) of the Domicile Act of 1992 in
regard to the exercise of divorce jurisdiction. (4)
184
In terms of common law, a woman, upon entering into marriage, automatically
adopted and followed the domicile of her husband.
She therefore lost the domicile which she had prior to her marriage, and also
forfeited her competence to acquire a domicile of choice during the subsistence of
the marriage.
The wife’s domicile of dependence was abolished by the provisions of the Domicile
Act. An independent domicile for married woman is now conferred under section
1(1) of the Act, in the following terms:
domicile of choice, regardless of such person’s sex or marital status.
The Domicile Act not only amended the concept of domicile in the context of
divorce jurisdiction, but also introduced new grounds for the exercise of divorce
on that court.
common-law definition.
17. A and Z entered into a contract. Z breached the contract. So A has a

claim against Z in the amount of R300 000 due to the breach. The cause of
action arose in Cape Town. A is an incola of CT and Z is an incola of Pretoria.
On the basis of these facts, answer the following:
a) Can A institute proceedings against Z in the CT high court? (2)
Yes, ratione re gestiae, ratione contractus, cause of action arose in CT
b) If it is possible to institute proceedings against Z in the CT HC, would

it be necessary to arrest Z or attach his property? (2)
Its not only unnecessary to arrest / attach Z’s property, but specifically
prohibited i.t.o s28(1).
c) Can A institute proceedings against Z in the Pretoria HC? (2)
Yes, actor sequitor forum rei, ratione domicilii of defendant, domicile of defendant
is Pretoria.
d) Would your answer to (a) differ if Z was a peregrinus of the whole

Republic? (6)
No, my answer wont change, as A can still sue Z in CT, BUT because he is a FP,
he will have to attach Z’s property to either found or confirm jurisdiction, and A
can use the fact that he is dom’d / resid in CT to sue there as pl can sue FP in
his area if he attaches to FOUND J. He can use the fact that the C of A arose in
CT, then he attaches to CONFIRM J. if he uses his own domicile, the FP cant
185
submit, so the law says A shouls sue in CT based on C of A and that he should
attach to confirm J and give the FP an opportunity to submit.
e) Would your answer to (d) differ if Z is not present in Ct and has

attachable property and the property is situated in Durban? (3)
No. my answer wont change, A can still sue Z in CT court, even through Z is not
present in CT and if his property is in Durban due to s21(3), which says that
attachment of a FP’s property for the purposes of J can take place anywhere in
SA. The presence of Z was relevant before the case of Strang, when one could
arrest an FP to give a court J, and s21(3) made it clear then that the FP could be
anywhere in SA when we arrested. Since Strang, one cant arrest an FP for J
purposes.
f) Would your answer to (a) differ if the claim related to the registration
of fixed property and the property is situated in Durban?
(2)
Yes, one cant now sue in CT, one has to sue in Durban due to ratione rei sitae, as
one has to sue for immovable property where that property is situated.
g) Would your answer to (f) differ if the claim now related to a bull,
which is situated in Durban? (1)
No, not really, as one should still sue for a moveable based on ratione rei sitae,
but cause the movable can be moved from J to J, one may use the domicile of the
def, if needed, thus Durban or Pretoria.
18. Marie, a South African woman, visits Namibia for a holiday. While there,
she marries Johan, a mineworker, who is a citizen of Namibia. At Marie’s
request the couple move to Johannesburg where Johan accepts employment
with a mining company. After 6 months Johan decides to go to Kimberley
because he would rather work in a diamond mine. Marie refuses to
accompany Johan to Kimberley since she holds a job with good prospects in
Johannesburg. After spending about 8 months in Kimberley, Johan decides
to return to Namibia. Shortly after his return to Namibia, Johan decides to
institute divorce proceedings against Marie.
a) Briefly discuss whether Johan, who is domiciled and resident in

Namibia, would be able to institute divorce proceedings against Marie in
the Johannesburg HC. (3)
b) Briefly indicate whether or not your answer would differ had Marie
instituted proceedings for divorce when Johan decides to leave for
Kimberley. (3)
a) This questions deals with divorce jurisdiction. The jurisdictional statue of

both parties to the marriage must be determined to decide whether the JHB
HC has jurisdiction to hear the divorce proceedings – in other words, we must
decide where both Johan and Marie are domiciled and also where either
might comply with the residence requirements. John is domiciled and
resident in Namibia, while his wife Marie is resident in JHB at the time
divorce proceedings are to be instituted. Marie also appears to have been
186
ordinarily resident in the Republic for a period of one year immediately before
that date. Although Johan cannot institute action in the JHB HC on the basis
of his own domicile or residence, he may do so because the defendant, Marie
is resident in that court’s area of jurisdiction and has been ordinarily resident
in the Republic for a year proceeding this date.
b) As it does not appear that Johan ever became domiciled in SA, the fact that
he had not yet returned to Namibia at this stage will not affect his domicile.
We do not know where Marie is domiciled. At this stage Johan is still resident
in the JHB court’s area of jurisdiction, but has not been resident in the
Republic for one year. Marie is resident in the court’s area of jurisdiction, but
it is not clear whether her residence was interrupted by her stay in Namibia.
Unless Marie can show that she is a domiciliary of the JHB court’s area of
jurisdiction, she may not institute divorce proceedings in SA.
19. Jaun, a Dutchman, is the owner of a cruiser. The cruiser is damaged at

sea, rescued and brought to dry dock in CT. Jaun instructs Sammy, who
lives permanently in Durban, to do the necessary repairs to the cruiser.
Sammy performs the repairs in CT at a total cost of R200 000. Despite
demand, Jaun fails to pay Sammy for the cost of the repairs and sails from
CT to Durban.
With these facts in mind, answer the following questions, giving reasons for
each answer.
(i) Could Sammy successfully bring an application for the attachment of
Jaun’s cruiser to enable the CT High Court to exercise jurisdiction?
(5)
(ii) Could Sammy successfully bring an application for the attachment of

Jaun’s cruiser to enable the Durban HC to exercise jurisdiction? (5)
(iii) Would the CT High Court have jurisdiction if Jaun was domiciled in
Pretoria? (3)
(i) Jaun is a peregrinus of the Republic and therefore attachment of the property
has to take place for a SA court to have jurisdiction over him. There are two
types of attachment, namely:
- ad confirmandam jurisdictionem which requires attachment plus cause of
action; and
- ad fundandam jurisdictionem which requires attachment plus that the
plaintiff is an incola of the particular court.
In casu cause of action arose in CT and therefore attachment ad
confirmandam jurisdictionem is applicable. The section of the Act (s26(1)) was
replaced by the 2013 Act, and this has reverted the situation re the attachment
of the property back to the common law position - This section provides
only for attachment of property ad confirmandam jurisdictionem; it makes no
reference to attachment ad fundandam jurisdictionem. However, it is contended
that as attachment ad fundandam jurisdictionem has been part of our common
law, the provisions of this section must be read together with the common-law
principles regarding attachment ad fundandam jurisdictionem. Consequently,
the position regarding attachment ad fundandam jurisdictionem is governed by
common law. Unlike the position with the repealed section 19(1)(c), no mention is
made of a requirement as to where the property to be attached must be situated.
It is contended that as the legislature is silent on this matter and did not
specifically provide where attachment must take place, again this provision must
187
be read with the common-law principles regarding attachment, and consequently
the requirement is that the property must be situated within the jurisdictional
area of the particular court approached for the order. Unfortunately, the result is
that this section, in its present form, amounts to a regression in that the incola
plaintiff is again placed in the invidious position in which he or she found himself
or herself prior to 1999. It is hoped that the courts will clarify the uncertainty
regarding the interpretation of this section in the near future.
(ii) The requirements for ad fundandam jurisdictionem are attachment plus that
the plaintiff must be an incola of the court. In this instance the plaintiff is
an incola of Durban since he lives in Durban, and therefore the cruiser can
be attached, to found J, to allow Sammy to sue the FP Jaun in Durban.
(iii) Yes because the cause of action still arose in CT and thus, CT court has J
based on RRG. However, the attachment of Juan;s property, as the def isn’t
allowed according to s28(1). The cause of action occurred in CT, giving CT J
based on RRG. But Sammy may also sue in Pta due to Juan’s domicile (RD).
20. X is an incola of the KwaZulu-Natal Local Division, Durban. Z wishes to

commence proceedings against X but is not sure what to do since Z discovers
that X’s employer has sent him to manage a project in Cape Town for three
months. With these facts in mind, answer the following questions.
(i) May Z issue summons against X out of the KwaZulu-Natal Local Division,
Durban? (2)
In terms of the common law an incola is a person who is either domiciled or resident
within a particular area, and a court has jurisdiction over a defendant who is an
incola within its area at the time when the action commences on the ground of
ratione domicilii. In the present instance X’s temporary presence in Cape Town did
not cause a change in his residency status in Durban. Therefore, as X is still
“resident” in Durban, the KwaZulu-Natal Local Division, Durban has jurisdiction
over X ratione domicilii (based on the principle actor sequitur forum rei), and Z may
thus issue summons against X out of this court.
Residence contains an element of permanence, and consequently the mere presence

of a person at a particular place is insufficient to establish residency. In the present
matter X’s presence in Cape Town is clearly temporary (a three month work
commitment) with no indication of wanting to give up his residency in Durban, and
therefore he is still “resident” in Durban. Also note that “ratione domicilii” literally
means “by reason of domicile”, and therefore it is referred to as a ground for
jurisdiction (or reason why a court has jurisdiction). This ground is based on the
principle actor sequitur forum rei which literally means to follow the defendant to the
defendant’s court. Note that it is the status of the defendant that is important to
consider, not that of the plaintiff!
(ii) If Z does decide to issue summons out of the KwaZulu-Natal Local

Division, Durban, would it be possible to serve the summons on X in Cape
Town? (2)
Section 42(2) of the Superior Courts Act, 2013 provides that a civil process of a
188
Division runs throughout the Republic, and may be served or executed within the
jurisdiction of any Division. Consequently it would be possible for Z to issue a
summons out of the KwaZulu-Natal Local Division, Durban and have it served on
X by the sheriff while in Cape Town. (Section 42(2) of the Superior Courts Act,
2013). Section 42(2) is essentially a procedural enactment to make the execution
and service of process more convenient, and is not a jurisdiction ground – it
simply allows a process to be issued by one court (that has jurisdiction) and to be
served and executed in another court’s area.
(iii) R wishes to apply for an order for attachment ad fundandam

jurisdictionem. Discuss whether a High Court would grant such an order if
both the plaintiff and defendant are peregrini of the Republic? (4)
The court will not grant an order for attachment ad fundandam jurisdictionem if
both Z and the defendant are peregrini of the Republic. In terms of common law,
attachment ad fundandam juridictionem is only ordered if the plaintiff is an incola of
the court concerned. In Halse v Warwick 1931 CPD 233 the court held that there
may be very good reasons why South African courts should not seek to extend their
jurisdiction by an attachment in suits between peregrini. Therefore, our courts will
only adjudicate an action between peregrini if there is a sufficient nexus with the
area of the court and the plaintiff is an incola of the court as well. Consequently, the
court will not allow the order as the plaintiff is not an incola of the court.
21. Peter is domiciled in Pretoria. While on holiday in Durban, Peter is

involved in a motor vehicle accident with Portia. Portia is domiciled in
Johannesburg and has a holiday home in Cape Town. Peter has suffered
damages to his vehicle during the collision in the amount of R500 000. In
relation to the given facts answer the following questions:
(i) May Peter institute proceedings for damages against Portia in the
Gauteng Local Division, Johannesburg? (2)
In terms of the common law an incola is a person who is either domiciled or

resident within a particular court’s area of jurisdiction. In the present instance
Portia is domiciled in Johannesburg and thus an incola of the Gauteng Local
Division, Johannesburg. This court has jurisdiction ratione domicilii (based on the
principle actor sequitur forum rei). Therefore Peter may institute proceedings for
damages in the Gauteng Local Division, Johannesburg. The fact that the cause of
action occurred in Durban does not mean that the action must be instituted in
Durban: one jurisdiction ground is not “stronger” than, or superior to, another
jurisdiction ground, and in practice it often happens that more than one court is
competent to adjudicate a matter. In such an instance the plaintiff, as dominus
litis, will choose in which court to institute proceedings However, in casu this is
not the consideration, as the question deals only with the Johannesburg court.
(ii) May Peter institute proceedings in the Western Cape Division, Cape
Town? (1)
Peter may not institute proceedings in the Western Cape Division, Cape Town, as
there is no jurisdictional link to this court: the defendant is neither an incola of
189
the court, nor did the cause of action arise in the court’s area of jurisdiction, and
the claim does not relate to the property situated in the court’s area of
jurisdiction. It is important to note the meaning of “jurisdiction” in answering the
question. “Jurisdiction” refers to a court’s authority to hear a matter and the
power to enforce its judgment. In this instance none of the common law
jurisdictional grounds provide a basis for the court to exercise jurisdiction over
the defendant or the matter.
(iii) Would your answer to (ii) differ if the claim related to immovable
property in Cape Town? (4)
Where the object of relief is immovable property, the court in whose area of
jurisdiction the immovable property is situated has exclusive jurisdiction (in
respect of a variety of actions such as determining title or for transfer of the
property). In such matters it is irrelevant whether the defendant is an incola or a
peregrinus. Consequently, the answer to (ii) above will differ: whereas the Western
Cape Division, Cape Town in (ii) above had no jurisdiction, it now as forum rei
sitae will have exclusive jurisdiction to hear the matter
22. X and Y are involved in a motor collision, which is due solely to the
negligence of Y. The motor collision occurs in Randburg, Johannesburg. Y
lives in Eersterust, Pretoria. X wants to sue Y for R500 000.With these facts
in mind, answer the following questions. Give full reasons for your answers.
(i) May X institute proceedings for damages against Y in the South Gauteng
High Court, Johannesburg? (1)
In regard to a claim relating to delict, the court in whose area the delict was
committed (i.e. where the cause of action arose) will have jurisdiction. In other
words, the place where the collision occurred will have jurisdiction. This is known
as the exercise of jurisdiction ratione delicti commissi. At common law, this falls
within the ambit of ratione rei gestae. On the given facts, X may institute
proceedings against Y in the South Gauteng High Court, Johannesburg where the
cause of action or delict (collision) occurred.
(ii) Why is the North Gauteng High Court, Pretoria, competent to exercise
jurisdiction? (2)
In regard to common law, the court where the defendant is either domiciled or
resident always has jurisdiction to hear a claim sounding in money. This is
known as the exercise of jurisdiction ratione domicilii. On the given facts, X may
institute proceedings against Y in the North Gauteng High Court, Pretoria where
the defendant (Y) resides
(iii) Is the attachment of the defendant’s property a prerequisite for the

exercise of jurisdiction? (2)
No, attachment of the defendant’s property is a prerequisite for the exercise of

jurisdiction where the defendant is a perigrinus of the Republic (foreign
peregrinus). Section 28 of the Superior Courts Act, 2013 prohibits the attachment
of property to found jurisdiction against a person resident in the Republic. On
the given facts, the defendant X is an incola of the court as he resides and lives in
Eersterust, Pretoria which is within the South African borders. Therefore
190
attachment of the property is not necessary, and is in fact prohibited. A
peregrinus of the Republic (foreign peregrinus) is a person who is neither resident
nor domiciled in the Republic. For the court to exercise jurisdiction over that
person, there must be attachment of the property of the peregrinus either by
attachment ad fundandam jurisdictionem or attachment ad confirmandam
jurisdictionem.
23. X lives in Montana, Pretoria. Y lives in Abuja, Nigeria, and owns a house
in Cape Town. X has a claim against Y for damages in respect of breach of
contract. The contract was concluded in Cape Town. With these facts in
mind, answer the following questions. Give full reasons for your answers.
(i) With specific reference to case law, explain whether the North Gauteng
High Court, Pretoria, is competent to exercise jurisdiction. (6)
Y is clearly a peregrinus of the Republic (a so-called foreign peregrinus). A South

African court will exercise jurisdiction over such a person only after attachment
of his or her property has taken place, either in the form of attachment ad
fundandam jurisdictionem (requiring the plaintiff to be an incola of the court
concerned apart from the attachment) or attachment ad confirmandam
jurisdictionem (requiring the cause of action to have occurred within the particular
court’s area of jurisdiction apart from the attachment).
On the given facts Y is a foreign peregrinus, the cause of action arose outside the
court’s area of jurisdiction (Cape Town), the plaintiff is an incola of the North
Gauteng High Court, Pretoria and there is attachable property in South Africa
(the house in Cape Town). Therefore, the North Gauteng High Court, Pretoria in
whose area of jurisdiction the plaintiff is an incola, will be competent to exercise
jurisdiction to hear the action for damages on the basis of the attachment of X’s
property ad fundandam jurisdictionem. In Halse v Warwick the court held that an
incola plaintiff could be granted an order for attachment ad fundandam
jurisdictionem, even though the cause of action arose outside the court’s area of
jurisdiction. Before the North Gauteng High Court, Pretoria (Gauteng Division,
Pretoria) may entertain the issue of damages, an order for the attachment of the
defendant’s property in Cape Town ad fundandam jurisdictionem should have
been obtained and the attachment must have taken place. The attachment itself
and not the status of the plaintiff vest the court with jurisdiction. (Status is an
additional requirement.)
(ii) Explain why your answer to (i) above would differ if X’s claim was for the
transfer and registration of Y’s house in Cape Town. (2)
In regard to a claim relating to immovable property, the court where the

immovable property is situated has exclusive jurisdiction in actions, to determine
the title to immovable property or the transfer of property. This is known as the
exercise of jurisdiction ratione rei sitae. In this instance it is irrelevant whether
the defendant is an incola or a peregrinus.
On the given facts, the North Gauteng High Court, Pretoria (Gauteng Division,
Pretoria) would not have jurisdiction, because the issue relates to immovable
property, and with regard to immovable property the court where the immovable
property is located will have exclusive jurisdiction. X may institute proceedings
191
against Y in the Western Cape High Court, Cape Town (Western Cape Division,
Cape T own) where the immovable property is situated for the transfer and
registration of the house in Cape Town. Ratione rei sitae is only relevant in respect
of property and the court in whose area the property is situated has exclusive
jurisdiction to hear the claim relating to such property. The jurisdiction of that
court is exclusive which means that no other court may hear the claim
24. After having been married to each other for a period of seven years, P
wishes to divorce his wife, W. At the time of the institution of divorce
proceedings, both P and W were living permanently in Durban. With these
facts in mind, answer the following questions. Give full reasons for your
answers.
(i) Why will the Durban High Court, Durban, have jurisdiction to hear the
action for divorce? (1)
There are two main grounds on which South African courts may exercise divorce
jurisdiction, namely: *domicile; * or residence, based on sections 2(1)(a) and (b) of
the Divorce Act 70 of 1979 respectively. Section 2(1)(a) of the Divorce Act provides
that a court may exercise jurisdiction on the basis of the domicile of both the
husband and the wife or of either the husband or the wife. On the given facts,
section 2(1)(a) is satisfied because the parties are domiciled in Durban as are
both permanent residents of the KwaZulu-Natal High Court, Durban (KwaZulu-
Natal Division, Durban). Domicile and residence are independent and alternative
jurisdictional grounds. This means that a court may exercise jurisdiction either
on the basis of the independent domicile, or the residence of, either the husband
or the wife. In the case of residence section 2(1)(b) further requires either or both
parties to be ordinarily residence within the Republic and should have been
ordinarily residing in the Republic for a period of not less than one year prior to
the institution of the action.
Section 2(1)(b) is however not applicable, as there is insufficient information to

indicate that the couple have been ordinarily resident in the Republic for not less
than one year prior to the institution of the action.
(ii) Does P have a choice between instituting divorce proceedings in a High

Court or in a regional magistrate’s court? (2)
Prior to the coming into operation of the Jurisdiction of Regional Courts

Amendment Act 31 of 2008 (JRCAA), family disputes such as divorce were dealt
with exclusively by the High Court. Since the coming into operation of the JRCAA
the regional magistrates’ court may also adjudicate on certain civil matters
including divorce action. Consequently, section 28(1A) of the Magistrate`s Courts
Act provides that a regional magistrates’ court shall have divorce jurisdiction over
both or either party who is
* domiciled in the court`s area of jurisdiction on the date on which the
proceedings are instituted or
* ordinarily resident in the court`s area of jurisdiction on the said date and has
been ordinarily resident in the Republic for a period not less than one year
immediately prior to that date. P therefore has a choice to decide in which court
he should institute the proceedings.
192
25. X has a claim against Z in the amount of R600 000 for personal injuries
suffered as a result of Z’s unprovoked attack on him in Pretoria. X is an
incola of Pretoria, and Z is an incola of Johannesburg. Answer the following
questions, giving full reasons for your answers.
(a) Fully explain why the North Gauteng High Court, Pretoria, would have
jurisdiction to hear the claim. (2)
In regard to a claim relating to a delict, the court in whose area of jurisdiction the
cause of action arose will have jurisdiction. In other words, the place where the
delict was committed, will vest a court with jurisdiction. This is known as the
exercise of jurisdiction ratione delicti commissi. (Under common law, this falls
within the ambit of ratione rei gestae.) On the given facts, the cause of action
(unprovoked attack) arose in Pretoria. Therefore, the Pretoria High Court will have
jurisdiction ratione delicti commissi.
(b) Fully explain whether your answer to (a) would differ if Z was a
peregrinus of the Republic, and he was the owner of a Lamborghini
which he kept in a garage in Johannesburg? (5)
In instances where the defendant is a peregrinus of the whole of the Republic

(foreign peregrinus), a High Court will be competent to exercise jurisdiction only if
the cause of action arose within the area of jurisdiction of the court and if
attachment of the defendant’s property has taken place within the area of the
court. This is known as attachment ad confirmandam jurisdictionem. The
attachment confirms or strengthens the partial or imperfect jurisdiction that a
court has by reason of the fact that the cause of action arose within its area of
jurisdiction. It does not matter whether the plaintiff is an incola or a local
peregrinus of the court concerned.
Section 21(3) provides that any Division may issue an order for the attachment of
property to confirm jurisdiction. The section does not specifically provide where
attachment must take place. Therefore, this provision must be read with the
common-law principles regarding attachment and, consequently, the requirement
is that the property must be situated within the area of jurisdiction of the
particular court approached for the order.
On the given facts, the defendant is a peregrinus of the whole Republic. The
cause of action (unprovoked attack) arose within the Pretoria High Court’s area of
jurisdiction and, therefore, the Pretoria High Court will be able to exercise
jurisdiction ad confirmandam jurisdictionem, provided that the defendant has
attachable property within the Republic, specifically within the particular court’s
area of jurisdiction. However, the attachable property is situated within the
Johannesburg High Court’s area of jurisdiction and not within the Pretoria High
Court’s area. Therefore, the Pretoria High Court will not have jurisdiction on the
basis of attachment ad confirmandam. Accordingly, the answer to (a) will differ
since attachment of property takes place and the court will no longer have
jurisdiction on the basis of common-law rules but on the basis of attachment ad
confirmandam jurisdictionem instead of ratione delicti commissi. Although the
cause of action arose in the court’s area of jurisdiction, it only has partial
jurisdiction since we are dealing with a foreign peregrinus. The court will thus not
be competent to exercise jurisdiction unless attachment (ad confirmandam
jurisdictionem) has taken place. Please note that the attachment has to happen
193
within the area of jurisdiction of the court where the cause of action arose. (Refer
to s 21(3) of SCA, 2013.) The attachment strengthens the partial or imperfect
jurisdiction that the court has by reason of the fact that the cause of action
(delict) arose within its area of jurisdiction.
26. Tshepo and Nomsa have been married for 10 years, and are domiciled in
Botswana where the marriage was entered into. Nomsa lives in Botswana,
but Tshepo works in Pretoria and returns home to Botswana for a short
holiday twice a year. After having worked in Pretoria for five years, Tshepo
meets another woman and wants to divorce Nomsa.
(a) May Nomsa institute a divorce action in the Pretoria High Court? Fully
explain. (2)
Section 2(1) of the Divorce Act stipulates that the domicile or residence of “either”
spouse is sufficient to confer jurisdiction, even if the other spouse is domiciled or
resident outside the Republic. Therefore, a spouse who is domiciled or resident
outside the Republic and who has never had any personal links with the Republic
may, as a plaintiff, institute divorce proceedings in a particular court in South
Africa on the grounds that the other spouse resides or is domiciled within that
court’s area.
Therefore, in terms of section 2(1) of the Divorce Act, Nomsa will be able to
institute divorce proceedings in the Pretoria High Court since Tshepo (the other
spouse) has been ordinarily resident within the court’s area for a period of over a
year in terms of section 2(1)(b) of the Divorce Act, and Pretoria is in the Republic.
(b) May Tshepo institute a divorce action in the Pretoria High Court? Fully
explain. (2)
jurisdiction, namely: *domicile & *residence, based on either section 2(1)(a) or
section 2(1)(b) of the Divorce Act 70 of 1979 Section 2 provides that a court shall
have jurisdiction in a divorce action if the parties are, or either of the parties is
domiciled in the area of jurisdiction of the court on the date on which the action
is instituted (s 2(1)(a)) or ordinarily resident in the area of the jurisdiction of the
court on the said date and have or has been ordinarily resident in the Republic
for a period of not less than one year immediately prior to that date (s 2(1)(b). On
the given facts, Nomsa is domiciled in Botswana. However, Tshepo was ordinarily
resident in Pretoria (the Republic) for a period of over a year (five years).
Therefore, an action for divorce can be brought in the North Gauteng High Court,
Pretoria, and the plaintiff (Tshepo) ordinarily resides within its area of jurisdiction
in terms of section 2(1)(b).
(c) If it appears that Nomsa and Tshepo’s marriage is voidable because

Nomsa was a minor when she married, and her parents did not consent to
the marriage, what court may set aside the marriage? Fully explain. (5)
In an action where the annulment or dissolution of a voidable marriage is sought,

common-law rules apply since it does not fall within the scope of the definition of
divorce action. In terms of the common law, the court where the plaintiff or
defendant (or both parties) is/are domiciled at the time when nullity proceedings
are instituted will have jurisdiction forum loci celebrationis. On the given facts,
the marriage was entered into in Botswana and both parties are domiciled in
194
Botswana. Therefore, the Botswana High Court will be able to exercise
jurisdiction for the annulment of the voidable marriage. the declaration of nullity
of marriages falls outside the scope of the definition of divorce action. See the
definition in section 1 of the Divorce Act, 1979. Therefore, in terms of common
law, only the domicile of the parties is taken into account, and residence is not
included.
27. X has a claim against Z in the amount of R600 000 on the ground of
breach of contract which occurred in Cape Town. X is an incola of Cape
Town and Z is an incola of Pretoria. With these facts in mind, answer the
following questions. Give full reasons for your answers.
(a) Explain why X can institute proceedings against Z in the Cape Town
High Court. (2)
In regard to a claim relating to a contract, the court in whose area of jurisdiction

the cause of action arose will have jurisdiction. In other words, the place where
the contract was concluded, breached, or was to be performed, will vest a court
with jurisdiction. This is known as the exercise of jurisdiction ratione contractus.
(Under common law, this falls within the ambit of ratione rei gestae).
On the given facts, the cause of action arose in Cape Town and therefore the
Cape Town High Court will have jurisdiction ratione contractus. With contractual
claims no further requirement needs to be met before a court in whose area the
cause of action arose may exercise jurisdiction. In this instance, the cause of
action arose when the breach of contract occurred. Unless a claim relates to
immovable property (exclusive jurisdiction), one jurisdictional ground is not
superior to another, and therefore, the fact that ratione domicili does not apply
here does not prevent the Cape Town High Court from exercising jurisdiction
(b) If Z is on holiday in Durban for three weeks, may X issue summons out
of the Cape Town High Court, and have the summons served on Z while
in Durban? (3)
Section 42(2) of the Superior Courts Act, 2013 provides that a civil process of a
division runs throughout the Republic and may be served or executed within the
jurisdiction of any Division (Service thus need not only take place within the
court’s area of jurisdiction). This is a procedural enactment to make execution
and service of process more convenient. On the given facts, section 42(2)
therefore enables X to institute proceedings against Z in the Cape Town High
Court and to have them served on Z in Durban (where he/she temporarily visits)
(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and
the cause of action arose in Durban? (3)
Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a

South African court will exercise jurisdiction over such a person only after
attachment of his or her property has taken place, either in the form of
attachment ad fundandam jurisdictionem (requiring the plaintiff to be an incola
of the court concerned apart from the attachment) or attachment ad
confirmandam jurisdictionem (requiring the cause of action to have occurred
within the particular court’s area of jurisdiction apart from the attachment).
195
On the given facts, the defendant is a peregrinus of the whole Republic. The High
Court in whose area of jurisdiction the cause of action (breach) occurred, will be
able to exercise jurisdiction ad confirmandam jurisdictionem, provided that the
defendant has attachable property within the Republic, especially within the
particular court’s area of jurisdiction. In this instance it is irrelevant whether the
plaintiff is an incola or peregrinus of the court.
Therefore, Durban High Court will have jurisdiction on the basis of attachment
ad confirmandum, provided there is an attachable property within the court’s
area of jurisdiction. Accordingly, the answer to (a) will differ as attachment of
property takes place, and the court will no longer have jurisdiction on the basis of
common law rules (ratione contractus), but of attachment ad confirmandam
jurisdictionem. Although the cause of action arose in the court’s area of
jurisdiction, it only has partial jurisdiction as we are dealing with a foreign
peregrinus. It will thus not be competent to exercise jurisdiction unless
attachment (ad confirmandum jurisdictionem) has also taken place. The
attachment strengthens the partial or imperfect jurisdiction that the court has by
reason of the fact that the cause of action (the breach of contract) arose within its
area of jurisdiction
(d) Would your answer to (a) differ if the claim related to the registration of
fixed property, and the property was situated in Johannesburg? (2)
In regard to a claim relating to immovable property, the court where the

immovable property is situated has exclusive jurisdiction in actions to determine
the title to immovable property or the transfer of property. This is known as the
exercise of jurisdiction ratione rei sitae.
On the given facts, the property is situated in Johannesburg. Cape Town High
Court would therefore no longer have jurisdiction, as the court where the relevant
immovable property is located will have exclusive jurisdiction. X may institute
proceedings against Z in the Johannesburg High Court for the transfer and
registration of the house in Johannesburg ratione rei sitae.
28. B and D marry each other in Lesotho. Their communal home is in

Lesotho where both parties are domiciled. B, the husband, resides in Pretoria
where he has been working for over 10 years. The couple later decide to
divorce. On the basis of these facts, determine
(a) whether B may institute proceedings in the High Court, Pretoria (2)
jurisdiction, namely, * domicile OR * residence, based on either section 2(1)(a) or
(b) of the Divorce Act 70 of 1979
Section 2 of the Act provides that a court shall have jurisdiction in a divorce
action if the parties are or either of the parties is domiciled in the area of
jurisdiction of the court on the date on which the action is instituted (s 2(1)(a)) or
ordinarily resident in the area of the jurisdiction of the court on the said date and
have or has been ordinarily resident in the Republic for a period of not less than
one year immediately prior to that date (s 2(1)(b)). On the given facts, the parties
are domiciled in Lesotho. However, B is ordinarily resident within the North
Gauteng High Court, Pretoria and has been ordinarily resident in the Republic
196
(Pretoria is in the Republic) for a period of “not less than” one year (10 years).
Therefore an action for divorce can be brought in the North Gauteng High Court,
Pretoria
(b) whether D may institute proceedings in the High Court, Pretoria (1)
Section 2(1) of the Divorce Act, as mentioned above, stipulates that the domicile
or residence of “either” spouse is sufficient to confer jurisdiction, even if the other
spouse is domiciled or resident outside the Republic. Therefore a spouse who is
domiciled or resident outside the Republic and who has never had any personal
links with the Republic may, as a plaintiff, institute divorce proceedings in a
particular court in South Africa on the grounds that the other spouse resides or
is domiciled within that court’s area. Therefore, in terms of section 2(1) of the
Act, D will be able to institute divorce proceedings in the High Court, Pretoria,
since B (the other spouse) has been ordinarily resident within the court’s area
and in the Republic for a period of “not less than” one year in the Republic
(Pretoria is in the Republic).
(c) whether D may institute proceedings in the High Court, Lesotho for the
declaration of nullity of the marriage. (2)
In terms of the common law, the court of the place where the marriage was
entered into or the court where the plaintiff or defendant (or both parties) is/are
domiciled at the time when nullity proceedings are instituted will have
jurisdiction as forum loci celebrationis. On the given facts, the marriage was
entered into in Lesotho and both parties are domiciled in Lesotho. Therefore D
may institute the proceedings for the declaration of nullity of the marriage in the
High Court, Lesotho.
29. Explain what is meant by the term “jurisdiction”
By jurisdiction is meant the authority, which a court has to decide

matters that are litigated before it or to take cognisance of matters
presented in a formal way for decision.
In the decision of (Ewing McDonald) and (M & M Products) the court
defined jurisdiction as follows:
Jurisdiction means the power vested in a court to adjudicate upon,
determine and dispose of a matter.
In both definitions, the following two requirements are emphasised:
1) The court must have the authority to hear the matter
2) The court must have the power to enforce its judgment
30. Explain what you understand by the term “inherent jurisdiction”
The superior courts are thus said to exercise an “inherent jurisdiction”.

This means that its jurisdiction is derived from common law and not from
statute.
An implication of this is that it has discretion in regard to its own procedure.
Thus a court may condone any procedural mistakes or determine any point of
procedure.
The Constitution, 1996, as amended by the CSAA (Constitution Seventeenth
Amendment Act), confirms the continued existence of this common-law power of
197
superior courts.
the High Court of South Africa each has the inherent power to protect and
regulate their own process, and to develop the common law, taking into account
the interests of justice.
MIXTURE OF JURISDICTION & PROCEDURE:

31. Q and R marry each other in Polokwane, Limpopo. Their communal
home is in Polokwane where both parties are domiciled. Q, the husband,
moved to Lesotho where he has been working for over 10 years. The couple
later decide to divorce.
(a) May R institute divorce proceedings in the Limpopo Division,
Polokwane?
Yes, the parties are domiciled in Limpopo; Polokwane. A court may exercise
divorce jurisdiction if both or either of the parties are domiciled in its area of
jurisdiction on the date on which the action is instituted. Alternatively, a court
may also exercise jurisdiction if both or either of the parties are ordinarily
resident in its area of jurisdiction on the date on which the action is instituted,
and have/has been ordinarily resident in the Republic for a period of not less
than one year immediately prior to the institution of the action
(b) Name the service that R will employ for the summons to be served on Q.
Ordinary service, personal service for matrimonial summonses is preferred.
(c) May Q institute divorce proceedings in a SA court?
Yes! A court may exercise divorce jurisdiction if both or either of the parties are
domiciled in its area of jurisdiction on the date on which the action is instituted.
Alternatively, a court may also exercise jurisdiction if both or either of the parties
are ordinarily resident in its area of jurisdiction on the date on which the action is
instituted, and have/has been ordinarily resident in the Republic for a period of
not less than one year immediately prior to the institution of the action. Section
2(1) (a) provides that, if both or either of the parties are domiciled within the area
of a court, such court will be competent to exercise divorce jurisdiction,
irrespective of the period of domicile.
Section 2(1) (b), which require a period of residence of one year within the
Republic immediately prior to the institution of the action.
Q is still domiciled in Limpopo and R still lives there.
(d) Explain fully whether R may institute divorce proceedings in a district or

regional Magistrates’ court.
She can use either. Before the advent of the Jurisdiction of Regional Courts
Amendment Act 31 of 2008 (JRCAA), family disputes such as divorce and adoption
matters were dealt with exclusively by the High Court and the Central Divorce Court
in Johannesburg.
The JRCAA extends the jurisdiction of the regional courts to include civil disputes
and divorce matters, resulting in the merging of divorce courts and regional courts.
The JRCAA has also extended the divorce jurisdiction of regional magistrates’ courts
by repealing section 46(1) of the Magistrates’ Courts Act. Section 46(1) provided that
198
a magistrate’s court could not grant a divorce because a divorce affects the status of
the parties and status must be decided by the High Courts.
Section 1 of the Divorce Act of 1979 has been amended to extend the definition of
“court” to include a reference to a regional magistrate’s court division.
The jurisdiction of the regional magistrates’ courts in respect of divorce and related
matters is now as follows:
(a) Section 28(1A) of the Magistrates’ Courts Act provides that a regional
magistrate’s court shall have divorce jurisdiction over both or either party who is
“(i) domiciled in the court’s area of jurisdiction on the date on which the
proceedings are instituted; or
(ii) ordinarily resident in the court’s area of jurisdiction on the said date and has
been ordinarily resident in the Republic for a period of not less than one year
immediately prior to that date”.
(b) Section 29(1B)(a) of the Magistrates’ Courts Act provides that a regional
division shall have jurisdiction to determine actions relating to the nullity of a
marriage and divorce, as well as related matters. A regional magistrate’s court may
also hear any matter provided for in terms of the Recognition of Customary
Marriages Act.
(c) In terms of section 29(1B)(b), a regional magistrate’s court hearing any of these
matters shall have the same jurisdiction as any High Court regarding such matter.
(e) Explain the difference between edictal citation service and substituted
service.
Where a person is believed to be in the Republic, but service cannot be effected

on him in terms of the Rules of the court because it is not known precisely where
such person is to be found, an application may be made to the High court for
leave to sue by substituted service, and the court will then give directions as to
how such service is to be effected.
It deviates from the normal method of service provided for in the Rules.
Consequently, an application to court must be made on notice of motion seeking
the court’s permission to serve the summons by means of substituted service,
and requesting the court to give directions as to how the summons must be
served.
The abbreviated summons must accompany the application for consideration
thereof by the court.
On hearing the application, and on being satisfied that it is a proper case for
substituted service, the court will give direction as to how service is to be
effected, for example by publication in the government gazette.
In CMC Woodworking Machinery the court gave leave for a notice to discover to
be served by way of substituted service, and that service be effected by way of a
Facebook message addressed to the defendant
Edictal citation: Rule 5 prescribes how service must be affected on a defendant
who is, or is believed to be, outside the Republic.
This is so even when his exact whereabouts are known and even when personal
service is possible.
Such a person cannot be summonsed before our courts in any manner other
than by means of edictal citation.
The consent of the court must be obtained to serve:
199
1. any process or document which initiates proceedings, or
2. any process or document which does not initiate proceedings
32. M and N conclude a contract in Durban, N is to sell his car for an

amount of R400 000. M is a resident of Pretoria. According to the contract,
N is supposed to deliver the car to M in Pretoria and M is to make payment
of the purchase price upon delivery. N delivers the car and M fails to pay the
agreed amount, N wants to sue for the damages suffered in the amount of
R400000.
(a) Explain whether or not the Durban Regional Magistrates’ court will have
jurisdiction to hear the matter.
No, the Durban court cannot have jurisdiction. One would have to apply
s28(1)(d), which is cause of action, but according to this section, the cause of
action has to arise “wholly”. In other words, if you want to rely on s 28(1)(d) for
jurisdiction, then every fact which your client must prove in order to succeed in
his or her claim, must have arisen within the district or regional division of the
Magistrates’ Courts which you want to institute action. It does not matter if
certain pieces of the evidence, which are necessary to prove those facts arose
outside the district or regional division of the particular Magistrates’ Court.
Therefore, it is important to distinguish between:
1. The facts, which must be proved in order to constitute a valid cause of

action. In Latin, these are called the facta propanda; and
2. All the different bits of evidence that must be led to prove the facta
propanda. In Latin, these are called facta probantia.
The contract was entered into in Durban, but it was to be performed and was
breached in Pretoria. Thus, the cause of action did not occur wholly as required,
thus Durban will not have J.
(b) Explain whether or not the Pretoria Regional Magistrates’ court

will have jurisdiction to hear the matter.
Section 28(1)(a): any person who resides, carries on business or is employed

within the district
a) Reside
b) Carries on business
The business carried on must be one’s own business. An artificial person, such
as a corporation or company, carries on business in the place where its head
office is situated, although a large company may clearly carry on business in a
number of places simultaneously.
c) Is employed
A person who “is employed” does not “carry on business”.
A degree of permanent employment is required.
d) Time at which position is determined
In (Mills) section 28(1)(a) was interpreted as follows: the date of service of the
summons and not its date of issue is the determining factor in establishing
whether a defendant was “employed within the district” of the magistrate’s court
concerned. M resides in Pretoria, and is our defendant. The Pretoria Regional
Court has jurisdiction based on s28(1)(a) (not on the fact that the contract was to
be performed and was breached in Pretoria).
200
(c) Z, a friend of M, undertook in writing to pay the said amount if M
was unable to do so. Name the pleading in which M must disclose this
fact, AND explain the manner in which M must disclose this in the
said pleading.
He would allege this in his plea on the merits. In the plea, the plaintiff’s factual
allegations are admitted, are denied, are placed in issue, or are confessed and
avoided, and all the material facts upon which the defendant relies are stated
clearly and concisely. It is also permissible, where the facts warrant it, for a
defendant to plead that he or she has no knowledge of a particular allegation and
is not in a position to admit or deny it (see Rule 22(2) and Rule 22(3)). Every
factual allegation in the declaration or particulars of claim that is not specifically
denied or is not admitted, is deemed to be admitted. Here, C will allege Z has
undertaken to pay the said amount, as a defence of “confess and avoid”.
MIXTURE OF JURISDICTION & PROCEDURE:

33. X is a Nigerian resident, he is invited to the Law Teacher Conference in
Cape Town. X whilst delivering his paper, defames Z, one of the well-known
professors in attendance of the conference. The statement is later published
in a Sowetan Newspaper in JHB. Z is very unhappy about the issue and
wants to sue for damages in the amount of R500 000. Z resides in PTA. X
owns an Austin Martin sedan parked at a hotel in Cape Town.
(a) Explain what type of summons can Z institute and why?
A combined summons would be used because the claim is based on an

unliquidated amount – damages due to delict. This form of summons is used
where the plaintiff’s claim is unliquidated.
That is where it’s not a claim for a debt or liquidated demand.
An unliquidated claim would therefore refer to any claim in respect of which the
quantum thereof must be determined (e.g. a claim for damages), or where the
status of the parties is affected (e.g. an action for divorce)
(b) Explain whether Z, can issue summons out of Gauteng Local Division,
JHB and have them served on X in Western Cape Division, Cape Town.
If the plaintiff, Z, is suing X, for making the defamatory statement (and not the
Sowetan newspaper) then he cannot issue out of Jhb, because the delict – the
cause of action – occurred in CT, where he actually made the defamatory
statement about Z. Section 42(2) of the SCA provides that a civil process of a
Division runs throughout the Republic and may be served or executed within the
jurisdiction of any Division.
This means that the process issued by a particular court (eg. summons or notice
of motion) may be served within the jurisdiction of any division of the High Court
in the Republic. This also means that the judgment or order of a particular court
is enforceable within the jurisdiction of any division of the High Court in the
Republic.
The result is that even if a defendant or his property is situated outside the
jurisdiction of a particular court, that court is able to exercise control over the
person or property of the defendant, provided that he is an incola of South Africa.
201
(c) Explain whether Western Cape Division, Cape Town will have jurisdiction
to hear the matter.
Cape Town will have jusisdiction - based on ratione rei gestae, and the claim is a
claim sounding in money. BUT the def is a foreign peregrinus (A peregrinus is a
person who is neither domiciled nor resident within that court’s area of
jurisdiction). Where the defendant is a foreign peregrinus and the cause of action
arose within the area of the court concerned:
Where a defendant is a peregrinus of the whole of the Republic, a court will be
competent to exercise jurisdiction if the cause of action arose within its area of
jurisdiction, and if attachment of the defendant’s property has taken place. This
is known as attachment ad confirmandam jurisdictionem. Where a court exercises
jurisdiction based on attachment ad confirmandam jurisdictionem, the nature of
the proceedings is irrelevant, provided that money is claimed.
GROUNDS: the ratione contractus and the ratione delicti.
It makes no difference to the above rules whether the plaintiff is an incola or
peregrinus of the court concerned!!!
Attachment ad confirmandam jurisdictionem is permissible where • the
defendant is a peregrinus of the whole Republic; attachment of the defendant’s
property has taken place within the court’s area of jurisdiction & the cause of
action has arisen within the court’s area. The requirement is that the property
must be situated within the jurisdictional area of the particular court approached
for the order. Regardless of whether attachment ad fundandam jurisdictionem or
ad confirmandam jurisdictionem is sought, our contention is that the property in
respect of which the attachment is sought must be situated within the area of
jurisdiction of the particular court concerned (as required under common law).
The FP’s car IS parked in CT, thus CT does have J!
(d) If Z issues and files the wrong summons on X, what procedural step may
X take in these instances.
X can apply to have the summons set aside as an irregular proceeding, using an
interlocutory application. Where the party has taken an irregular step during the
course of litigation, Rule 30 provides the other party with a mechanism by means
of which the irregularity may be set aside or dealt with.
Rule 30(2) states that an application to set aside an irregular proceeding shall
be on notice to all the parties specifying the particulars of the irregularity and
made only if:
1. the applicant himself has not taken a further step with knowledge of the
irregularity
2. The applicant has within 10 days of becoming aware of the step by giving
notice to his opponent a chance to remove the complaint within 10 days and
application was delivered within 15 days.
202
MAGISTRATES COURT JURIDICTION:
A drives through a red traffic light and collides with B’s motor vehicle. B
suffers damages in the amount of R420 000. B lives and works in
Johannesburg. A lives in Pretoria. B wishes to issue two summonses against A,
one for R280 000 for damages to the vehicle, and the other for R140 000 for
medical expenses.
(i) Will any regional magistrate’s court be competent to exercise jurisdiction?

(3)
The monetary jurisdiction limits for the district court and the regional court in
terms of section 29 of the Magistrates’ Courts Act 32 of 1944 is currently R200 000
and R400 000 respectively. Section 40 of the Magistrates’ Courts Act of 1944
prohibits the splitting of a “substantive claim” exceeding the jurisdiction limit of a
particular court in order to recover the claim if the split claims arise from the same
cause of action. As the claim amount is R420 000, it clearly exceeds the
quantitative jurisdictional limit of the regional court. Also, B may not issue two
summonses against A claiming damages and medical expenses as separate claims,
because both these claim arose from one cause of action, namely the motor vehicle
accident. If B claims these amounts separately to enable the regional court to have
jurisdiction, it will amount to splitting of the claims (which is prohibited).
Consequently, no regional court is competent to exercise jurisdiction
ii) Assume on the same facts, A owes B an amount of R20 000 for services
rendered by B to A, the amount which A admits. Will your answer in (i) differ?
(2)
Section 39 of the Magistrates’ Court Act 32 of 1944 provides that a plaintiff may
deduct from his or her claim any amount admitted to be due by him or her to the
defendant.
Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a court
(district or regional) has jurisdiction over a person who resides, carries on
business or is employed within the court’s area of jurisdiction.
Should the plaintiff, B, deduct the admitted amount of R20 000 which is owed to
A from the amount claimed, the remaining amount of the claim is R400 000
which falls within the quantitative jurisdictional limit of the regional magistrates’
court. Finally, A lives in Pretoria, and therefore the Pretoria regional court has
jurisdiction to hear the matter in terms of section 28(1)(a) as he “resides” in
Pretoria. Consequently, the answer differs from (i) as a regional court (Pretoria)
now has jurisdiction.
Section 38 of the Magistrates’ Courts Act 32 of 1944 is not relevant in this
instance, as the given facts specifically refer to an admitted amount owed to the
defendant (the grounds for jurisdiction in the magistrates’ courts are contained in
the various sections of the Magistrates’ Courts Act 32 of 1944. The common law
grounds for jurisdiction are not applicable in the magistrates’ courts, and any
reference to these grounds in answers dealing with jurisdiction in the
magistrates’ courts is summarily marked as wrong).
B lives in Salt River, Cape Town. While in Johannesburg, B is involved in a

motor collision with M, who lives in Soweto. M wishes to claim damages of
203
R110 000 from B, alleging that the motor collision was due solely to
negligence on the part of B. With these facts in mind, answer the following
questions.
(a) Why does the magistrate’s court for the district of Cape Town have
jurisdiction? (3)
Section 28(1) (a) of the Magistrates’ Courts Act, 1944 (hereafter MCA) provides
that a magistrate’s court will be competent to exercise jurisdiction over any
person who “resides, carries on business or is employed” within the district or
regional division. Section 29 provides that the current limit is R200 000 in
district magistrates’ courts.
On the given facts, the Cape Town district magistrate’s court will have
jurisdiction in the matter as the defendant (B) resides within its area of
jurisdiction in terms of section28(1)(a) of the MCA and the monetary claim falls
within the district magistrates’ court monetary jurisdictional limit of R200 000.
(b) Why does the magistrate’s court for the district of Johannesburg have
jurisdiction? (3)
Section 28(1)(d) of the Magistrates’ Courts Act, provides that a magistrates’ court
may exercise jurisdiction if the “whole cause of action” arose within its district or
regional division. In this instances jurisdiction is determined by where the cause
of action arose and not where the defendant is found.
On the given facts, the “whole cause of action” arose in Johannesburg because
that is where the collision took place. The amount claimed falls within the district
court’s monetary jurisdictional limit in terms of section 29 of the MCA. Therefore,
the Johannesburg district magistrate’s court will have jurisdiction in terms of
section 28(1)(d) of the MCA. The word “wholly” refers to the whole cause of action.
This refers to the entire set of facts giving rise to the enforceable claim and every
material fact the plaintiff has to prove in order to succeed in his/her claim
(Abrahamse & Sons v SAR & H 1933 CPD 626).
(c) Will a magistrate’s court be competent to exercise jurisdiction if, M,

claimed an amount R250 000 for damages to his motor vehicle? (3)
Section 29(1) of the MCA deals with limitations on the amount of the claim
(monetary jurisdictional limit). The monetary jurisdictional limit for the regional
magistrate’s court is R400 000.
On the given facts, either Johannesburg or Cape Town regional magistrate’s court
will be competent to exercise jurisdiction if M claimed an amount of R250 000 for
the damages of the motor vehicle.
T and D enter into a contract in Pretoria in terms of which T sells D a

property in a residential area in Johannesburg for R380 000. D intends
building a house on the property. In terms of the contract D undertakes to
pay a deposit in two instalments at T’s business premises in Krugersdorp.
However, he pays the first instalment, but fails to pay the second. Despite
demand, D refuses to pay and T wishes to institute proceedings against D.
204
(a) Discuss whether any of the magistrate’s courts in the areas mentioned
above will have jurisdiction in the action?
(3)
Section 28(1)(d) of the MCA provides that a magistrate’s court may exercise
jurisdiction over any person, whether or not he or she resides, carries on
business or is employed within the district, if the cause of action arose wholly
within the particular jurisdictional area or district of the court. For the cause of
action to have arisen “wholly” in the particular jurisdictional area of district of a
court, conclusion of a contract and breach of contract must have occurred within
the same jurisdictional area. Section 28(1)(g) of the Act provides that a
magistrate’s court will be competent to exercise jurisdiction over any person who
owns immovable property within the court’s district/area, provided that such
action relates to the property or is in respect of a mortgage bond over such
property. On the given facts, the contract (to purchase a property) was concluded
in Pretoria. However, the breach (failure to pay the balance) occurred in
Krugersdorp. Therefore, in terms of section 28(1)(d), neither the Pretoria nor the
Krugersdorp regional magistrate’s court where a part of the cause of action arose
will have jurisdiction. The action does not relate to the property in Johannesburg,
hence the Johannesburg regional magistrate’s court does not have jurisdiction to
hear the matter
(b) Explain whether your answer in (a) will differ if the action was to compel
T to effect transfer of the property to D?
(2)
Section 28(1)(g) of the Act provides that a magistrate’s court will be competent to
exercise jurisdiction over any person who owns immovable property within the
court’s district/area, provided that such action relates to the property or is in
respect of a mortgage bond over such property. On the given facts, the property
is situated in Johannesburg. Therefore, in an action to compel transfer of the
property to D, the magistrate’s court will now have jurisdiction since the matter
relates to the property situated in Johannesburg. However, with regard to
Pretoria and Krugersdorp, the answer in (a) above will remain the same.
(c) T’s defence to D’s claim in (b) above is that the court does not have
jurisdiction to hear the matter in terms of section 46 of the Magistrates’
Courts Act 32 of 1944. Fully advise D on the accuracy of this view. (3)
Section 46(2)(c)(ii) provides that a court shall have no jurisdiction in matters in

which specific performance is sought without an alternative of payment of
damages, except in the delivery or transfer of property, movable or immovable,
not exceeding the value of R400 000. On the given facts, to compel the effect of
transfer of property is an exception from specific performance. Therefore, the
regional magistrate’s court in Johannesburg will have jurisdiction to hear the
matter to compel transfer of the property to D.
N who lives in Johannesburg, buys a truck for R190 000 from T in

Bloemfontein. T lives in Bloemfontein. N pays T R160 000 of the purchase
205
price and undertakes to pay the balance of R30 000 on delivery of the truck.
T delivers the truck to N’s home, but despite demand, N fails to pay the
balance of the purchase price. Will any magistrate’s court in all the centres
mentioned above have jurisdiction to hear an action instituted by T against
N for the return of the truck? Give full reasons for each answer.
Section 28(1)(a) of the Magistrates’ Courts Act, 1944 (MCA) provides that a
magistrate’s court will be competent to exercise jurisdiction over any person who
“resides, carries on business or is in the employ” within the court’s jurisdictional
area/district.
Section 28(1)(d) of the MCA provides that a magistrate’s court may exercise
jurisdiction over 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
particular jurisdictional area or district of the court. To have arisen “wholly”,
conclusion of the contract as well as breach of contract must have occurred
within the same jurisdictional area.
On the given facts, N “resides” in Johannesburg, the conclusion of the contract

(to purchase a truck) occurred in Bloemfontein and the breach occurred in
Johannesburg (failure to pay the balance).
The Johannesburg district magistrate’s court will have jurisdiction in terms of

section 28(1)(a) of the Act as N “resides” there. The court will not have jurisdiction
in terms of section 28(1)(d) as only breach of contract occurred there (thus not
“whole” cause of action).
The Bloemfontein district magistrate’s court does not have jurisdiction, as not
only is it irrelevant that T, the plaintiff lives there, but also as only conclusion of
the contract occurred there (thus also not “whole” cause of action). The Act (s 28)
refers to “a person”, it means the defendant only, not either of the parties. In
other words, the situation of the defendant, not the plaintiff, will give a court
jurisdiction.
X is a designer. He lives in Benoni and owns immoveable property in

Pretoria. X designs a packaging machine for CK Perfumes (Pty) Ltd, which
has its registered office in Johannesburg, from where it also conducts
business. In breach of the guarantees given by X, the packaging machine in
Johannesburg malfunctions. As a direct consequence thereof, CK Perfumes
suffers damages in an amount of R80 000.
Will a magistrate’s court be competent to exercise jurisdiction in each of

the instances mentioned below, if Sniff Perfumes institutes an action for
damages in an amount of R80 000? Give full reasons for each answer.
a) May CK Perfumes institute proceedings against X in the Benoni

magistrate’s court?
(2)
Yes s28(1)(a) – residence of the def – discuss the whole section
b) Does the Pretoria magistrate’s court have jurisdiction? (2)
206
No, s28(1)(g) is used giving the court where the property is situated J only if the
dispute is about the property which this question is not.
c) Does the Johannesburg court have jurisdiction? (2)
No, the residence, place of employment or where the pl carries on business is

irrelevant for a claim sounding in $.
d) Will any magistrate’s court have jurisdiction to hear the action if the
claim is for R120 000? (6)
Yes, provided s38 or s39 is used by the pl – s38 abandonment of R20 000 = If
court finds amount due exceeds the limits but is not the full amount claimed the
amount that the plaintiff was unable to prove is deducted 1 st from the amount
which was abandoned. Thus a plaintiff who abandons a portion of his claim will
receive the amount proved or the maximum amount the court can grant
whichever is the LEAST! S39 deduction of an admitted debt = the plaintiff who
uses s39 will always be awarded the amount proved in court less the amount due
to defendant.
e) If X prefers to have the action heard by a High Court, rather than a

magistrate’s court, is there anything he can do as defendant? (6)
S50 can be used. If a defendant wishes to exercise this option, an application

must be made to the court where summons has been issued. The defendant
must state that:
*The amount of the claim exceeds R7000
*The applicant objects to the matter being heard by any magistrate’s court
*Notice of intention to bring the application has been given to the plaintiff and
other defendants, if any
*The applicant will furnish such security as the court determines, for payment of
the amount claimed and costs
Discuss the decision in Badenhorst v Theophanos 1988 in regard to the

competence of a magistrate’s court to grant an order for specific
performance in terms of section 46(2)(c) of the MCA 1944. (6)
In terms of section 30 of the Magistrates' Courts Act 32 of 1944 magistrates’

courts may grant interdicts notwithstanding the provisions of section 46(2)(c),
which prohibits magistrates’ courts from granting orders for specific performance
without an alternative claim for damages. The competence of a magistrate’s court
to grant an interdict in terms of section 30(1) is subject to the jurisdictional
limitations of the Act, namely sections 28 and 29.
However, an application for a prohibitory interdict to enforce a restraint of trade
clause amounts to a request for the enforcement of a contractual obligation. An
order so granted would be regarded as an order ad factum praestandum and this
in practice amounts to an order for specific performance without an alternative
claim for damages. Such an order is contrary to the provisions of section 46(2)(c)
and therefore beyond the jurisdictional competence of a magistrate’s court (as
interpreted in Badenhorst v Theophanous).
207
W enters into a contract with P to repair his motor vehicle but P fails to do
so for a period of four months. Discuss whether any district or regional
magistrate’s court will be competent to grant an order to force P to repair
the motor vehicle.
The magistrates’ court has limitations when it comes to its jurisdiction. Section
46(2)(c) of the Magistrates’ Courts Act, 1944 provides that a court shall have no
jurisdiction in matters in which specific performance is sought without an
alternative claim for the payment of damages except when claiming the --
(i) rendering of an account; or (ii) delivery or transfer of property, movable or

immovable; and (iii) delivery or transfer of property, movable or immovable,
exceeding in value the
amount determined from time to time, where consent has been obtained in terms
of section 45.
The meaning of the phrase “specific performance” has been construed in case law
(Maisel and Tucker’s Land cases) to refer to the performance of an act that a
person has contractually undertaken to perform. On the given facts, the failure of
P to perform in terms of the contract (to repair W’s motor vehicle) renders the
claim of W one for specific performance. Therefore, either the district magistrates’
court or the regional magistrates’ court can grant the order, provided W includes
a claim for damages in the alternative. Otherwise, neither court will have
jurisdiction and W will have to sue P in the High Court.
HIGH COURT PROCEDURE:
1. Discuss representation by power of attorney, including when a power of

attorney is necessary and why a power of attorney is drawn up.
(5)
Every natural person who is a party to civil proceedings is entitled to represent

himself personally. Such a person would usually instruct an attorney to act on
his behalf. These instructions are confirmed and specified in a document known
as a power of attorney. A power of attorney is a written document in which an
agent is given the authority to act on behalf of his principal either in a specified
situation or to act on behalf of such principal in respect of all actions which the
principal could perform himself. A client may terminate his mandate to an
attorney at any time, but an attorney may, after accepting a client’s brief,
withdraw only with sound reasons.
When is a power of attorney required in litigation? There is no need for a power of
attorney for issuing a summons or a notice of intention to defend, but is required
to conduct or defend a civil appeal. The rules of the Supreme Court provide that a
power of attorney need not be filed with the registrar unless the authority of a
legal practitioner to act on behalf of a party is disputed.
Why is a power of attorney drawn up? A carefully drawn up power of attorney is
essential for the protection of both the attorney and the client, and to determine
the extent of the attorney’s brief. Therefore, there should always be a power of
208
attorney kept on the client’s file. The power of attorney generally contains details
of the action to be instituted and of the relief to be claimed.
The client does not wish to be involved, unknowingly or unwillingly, in expensive
litigation, or in an appeal, which he never contemplated.
On the other hand, the attorney is entitled to protection as far as his own costs
are concerned. Should the attorney conduct litigation without the authority of the
client, he will not be entitled to recover the costs incurred from his client, since
there is no contractual relationship will exist.
2. Discuss the differences between the special plea and the exception. (4)
Difference between the special plea and the exception

An exception is limited to an attack on the allegations in the pleading as a whole,
on the assumption that such allegations are true.
A special plea assumes the truth of all the allegations in the declaration, and
does not deal with the merits of the action at all.
It alleges fact unconnected with the merits of the action as a result of which the
action is either destroyed or postponed. (defendant only)
A special plea may only be pleaded to a declaration or particulars of claim,
whereas an exception can be brought against any pleading. (any party may use)
3. State the various ways in which evidence may be placed before the trial
court. (6)
Unless special circumstances exist, a witness must give evidence viva voce and in
open court.
If a person is within the republic, such person can be compelled to attend any
high court in the republic by using a subpoena from the office of the registrar and
by having it served on the witness required by the sheriff. Where a witness is
required by a subpoena to make available at the trial a document, instrument or
object, which is in his possession, such a subpoena is termed a subpoena duces
tecum.
If a witness cannot give evidence in person, and if the necessary circumstances
are present, he may be allowed to give evidence in the following ways:
o on commission
o Interrogatories differ from commissions in that, while in the latter case
evidence is given generally, in the former case specific evidence only is
taken and for this purpose specific questions are formulated which must
be put to the witness by the commissioner.
The courts are reluctant to grant such leave, and are usually disposed to do so
only when the evidence so required is of a formal nature.
Rule 38(2) states
The witness at the trial of any action shall be examined viva voce but the court
can for sufficient reasons order evidence to be given on affidavit (unless the
witness is needed for cross-examination).
209
4. Indicate what is meant by “sound reasons” in regard to setting aside an
order for default judgment. (3)

(2) The application must be bona fide and not merely a delaying tactic
5. Betty wishes to sue her husband, Koos, for a divorce in a High Court.
a) (i) Why is it appropriate for Betty to issue a combined summons in this

instance? (2)
A combined summons is used for divorce and damages. A simple summons is only used
when the claim is for a debt or liquidated demand. Thus, here, there is a divorce and the
claim will thus be unliquidated (which means the judge decides on the amounts claimed
in the court) and is not a liquidated claim where one would have to use a simple
summons.
(ii) Name the usual processes and pleadings that will be exchanged between the
parties if the action is opposed. (4)
The plaintiff sends the summons attached with the POC. The defendant sends his
NOITD within the dies induciae. The defendant then sends the plea on the merits which
answers the POC (within the dies induciae). If a new matter is raised in the plea, the
plaintiff can respond with a replication.
b) Koos, the husband, has always refused to settle down in any one place and
prefers to travel around South Africa doing odd jobs and selling homemade pizza.
Briefly identify and discuss the procedure that Betty will have to follow to effect
service of summons upon Koos under these circumstances. (4)
Plaintiff will have to apply for substituted service. Where a person is believed to be in
the Republic, but service cannot be effected on him in terms of the Rules of the court
because it is not known precisely where such person is to be found, an application may
be made to the High court for leave to sue by substituted service, and the court will then
give directions as to how such service is to be effected.
It deviates from the normal method of service provided for in the Rules.
Consequently, an application to court must be made on notice of motion seeking the
court’s permission to serve the summons by means of substituted service, and
requesting the court to give directions as to how the summons must be served.
The abbreviated summons must accompany the application for consideration thereof by
the court.
On hearing the application, and on being satisfied that it is a proper case for
substituted service, the court will give direction as to how service is to be effected, for
example by publication in the government gazette.
(c) Koos fears that Betty may leave the country, taking their two minor children
with him. Koos approaches the court for a temporary interdict to prevent such an
occurrence.
210
(i) Name the type of proceedings that Koos would use to obtain the interdict.
(1)
Ordinary application. Notice of motion attached with an affidavit.
(ii) Name the documents that the parties must exchange if B opposes the
proceedings. (5)
Applicant sends a NOM and supporting affidavit. Respondent sends an answering

affidavit to the supporting affidavit. The applicant can answer with a replying affidavit.
The court, in its discretion can allow the filing of more affidavits upon application.
6. Cammy issues and serves summons in a High Court against Dodgy for Dodge’s
ejectment from certain property owned by Cammy. With these facts in mind,
point out on the correctness of the procedure followed. Give reasons for your
answers and where necessary, state what the correct procedure should be and
why.
(a) Although Dodge fails to serve and file a notice of intention to defend within
the stipulated dies induciae, Cammy serves and files his particulars of claim.
(5)
This step is incorrect. The type of claim above is for a debt or liquidated demand
(ejectment) and thus a simple summons must be issued to the defendant and not a
combined summons. A POC is only attached to a combined summons and thus Cammy
serving and filing his POC is incorrect. If the defendant fails to send his NOITD within
the dies induciae, the plaintiff should apply for default judgement.
(b) Dodge reacts to the summons by serving and filing a notice of intention to
defend outside the stipulated dies induciae. Cammy immediately responds by
claiming Dodge has ipso fact (automatically) been barred from delivering the
notice of intention to defend. (6)
The defendant can serve and file his NOITD outside the dies induciae provided its within
20 days of the summons being served, that he pays the plaintiffs costs for the
application for DJ and that the NOITD was notes before default JUDGEMENT was
granted. The court may then allow the filing of the late NOTID. The plaintiff may then
apply to have the NOITD set aside as an irregular proceeding.
(c) Dodge reacts to the summons by serving and filing a notice of intention to
defend within the stipulated dies induciae. Cammy reacts by applying for default
judgment. (4)
This step is incorrect as the plaintiff may only apply for DJ if the
NOITD has not been received within the dies induciae or is late. The defendant sent his
NOITD on time. Thus, the next correct step would be for the plaintiff to send his
declaration.
(d) The matter proceeds to the trial phase. After close of pleadings and for
purposes of shortening the trial, Cammy requests Dodge to make discovery in
211
terms of Rule 35 of the Uniform Rules of Court of all documents pertaining to the
action. Discuss discovery briefly. (3)
Discovery may not be requested until after the close of pleadings.

The purpose is to ascertain from other parties what documents and tape recordings are
in existence, which might be relevant to the action. This enables a party to prepare fully
and properly for trial and prevents him from being taken by surprise.
Discovery is obtained by written notice addressed to any party to the action to make
discovery under oath within 20 days of such request. Discovery related to all documents
relevant to any matter in dispute in the action which are, or have at any time been, in
the possession or under the control of such other party. Discovery must be made within
20 days, and is made by disclosing the necessary information in an affidavit – known as
a discovery affidavit.
In this discovery affidavit the party making the discovery must set out
(1) those documents relating to the matter in dispute in the action which are in his
possession or under his control
(2) those documents, although relating to the matters in dispute in the action and
being in the party’s control or possession, the party objects to producing, and the
reasons for such objection must be stated
(3) those documents which he had in his possession or which were under his control,
but which he does not now have in his possession or which are now not under his
control. Such party must also state when such documents were last in his possession or
under his control, and where such documents now are.
A party may validly object to the discovery of a document if he is able to claim privilege
for its contents.
Examples are incriminating documents, or documents, which affect the security of the
state.
7. S issues a simple summons against T in which a decree of divorce is requested.

With these facts in mind, answer the following questions, giving reasons for each
answer. (8)
(i) If T is of the opinion that the incorrect form of summons has been used, can
T make use of any procedure to correct the situation? (2)
An application to set aside the summons as an irregular proceeding is the correct step
to take.
(ii) When does the period commence within which the applicant must act?(4)
The period within which the applicant must act commences as soon as a party takes
notice that a step has been taken or that a proceeding has occurred, and not once the
irregularity thereof has come to his notice.
(iii) If T files a notice of intention to defend prior to the taking of other steps,
will this prevent him from using the procedure you have referred to in your
answer (i) above? (2)
No, as the NOITD is not deemed to be a further step. A further step would therefore
include the next sequential exchange of pleadings and any objection to the content of a
pleading.
212
It would not include the filling of a notice of intention to defend.
The courts have held that this is merely an act done to enable the defendant to put
forward his defence.
(iv) What form of proceeding must T use in order to approach the court for relief?
(2)
Rule 30(2) provides that an application in terms of this Rule must be

accompanied by notice to all parties.
Such an application is naturally also interlocutory in nature.
8. Zola wishes to obtain a divorce from her husband Venesh. Merely state
the correct answer to each of the questions that follow. You must not give
reasons for your answers.
(a) What pleading must be attached to the summons? (1)
POC
(b) What form of service is necessary to serve the summons on Venesh

who is at a known address in South Africa? (1)
Normal / ordinary service
(c) What form of service is necessary if venesh is living overseas at the

time when summons is issued? (1)
Edictal citation
(d) What form of proceedings must Zola follow to obtain permission to

use the form of service referred to in (c) above? (1)
Application proceedings, ex parte
(e) What is the first document that Venesh must file if he wishes to
oppose the divorce action? (1)
NOITD
(f) What step must Zola take if Venesh files the document referred to in
(e) above but fails to file a plea? (1)
NOB-send the defendant a notice that if he does not send the relevant doc within
5 days, he will apply for DJ
(g) What further step may Zola take if Venesh still fails to respond to the
document referred to in (f) above? (1)
Apply for DJ
(h) What procedure should be used if the name of one of the minor
children is stated incorrectly in the plea? (1)
Notice of intention to amend
(i) Which party is responsible for using the procedure referred to in (h)
above? (1)
Defendant
213
(j) What procedure can Zola use if Venesh files a plea that contains
vexatious statements about Zola? (1)
Strike out
(k) What pleading can Venesh use if he has already issued summons in
another court in which he has instituted divorce proceedings against Zola?
(2)
Special plea, dilatory, lis pendens
(l) What pleading can Zola file if Venesh raises new matter in is plea? (1)
Replication
(m) What may Zola do immediately after pleadings have closed to ensure a
speedy allocation of trial date? (1)
Set down
(n) What procedural step can Zola take, after close of pleadings, if she
feels that the pleadings contain insufficient information to enable her to
prepare for trial? (1)
(o) What proceeding are Venesh and Zola compelled to arrange and attend
before the trial in order to attempt to shorten the trial (1)
Pre trial conference
9. D and F enter into a lease agreement, whereby D leases a portion of his

farm to F. However, after the lease is signed, F refuses to pay the rent since
D refuses to give F access to the rented portion of his farm. F contends that
the lease agreement is subject to a servitude of a right of way, which D
denies. Determine the type of proceedings that F should use in order to
approach the court. (6)
There is a dispute of fact in this question and thus when there is a dispute of fact,
the correct proceedings to use is an action proceeding. An application by means of
a notice of motion may be made if (1) there is no real dispute over any
fundamental question of facts or (2) if there is such dispute, it can nevertheless be
decided without the necessity of oral evidence.

1. respondent denies material allegations made by the deponents on the
applicants behalf, and produces positive evidence by deponents to the contrary
2. respondent admits the allegations contained in the applicants affidavit, but
alleges other facts which the applicants disputes
3. respondent concedes that he/she has no knowledge of the main facts stated
by the applicant, but may deny them, putting applicant to the proof and
himself/herself giving, or proposing to give, evidence to show that the applicant
and his/her deponents are biased and untruthful, or otherwise unreliable, and
that certain facts upon which the applicant and his/her deponents rely to prove
the main facts are untrue.
214
A dispute of fact does not arise were the respondent merely states that he disputes
the truth of the applicants statement, but offers no evidential reply to them.
In other words, where there is bare denial. A real dispute has to occur
Mere fact that the parties are not in agreement on all the facts does not mean that
a real dispute has occurred. Thus, an action proceeding is applicable.
10. X consults with you in regards to a cheque he received from his bank
marked “return to drawer” because there were insufficient funds in Y’s
current account. During the consultation you learn that X had sold
computers to the value of R500 000 to Y and that X needs to recover the
money urgently from Y in order to finance other transactions. With these
facts in mind:
i. Determine whether you could commence proceedings by means of
either a simple summons or a provisional sentence summons; (3)
X could commence proceedings using either simple summons proceedings or

provisional sentence summons proceedings as both may be used regarding a claim
based on a liquid document – simple summons is used for a debt or liquidated
demand (which a cheque is) and the PSS is used for a claim where a plaintiff is
armed with a liquid document. The PSS procedure is quicker and easier for the
plaintiff to use as its a provisional sentence and he gets his claim paid once he has
paid in to court security de restituendo.
ii. Explain the implications for your client in regard to the use of the simple
summons; (4)
A simple summons is issued in respect of a liquidated claim, it is not accompanied
by any other document setting out the details of the claim.
The amount and the nature of the claim are set out in the summons.
In the case of a simple summons, the defendant has formally indicated that he
intends to defend the action.
The plaintiff files his declaration only at this stage. Before a plaintiff delivers a
declaration, he will consider whether or not to apply for summary judgment.
Where such an application is unsuccessful, or where the application is
abandoned, a declaration must be delivered. Once the summons has been served
and, the defendant wishes to defend the action, he must, within the stipulated
time in the summons, deliver and file a notice of intention to defend.
(If the plaintiff has filed a simple summons, he will now file his declaration).
Thereafter, the defendant must raise his defence by filing his plea on the merits.
Alternatively, the defendant may raise a special plea to object to an issue not
apparent in the plaintiff’s declaration or particular of claim, as the case may be.
The defendant may, together with his pleadings, file a counterclaim.
By means of the counterclaim, the claim in reconvention is introduced.
The pleadings in reconvention are usually filed with the pleadings in convention
which might follow.
The plaintiff (now defendant in reconvention) responds to the defendant’s (now
plaintiff in reconvention) counterclaim by means of a plea in reconvention.
Usually, the pleadings close after the defendant’s plea has been delivered and
filed, but this need not necessarily be the case.
Plaintiff could respond to the defendant’s plea by means of a replication.
If the issues are not joined hereby, the defendant may reply to the replication by
means of a rejoinder.
215
The matter is than set down for trail and the pre-trail preparation stage
commences. In the normal course of pleadings, certain irregularities might need to
be corrected, rectified or be objected to in this respect.
Prior to the trail stage, it is possible to obtain a judgment known as a pre-trail
judgment.
Should the defendant not file a notice of intention to defend or a plea, as the case
may be, timeously, the plaintiff may apply for default judgment to be granted
against the defendant.
If the defendant has in fact filed a notice of intention to defend but has no bona
fide defence and has done so merely to delay proceedings, the plaintiff may apply
for summary judgment. When the plaintiff has failed to deliver timeously his
declaration and has been barred from doing so, the defendant may have the
matter set down for hearing; the court may grant absolution from the instance, or
make any order it deems fit. Lastly, the defendant may consent to judgment.
This is a long, protracted expensive method of obtaining a claim.
iii. Explain the implications for your client in regard to the use of the
provisional sentence summons. (5)

The exceptional nature of this procedure lies in the fact that it could be decided
before trail, and the court is concerned with only prima facie proof.
Therefore judgment is given on the assumption that the documents submitted are
genuine and valid.
It accelerates the procedure for granting judgment – although such judgment is

provisional – and entitles a successful plaintiff to execute the judgment
immediately, subject to giving the defendant the necessary security de restituendo.
Thus it provides the creditor who has sufficient documentary proof (i.e. a liquid
document) with a reedy for recovering his money without it being necessary to
resort to the more cumbersome, more expensive and frequently protracted illiquid
summons proceedings.
The plaintiff is of right entitled to payment, or, failing such payment, to take out a
writ of execution against the defendant’s property under security de restituendo.
Security de restituendo is the security which the plaintiff must give for the
restitution of the money he has received from the defendant in terms of the
judgment in the event of defendant defending and succeeding in the main case.
The judgment is provisional. The defendant may still defend the main trail, but
only within 2 months of the granting of provisional sentence, and then only if he
has paid the judgment debt and costs.
A defendant who may and who wishes to enter into the principle case must deliver
notice of his intention to do so within 2 months after provisional sentence has
been granted, in which case the summons will be deemed to be a combined
summons on which the defendant must deliver a plea within 10 days. In default of
such notice or plea, the provisional sentence automatically becomes a final
judgment and the security given by the plaintiff falls away.
216
11. Determine whether the following are pleadings or process documents -
i) A combined summons (2)
Both a pleading (POC attached to the CS) and a process (the

summons).
ii) A declaration (2)
A pleading. This is a written document containing averments by the parties to an

action in which the material facts on which they rely in support of their claim or
defence are concisely set out, and which is exchanged between such parties.
12. C issues a summons against D for damages arising out of a breach of

contract. With these facts in mind answer the following questions:
(i) Name the procedure that D must follow if C issues a simple

summons against D. (1)
Application to have it set aside as an irregular proceeding.

Interlocutory application – notice and SA.
(ii) Discuss briefly the period within which D must commence the
procedure identified in (i) above. (3)
The period within which the applicant must act commences as soon as a party
takes notice that a step has been taken or that a proceeding has occurred, and not
once the irregularity thereof has come to his notice.
(iii) Name the type of proceedings that D must follow. (1)
Application proceeding, interlocutory, notice and supporting affidavit, notice to

other side.
(iv) Briefly explain why D acts correctly be serving and filing a notice of
intention to defend, despite the procedure that is followed in (i) above. (3)
Filing and serving the NOITD is not deemed to be a “further step”. A further step
would therefore include the next sequential exchange of pleadings and any
objection to the content of a pleading. It would not include the filling of a notice of
intention to defend. The courts have held that this is merely an act done to enable
the defendant to put forward his defence. Rule 30(2) provides that an application
in terms of this Rule must be accompanied by notice to all parties.
Such an application is interlocutory in nature. Rule 30(4) provides that, until the
party against whom the order was made has complied with it, he may take no
further steps in the main action.
(v) Name the orders that a court may make. (2)
That notice or request be complied with, or that the claim or defence be struck off.
217
13. B issues a combined summons against C for damages arising from a
breach of contract. C responds with a notice of intention to defend, and
hereafter files a plea on the merits. Answer the following questions.
(i) If C wishes to file a counterclaim, state briefly when and how C may do
so. (2)
He may do so after he has sent his NOTID and along with his plea on the merits.
Rule 24(1) states that a defendant who counterclaims shall together with his plea,
deliver a claim in reconvention setting out the material facts thereof. A claim in
reconvention shall be set out in a separate document or a portion of the document
containing the plea but headed ‘claim in reconvention’. This rule further provides
that a defendant may, together with his plea, or at a latter stage with the leave of
the plaintiff, or if refused, the court, deliver a claim against the plaintiff. This is
known as a counterclaim
(ii) Name the pleading that B should file if B is of the opinion that C’s plea
on the merits does not disclose a defence. (1)
Special plea
(iii) Name the procedure that B must follow if B believes that C is in

possession of a tape recording of the negotiations between B and C,
which give rise to the conclusion of the contract. (1)
Inspection Rule 35(14)
(iv) B’s action is unsuccessful, and the court awards costs to the defendant,
C. Name the type of cost order that will be awarded. (1)
14. X leases a flat to Y. Y’s contract has expired, but Y refuses to vacate
the flat. X approaches the court for an ejectment order. Answer the following
questions.
(i) Name the type of summons that X should use to obtain the above
order. (1)
Simple summons – this is deemed a “debt or liquidated demand” and can

comprise of ejectment, delivery, transfer, rendering of an account or cancelling of a
contract.
(ii) Y Gives notice of intention to defend. Name the procedure that X may
now use. (1)
X may apply to court for summary judgement as Y giving his NOITD is to waste
time / he has no bona fide defence – his contract of lease expired and thus the
ejectment order is justified as he cant defend it – it expired. Rule 32(1) states:
Where a defendant has delivered a NOITD, the plaintiff can apply to court for
summary judgment, only if the summons is on a liquid document or for a
liquidated amount in money, for delivery of movable property or ejectment.
Thus, it should be clear that an application for summary judgment may follow
only from a simple summons.
218
(ii) Explain what action Y, the defendant, may take in response to the
procedure mentioned in (ii) above. (3)
Rule 32(3) states

Upon hearing the application for summary judgment, the defendant may:
(b) Satisfy the court by affidavit, to swear he has bona fide defence and the
affidavit will disclose the nature and grounds of the defence and the material facts
relied upon.
Although the plaintiff is not permitted to include evidence in support of his claim
in the affidavit, the defendant must fully disclose the nature and grounds of his
defence.
The reason for this is related to the nature of the claim, which, in turn, results in
the fact that the court grants summary judgment on the assumption that the
plaintiff’s claim is unimpeachable.
Consequently, the defendant must convince the court that this is not the case.
15. B issues summons against C for R300 000 for defamation. Answer the
following questions.
(i) Name the procedure that C must follow if B issues a simple summons
against C. (1)
Application to have it set down as an irregular proceeding.
(ii) Discuss briefly the time period within which C must institute the
procedure referred to in (i) above. (3)
The period within which the applicant must act commences as soon as a party
takes notice that a step has been taken or that a proceeding has occurred, and not
once the irregularity thereof has come to his notice, the applicant himself has not
taken a further step with knowledge of the irregularity
The applicant has within 10 days of becoming aware of the step by giving notice to
his opponent a chance to remove the complaint within 10 days and application
was delivered within 15 days.
(iii) Name the correct type of summons that B should have used to
institute the action and give the reason for your answer. (2)
B should have used a combined summons, as this is a claim for damages, which
is unquantified and needs to be quantified by the court.
(iv) Indicate what procedure B must follow if C fails to file her plea on the
merits within the dies induciae, and B wishes to obtain judgment against C.
(3)
B has to send C a NOB giving him 5 days in which to send his plea, thereafter if
he does not do so, apply for default judgement. He must send a NOB first as the
late document is a pleading.
219
(v) Name the pleading that C will deliver if she is of the opinion that the
court does not have jurisdiction to hear the matter. (1)
Special plea, plea in abatement, destroys the case – plea in bar
16. Name the ways in which evidence may be placed before the trial court
(4)
o Viva voce, that is, oral presentation of evidence;
o On commission (commission de bene esse)
o By way of interrogatories;
o By way of an affidavit
17. Briefly indicate the requirements which an offer to settle must meet in
terms of Rule 34(5) of the Uniform Rule of Court. (4)
The notice of an offer to settle must state:
o If the offer is unconditional or without prejudice as an offer to settle;

o If it is accompanied by an offer to pay all or only part of the costs of the
party to whom the offer is made, subject to such conditions as may be
stated therein;
o If the offer is made by way of settlement of both claim and costs or of the
claim only;
o If the defendant disclaim liability for the payment of costs or for part
thereof, in which case the reasons for such disclaimer shall be given.
18. Explain fully whether a subpoena is a pleading or a process. (5)
A ‘pleading’ is a written document containing averments by parties to an action in

which material facts on which they rely in support of their claim or defence are
consciously set out, and which is exchanged between such parties. A ‘process’ on
the other hand has been interpreted by the court in Dorfman as “something
which ‘proceeds’ from the court; some step in legal proceedings which can only be
taken with the aid of the court or of one of the officers.”. A subpoena is clearly
process and not a pleading. It is a step in legal proceedings which compels the
witness to present himself or herself at a civil trial.
Frank is a registered bus operator and the owner of a double-decker bus.

One Friday afternoon while transporting a full load of passengers in his bus,
Frank causes an accident with another bus. The driver of the other vehicle,
Kobus, is seriously injured while Frank’s passengers mostly suffer damages
due to the loss of or damage to their property (such as clothes, suitcases
and groceries).
(a) A panel beater furnishes Kobus with a written quotation for the repair of
his bus in the amount of R140 000. Kobus is satisfied that the quotation is
complete and indicates this by signing the quotation. If Frank refuses to pay
this amount to Kobus, indicate why a provisional sentence summons is not
the appropriate summons with which to institute an action against Frank.
(3)
220
The amount in now in dispute and is not liquidated, thus the combined
summons route is needed.
(b) Simply name the procedure that Kobus must follow if he sues Frank for
damages due to physical injuries and he requires financial assistance as a
result of the drawn out litigation process. (1)
Application for interim payments
(c) Kobus does not aver in his summons that the collision was due solely to
the negligence of Frank. Briefly explain what Frank should do in these
circumstances. (2)
Apply for an exception to Kobus’ summons as the POC thus did not contain a
cause of action.
(d) If Frank decides to defend the action and delivers a notice of intention
to defend, can Kobus apply for summary judgment? Explain. (2)
Summary judgement may only be applied for when a claim is for a debt /
liquidated demand and thus for simple summons proceedings. Kobus issued a
combined summons for damages and can thus not apply for SJ.
(e) Frank wishes to deliver a special plea. Explain what the implications are
for Frank if he does not also deliver a plea on the merits. (2)
A plea on the merits is compulsory once the NOTID has been served. If he does
not send this plea within the dies induciae, the plaintiff can serve a NOB on
defendant giving him 5 days in which to send it, if he does not in that time, DJ
will be granted against def.
(f) Kobus intends calling the panel beater as an expert witness to prove
the damages. Briefly indicate the purpose of the notice and the summary in
respect of this expert witness in terms of Rule 36(10) of the Uniform Rules
of Court. (3)
The purpose of the abovementioned provisions relating to expert evidence is to

prevent a party from being surprised at the trial, and to give a party the
opportunity of arriving in court prepared to rebut the expert evidence presented
by the opposite party.
If the expert witnesses themselves get together to exchange opinions, this could
shorten the duration of the trial.
(g) It transpires that one of Kobus’ key witnesses cannot attend the trial
to deliver oral evidence. Simply name the 3 ways in which such a witness
may be allowed to present evidence. (3)
If a witness cannot give evidence in person, and if the necessary circumstances

are present, he may be allowed to give evidence in the following ways:
o on commission
221
(Interrogatories differ from commissions in that, while in the latter case evidence
is given generally, in the former case specific evidence only is taken and for this
purpose specific questions are formulated which must be put to the witness by
the commissioner.)
(h) Kobus insists that his advocate asks the court at the end of the trial for a
cost order in his favour on the attorney and client scale. However, his
advocate is of the opinion that an order based on the party-and-party scale is
more appropriate. Briefly discuss 2 important aspects in which attorney-and-
client costs and party-and-party costs differ from each other. (4)
Attorney and client costs arise out of the contractual relationship between client
and attorney and are not at all related to possible litigation. Party and party costs,
however, are those costs which a party incurs on taking legal steps and which are
payable by an opposing party in terms of a court order. However, these costs are
only estimated costs and expenses, while attorney and client costs are
remuneration for all professional services and expenses flowing from the attorney's
mandate and are not statutorily fixed. Party and party costs are taxed by the
Taxing Master in accordance with a fixed prescribed scale, thus ensuring that only
such charges and costs actually incurred in the course of litigation are allowed.
Attorney and client costs are a form of punitive measure for improper behaviour.
20. Discuss the method of service of a summons where the defendant is

within the Republic, but his or her exact whereabouts are unknown. (5)
Substituted service is necessary, permission from the court is needed via ex parte
application, and service of the summons will be made on a relative, publication in
the Government Gazette, registered mail or a combination of the abovementioned.
21. In terms of an order of divorce, custody of three minor children has

been awarded to the wife, Ann Marie. For three years after the divorce, the
divorced couple live in JHB. Ann Marie now wishes to relocate to Cape Town
but does not inform her ex husband of the fact. The ex husband, Peter,
hears about the impending move two days before the time. The move to CT
infringes directly on Peter’s rights of access to the minor children in terms
of the order for divorce.
In regard to the above facts, answer the following questions. Give full
reasons for each answer.
(a) Name the type of proceedings that Peter must use to uphold his rights of
access to the minor children. (2)
Application proceedings, ordinary application Form 2(a), NOM and supporting

affidavit.
(b) Explain why must Peter use the proceedings identified in (a) above.
(2)
222
There is no dispute of fact, thus no need for action proceedings. Application
proceedings are applicable, the application proceeding is relevant with notice to
the other party (side), ordinary.
(c) Name and describe the document that Peter must use to commence
proceedings. (2)
Notice of motion - applicant shall appoint a physical address within 15 kilometres

of the office of the registrar of the court at which notice and service of all
documents in the proceedings will be accepted. It shall also state the applicant’s
postal, facsimile or electronic mail addresses, the day on or before which the
respondent must notify the applicant of his or her intention to oppose the
application, as well as the day on which the matter will be set down for hearing if
no such notice is given.
(d) Name and describe the document that Peter must attach to the
document indentified in (c) above. (2)
Supporting affidavit – it contains the facts upon which the application rests.
(e) If Ann Marie opposes Peter’s application, name and describe the
documents that must be exchanged between the parties. (4)
1. The supporting affidavit of the applicant, which is attached to the notice of

motion.
2. The answering affidavit by the respondent. In this affidavit, the respondent,
supported in so far as may be necessary by other affidavits, deals paragraph
by paragraph with the allegations and evidence contained in the supporting
affidavit.
3. The replying affidavit by the applicant, in which the applicant deals
paragraph by paragraph, in so far as may be necessary, with the allegations
and evidence contained in the respondent's answering affidavit.
(f) Explain what a court may do at the hearing if a dispute arises between
Ann Marie and Peter, which cannot be resolved without the hearing of viva
voce evidence. (2)
Where a genuine dispute of fact arises which cannot be settled without a hearing
of viva voce evidence, the court hearing the motion proceedings may
3. Order the parties to trial with appropriate directions as to the pleadings,
the definition of issues, etc.
22. X brings an application in terms of which he applies for the

sequestration of Y’s estate. In his supporting affidavit X avers, inter alia,
that Y is a liar and a cheat.
i. Indicate which type of application should be used to institute court
proceedings and give reasons for your answer. (2)
Ordinary application, notice to other side, no dispute of fact.
223
ii. Indicate how Y will receive notice of X’s application. (1)
Notice of the application is served on him after it has been issued, that is, a copy
of the application is handed to him.
iii. Explain what Y can do if he is dissatisfied with the personal nature of

the remarks made about him in the supporting affidavit.
(1)
Motion to strike out
iv. Explain fully the nature of the procedure referred to in (iii) above.
(3)
Such application is brought by means of notice of motion, upon proper notice to

the other side – ordinary application, NOM and SA.
23. While overseas on a world cruise, judgment by default is granted against

Xandie in the Pretoria High Court. Upon her return to South Africa, Xandie
learns that the plaintiff also applied for a writ of execution. Xandie
approaches you for advice and alleges that the summons was never served
on her, that for the past six months she was overseas and that the plaintiff
was aware of this fact, because before her departure she arranged with the
plaintiff to pay him the amount owing within seven days after her return.
i. Advise Xandie on what to do in these circumstances? (4)
Application to have the DJ set aside.Ito Rule 31(2)(b) a defendant may, within 20
days after he has knowledge of a default judgment, apply to court to set aside
such judgment.
The court has a discretion whether or not to set aside a judgment.
The defendant must also advance sound reasons for the failure concerned
ii. Indicate briefly how the courts interpret the expression “sound reasons”
in this context. (3)

iii. If the plaintiff may proceed to execute the judgment, indicate the order
in which Xandie’s property may be attached. (2)
First attach Xandie’s movable property, then if sheriff returns with a nulla bona
return, proceed upon immovable property.
24. Bonny and Cameron concluded a contract. Bonny commits breach of

contract. Cameron wishes to bring an action for breach of contract and a
claim for damages.
224
i. Identify the form of proceedings Cameron must use to approach the court
for relief. (1)
Action / summons proceedings
ii. Name the document that will be used to institute the action. (1)
Combined summons
iii. Name and discuss briefly the essential documents that Cameron and
Bonny would normally exchange in order to reveal the issues in dispute if
the action is opposed. (6)
The plaintiff issues the combined summons as the claim is for damages
(unquantified and thus unliquidated). The defendant sends the plaintiff his
NOITD if he wishes to oppose – this is not a means of raising a defence, but a
mere process document indicating hjis intention to defend the claim. The
defendant then, within the dies induciae, sends his plea on the merits to the
plaintiff, this is a pleading with raises the def’s defence, which is one of admit,
deny or confess and avoid. The mentioned doc’s are compulsory if the action is
opposed. If the def raises a new issue in his plea (or raises a defence of confess &
avoid) the pl can respond with a replication, and the def can reply with a
rejoinder.
iv. Name any 3 circumstances under which pleadings will be deemed closed in
this action. (3)
Rule 29 states pleadings are closed when:

othe issues are joined in the plea
othe day for the filing of the replication / subsequent pleading has passed and
that doc has not been filed.
othe parties agree in writing pleadings are closed,
othe court deems them closed.
25. M issues a combined summons against N for damages arising out of

breach of contract. N responds with a notice of intention to defend.
Thereafter, within the prescribed time-limit, N files a plea on the merits
along with a counterclaim. With these facts in mind, answer the following:
i) Name the pleading that must be filed by M if N in his plea on the merits
responds to one of the allegations contained in M’s particulars of claim by
means of confession and avoidance.
Replication
ii) Name the pleading that M must file in response to the

allegations contained in N’s counterclaim.
Plea on the counterclaim (in reconvention)
225
iii) Name the procedure that N may use if M’s pleading referred to in (ii)
above does not disclose a valid defence.
Exception
iv) Name the procedure that M may use if M believes that N is in possession
of a tape recording of the negotiations between M and N and which gave rise
to the conclusion of the contract.
Inspection (Rule 35(14)).
26. X issues summons against Y for payment of R450 000 for defamation.
Fully explain whether the correct procedure is used in the following
instances:
(a) X issues a simple summons against Y.
No, this is the incorrect procedure. The claim is based on DEFAMATION, which is
a delict, which is a claim for DAMAGES, and thus the correct procedure to be
used is to issue and serve a combined summons. A simple summons is used for a
claim based on a “debt or liquidated demand”, like a claim for “goods sold and
delivered”. The claim in the question is for an unliquidated claim and thus, a
combined summons is appropriate in this case. An unliquidated claim would
therefore refer to any claim in respect of which the quantum thereof must be
determined (e.g. a claim for damages), or where the status of the parties is
affected (e.g. an action for divorce).
(b) Y raises his defence by way of a special plea.
No, this is the incorrect procedure. A defence is raised by the defendant in the
PLEA ON THE MERITS. A plea on the merits is the only way in which the
defendant may raise a defence against the plaintiff’s claim.
A plea must therefore deal with the merits of the plaintiff’s case as set out in the
plaintiff’s particulars of claim or declaration.
The defendant must deal with each allegation in the particular of claim or
declaration. The special plea A special plea is a means of raising an objection on
the basis of certain facts which do not appear in the plaintiff’s declaration or
particulars of claim, and has the effect of destroying or postponing the action.
If a defendant intends filling a special plea, he must still deliver a plea on the
merits.
(c) X gives a notice of bar after Y fails to timeously deliver his notice of
This is the incorrect procedure. If Y fails to deliver his NOITD, the correct
procedure is for X to apply for default judgement using an interlocutory
application, notice and supporting affidavit. When judgment by default is
requested in respect of unliquidated claims, and the defendant is in default of
delivery of a notice of intention to defend or of a plea, judgment by default may be
granted only once evidence has been led in respect of the amount of the claim.
Notice of bar is only relevant if the document that is late is a pleading. The NOITD
is a process.
226
(d) X files a rejoinder to Y’s plea.
This is incorrect, as the correct procedure will be to file a replication. The

response to a plea on the merits is the replication. The answer to the replication
of the plaintiff is the rejoinder, by the defendant. A replication contains the
plaintiff’s reply to the defendant’s plea.
Rule 25(2) states that no replication or subsequent pleadings which would be a
mere joinder of issue or bare denial of allegations in the previous pleadings shall
be deemed necessary and issue shall be deemed to be joined and pleadings
closed. If the plaintiff raises new averments of fact in the replication, the
defendant is given an opportunity of reacting thereto by way of rejoinder.
(e) X applies for costs de bonis propriis due to the intentional non-
disclosure of documents by Y.
The correct costs order to use in this situation is “attorney & client costs. it
includes remuneration for all professional services rendered by the attorney as
well as all expenses incurred by the attorney (including council fees) in the
execution of his client’s instructions. A court will not lightly grant attorney and
client costs.
The most common ground on which a court will order a party to pay the other
party’s attorney and client costs is that where the former party has been guilty of
dishonestly or fraud in conducting the suit, or where his motives have been
vexatious, reckless or malicious.
The costs de bonis propriis is an order, relevant only where a person acts in a
representative capacity.
27. Explain the impact of the Electronic Communications and Transactions

Act 25 of 2002 on the uniform Rules of Court with regard to the electronic
service of documents. (5)
The electronic era has led to the amendment of the Uniform Rules of Court to
provide for service of documents through the electronic medium. Uniform Rule 4A
incorporates some of the provisions of the Electronic Communications and
Transactions Act 25 of 2002 (specifically Chapter III, Part 2). This Rule makes
provision for service of all documents and notices, not falling under Rule 4(1)(a)
but subsequent thereto, on a party to the litigation at the address or addresses
provided by such party under the rules of court for service of such documents
and notices. The documents and notices so excluded refer to processes directed
at the sheriff and which initiate application proceedings (thus, in fact, referring to
writs; ex parte and ‘‘ordinary’’ applications; and the simple and combined
summons).
Service may be effected by hand; registered post; facsimile or electronic mail and
need not be effected through the sheriff. However, the originals of those
documents and notices may not be filed with the Registrar by way of facsimile or
electronic mail.
28. Write concise notes on “edictal citation”. (5)
Rule 5 prescribes how service must be effected on a defendant who is, or is

believed to be, outside the Republic. This is so even when his or her exact
227
whereabouts are known and even when personal service is possible. Such a
person cannot be summonsed before our courts in any manner other than by
means of edictal citation.
The consent of the court must be obtained to serve
(1) any process or document which initiates proceedings, or (2) any process or
document which does not initiate proceedings
In the case of (1), Rule 5(2) provides that the leave of the court must be obtained
in respect of an application by way of notice of motion. Thus, an ex parte
application. For Mag Court, edictal citation is used if service has to be effected
outside the borders of the Republic, whether or not the defendant’s or
respondent’s address in the foreign country is known. Rule 10 substantially
replicates Uniform Rule 5, and provides that no document or process that
initiates proceedings may be served outside the Republic without leave of the
court. The same allegations (set out in rule 10(2)(a)) contained in an application
for substituted service are contained in an application to serve by means of
edictal citation.
29. B and C are in a motor-car collision. B suffers damages to his car in the
amount of R150 000, as well as damages due to bodily injury in the amount
of R300 000. B attributes the accident and his damages to C’s negligence,
and issues summons against C. answer the following questions:
(a) Fully explain why it would be inappropriate for B to use a simple

summons in this case.
A simple summons may only be used by a plaintiff with a claim for a debt or
liquidated demand, Courts have also indicated that a debt is liquidated where it is
admitted, or where the monetary value is capable of being ascertained speedily.
In order to be a ‘liquidated demand’, the demand must be described in such a way
that the amount thereof may be determined merely by mathematical calculation.
What ‘ascertained speedily’ embraces is a question of fact, and the court will thus
exercise their discretion in deciding whether or not a particular claim is capable
of being ascertained speedily. A combined summons would be appropriate in this
case, as the claim is for an unliquidated claim - an unliquidated claim would
(b) C fails to deliver his notice of intention to defend within the stated dies
induciae, Fully explain to C the consequences of such failure.
Rule 19(5): notice of intention to defend may be delivered after the expiration of
the period specified in the summons or 20 days after the summons, but before
default judgment has been granted provided that the plaintiff be entitled to costs
if the notice of intention to defend was delivered after the plaintiff has lodged his
application for default judgment.
Upon receipt of an illiquid summons, that is either a simple or combined
summons, the defendant must, within the period laid down in the summons,
indicate whether he wishes to defend the action.
228
This is done by filling a notice of intention to defend with the registrar, and by
delivering a copy thereof to the plaintiff.
The defendant who neglects to file and deliver the notice to defend timeously,
runs the risk of having a judgment by default given against him.
default judgment has been granted provided that the plaintiff be entitled to costs
if the notice of intention to defend was delivered after the plaintiff has lodged his
The defendant who neglects to file and deliver the notice to defend timeously,
runs the risk of having a judgment by default given against him.
In his notice of intention to defend the defendant must appoint an address.
(c) If B issues a combined summons against C, explain why this summons is

a pleading, and not a process.
Pleading: this is a written document containing averments by the parties to an

action in which the material facts on which they rely in support of their claim or
defence are concisely set out, and which is exchange between the parties.
Process: the phrase ‘process of the court’ was interpreted to mean “something
which ‘proceeds’ from the court; some step in legal proceedings which can only be
taken with the aid of the court or of one of its officers”. This concept includes
subpoena, notices.
The SUMMONS part of the Combined Summons is a process, and the POC
(attached to the summons) is the pleading part of the combined summons.
(d) If C delivers his notice of intention to defend timeously, explain why B

may not apply for summary judgement.
If C delivers his NOITD timeously, then C has to serve and file plea on the merits,
and may not apply for SJ. The summary judgment procedure is designed to
protect a 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. If the NOITD was not sent
timeously, then B could apply for default judgement. Both SJ and DJ are
applications, interlocutory.
(e) B wishes to ascertain what documents C intends using at the trial to

prove his defence. Explain what procedure B may use to do so, AND
when he may use this procedure.
Discovery. Discovery may not be requested until after the close of pleadings. The
purpose of discovery is, as the name indicates, to ascertain from other parties to
the action what documents and tape recordings are in existence which might be
relevant to the action. This enables a party to prepare fully and properly for trial
and prevents him or her from being taken by surprise. The party thus knows
229
what documents are in existence which may assist him or her to establish his or
her own case, or to break down the case of his or her adversary, or what
documents may assist an opponent, or weaken his or her own case. Discovery
therefore assists the parties and the court to discover the truth and thus to reach
a fair decision/judgment. It is therefore important to ensure that discovery is not
abused by parties so that its important role is not diminished. Discovery is
obtained by written notice addressed to any party to the action to make discovery
under oath within 20 days of such request. Discovery relates to all documents
and tape recordings relevant to any matter in dispute in the action (whether or
not such matter is one arising between the party requiring discovery and the
party required to make discovery) which are, or have at any time been, in the
possession or under the control of such other party. Discovery must be made
within 20 days, and is made by disclosing the necessary information in an
affidavit – known as a ‘‘discovery affidavit’’.
(f) C wishes to try and settle the matter, Advise C on the contents of an
offer to settle as required in terms of Rule 34(5) of the Uniform Rules of
Court.
Rule 34, a defendant may, at any time, unconditionally or without prejudice, offer
to settle a plaintiff’s claim where

The offer to pay a monetary sum must be in writing and must be signed by the
For the purposes of this Rule, a defendant includes any person joined as a
defendant or as a third party, as well as a defendant in reconvention or a
respondent in application proceedings.
In terms of the Rule, the following expressions have the following meanings:
The plaintiff may, within 15 days of receiving the notice of the offer, accept the
offer by delivering a notice of acceptance at the address of the defendant
indicated for the purposes hereof. If the plaintiff fails to accept the offer within the
period, it may thereafter be accepted only with the written consent of the
defendant, or with the courts consent. The defendant must, within 10 days of
delivering the acceptance, effect payment as offered. If he fails, the plaintiff may,
after giving 5 day’s written notice to this effect, apply through the registrar to a
judge for judgment in terms of the offer, plus costs. To receive payments, the
plaintiff would then have to take steps to obtain execution against the defendant.
An offer may not be disclosed in court before judgment has been given, and no
reference to such offer may appear on any file in the office of the registrar
containing the papers of the case.
However, the offer is brought to the attention of the judge concerned before any
order as to costs are made, since the fact that an offer was made is relevant to the
apportionment of costs.
Unless the defendant offers to perform the act personally, he must draw up
irrevocable power of attorney for the performance of the act, which authorizes
another person to perform such an act on his behalf.
Such power of attorney must be delivered to the registrar together with the offer.
230
Should the offer be accepted, the power of attorney is returned by the registrar,
after he has satisfied himself that the requirements of Rule 34(6) regarding the
acceptance of an offer have been complied with.
(g) The litigation process proceeds smoothly and expeditiously, and B

succeeds in proving his claim during the trial. The Court gives judgement
in his favour, and awards party and party costs, and not attorney and
client costs as requested by B. Briefly explain to B why the Court did not
err in awarding party and party costs.
The following principles of awarding party and party costs are summarised as
follows:
As a general rule, the successful party is entitled to his costs.
In determining who the successful party is, the court must look to the substance
of the judgment and not merely its form.
The court may in its discretion, deprive the successful party of part, or all, of his
costs.
In the exercise of this discretion, the judge will take into account the following
circumstances in connection with the successful party’s conduct:
- whether the demands made are excessive
- how the litigation was conducted
- the taking of unnecessary steps or adoption of an incorrect procedure
- misconduct
None of these occurred in the facts and thus this type of costs were not relevant.
30. S issues summons against T for goods sold and delivered in the amount
of R450000, which T refuses to pay despite demand. With these facts in
mind, answer the following questions, giving full reasons for your answers
where necessary:
(a) T, the defendant, acknowledges that part of the claim is due and owing,
and wishes to settle that part of the claim immediately. Explain what T may
do in these circumstances, AND also explain the procedure to be followed.
Rule 34, a defendant may, at any time, unconditionally or without prejudice, offer
to settle a plaintiff’s claim where

offer by delivering a notice of acceptance at the address of the defendant
indicated for the purposes hereof. If the plaintiff fails to accept the offer within the
period, it may thereafter be accepted only with the written consent of the
defendant, or with the courts consent. The defendant must, within 10 days of
231
delivering the acceptance, effect payment as offered. If he fails, the plaintiff may,
after giving 5 day’s written notice to this effect, apply through the registrar to a
judge for judgment in terms of the offer, plus costs. To receive payments, the
plaintiff would then have to take steps to obtain execution against the defendant.
An offer may not be disclosed in court before judgment has been given, and no
reference to such offer may appear on any file in the office of the registrar
containing the papers of the case.
(b) T fails to respond to the summons within the dies induciae. Should S
deliver a notice of bar to T before S may apply for default judgement?
Explain.
No, S does not have to send T a NOB first. A party who fails to deliver a pleading
or process document in time is in ‘default’.
Depending on the pleading or process, the other party can request a judgment
immediately or another step may first have to be taken before judgment may be
requested.
This step is known as the giving of a notice of bar. Bar applies only in respect of
pleadings. The NOITD is NOT a pleading, it is merely a process, and thus, DJ can
be immediately applied for without serving a NOB on T.
(c) Briefly state what a defendant is required to present to court for

consideration in an application for the setting aside of a default judgement.
Rule 31(2)(b) a defendant may, within 20 days after he has knowledge of a default
judgment, apply to court to set aside such judgment.
The defendant must also advance sound reasons for the failure concerned.
“Application” does not refer to a notice of motion – thus interlocutory.
31. T wishes to apply for admission as a sworn translator. Answer the

following the questions:
(a) What factors must be considered to determine the correct type of
application that must be used?
(1) Does legislation, or the Uniform Rules of Court, prescribe whether the
application procedure must be used? Examples include applications for
232
liquidation of companies (s 81 of the Companies Act of 2008) and for
sequestration of estates, as well as the revision thereof (Rule 53 of the Uniform
Rules of Court), applications in respect of marital matters (Rule 43 of the Uniform
Rules of Court), and applications for the appointment of curators ad litem (Rule
57 of the Uniform Rules of Court).
(2) Is it compulsory to use summons proceedings? Examples of instances where it

is compulsory include divorce proceedings and unliquidated claims for damages,
compensation or enrichment.
(3) Does the matter fall neither within the ambit of (1) nor (2) above? For purposes
of this discussion, this third category, namely cases where application
proceedings are neither prescribed nor forbidden, is the most important. In these
cases, it is accepted practice that there is a choice between application and
summons proceedings, and the following principle is applied:
An application by means of notice of motion may be made if (1) there is no real

dispute over any fundamental question of fact or (2) if there is such a dispute, it
can nevertheless be satisfactorily decided without the necessity of oral evidence.
However, it should be borne in mind that, if a party uses application proceedings

and ignores the possibility that a factual dispute may arise, such party runs the
risk that the application may be dismissed with costs, and may be mulcted in the
form of costs even if the matter is referred to trial or to evidence: Tamarillo (Pty)
Ltd v BN Aitken (Pty) Ltd 1982 1 SA 398 (A) 430.
(b) Explain what type of application is appropriate for T to lodge under these
circumstances.
Ex parte application - This can be heard by a court without notice being given to
anyone, thus this form of application is an exception to the general rule of audi
alterum partem. No notice is given to the other side. The applicant files a NOM
and an attached affidavit.
(c) Name the documents that comprise the type of application identified in
(b) above.
NOM + supporting affidavit
(d) Explain what order the court may give if the court is of the opinion that
the rights of certain interested parties may be affected by the order given in
the application referred to in (b) above.
Rule nisi A rule nisi is an application which calls on the respondent to hear
his/her side of the story, and why the rule should not be confirmed and an
interdict granted.
(e) State the legal principle which is complied with by the court in making
the order referred to in (d) above.
Audi alterum partem
233
32. Name four methods by which normal service can be affected.
- service must, if possible, be personal

- If personal service cannot be affected, the summons may be serviced at the
defendant’s place of residence or business by leaving a copy thereof with
the person in charged of the premises. This person must be older than 16
- service may be effected at the defendant’s place of employment
- service on a company may be effected by the service on a responsible
employee at the company’s registered office or at its principal place of
business within the courts jurisdiction, or , if the foregoing is not possible,
by affixing a copy to the main door of such office or place of business
- service on a partnership, firm or voluntary association is effected in terms
of Rule 4(1)
- As regards matrimonial actions, the Rules make no specific mention of
service in such actions. Personal service is preferred.
33. Describe the information that must be contained in a discovery

affidavit.
▪ those documents relating to the matter in dispute in the action which are
in his possession or under his control
▪ those documents, although relating to the matters in dispute in the action
and being in the party’s control or possession, the party objects to
producing, and the reasons for such objection must be stated
▪ those documents which he had in his possession or which were under his
control, but which he does not now have in his possession or which are
now not under his control. Such party must also state when such
documents were last in his possession or under his control, and where
such documents now are.
34. Z wishes to divorce her husband. Merely state the correct answer to
each of the questions that follow.
(a) State the pleading that X, the husband, must file if he wishes to claim
financial support from Z.
POC
(b) What pleading may X use if he has already issued summons in another
court, instituting divorce proceedings against Z?
Special plea (along with his plea on the merits)
(c) What procedure may X use if Z fails to allege in the particulars of claim
that the marriage has irretrievably broken down?
Raise an exception, using an interlocutory application, because the POC doesn’t

contain a proper cause of action.
(d) What procedural step may Z take after close of pleadings, if she is of the
opinion that the pleadings contain insufficient information to enable her to
prepare for trial?
234
Request for further particulars.
35. Mr X approaches the court to stop his neighbour from demolishing a

boundary wall, which forms part of his garage wall that was built at great
cost, and with municipal approval.
(a) Name the remedy available to Mr X to stop the imminent destruction of
the wall.
Application for an interdict
(b) Name the type of proceedings that will be used to obtain the remedy
referred to in (a) above
Ordinary application procedure, serving and filing a NOM & supporting affidavit,
notice to the other side.
(c) Mr X succeeds with this action, and the court grants relief in a
temporary form. Indicate for how long this temporary remedy, after being
granted, will remain in force.
(a) Until action has been instituted to establish the rights of the parties, where a
dispute of facts exist, or
(b) Until the application which was launched to obtain the temporary interdict is
finally determined, or
(c) Until the order is confirmed on the return date stated in the temporary order.
36. Fully discuss why it is advisable to draw up a power of attorney,

despite not being required by the Uniform Rules of Court.
A carefully drawn up power of attorney is essential for the protection of both the
attorney and the client, and to determine the extent of the attorney’s brief
Therefore, there should always be a power of attorney kept on the client’s file.
The power of attorney generally contains details of the action to be instituted and
of the relief to be claimed.
litigation, or in an appeal which he never contemplated.
are concerned.
Should the attorney conduct litigation without the authority of the client, he will
not be entitled to recover the costs incurred from his client, since there is no
contractual relationship will exist.
37. X issues summons against Y for payment of R450000 for

defamation. Fully explain whether the correct procedure is used in
the following instances.
(a) X issues a simple summons against Y.
235
A simple summons may only be used by a plaintiff with a claim for a debt or
liquidated demand, Courts have also indicated that a debt is liquidated where it is
admitted, or where the monetary value is capable of being ascertained speedily.
In order to be a ‘liquidated demand’, the demand must be described in such a way
What ‘ascertained speedily’ embraces is a question of fact, and the court will thus
exercise their discretion in deciding whether or not a particular claim is capable
of being ascertained speedily. A combined summons would be appropriate in this
case, as the claim is for an unliquidated claim - an unliquidated claim would
(b) Y raises his defence by way of a special plea.
A plea on the merits is the only way in which the defendant may raise a defence
against the plaintiff’s claim.
plaintiff’s particulars of claim or declaration. A special plea is a means of raising
an objection on the basis of certain facts which do not appear in the plaintiff’s
declaration or particulars of claim, and has the effect of destroying or postponing
the action.
If Y wants to raise a defence against X’s claim, he has to send a POC.
(c) X gives a notice of bar after Y fails to timeously deliver as notice of

A party who fails to deliver a pleading or process document in time is in ‘default’.

requested.
This step is known as the giving of a notice of bar. Bar applies only in respect of
pleadings. Y is not LATE with his NOTID plus the NOTID isn’t a pleading, it is a
process, and thus NOB is NOT the correct procedure. The correct step for X is to
wait for Y to serve and file his plea on the merits.
(d) X files a rejoinder to Y’s plea.
A replication contains the plaintiff’s reply to the defendant’s plea.

be deemed necessary and issue shall be deemed to be joined and pleadings
closed. If X wanted to reply to Y’s Plea, he would have to serve and file a
REPLICATION. If then, the defendant, Y, wanted to respond to X’s replication, he
would serve and file a REJOINDER.
(e) Y files an opposing affidavit in defence of X’s summons.
Y would have to serve and file a NOTICE OF INTENTION TO DEFEND, as this is

action proceedings, summons proceedings, and the defendant, to enter into the
action, to let the plaintiff know he intends to oppose the action, is done by the
NOITD which is a process. The notice of intention to OPPOSE (the opposing
236
affidavit) is used in applications proceedings where the respondent intends to
notify the applicant that he is going to oppose the application.
38. Explain the impact of the Electronic Communications and

Transactions Act 25 of 2002 on the Uniform Rules of Court with
regard to the electronic service of documents.
Uniform Rule 4A facilitates service by hand, registered post, facsimile or

electronic mail. Thus Uniform Rule 4A incorporates some of the provisions of the
Electronic Communications and Transactions Act 25 of 2002, by facilitating
service by facsimile or electronic mail. Service in terms of the above rule need not
be effected through the sheriff. However, the originals of those documents and
notices may not be filed with the Registrar by way of facsimile or electronic mail.
The electronic era has led to the amendment of the Uniform Rules of Court to
provide for service of documents through the electronic medium. Uniform Rule 4A
incorporates some of the provisions of the Electronic Communications and
Transactions Act 25 of 2002 (specifically Chapter III, Part 2). This Rule makes
provision for service of all documents and notices, not falling under Rule 4(1)(a)
but subsequent thereto, on a party to the litigation at the address or addresses
provided by such party under the rules of court for service of such documents
and notices. The documents and notices so excluded refer to processes directed
at the sheriff and which initiate application proceedings (thus, in fact, referring to
writs; ex parte and ‘‘ordinary’’ applications; and the simple and combined
summons). Service may be effected by hand; registered post; facsimile or
electronic mail and need not be effected through the sheriff. However, the
originals of those documents and notices may not be filed with the Registrar by
way of facsimile or electronic mail.
39. X has a claim against Z in the amount of R600 000 on the grounds of
breach of contract, which occurred in Cape Town. X is an incola of Cape
Town and Z is an incola of Pretoria.
(a) Explain why X can institute proceedings against Z in the Cape Town High
Court.
X may institute proceedings against Z in CT, because the cause of action, the
breach of contract took place in CT. this is a claim sounding in money and thus
specific rules are used regarding such a claim. The plaintiff can either use the
domicile of the defendant (ratione domicilii) or the cause of action (ratione rei
gestae) based on contract or delict. The plaintiff here, as the breach took place in
CT could issue summons out of CT based on ratione rei gestae, ratione
contractus.
(b) If Z is on holiday in Durban for three weeks, may X issue summons out of
Cape Town High Court, and have the summons served on Z while in Duran?
throughout the Republic and may be served or executed within the jurisdiction of
any Division.
237
Republic.
Thus, Z may be served anywhere in SA as long as the summons is issued out of
the court where the defendant is DOMICILED OR RESIDENT – it may not be
issued out of Durban because Z is temporarily resident there - this isn’t enough
for ISSUE.
(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and
the cause of action arose in Durban?
NO, my answer would not differ – even though the cause of action occurred in
Durban now, there is still a nexus to the CT court – namely X’s (the plaintiff’s)
domicile. X lives in CT. X may then issue summons out of CT IF he has the
property of the foreign peregrinus (Y) attached to FOUND JURISDICTION (ad
fundandum jurisdictionem) - our courts help local litigants, and now it is possible
to institute action against a foreign peregrinus in the court where the plaintiff is
an incola.
The only requirement is that the defendant’s property must have been attached.
This basis for the exercise of jurisdiction by a court is known as attachment ad
fundandam jurisdictionem. Attachment ad fundandam jurisdictionem is thus
permissible where the defendant is a peregrinus of the whole Republic (foreign
peregrinus); attachment of the defendant’s property has taken place within the
court’s area of jurisdiction & the plaintiff is an incola of the court concerned
(d) Would your answer to (a) differ if the claim related to the registration of
fixed property, and the property was situated in Johannesburg?
YES my answer would change – if the claim is now based on a claim sounding I
property, the rule ratione rei sitae would apply. The court in whose territorial area
the immovable thing is situated has exclusive jurisdiction in actions:
- To determine the title of immovable property
- For the transfer of immovable property
- For the partition of immovable property
- Where a real right is in dispute
- Where possession of immovable property is claimed
- Where rescission of a contract for the transfer of immovable property is
claimed.
It does not matter whether the defendant is an incola or a peregrinus
Thus only JHB wouold have jurisdiction to issue summons.
238
MAGISTRATES PROCEDURE:
1. Discuss the requirements for the supporting affidavit which must be filed
by the plaintiff together with the notice for summary judgment. (5)
There are three requirements which must be complied with in terms of Rule 14(2)
of the Magistrates’ Court Rules:
(1) firstly the affidavit must be signed by the plaintiff personally and he or she
must state that he or she has personal knowledge of the facts; or in the case of a
legal person, it must be signed by someone who alleges that he or she is duly
authorised to make the affidavit; in addition, he or she must state his or her
capacity in respect the plaintiff and that he or she has personal knowledge of the
facts.
(2) Secondly the plaintiff must verify or confirm the amount or cause of action.
(3) Lastly, the deponent must state that in his or her belief there is no bona fide
defence to the claim and that appearance has been entered solely for the purposes
of delaying the action.
2. Set out five (5) matters that can be discussed at a pre-trial conference. (5)
The court may at any stage in any legal proceedings in its discretion or upon the
request in writing of either party direct the parties or their representatives to
appear before it in chambers for a pre-trial conference. The following
issues/matters are addressed at a pre-trial conference:
1. the simplification of issues;

2. the necessity or desirability of amendments to the pleadings;
3. the possibility of obtaining admissions of fact and documents with a view to
avoiding unnecessary proof;
4. the limitation of the number of expect witnesses;
5. Such other matters as may aid the disposal of the action in the most
expeditious and least costly manner.
3. C and D are involved in a motor vehicle collision in JHB. C estimates his

damages at R80 000. D wishes to defend the action.
(a) D notices that the summons contains insufficient information. What

steps can D take to rectify the error in the summons? (1)
Rule 55A
(b) Name 5 particulars that C’s summons must contain in terms of Rules 5
and 6 of the Magistrate’s Court rules. (5)
o the dies induciae

o a warning of the consequences which will result if the defendant fails to
comply with the request in the summons
o a notice of consent to judgment
o a notice of intention to defend
o a notice drawing the defendant’s attention to the provisions of S109 of the
act
239
o a notice in which the defendant’s attention is drawn to S57, 58, 65A and
65D
o the address at which the plaintiff will receive pleadings
o a description of the parties
o averment in respect of jurisdiction
o particulars of claim
(c) D avers that C was also negligent and is of the opinion that C is liable
for payment of his (D’s) damages. Name the document that D must also use
to institute this claim. (1)
Counterclaim
(d) C is of the opinion that D’s plea on the merits is excipiable and raises
an exception. Explain when a court will uphold an exception, (3)
4. List any five examples of special pleas. (5)
- the court has no jurisdiction

- the plaintiff’s claim has become prescribed
- the defendant or the plaintiff has no locus standi
- lis pendens
- res judicata
- arbitration
- splitting of claims
5. Name five documents that must be forwarded to a court in order to obtain

a judgment by default. (5)

(c) In the case of unliquidated claims (eg damages as a result of motor-vehicle
collision) affidavits which prove the nature and extent of the damages must be
attached.
(d) In the case of a claim based on a liquid document, the original document duly
stamped or an affidavit setting out reasons to the court's satisfaction why such
original cannot be filed.
(e) In the case of an action based on a credit agreement which is subject to the
Credit Agreements Act, the agreement and certain affidavits must be lodged.
(f) In the case of an action based on a written agreement, the agreement duly
stamped must be lodged.
6. S is a rich spinster, who goes on an extended holiday overseas. When she

returns she discovers that summons has been served on her. She consults
with her attorney who informs her that the dies induciae has expired.
Nevertheless, S instructs her attorney to file a notice of intention to defend.
Determine whether the notice of intention to defend is valid. (5)
240
Even if the defendant does not timeously give notice of intention to defend, his or
her notice will nevertheless be valid, provided that it is submitted before a request
for default judgment. If the notice of intention to defend and the request for
default judgment are delivered on the same date, the notice remains valid,
provided that judgment has not been granted.
Therefore, the defendant is allowed to submit a late notice of intention to defend,
provided that default judgment has not been granted, and such notice will be
considered valid in spite of its
late delivery. In the High Court, the plaintiff may, in terms of Uniform Rule 30,
apply for rescission of a late notice of intention to defend.
7. As clerk of the court, state

i. the formalities with which you must comply in order to issue the
summons (4)
The clerk of the civil court issues the summons by furnishing the summons with a
serial number, and by signing and dating it.
The clerk may refuse to issue a summons in which an excessive amount is
claimed for attorney’s cost and court fees, or if the addresses of service does not
comply with the provisions of the act.
In a decided case, a summons was issued by the clerk in spite of the fact that
such summons had not been signed by the plaintiff or his attorney.
The court decided that, although the summons was invalid, the defendant would
be running the risk of default judgment against him if he did not take steps to
defend the action. Thus the court awarded costs in favour of the defendant
ii. What you must do if the plaintiff amends the summons before it is served
(1)
Amendments to the summons may be effected at any time before service, provided
that they are initialled by the Clerk of the court. If the amendments are not
initialled, they have no effect (rule 7(2)). Amendments to the summons after
service may be brought about only by following the procedure set out in rule 55(A)
(rule 7(3)(b)). However, amendments concerning the defendant's first name or
initials can be brought about at the plaintiff's request without the court's
intervention (rule 7(3)(a)).
8. Describe the amendment of pleadings in the Magistrate’s Courts. (4)
Rule 55A & s111(1): In Rosner, the court held that the general rule was that an
amendment of notice of motion, a summons or pleading in action, would always
be allowed unless the application to amend was mala fide or the amendment
would cause injustice or prejudice to the other side.
The aim of the amendment is to obtain a proper solution to the dispute between
the parties and to identify the real issues in the matter.
However, the party seeking to amend its pleadings should not consider itself to
have the right to that effect.
Instead, it is seeking an indulgence, and has to offer an explanation as to the
reasons for the amendment.
241
S111 (1) provides that the court may, at any time before judgment, amend a
pleading.
The considerations for the amendment of pleadings, which are applicable in the
high court, also apply in the magistrates’ courts. S111(1) In any civil proceedings
the court may anytime before judgement, amend any summons (or other doc
forming part of the record) provided that the amendment doesn’t prejudice any
other party affected.
Rule 55A provides an easy way of effecting amendments to pleadings.

If the other party objects to the proposed amendment, the party who wishes to
amend must, within 10 days, lodge an application for leave to amend. If no
objection is delivered within the 10 days above, every party who received notice
shall be deemed to have consented, and the amendment as applied for, may be
effected.
9. Name six particulars that must be included in a summons in terms of rules

5 and 6 of the Magistrate’s Court rules. (3)
1. the dies induciae

2. a warning of the consequences which will result if the defendant fails to
comply with the request in the summons
3. a notice of consent to judgment
4. a notice of intention to defend
5. a notice drawing the defendant’s attention to the provisions of S109 of the
act
6. a notice in which the defendant’s attention is drawn to S57, 58, 65A and
65D
7. the address at which the plaintiff will receive pleadings
8. a description of the parties
9. averment in respect of jurisdiction
10. particulars of claim
11. the prayers (THIS IS ALL RULE 5 AND 6)
10. Discuss discovery of documents in terms of rule 23 of the Magistrate’s

Courts Rules. (4)
This is a process whereby each party can compel the other to reveal the
documentary evidence which it hopes to adduce at trial, and also to reveal other
documents in its possession which tends to prove or disprove its case. In order
that the parties may prepare for the trial and not to be taken by surprise, it is
deemed expedient that each party should know what books and documents the
other has in his possession, or under his control.
He is entitled to be informed only of those books in the custody or under the
control of his adversary which the latter intends using in the action, or which
tends to prove or disprove either case. Rule 23 sets out the application for such
information and the way in which such information is to be furnished.
Documents in respect of which privilege is claimed must be listed separately in the
schedule, and the grounds for each particular claim of privilege must be specified.
Legal professional privilege applies to communication between attorney and client
in the following circumstances:
242
• where the communication pertains to the professional, or intended
professional, relationship,
• made for the dominant purpose of seeking or giving legal advice,
• whether written or oral, or even
• Where the client confesses to the attorney the commission of a prior crime
or fraud.
Rule 23(2) refers to the consequences of a failure to disclose.
However, 1 party can compel the other to disclose by means of rule 60(2).
If the party called upon to make discovery fails to comply with this request to do
so, the party calling for discovery may make an application in terms of rule 60(2)
before the trial to compel compliance with the request.
If an order is made compelling discovery within a certain period and the other
party persists in his default, a further application can be made for judgment
against the defaulting party. Rule 23(4) provides that the parties may be compelled
to produce the books or documents disclosed in their schedules, and any other
books or documents specified in a notice to that effect, at the trial.
Rule 23(3) provides that each party is allowed to inspect and make copies of the
documents so disclosed, and of the documents specified in rule 23(4).
11. Name the judgments that the court may make at the conclusion of a trial
in terms of section 48 of the Magistrate’s court Act of 1944. (5)
S48 sets out the judgments which a magistrate’s court may make in the action –
plaintiff wins, defendant wins or absolution: The effect of an absolution from the
instance is to leave the parties in the same position as if the case had never been
brought.
The plaintiff may take out a summons and sue on the identical cause of action.
Absolution from the instance may be given at the close of the plaintiff’s case or at
the close of the defendant’s case.
Absolution from the instance at the close of the plaintiff’s case:
Absolution will be granted if there is insufficient evidence upon which the court
may reasonably find for the plaintiff.
It should be refused where there is evidence on which a reasonable person may
find for the plaintiff.
The principles regarding absolution from the instance were laid down in Riviera.
It was held that the plaintiff has to make out a prima face case regarding all the
elements of the claim in order to survive absolution. Absolution at the end of the
plaintiff’s case should be granted sparingly, but when the occasion arises a court
should order it in the interests of justice.
Absolution from the instance at the close of the defendant’s case:
This arises in 2 situations, namely when the burden of proof rests on the plaintiff,
and when the burden of proof rests on the defendant.
Onus on plaintiff
Where the court is unable to find that the plaintiff has proved his case on a
balance of probabilities at the close of the defendant’s case, and the court cannot
also find that the defendant has established his defence on a balance of
probabilities, it must grant absolution from the instance. Therefore, if the court
cannot decide on which side the truth lies, after hearing the evidence of both
parties, the proper judgment is absolution.
But if the court finds against the plaintiff, judgment for the defendant, rather than
absolution, must be granted.
243
If the final decision of a case depends entirely upon the credibility of witnesses,
and the court cannot find that either set of witnesses is untruthful, it should also
grant absolution.
Onus on defendant:
Where the onus is on the defendant, the court can never grant absolution from the
instance at the end of the entire case.
Where the defendant fails to discharge this onus on a balance of probabilities, the
court must grant judgment for the plaintiff. Where the defendant does discharge
this onus on a balance of probabilities, the court must give judgment in his
favour. Thus there is no room for a judgment of absolution in this situation.
12. Name any eight (8) particulars that must be contained in a summons in
terms the NCA
o citation of the parties
o that the NCA applies to the agreement
o type and category of the credit agreement
o date when the agreement is concluded
o details regarding the principal debt
o alleged compliance with the Act other material terms of the agreement
o locus standi : that the plaintiff (or credit provider) is duly registered with the
National Credit Regulator in accordance with section 40 (or exempt from
registration), and has paid the renewal fees or applied for registration which
has not been refused
o that the consumer is in default under the relevant agreement for a period of 20
business days or longer
o that written notice in terms of section 129(1)(a) has been properly served on
the consumer
o that 10 or more business days have elapsed since the delivery of the notice
o that the consumer either did not respond to the section 129(1)(a) notice or
rejected it
o that the consumer did not refer the credit agreement to a debt counsellor,
alternative dispute resolution agent, consumer court or an ombudsman with
jurisdiction
o that there is no pending matter before the Consumer Tribunal that relates to
the credit agreement
13. Explain under what circumstances pleadings are closed in terms of rule
21A of the magistrates courts rules. (4)
Rule 21A sets out when pleadings may be closed, namely:

Pleadings shall be considered closed if
• either party has joined issue without alleging any new matter, and without
• the last day allowed for filing a replication or subsequent pleading has
elapsed and it has not been filed;
• the parties agree in writing that the pleadings are closed and such agreement
is filed with the registrar or clerk of the court; or
• the parties are unable to agree as to the close of pleadings, and the court
upon the application of a party declares them closed.
244
14. Z wishes to issue summons in the magistrates court for the district of
Pretoria. Answer the following:
(a) If the defendant gives notice of intention to defend outside the dies
induciae, may Z ignore this notice and apply for default judgement?
No, he may not. Where a defendant enters an appearance out of time, but before
default judgment is granted, the plaintiff cannot merely ignore this and proceed
to request judgment by default.
The correct procedure is for the plaintiff to approach the court first to have the
appearance set aside as an irregular proceeding, before any action is considered.
(b) if the defendant fails to serve his plea on the merits within the dies
induciae advise Z on the procedure to be followed should he wish to
obtain judgement against the defendant.
The correct procedure for the plaintiff to follow is to file and serve a notice of bar.
This gives him 5 days in which to send the late pleading, the plea. Only where the
defendant still fails to deliver the plea, will he be in default.
Should the plaintiff there after fail to deliver the pleading, he will be in default
and will ipso facto be barred from doing so, and will thus be in default and the
plaintiff may proceed to application for default judgement, interlocutory
application.
(c) Z successfully litigates the case against the defendant. The attorney
and client costs between Z and her attorney amounts to R10 000.
According to the costs order given by the court, the defendant has to
pay Z’s costs on the party and party scale. The taxed party and party
cost amount to R6 400. Will the defendant be liable for R10 000,
R6400 or both? Explain fully. (3)
Party-and-party costs are calculated according to a fixed tariff. These party-and-

party costs are less than the attorney-and-client costs because only certain cost
items may be recovered on the party-and-party scale, and even those costs which
are recoverable can be recovered only at the given tariff. The defendant therefore
pays only part of Z’s costs, namely R6 400 (not the entire R10 000), to Z. Z then
remains liable for payment of the balance of the amount, namely R3 600
15. B issues a summons against C in the amount of R150 000 for goods sold
and delivered, which despite demand, refuses to pay. Answer the following:
(a) C delivers a NOITD. State the possible procedural steps that B may take
in reaction to this notice. (2)
B may react be serving and filing his declaration, setting out his claim. If he
believes that the defendant has sent the NOITD to waste time, he can apply for
summary judgment by making an interlocutory application.
(b) Z, a friend of C, undertook in writing to pay the said amount if C was

unable to do so. Name the pleading in which C must disclose this fact and
explain the manner in which C must disclose this in the said pleading. (2)
He would allege this in his plea on the merits. In the plea, the plaintiff’s factual
245
allegations are admitted, are denied, are placed in issue, or are confessed and
avoided, and all the material facts upon which the defendant relies are stated
clearly and concisely. It is also permissible, where the facts warrant it, for a
defendant to plead that he or she has no knowledge of a particular allegation and
is not in a position to admit or deny it (see Rule 22(2) and Rule 22(3)). Every
factual allegation in the declaration or particulars of claim that is not specifically
denied or is not admitted, is deemed to be admitted. Here, C will allege Z has
undertaken to pay the said amount, as a defence of “confess and avoid”.
(c) B, the plaintiff, is concerned that C will not be able to pay the judgement
and costs if judgement is granted against C. Advise B on the step that B may
take in terms of the rules of court to address this concern.
Uniform Rule 47. The rule states that a party that chooses to request security for
costs from another shall, as soon as practicable after the commencement of
proceedings, deliver a notice setting forth the grounds upon which such security
is claimed, and the amount demanded (rule 62(1).
16. Briefly explain the procedure that follows when a party contests the
amount of security requested by the opposing party in terms of rule 62(1) of
the Magistrates Court Rules. (2)
If a party from whom security is requested in terms of rule 62(1) contests his or
her liability to give security, or fails or refuses to furnish security in the amount
requested or the amount fixed by the Registrar or clerk within ten days of the
demand or the registrar’s or clerk’s decision, the other party may apply to court
on notice for an order that such security be given and that the proceedings be
stayed until the order is complied with (rule 62(3)).
17. Distinguish between an exception and a special plea. (5)

It alleges fact unconnected with the merits of the action as a result of which the
action is either destroyed or postponed (defendant only)
whereas an exception can be brought against any pleading (any party may use)
18. B issues a summons against C in the amount of R150 000 for goods sold
and delivered, which C, despite demand, refuses to pay.
(a) C delivers a notice of intention to defend. State the possible procedural
steps that B may take in reaction to this notice.
B may serve and file a declaration, which sets out his claim and his cause of
action, the declaration is a document containing a concise statement of the facts
on which the plaintiff’s claim is based. A simple summons would have been
served by B because B’s claim is for a debt / liquidated demand. This route would
be to go further down the line of pleadings. Another route would be to apply for
summary judgement. Summary judgment procedure is aimed at protecting the
plaintiff, who has a claim if a particular nature, against a defendant who has no
246
valid defence to his 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 seeks and deserves.
Summary judgment should not be lightly granted, and the courts will deprive a
defendant of his defence in this matter only in clear cases.
(b) Z, a friend of C, undertook in writing to pay the said amount if C was

unable to do so. Name the pleading in which C must disclose this fact,
and explain the manner in which C must disclose this in the said
pleading.
C can allege this in his plea on the merits, which is a pleading in answer to the
plaintiff’s declaration. It sets out the defendant’s defence. A plea must therefore
deal with the merits of the plaintiff’s case as set out in the plaintiff’s particulars of
claim or declaration. The defendant must deal with each allegation in the
particular of claim or declaration. A plea especially deals with all the factual
allegations. Just as the particulars of claim or declaration must fully disclose the
plaintiff’s claim, so must the defendant’s plea disclose his defence fully. The
defence must consequently
1. admit or
2. deny; or
3. confess and avoid all the material facts alleged in the summons, and,
4. clearly and concisely state the nature thereof and
5. Provide all the material facts on which his defence rests.
Raising the defence of a surety would be “confess & avoid” and would probably
result in the plaintiff sending a replication.
(c) B, the plaintiff, is concerned that C will not be able to pay the
judgement and costs if judgement is granted against C. Advise B on the
step that B may take in terms of the rules of court to address this
concern.
A party that chooses to request security for costs from another shall, as soon as
practicable after the commencement of proceedings, deliver a notice setting forth
the grounds upon which such security is claimed, and the amount demanded.
If the amount of security requested in terms of rule 62(1) is contested, the
registrar or clerk of the court shall determine the amount to be given, and his or
her decision shall be final. If a party from whom security is requested in terms of
rule 62(1) contests his or her liability to give security, or fails or refuses to furnish
security in the amount requested or the amount fixed by the Registrar or clerk
within ten days of the demand or the registrar’s or clerk’s decision, the other
party may apply to court on notice for an order that such security be given and
that the proceedings be stayed until the order is complied with.
If the requested security is not given within a reasonable time, the court has the
power to dismiss any proceedings instituted or strike out any pleadings filed by
the defaulting party, or make such other order as it deems fit.
Any security for costs shall, unless the court otherwise directs, or the parties
otherwise agree, be given in the form, amount and manner directed by the
registrar or clerk of the court.
The registrar or clerk of the court may, upon written request of the party in
whose favour security is to be provided and on notice to interested parties,
247
increase the amount thereof if he or she is satisfied that the amount originally
furnished is no longer sufficient; this decision shall be final.
19. R and his family go on holiday to London in the UK. On his return, he
discovers that summons has been served on him. He consults his attorney
who informs him that the dies induciae for noting appearance has expired,
nevertheless, R instructs his attorney to file a notice of intention to defend.
Briefly discuss whether the notice of intention to defend is valid.
If the defendant wishes to defend the action, he must file a notice of intention to
defend. The time limit for a defendant to enter an appearance to defend or dies
induciae after receipt of summons is now 10 days. Rule 13(3)(a) provides that the
defendant shall indicate his facsimile address and electronic mail address if
available (in addition to physical or postal address). Rule 13 authorises service by
facsimile or electronic mail under certain conditions.
If it appears to the registrar or clerk of the court that the defendant intends to
defend the action but that his or her notice of intention to defend is defective in
that the notice. The plaintiff is entitled to apply for default judgment if the
defendant fails to submit a proper notice of intention to defend.
Even if the defendant does not timeously give his notice to defend, his notice will
nevertheless be valid, provided that it is submitted before a request for default
judgment
If the notice and the request of default judgment are delivered on the same date,
the notice remains valid, provided that judgment has not been granted.
Therefore, the defendant is allowed to submit a late notice, provided that default
judgment has not been granted, and such a notice will be considered valid in
spite of its late delivery.
20. Briefly explain the procedure that follows when party contests the
amount of security requested by the opposing party in terms of rule 62(1) of
the Magistrates’ Courts Rules.

her decision shall be final. If a party from whom security is requested in terms of
rule 62(1) contests his or her liability to give security, or fails or refuses to furnish
security in the amount requested or the amount fixed by the Registrar or clerk
within ten days of the demand or the registrar’s or clerk’s decision, the other
party may apply to court on notice for an order that such security be given and
that the proceedings be stayed until the order is complied with.
21. Write a short note explaining:

(a) The order that may be requested by the defendant where the plaintiff has
been barred in terms of rule 15(5) of the Magistrates’ Courts Rules from
delivering a declaration, AS WELL AS the procedure to be followed to obtain
this order.
A defendant may apply for a default judgment against a plaintiff who has been
barred from delivering a declaration in terms of Rule 15(5) which deals with
declarations. The application for the DJ is interlocutory in nature and is thus an
ordinary application; notice to the other side, with a NOTICE and supporting
affidavit.
248
In the magistrates’ court default judgments, even for debts or liquidated
demands, must be considered by magistrates as opposed to registrars or clerks
when such claim is founded on any cause of action arising out of or based on an
agreement governed by the NCA. Rule 15(5) where a pl has been barred from
delivering a declaration the def may set down for hearing upon not less than 10
days notice to the defaulting pl, and apply for absolution from the instance or,
after adducing evidence, for judgement, and the court may make any order it
deems fit.
(b) the order that may be requested by the plaintiff where a defendant has
been barred from delivering a plea in terms of rule 12(1)(b) of the
Magistrates’ Courts Rules, AS WELL AS the procedure to be followed to
obtain the order.
Rule 12(1)(b) – if the defendant has delivered a NOITD but has failed to file plea
within the time prescribed, the plaintiff may deliver a notice in writing calling
upon the def to deliver a plea within 5 days of the receipt of such notice and on
failure of the def to deliver his plea within such period, he shall be in default with
such plea and ipso facto be barred. When the pl has complied with the aforesaid,
he may lodge with the registrar or clerk of the court a request in writing for
judgement in the same manner as when the def has failed to deliver a NOITD.the
procedure for DJ is again, interlocutory application.
22. Briefly distinguish between an exception and a special plea.

They differ in 2 respects: It alleges fact unconnected with the merits of the action
as a result of which the action is either destroyed or postponed. (defendant only)
23. Briefly explain the issues, which may be dealt with during section 54 of
the Magistrates’ Courts Act 32 of 1944 conference.
(a) Section 54(1) provides that a party to a suit may request the court to convene
a pre-trial conference.
(b) At such conference, the parties try to limit the point at issue by, making
admissions not already contained in the pleadings.
(c) The parties further tries to curtail the time taken up by the conduct of the
trial.
(d) They try to reach agreement on matter that may be mutually admitted and
the precise points in issue between them.
(e) This also helps curb the leading of unnecessary evidence.
24. Briefly discuss High Court Rule 18(8) and Magistrates’ Courts rule 6(8) in
respect of particulars of claim requirements for divorce.
a party suing or bringing a claim in reconvention for divorce shall, where time,
date and place or any other person (s) are relevant or involved, give details thereof
249
in the relevant pleading – thus for eg. If X is alleging the marriage has
irretrievably broken down due to a series of adulterous affairs details of the times,
places and parties involved would have to be given.
Rule 6(8) (and Rule 18(9) of High Court rules) states that a party claiming
division, transfer or forfeiture of assets in divorce proceedings in respect of a
marriage out of community of property, shall give details of the grounds on which
he claims that he is entitled to such division, transfer or forfeiture.
25. (a) Briefly explain why an appeal cannot be noted against an interim
order of a magistrate. (2)
In terms of section 83 of the Magistrates’ Courts Act, the right of appeal accrues
only to a party to a civil suit or proceedings. This section also provides that
appeals may be brought only against the following three types of decision:
(1) any judgment described in section 48
(2) any rule or order having the effect of a final judgment, including an order
relating to execution in terms of Chapter IX of the Act and on an order as
to costs
(3) in certain circumstances, any decision overruling an exception
In the case of an interim order, the granting of the order does not mean that a
party has lost the case. The party may therefore not appeal against a provisional
or interim order since they do not have the effect of a final order. In Pretoria
Garrison Institute v Danish Variety Products (Pty) Ltd 1948 1 SA 839 (A), it was
held that the test for determining whether a rule or order has final effect is
whether it disposes of any issue, or any portion of any issue, in the main action,
or irreparably anticipates or precludes some of the relief which would, or might
be given at the main hearing. If the effect of a rule or order is final, this means
that the matter has ended for one of the parties. Therefore he or she can appeal
against that order or rule. Examples of orders that are final and definitive are the
granting or refusal of a final interdict, the granting of a summary judgment, the
upholding of a special plea that the court lacks jurisdiction, and the upholding of
a defence of prescription.
(b) Explain the meaning of the term “review”, and give an example to
illustrate your understanding thereof. (2)
Review is concerned with the decision-making process as opposed to a decision

per se. In Johannesburg Consolidated Investment Company Ltd v Johannesburg
Town Council 1903 TS, it was held that the proceedings of inferior courts are
brought before superior courts in respect of grave irregularities. Review is aimed
at correcting irregularities which allegedly occurred in connection with the trial
(c) Explain why the Supreme Court of Appeal cannot be described as the
final court of appeal in respect of all non-constitutional matters. (1)
The Constitution Seventeenth Amendment Act, 2012 brought about the following
situation: the Constitutional Court’s jurisdiction is no longer limited to purely
250
constitutional matters, and the Supreme Court of Appeal (SCA) is no longer the
court of final instance in non-constitutional matters, but will be an “intermediate
appeal court” in such matters. The Supreme Court of Appeal can therefore not be
described as the final court of appeal in respect of all non-constitutional matters
because the Constitutional Court is the apex court in all matters. A litigant can
appeal an SCA order to the Constitutional Court whether on a constitutional or
non-constitutional order.
26. The following statements are all false. Briefly indicate the correct state
of affairs in each instance.
(a) If review proceedings are successful, the High Court must set aside the
decision that has been reviewed, and substitute it with its own. (1)
(b) A full bench that hears an appeal from a magistrate’s court consists of
three judges. (1)
(c) If a judgment of a High Court contains an obvious mistake, the whole

judgment will be set aside. (1)
(d) A request for leave to appeal against the judgment of a single judge must
always be noted at the time when judgment is passed. (1)
(e) A party who is dissatisfied with a judgment of the Supreme Court of

Appeal may always appeal to the Constitutional Court. (1)
(a) Correct Assertion/Statement: If review proceedings are successful, the High

Court will set aside the decision that has been reviewed, and remit the matter to
the particular body to decide it according to the correct procedure. The High
Court will not substitute its own discretion for that of the body or official whose
decision it has reviewed unless there are exceptional circumstances (Roospingh v
Rural Licensing Board for Lower Tugela and Others 1950 4 SA 248 (N)). You need
to be aware of the powers of the High Court when it reviews proceedings from
lower courts or quasi-judicial bodies.
(b) Correct Assertion/Statement:
According to section 14(3) of the Superior Courts Act, 2013, appeals from the
magistrate’s court, unless otherwise required or permitted by law, are normally
heard by two judges. However, if these judges are not in agreement, the Judge
President (or deputy) may direct that a third judge be added to hear the appeal.
Note: A magistrate’s decision can be taken on appeal to a division of a High
Court. However, an appeal from the magistrate’s court does not lie to the full
court of the particular division of the High Court, and a noting to the full court
(full bench) is null and void (see Enslin v Nhlapo 2008 5 SA 146 (SCA)).
A court of first instance (court that first heard the matter) is usually constituted
before a single judge, and a full bench/full court hearing an appeal against the
judgment of a single judge comprises three judges (section 1 of the Superior
Courts Act, 2013).
251
(c) Correct Assertion/Statement:
A High Court has the power to either vary or rescind a judgment in which there is
an ambiguity, or a patent error or omission, but only to the extent of such
ambiguity, error or omission. It is thus incorrect to say that the whole judgment
will be set aside due to an obvious mistake. See Rule 42(1) of the Uniform Rules
of the Court. It is important to study the rules mentioned in the compulsory
reading. Note: Rule 42 does not exclude the common law ground for setting aside
a judgment (where there is an error). It has been held, however, that under
common law, non-fraudulent misrepresentation inducing iustus error on the
court’s part is not a ground for setting aside a judgment induced by such error
(see Groenewald v Gracia 1985 3 SA 968)
(d) Correct Assertion/Statement:
Leave to appeal may be requested at the time that the judgment or order is made.
If this is not followed, then an application for leave to appeal must be filed within
15 days of the judgment or order appealed against (see Rule 49(1) of the Uniform
Rules of Court.
The application is heard by the judge who made the judgment or order. Note: the
phrase “a request for leave to appeal” illustrates that this is an appeal from a
High Court. Appeals in the magistrate’s courts are automatic and a request for
leave to appeal is not required.
(e) Correct Assertion/Statement:
The Constitutional Court is regarded as the apex court or the highest court in all
matters since the inception of the Seventeenth Amendment Act, 2012. This
means that the Constitutional’s Court’s jurisdiction is no longer limited to purely
constitutional matters, and the Supreme Court of Appeal is no longer the court of
final instance in non-constitutional matters. However, the amendment does not
mean that every matter will be heard by the Constitutional Court, as very specific
grounds must exist before the Constitutional Court will grant leave to appeal in
non-constitutional matters. The Constitutional Court may decide not only
constitutional matters but any other matter, provided that it grants leave to
appeal on the grounds that “the matter raises an arguable point of law of general
public importance which ought to be considered by the Court”. The
Constitutional Court is now conferred with powers to decide on constitutional
and non- constitutional matters. However, one needs to know the circumstances
when the Court will entertain an appeal (set out in the proviso above).
26. (a) N institutes proceedings in a magistrate’s court against Y. The

magistrate grants judgment against Y. Y is dissatisfied and takes the matter
on appeal. On the basis of these facts, answer the following questions.
(i) Must Y apply for leave to appeal to a High Court? Explain. (1)
(ii) How many judges must hear the appeal? (1)
(iii) Name the three types of claims which may be appealed against in the
magistrates’ courts, as set out in section 83 of the Magistrates’ Courts Act,
252
1944. (3)
(a)(i) No, in terms of section 83 of the Magistrates‟ Court Act 32 of 1944 a party
has a right of appeal - in terms of section 83 of the Magistrates‟ Courts Act 32 of
1944, the right to appeal accrues only to a party to a civil suit or proceeding.
(ii) Two judges. (Section 14(3) of the Superior Court Act, 2013) (1)
(iii) These are the following:
▪ Any judgment described in section 48 of the Magistrates‟ Courts Act 32 of

1944.
▪ Any rule or order having the effect of a final judgement, including an order
relating to execution in terms of Chapter IX of the Act 32 of 1944 and on
an order as to costs.
▪ In certain circumstances, any decision overruling an exception. (3)
27. Explain the differences between the Constitutional Court and the
Supreme Court of Appeal with regard to their respective powers of appeal.
The Supreme Court of Appeal may decide appeals in any matter (excluding labour
and competition matters) arising from the High Court of South Africa, or from a
court of a status similar to the High Court. Section 168(3)(b) makes it clear that
this court may decide only appeals, issues connected with appeals and matters
referred to it in terms of an Act of Parliament.
In contrast, as the highest court of the Republic, the Constitutional Court may
decide not only constitutional matters, but also any other matter, provided it
grants leave to appeal on the grounds that “the matter raises an arguable point of
law of general public importance which ought to be considered” by the Court.
This Court also makes the final decision whether a matter is within its
jurisdiction (s 167(3) of the Constitution, 1996). It is clear that the Supreme
Court of Appeal is not the final court of appeal. However, note that although the
Constitutional Court is the final court of appeal not all matters may be taken on
appeal to this court – the proviso (see above) serves as a filter to ensure that only
matters of a specific nature and that require the attention of this court are
brought before the court. This is to ensure that this court’s court roll is not
overburdened and that matters without merit do not waste the court’s time.
28. Name two instances when a court will interfere with a decision taken by
a quasi-judicial body
The court will interfere in the following instances: (a) If a public body or
individual exceeds its powers, the court will exercise a restraining influence. (b) If
a public body, although confining itself within the scope of its powers, acts mala
fide or dishonestly, or for ulterior reasons which ought not to influence its
judgment.
253
254
CIV3701 - CIVIL PROCEDURE NOTES
CONCEPTS
➢ Differences b e t w e e n s u b s t a n t i v e l a w ( rights a n d o b l i g a
t i o n s o f persons e.g. private law) and adjective law (procedure to enforce the
rights and duties e.g. civil procedure).
➢ Differences b e t w e e n c i v i l a n d c r i m i n a l p r o c e e d i n g s e . g . different
parties (plaintiff and defendant vs state and accused), objectives, onus of proof.
➢ Inherent jurisdiction of the High Courts (Divisions of the High Courts)
√ common-law based
√ entrenched in the Constitution – section 173
➢ Lower courts as creatures of statutes
➢ Jurisdiction of Specialist Courts e.g. Labour Court, Land Claims Court.
➢ Sources of civil law – main statutes, who has competence to make, amend or
repeal rules of court etc.
➢ Civil Procedure in context: differences between Anglo-American civil procedure
systems and Continental civil procedure systems; know principles of
bilaterality, party prosecution and party presentation; understand the role of
the court; critical appraisal of adversarial system, methods of reform.
➢ Substantive and Adjective law

➢
➢ The rules of substantive law define the rights and duties of persons in
their ordinary relationship with each other.
➢ Adjective law deals with the procedure to be adopted in order to enforce
a right or duty.
➢ For example: X lends his car to Z, who refuses to return it. Adjective law
sets out the procedural steps, which X must follow in order to regain
possession.
➢ Adjective law is accessory to substantive law.
Function of the courts

To resolve disputes between legal subjects or between legal subjects and
the state.
Both civil and criminal proceedings may be described as formal systems of
dispute resolution that are sanctioned by the state.
This means that the judicial officer will hear the presentation of evidence
and arguments of both parties in an environment that is controlled by
formal rules, and then decide the matter in the form of a judgment or
order that is enforced by the state.
Subject matter of a civil & criminal trial:

Civil proceedings relate to a dispute between legal subjects. A dispute of
this nature is described as a claim.
However, criminal proceedings are between the state and an ordinary
citizen.
255
Parties – past paper question!
In criminal proceedings, the parties are the state and the accused.
Whenever a criminal matter goes on appeal at the instance of the
convicted person, the accused is known as the appellant.
In civil proceedings the person who starts the proceedings by issuing a
summons is known as the plaintiff and the person against whom the
summons is issued is the defendant.
Whenever proceedings are brought on application, the person bringing the
application is the applicant and the opposite party is the respondent.
If the matter goes on appeal, the person who lodges the appeal is the
appellant and the other party is the respondent.
Rules of Court :
Competence to make the rules
As from 1965, proceedings have been uniformly conducted in all the
divisions of the then Supreme Court, now the High Courts, under a
common set of rules still known as the Uniform Rules of Court.
The Rules Board was established in 1985. The members of the Board are
appointed by the Minister of Justice for a period of five years and are
eligible for reappointment. Section 6 specifies the powers of the Rules
Board to make, amend or repeal rules “for the efficient, expeditious and
uniform administration of justice” in the Supreme Court of Appeal, the
High Courts and the magistrates’ courts. The competence to make rules
for all these courts now vests in the Rules Board.
Rules of court – Competence to make rules :

Section 6(1) confirms onto the Rules Board to make rules for the courts
The rules board has the power to change the rules of the uniform rules and the
magistrates court
In terms of Section 6(1) of the Rules Board of courts of law act, the rules board
have the power to regulate and amend the following rules:
1. The procedures of litigation
2. Regulate the form and the content of pleadings and processes
3. Regulate the practice of service of processes (the summons)
4. Regulates the procedures and practices of execution of pleadings and
processes
5. Regulates the appointment and duties of the sheriff
6. Appointment of commissioners to take evidence where the witness cannot
appear in court
7. The appointment and admission of sworn translators
8. The manner or recording or noting evidence and proceedings
9. The appointment of assessors in proceedings in lower courts
Nature of the rules
“The rules exist for a court and not the court for the rules”:
o The rules are not an end in themselves but rather a means to an
end.
o The very purpose of the rules is to facilitate inexpensive and
efficient litigation and not to obstruct the administration of justice.
256
o This means that a court, subject to its competence to do so, may
condone non-compliance with procedure that would lead to
substantial injustice to a litigant.
o A superior court may also exercise its inherent jurisdiction to grant
relief in circumstances where the rules do not cover a particular
matter or where strict compliance with a rule would result in
substantial prejudice to a litigant.
(The rules exist for the sake of a court and not the other way around. The rules are
not an end in themselves, but rather a means to an end. The very purpose of the
rules is to facilitate inexpensive and efficient litigation, not to obstruct the
administration of justice. This means that a court, subject to its competence to do
so, may condone non-compliance with procedure that would otherwise lead to
substantial injustice to a litigant. A superior court may also exercise its inherent
jurisdiction (see study unit 3 above) to grant relief in circumstances where the
rules do not cover a particular matter or where strict compliance with a rule would
result in substantial prejudice to a litigant).
Adversarial Procedure
A dominant element of the Anglo-American civil procedural system is its
adversarial nature.
Characterised by the following:

• Both litigants
• Independently initiate and prosecute their respective claims or
defences, and
• Investigate and gather information that supports their respective
claims or defences, and presents this as evidence before a court.
• This brief description expresses three fundamental principles that

underlie our system of civil procedure. These principles are those of
• Bilaterality
• Party prosecution
• Party presentation
Bilaterality: this assumes that both litigants will have a fair and balanced
opportunity to present either their respective claims or defences. The truth
should then emerge if each party presents his or her own biased view of
the issues in dispute.
Party prosecution – past question: this refers to the competence of a

litigant either to commence or defend proceedings and to move (prosecute)
the case forward through all its procedural stages, thus litigation is a
private matter that is conducted by both litigants without any interference
from the court, except where its intervention is requested by one of the
litigants.
Thus, a person whose substantive rights have been infringed or alienated
has a choice either to commence civil proceedings or simply to do nothing
about the matter. Both litigants must conduct the proceedings according
to certain minimum standards that are prescribed by the Rules of Court.
The court will only become involved in the proceedings if, for instance, one
of the litigants approaches the court to compel the other litigant to comply
with the Rules of Court or requests the court to condone a mistake in
procedure.
257
Party presentation – past question: this refers to the competence of a
litigant to investigate his or her own cause or defence, to formulate the
issues in dispute as well as to present the material facts concerned, and to
prove these facts and raise legal argument in support of these facts before
a court.
A litigant has control of the content of his or her cause of defence, as the case may
be. Litigants are competent to determine the issues in dispute as well as to define
the scope of the dispute without the interference of the court.
The litigants should be masters of their rights. Litigants take primary
responsibility for determining the issues in fact and in law that relate to the
dispute, without judicial interference, the litigants should be masters of their
rights.
The role of the court: In South Africa the role of the judicial officer is
passive. An exception can be found with the commissioner of a small
claims court.
The passive role of the judicial officer is compared to that of an umpire.
The role of the judicial officer is passive in that he or she is restricted to
the evidence that the litigants have chosen to present during a trial or a
hearing on motion.
Reforming civil procedure
1. Continual revision of the rules of the court.

2. To increase the jurisdictional limits of the lower courts in order
to give more people access to a court but at a lower cost.
3. Exclude, in part or in whole, specific types of dispute from the
court system.
4. The use of informal dispute resolution processes, like the CCMA
(arbitration).
5. Establishing alternative fora – like the small claims court.
Differences between Continental and Anglo-American systems:
Anglo American Continental
258
- adversarial - inquisitorial
- private matter - JO participates actively
- rely on legal in the litigation
representatives to - JO can gather evidence
gather and present - JO can actively
evidence participate by asking
- oral – rely on viva voce questions and leading
evidence evidence
- distinct pre-trial and - No precedent is
trial stages followed, only the Code
- Judicial official (JO) (statute).
plays a passive role
- JO like an umpire in a
game
- He can raise issues by
questioning witnesses
or testing legal
arguments
- JO restricted to the
evidence presented by
the litigants.
Alternative Dispute Resolution:
(this is merely a short summary of some of the NB points)
ADR processes are:

 Informal, ADR processes are not bound by strict rules of procedure
 Flexible, can be adapted to suit the needs of particular types of disputes
in different contexts
 Voluntary, the disputants are not compelled to enter into the process
 Consensual, reached through consent of both disputants
 Interest based
 Relational
 Future orientated
Formal litigation’s response to ADR: court-annexed mediation
Mediation is a process in which parties who experience conflict require the

assistance of an impartial third party (mediator) to help them reach agreement.
The mediator acts only as a facilitator, and does not decide the outcome of the
conflict – this remains in the hands of the parties. Because the process is
voluntary and the parties remain in control of the process, mediation is generally
viewed as empowering to both parties. Supporters of mediation claim a high
success rate for mediated matters. These and other claimed benefits of mediation,
together with a desire to give effect to section 34 of the Constitution (access to
courts) and to increase access to justice, a form of mediation, namely, court-
annexed mediation, was introduced as an alternative dispute resolution
mechanism within the civil court system, and more specifically the magistrates’
courts.
259
Consequently, Chapter 2 was inserted into the magistrates’ courts rules under GN
R 183 of 18 March 2014. The purpose of these rules is to provide the procedure for
the “voluntary submission of civil disputes to mediation, the parties are not forced
into mediation. “Parties” can refer a dispute to mediation either prior to the
commencement of litigation or thereafter, but prior to judgment, and the court
may also enquire into the possibility of mediation and afford parties the
opportunity to refer the matter for mediation. The rules provide that clerks and
registrars of the court must offer assistance to all parties, and provide for the
procedure to be followed, the role and functions of a mediator, as well as for the
possibility of any settlement agreement to be made an order of court.
DISPUTE RESOLUTION MECHANISMS IN AFRICAN CUSTOMARY LAW
Dispute resolution mechanisms in African customary law have the following

characteristics:
- They follow the oral tradition, although they are influenced by Western
traditions.
- The participants comprise a collective group of people who are free to

participate in the discussions.
- The processes are victim-oriented.
- The processes are informal and flexible.
- The outcome is restorative justice or the restoration of social harmony or

peace.
The use of state authorities is the exception rather than the norm. Most disputes
in African customary law are settled in a satisfactory manner without recourse to
the courts. This is achieved by means of negotiations within and between groups
of relatives. If a particular problem cannot be solved in this manner, then two
more options are available to the disputants:
The first option is to use the process of mediation before a formal appeal is made
to the courts. Mediation involves a process whereby a party that is not involved in
the dispute (that is, an impartial party) tries to help the people involved in the
dispute to come to an agreement or find a solution regarding the problem.
In the event of mediation’s failing, the next option is to follow the court procedure.
Processes used in African customary law to resolve disputes are the processes of
negotiation and mediation. Disputes can be resolved within family groups or
between non-related family groups. We first examine the settlement of disputes
within family groups.
The settlement of disputes within family groups
Family disputes are settled at the common ancestral home by the head of the
family group, who is also responsible for the conduct of his or her family members.
260
The following procedure is employed:
• The correct procedure is negotiation with a view to reconciliation or

restoration of social harmony or peace.
• The head (senior figure) is assisted by adult members of the family.
• Family matters are generally regarded as private matters.
• If the matter cannot be settled within the family circle, then senior relatives
or neighbours are invited to help resolve the matter.
• The objective is to look at ways to reconcile the disputing parties and to

restore normal family relations.
• If a solution to the problem is found, then the head pronounces the outcome,
which is accepted by everyone.
• This procedure ends with a ritual that involves everyone partaking of the
same meal or shaking hands or hugging one another to symbolise the end of
the dispute.
• If the proposed solution is not accepted by the disputing parties, then the
headman (head of customary court in a particular district) serves as a
mediator and is tasked with making a formal judicial decision.
The settlement of disputes between non-related family groups
• The people involved in the dispute first try to settle the dispute among
themselves by way of negotiation. All parties participate in the discussions.
• If no consensus is reached, the headman or village head is invited to assist.

He/she acts as a mediator.
• A ritual in the form of a reconciliatory meal is held if the parties come to an

agreement at any stage during the process of negotiation or mediation. This
demonstrates the restoration of normal relations and harmony between the
parties and the broader community.
Today people are not strictly arranged along family lines like they were in the past.
The practice in rural and urban areas currently is to seek the advice of
neighbours, rather than extended family groups. Disputes are also reported to the
police, church groups, street committees and local civic associations. Resolution
takes place by negotiation and mediation.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19

of 1998 (the so-called “PIE” Act)
This Act finds application when the eviction of a person from his or her urban
home is sought, and applies in respect of land throughout the Republic. If ESTA,
261
IPILRA or LTA do not apply to a particular case, and the occupier falls within the
definition of an ‘‘unlawful occupier’’ as defined in section 1 of the Act, then this Act
applies. Buildings and structures that do not fulfil the function of a dwelling or a
shelter for humans (e.g. commercial property) fall outside this Act. If the land has
been occupied for less than six months, the court may grant an eviction order if it
considers it just and equitable to do so after considering all relevant
circumstances (which include the rights and needs of the elderly, children,
disabled persons and households headed by women). If the land has been
occupied for longer than six months, the court must in addition consider if land is
available for the relocation of the unlawful occupier. This Act suspends the
exercise of a landowner’s proprietary rights until this determination has been
made, and if the procedural requirements of the Act have been met, a landowner
may approach the court for an order (Ndlovu v Ngobo; Bekker and Bosch v Jika
2003 1 SA 113 (SCA)). This Act clearly confirms certain values such as dignity,
equality and freedom, and requires courts to, where necessary, create innovative
remedies in order to protect and enforce the constitutional rights of the owner and
the occupier (Transnet Ltd v Nyawuza 2006 5 SA 100 (D) 105G–107D).
Arrest: The right to freedom and security (s 12) led to the Supreme Court of Appeal
decision in Bid v Industrial Holdings (Pty) Ltd v Strang (Minister of Justice and
Constitutional Development, Third Party) 2008 3 SA 355 (SCA), in which it was
held that the arrest of a person to confirm or found jurisdiction was
unconstitutional.
In Malachi v Cape Dancing Academy Int (Pty) Ltd 2010 6 SA 1 (CC) at 19A–B, the
court confirmed an earlier finding that the section in the Magistrates’ Courts Act,
1944, codifying the common law, and which authorised arrest tanquam suspectus
de fuga, was unconstitutional. Uniform Rule 9 (regulating arrest) has since been
repealed, and arrest tanquam suspectus de fuga no longer exists.
Execution: The Constitutional Court held in Japhtha v Schoeman; Van Rooyen v

Stoltz 2005 3 SA 140 (CC) that a writ of execution that would deprive a person of
‘‘adequate housing’’ would be in conflict with such person’s right in terms of
section 26, and would consequently need to be justified in terms of section 36(1).
Mokgoro J explained the position thus: The interests of creditors must not be
overlooked. There might be circumstances where, notwithstanding the relatively
small amount of money owed, the creditor’s advantage in execution outweighs the
harm caused to the debtor. In such circumstances it may be justifiable to execute.
It is in this sense that a consideration of the legitimacy of a sale in execution must
be seen as a balancing process. The court held that execution must be subject to
judicial oversight. In Gundwana v Steko Development and others 2011 3 SA 608
(CC), the Constitutional Court consequently held that (in an instance when it was
requested that immovable property be declared specially executable after default
judgment) the Registrar may not grant such an order, and that execution may only
follow upon judgment in a court of law. The court further declared the practice
under the rules of court of allowing a Registrar to grant orders declaring
immovable property that constitutes a person’s home executable, constitutionally
invalid (para. [55]; [65]). Read amended Uniform Rule s 45 and 46 which give effect
to these judgments.
Judicial oversight will ensure that the impact that the execution may have on
indigent debtors who are at risk of losing their homes be considered, as well as
any alternative course of action. It is submitted that this amended practice
262
ensures compatibility with section 26 of the Constitution.
Of interest is also FirstRand Bank Ltd v Folscher and another and similar matters
2011 4 SA 314 (GNP) in which the court considered the meaning of ‘‘primary
residence’’ and ‘‘home of a person’’ (as used in Uniform Rule 46 and Gundwana).
The court held that execution against a holiday home or a second home that is not
usually occupied by the debtor does not trigger the rule requiring judicial
oversight. Likewise, the term ‘‘judgment debtor’’ was held to refer to an individual
who owns the primary residence, and not to immovable property owned by a
company, close corporation or a trust, even if the immovable property is the
shareholder’s, member’s or beneficiary’s only residence (para. [31]–[32])!
The summons initiating an action in which relief is claimed that embraces an

order declaring immovable property executable must contain a clause which
draws the attention of the debtor to section 26(1) of the Constitution, and which
informs the debtor about the need to present information to court supporting his
or her claim that an order for execution will infringe his or her section 26 right of
access to adequate housing.
Legal practitioners: the conduct of legal practitioners (attorneys or advocates) in

practice is subject to a professional code of conduct. The main sources of this code
of conduct are the Attorneys Act 53 of 1979 (as amended) and the Regulations
promulgated under it, the Admission of Advocates Act 74 of 1964, the rules and
rulings of the various law societies and bar councils, court decisions, the common
law, textbooks, and the influence of international codes. The purpose of a
professional code of conduct is to provide the norms in terms of which it can be
established whether prospective practitioners and current practitioners are fit and
proper persons to practise law.
A practitioner is admitted to practice by the High Court, and, therefore, a

practitioner is termed an ‘‘officer of the court’’. Because a practitioner is part of the
legal system, he or she is compelled to uphold the law at all times, and to promote
the general administration of justice. This includes a practitioner’s duty to respect
the processes of court, and not to hamper his or her opponents in conducting
their cases. The professional conduct of practitioners crops up in various
relationships, such as in the relationship with their clients, other practitioners,
the courts, the state, the community, and the particular professional body (law
society or bar council). In all these relationships, it is expected that
practitionerswill conduct themselves with integrity, objectivity, dignity and good
judgement, demonstrating sufficient knowledge and skill, respect for the law,
commitment, equity and fairness. Serious breaches of the code of conduct can
lead to the removal from the roll of attorneys or advocates, as appropriate. The
duty of practitioners is well expressed in the following principles laid down in the
‘‘General Principles of Ethics’’ of the International Bar Association:
1. Lawyers shall at all times maintain the highest standards of honesty and
integrity towards all those with whom they come into contact.
2. Lawyers shall treat the interests of their clients as paramount, subject always
to their duties to the Court and the interests of justice, to observe the law and to
maintain ethical standards.
10 Lawyers shall use their best efforts to carry out work in a competent and timely
263
manner, and shall not take on work which they do not reasonably believe they will
be able to carry out in that manner.
12 Lawyers shall always behave towards their colleagues with integrity, fairness
and respect.
JURISDICTION:
Jurisdiction – General
By jurisdiction is meant the authority, which a court has to decide matters
that are litigated before it or to take cognisance of matters presented in a
Introduction
formal way for decision.
In the decision of (Ewing McDonald) and (M & M Products) the court
defined jurisdiction as follows:
Jurisdiction means the power vested WhatinGeneral
a court to adjudicate upon,
determine and dispose of a matter. Type of Court
In both definitions, the following two requirements are emphasised:
1) The court must have the authority to hear the matter
2) Depends
The court must have the power to enforce its judgment
Upon:
No court will exercise jurisdiction unless both these requirements are met.
The question of jurisdiction is important as it helps to ascertain which court is
competent to hear the matter. The required link (nexus) between the court and the
parties or the subject matter of the dispute must exist before a particular court
will be vested with the power to hear the matter. In addition, a court must be able
to give an effective judgment, that is, a judgment that can be enforced. In
The Value
addressing the jurisdiction of court, you also have toThe
of the Nature
consider the value of the
claim, the nature the Claim
of the claim, and the geographical of the Claimthe claim is
area to which
linked. It is only by knowing all these factors that you can make an informed
264
decision about whether to bring a matter in the Constitutional Court, the Supreme
Court of Appeal, the High Court, a magistrates’ court or a small claims court.
It is important to note that section 169 of the Constitution vests the High Court
with judicial authority. Furthermore, section 21 of the Superior Courts Act of 2013
provides the jurisdictional powers of the High Court by stating that “a Division has
jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within its area of jurisdiction and all other matters
of which it may according to law take cognisance”. In applying the provisions of
section 21 of the Superior Courts Act, you must keep in mind and understand the
three grounds for High Court jurisdiction in terms of the common law (generally
termed rationes jurisdictionis) in the South African courts, namely ratione
domicilii, ratione res gestae and ratione rei sitae. Another important provision to
take into account when dealing with the jurisdiction of the High Courts is section
42(2) of the Superior Courts Act, which provides that the civil process of a division
runs throughout the country.
Meaning of inherent jurisdiction

Civil procedure, as applied in the superior courts, does not depend only on
statutory provisions and the rules of court.
The superior courts are thus said to exercise an “inherent jurisdiction”.
This means that its jurisdiction is derived from common law and not from statute.
An implication of this is that it has discretion in regard to its own procedure. Thus
a court may condone any procedural mistakes or determine any point of
procedure.
The Constitution, 1996, as amended by the CSAA (Constitution Seventeenth
Amendment Act), confirms the continued existence of this common-law power of
superior courts.
the High Court of South Africa each has the inherent power to protect and
regulate their own process, and to develop the common law, taking into account
the interests of justice.
Creatures of statutes:
Lower courts do not have inherent jurisdiction.
The reason for this is that they derive their powers from the particular statute that
created them.
Because of this, lower courts are sometimes called “creatures of statute”. The
exercise of jurisdiction in a lower court is therefore dependent on the extent to
which its enabling statute permits it to exercise such jurisdiction. So, each
enabling statute has to be carefully interpreted in order to determine the scope of
the jurisdiction so conferred.
A magistrate's court is thus referred to as a “creature of statute” because it has
been created by legislation and derives its powers and competence from the
Magistrates' Courts Act of 1944.
Erasmus Jones and Buckle The Civil Practice of the Magistrates' Courts in South
Africa sum up the situation succinctly as follows:
The magistrate's 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.
The distinction between the phrases “inherent jurisdiction” and “creatures of
265
statute” is appropriately expressed by Herbstein and Van Winsen The Civil Practice
of the Superior Courts in South Africa at 49:
... whereas inferior courts may do nothing which the law does not permit, superior
courts may do anything that the law does not forbid.
266
HIGH COURTS:
DEFINITIONS
Actor sequitur forum rei:

The plaintiff must institute action against the defendant in the area which the
defendant is domiciled.
If the actor sequitur forum rei rule is followed to give jurisdiction to a court, such
court is said to have jurisdiction ratione domicilii.
Ratione domicilii:
The court where the defendant is either domiciled or resident always has
jurisdiction to hear a claim sounding in money
Dominus litis:
More than one court may be able to exercise jurisdiction in the same action, if
various rationes jurisdictionis exist in respect of different courts. In such an
instance, the plaintiff may, as dominus litis (master of the suit) choose in which of
these courts which are vested with jurisdiction he wishes to institute the action.
Incola and peregrinus:

An Incola is a person who is either domiciled or resident within a specific court’s
A peregrinus is a person who is neither domiciled nor resident within that court’s
(1) These two terms apply to each High Court as a separate entity, and not to
South Africa as a whole. Thus a person domiciled or resident in the area of the
KwaZulu-Natal High Court, Durban is regarded as a peregrinus of the North
Gauteng High Court, Pretoria.
(2) Citizenship of a country is not relevant when determining whether someone is

an incola or a peregrinus. A person may be a citizen of a particular country
without ever having been domiciled or resident there. Citizenship is therefore
irrelevant for the purposes of jurisdiction.
(3) When dealing with the term peregrinus, a distinction is drawn between a
person who does not live within the jurisdictional area of a specific court, but does
live elsewhere in South Africa – a local peregrinus (such as Tsepo in the given
facts) – and a person who lives outside South Africa – a foreign peregrinus (if
Tsepo were a Zimbabwean citizen). Different jurisdictional rules apply, depending
on whether the defendant is a local or a foreign peregrinus.
Nexus:
Nexus literally means link - it is the link or connection which gives a specific court
jurisdiction over a particular person or cause of action.
Rationes jurisdictionis:
There must be some link (nexus) between the court’s jurisdictional area and the
defendant, or the facts from which the dispute arose.
These links are called “jurisdictional connecting factors”, or rationes jurisdictionis.
267
The links accepted by our courts include domicile or residence of the defendant,
commission of a delict, conclusion or breach of contract, submission, and the
location of property where such property is the subject of the dispute.
Ratione rei gestae:

claims in the following instances:
If the contract which is the subject of the litigation, was concluded, was to be
performed or was breached within the court’s area of jurisdiction, any of these
grounds will be sufficient to vest a court with jurisdiction – ratione contractus
If the delict on which the claim is based was committed within a court’s area of
jurisdiction, a court is vested with jurisdiction ratione delicti commissi
Collectively, termed ratione rei gestae.
Ratione rei sitae:

This connecting factor is relevant only in respect of property claims. The court where
the property is situated is the only court which has jurisdiction to hear claims
relating to such property.
Attachment to found or confirm jurisdiction:

The word “attachment” refers to the attachment of property.
The word “attachment”, in a jurisdictional context, refers to one of the grounds upon
which a court justifies its exercise of jurisdiction in respect of monetary claims.
These terms are relevant only when dealing with jurisdiction in respect of money
claims where the defendant is a foreign peregrinus. See the Bid case.
Claim sounding in money:

The standard term used to describe an action based upon a claim which seeks either
the payment of money or the payment of money as an alternative to some other order,
for example an order for specific performance.
Doctrine of effectiveness:
This is one of the common-law principles on which the exercise of jurisdiction is
based. A court will not exercise jurisdiction unless it is able to give an effective
judgment, in other words unless compliance with the judgment can be expected. If the
defendant is an incola of some South African court, the judgement against him can be
effected by executory procedures (sheriff attaching property). If the defendant is a
foreign peregrenus, the court allows for an effective judgement by allowing his
property to be attached ad confirmandum / fundandum jurisdictionem, or attaching
any property he has in SA ad confirmandum / fundandum jurisdictionem, to give the
relevant court jurisdiction to give an effective judgement.
Domicile:
Domicile is acquired by lawful presence at a particular place with the intention of
settling there for an indefinite period.
Reside:
NB:
It amounts to more than mere physical presence in a place, while being less than
domicile, in that there must be some element of intention to prolong the stay beyond
the limit of a mere casual or temporary visit.
In (Ex Parte Minister of Native Affairs) the following principles were laid down:
1) A distinction should be drawn between place of residence and domicilium.
268
2) A person may have more than one place of residence, in which case he or she
should be sued in the jurisdictional area of the court in which he or she is residing
at the time of service of summons
3) A person does not reside in a place which he or she visits only temporarily.
Arrest to found or confirm jurisdiction has been held to be unconstitutional:

(Bid v Strang)
However, the Supreme Court of Appeal has held that attachment to confirm or found
jurisdiction of a court is not unconstitutional because it serves the purpose of making
any judgment that the court may give in favour of the plaintiff effective, and the extent
to which it infringes the rights of the individual is less severe than is the case with
arrest. Therefore, all principles developed at common law regarding attachment to
found or confirm jurisdiction still apply to the attachment of property.
The court in Bid called for alternative and constitutionally less restrictive rules for
establishing jurisdiction over foreign defendants, in addition to jurisdiction through
attachment.
According to the court, one of the new practices would be the service of a summons on
the defendant while he or she is in South Africa, coupled with the presence of
sufficiently close connecting factors between the action and the area of the court, with
due consideration of the forum conveniens doctrine.
“Sufficiently close connecting” factors - it would seem that the use of existing and
practised common law and statutory rationes jurisdictionis, or links, will be important
in establishing the sufficiently close connection required to empower the court to have
jurisdiction over a foreign defendant.
SMALL CLAIMS COURTS:
Small Claims Courts – Basics:

23
Plaintiffs only
Claims up to natural persons
R15 000 +
No lawyers
Proceedings
inquisitorially conducted
EXPLANATORY NOTES:
269
➢ See s15 of Small Claims Courts Act 61 of 1984 regarding quantitative
jurisdictional limit of Small Claims Court (SCC): R15 000
➢ See s16 regarding claims beyond the jurisdiction of the SCC
➢ See s26(3) regarding the role of the commissioner: active role
JURISDICTION OF THE SUPERIOR COURTS:
• Highest court of appeal on all

matters; apex court (s 167(3))
CONSTITUTIONAL • S 167 sets out its functions: see
COURT exclusive jurisdiction (s 167(4) &
confirms orders by other courts
(s 167(5))
• SCA - court of appeal in any

SUPREME COURT matter except labour and
OF APPEAL (SCA) competition matters
AND HIGH COURTS • HCs - court of first
(HCs) instance/court of appeal in
respect of magistrate's courts
decisions
NOTES:
• Section 167 (6)(a) of Constitution - when CC is approached

directly (exceptional cases)
• Section 169 of Constitution – matters that HC may hear
• Superior Court Act, 2013: single HC of South Africa; number

of local and main divisions
• SCA: hears appeals in any matter from HC or a court of

similar status except labour and competition matters (section
168 of Constitution); further appeal to CC 270
• HC: hears claims greater than R400 000
High Court: Basic Grounds for Jurisdiction :
Ratione • Domicile
domicilii • Residence
• Ratione
Ratione contractus
rei
gestae • Ratione delicti
commissi
• Movable
Ratione property
rei sitae • Immovable
property
NOTES:
• Ratione domicilii – the court where the defendant is either domiciled

or resident
• Know definitions of domicile and residence
• Ratione rei gestae - monetary claims
• Ratione rei sitae – property claims
• Know definitions of incola and peregrinus
• Know distinction between local peregrinus and foreign peregrinus
271
Claims sounding in money:
Defenda Defendan
nt t local
incola peregrinu
s
Defendan
t foreign
peregrinu
s
NOTES:
• If defendant is an incola of the court: ratione domicilii applies (the

court where the defendant is either domiciled or resident)
• If defendant is a local peregrinus of the court: ratione rei gestae
applies (the court where the cause of action arose: delict/contract)
• If defendant is a foreign peregrinus (court has no jurisdiction unless
defendant’s property is attached to found or confirm jurisdiction): see
definition of ‘attachment’
• Effect of section 28 of Superior Courts Act, 2013: prohibits
attachment of property of local peregrinus
• Know effect of Bid Industrial Holdings case: arrest to found or confirm
jurisdiction is unconstitutional; court looked at alternative options
The essential question when determining jurisdiction in respect of monetary claims is:
WHERE DOES THE DEFENDANT LIVE? Different rules apply, depending on whether
a defendant lives in South Africa or outside the country.
Where such a defendant is resident or is domiciled, or where the cause of action

arose, wholly or in part, will all have jurisdiction to hear the action and no other
requirement needs to be met.
Two courts may have jurisdiction; the court where the defendant is domiciled or
resident, or the court where the cause of action arose, wholly in part.
272
Where the defendant is an Incola of some South African court
Where the defendant is an Incola of the court concerned: This ground of

jurisdiction is known as ratione domicilii, and is based on the maxim actor sequitur
forum rei.
A court has jurisdiction over a defendant who is an incola of its area at the time when
the action is instituted. It is irrelevant whether the plaintiff is an incola or a peregrinus,
or where the cause of action arose.
The rule states that a defendant must be domiciled or resident within the court’s
area of jurisdiction at the time the action is instituted.
But when is the action instituted? Pollak states that the action is instituted when the
summons is issued and served. This view was confirmed in (Mills).
This view was confirmed in Baren en ’n Ander v Lottering 2000(3) SA 305 (C). Note
that the defendant need not be physically present in the court’s area at the time
when action is instituted.
Where the defendant is a peregrinus of the court concerned, but an incola of

another court in South Africa: When a defendant is a local peregrinus of the relevant
court, this court may exercise jurisdiction only if the cause of action arose within its
jurisdictional area. A “cause of action” comprises the facts which give rise to an
enforceable claim. This ground of jurisdiction also derives from Roman-law principles
and is known as ratione rei gestae. It is irrelevant whether the plaintiff is an incola or a
local or foreign peregrinus. It is, however, essential that the defendant must be a local,
not a foreign peregrinus.
In the following instances a court will be vested with jurisdiction because
the cause of action arose within its jurisdictional area:
1) Where the contract which is the subject of the litigation was concluded or
breached within the court’s area of jurisdiction, or where performance of the
contract was intended to be affected within the court’s area of jurisdiction (IE.
Contract entered into; performed or breached in the court’s area, this will give that
court jurisdiction). Any of these grounds will be sufficient to vest a court with
jurisdiction. The court is then said to be vested with jurisdiction ratione
contractus.
2) Where the delict on which the claim is based was committed within a
court’s area of jurisdiction. In this instance, the court is vested with jurisdiction
ratione delicti commissi.
Remember the plaintiff institutes the claim!!!!!
- No other requirement need be met before the court in whose area the cause of
action arose may exercise jurisdiction.
- It is not possible for jurisdiction to be confirmed or extended by attachment of
the defendant (where one HAS to attach the property of foreign peregrini
defendants to give a court jurisdiction).
- s28(1) prohibits attachment, for jurisdictional purposes, of persons
domiciled or resident anywhere in South Africa – thus SA incolae.
- The effect of section 28(1) is that, as regards local peregrini, attachment for the
purpose of founding or confirming jurisdiction, is not only unnecessary but is
prohibited.
Where the defendant is a peregrinus of all South African courts
Where the defendant is a foreign peregrinus and the plaintiff is an incola

of the court concerned:
If the defendant is a peregrinus of South Africa and the cause of action did not
273
arise within the jurisdictional area of the court concerned, the court would not
have jurisdiction to hear an action. However, the position changes when the
plaintiff is an incola of the specific court. Provided that a defendant is a
peregrinus of the whole of South Africa and that the arrest of the defendant or the
attachment of his property can take place somewhere in South Africa, an incola of
a specific court can institute action in that court.
In Halse v Warwick court held that: In suits between peregrini, there may be very
good reasons why our South African courts should not seek to extend their
jurisdiction by an attachment, but in a suit by an incola against a peregrinus why
should South African courts not come to the assistance of South African subjects
and enable them to litigate at home?
Our courts help local litigants, and now it is possible to institute action against a
foreign peregrinus in the court where the plaintiff is an incola.
The only requirement is that the defendant’s property must have been
attached.
This basis for the exercise of jurisdiction by a court is known as attachment
ad fundandam jurisdictionem.
To summarise: Attachment ad fundandam jurisdictionem is permissible where the

defendant is a peregrinus of the whole Republic (foreign peregrinus); attachment
of the defendant’s property has taken place within the court’s area of jurisdiction &
the plaintiff is an incola of the court concerned
Where the defendant is a foreign peregrinus and the cause of action arose
within the area of the court concerned:
Where a defendant is a peregrinus of the whole of the Republic, a court will be

competent to exercise jurisdiction if the cause of action arose within its area of
jurisdiction, and if attachment of the defendant’s property has taken place. This is
known as attachment ad confirmandam jurisdictionem. Where a court exercises
jurisdiction based on attachment ad confirmandam jurisdictionem, the nature of the
proceedings is irrelevant, provided that money is claimed.
GROUNDS: the ratione contractus and the ratione delicti.
It makes no difference to the above rules whether the plaintiff is an incola or
peregrinus of the court concerned!!!
To summarise: Attachment ad confirmandam jurisdictionem is permissible where

• the defendant is a peregrinus of the whole Republic; attachment of the
defendant’s property has taken place within the court’s area of jurisdiction & the
cause of action has arisen within the court’s area
274
ATTACHMENT AD FUNDANDAM JURISDICTIONEM :
Defendant plaintiff is Attachment

foreign incola + ad fundandam
peregrinus attachment jurisdictionem
NOTES:
• It is not necessary for cause of action to occur within the court’s area of
jurisdiction
• However, the property to be attached must be within the court’s area of
jurisdiction
A
t
t
a
c
h
m
e
n
t
a
d
275
ATTACHMENT AD CONFIRMANDAM JURISDICTIONEM:
Defendant cause of Attachment ad

confirmandam
foreign acton + jurisdictionem
peregrinus attachment
276
NOTES:
• Relevant in money claims (debt /damages)

• It is not necessary whether plaintiff is an incola or peregrinus of the court
• Know the effect of s 21(3): attachment to confirm jurisdiction may take place
within the court where the cause of action arose
• Know the distinction between s 21(3) and s 28 of the Superior Courts Act,
2013
• Know s 42 (2) of S u p e r i o r Co u r ts Act, 2013 : civil p r o c es s runs
throughout Republic; effect
EFFECT OF SECTION 42(2) OF THE Superior Court Act 2013 AND

ATTACHMENT UNDER SECTION 21(3) OF THE SCA 2013:
In terms of the common law, it is an essential requirement that there be some link
between the parties or the cause of action and the particular court.
When litigation is brought against a foreign defendant, such a nexus is found in
the fact that the foreign defendant's property is attached.
Until the beginning of 1999, this requirement of common law meant that
attachment of the property of a defendant to found or confirm jurisdiction had to
take place within the area of the court in which the plaintiff wished to institute
action.
The leading case on this common-law requirement and the impact of section 26(1)
of the Supreme Court Act on the common-law requirement is Ewing McDonald.
In the case, the court found
• that the common-law requirement must be met, in addition to the requirement
that the judgment be effective
• section 26(1) is essentially a procedural enactment to make the execution and
service of process more convenient, but it cannot be used to found or confirm
jurisdiction (S 26(1) of the Supreme Court Act 59 of 1959 has been replaced by
s 42(2) in the SCA 2013).
Effect of judgment
The common-law position made it difficult for local litigants to sue foreign
defendants, as it was frequently found that action could not be instituted because
no assets could be attached within the area of a particular South African court,
making it necessary for the plaintiff to institute action outside the country.
Section 42(2) of the SCA:

throughout the Republic and may be served or executed within the jurisdiction of
any Division.
Republic.
277
However, in those instances where the defendant is a peregrinus of South Africa,
neither the defendant nor any of his property may be in the country when
judgment is granted against him. This would render the judgment ineffective.
Therefore, in order to establish jurisdiction in a claim sounding in money against a
foreign peregrinus, an attachment of such defendant’s property is usually required
(Bid Industrial Holdings –here, the court considered alternative options when
attachment was not possible).
Section 21(3) of the SCA: This section has replaced section 19(1)(c) of the
Supreme Court Act, 1959.
Section 21(3) provides that attachment to confirm jurisdiction may take place
in any Division.
This section is subject to section 28 of the SCA and section 4 of the Admiralty
Jurisdiction Regulation Act.
Section 28 prohibits the attachment of property to found jurisdiction against a
person resident in the Republic, such as a local peregrinus.
In other words, attachment of a peregrine defendant’s property need not take place
within the jurisdictional area of the court in which the action is instituted, but
may be effected within the jurisdictional area or division of any other court in the
Republic where the property is situated.
Until 1999, when section 19(1)(c) was inserted into the Supreme Court Act of
1959, common law attachment of the property of a peregrinus of the whole
Republic had to take place within the jurisdictional area of the court in which the
plaintiff instituted the action. Even if the property was situated in the Republic
but in the jurisdictional area of a court other than the court in which the plaintiff
wished to institute the action, then the plaintiff could not proceed with the action.
In order to overcome this problem, section 19(1)(c) was enacted to bypass the
common law and enable a plaintiff to proceed with the action wherever the
peregrine defendant’s property was situated in the Republic even if it was
outside the jurisdictional area of the court concerned.
This section provides only for attachment of property ad confirmandam

jurisdictionem; it makes no reference to attachment ad fundandam jurisdictionem.
However, it is contended that as attachment ad fundandam jurisdictionem has
been part of our common law, the provisions of this section must be read together
with the common-law principles regarding attachment ad fundandam
jurisdictionem. Consequently, the position regarding attachment ad fundandam
jurisdictionem is governed by common law.
Unlike the position with the repealed section 19(1)(c), no mention is made of a
requirement as to where the property to be attached must be situated. It is
contended that as the legislature is silent on this matter and did not specifically
provide where attachment must take place, again this provision must be read with
the common-law principles regarding attachment, and consequently the
requirement is that the property must be situated within the jurisdictional area of
the particular court approached for the order. Unfortunately, the result is that this
section, in its present form, amounts to a regression in that the incola plaintiff is
again placed in the invidious position in which he or she found himself or herself
prior to 1999. It is hoped that the courts will clarify the uncertainty regarding the
interpretation of this section in the near future.
278
THUS: Regardless of whether attachment ad fundandam jurisdictionem or ad
confirmandam jurisdictionem is sought, our contention is that the property
in respect of which the attachment is sought must be situated within the
area of jurisdiction of the particular court concerned (as required under
common law).
Procedure regarding the attachment: The attachment of property comes before

the main action; an application on notice of motion is brought, requesting the
attachment of the defendant’s property. The onus is on the applicant to show
that, prima facie, he or she has a cause of action. Because the application for an
order for attachment is a separate issue which precedes the principal claim, it is
decided separately and so the court will not go into the merits of the main action.
If attachment is ordered, the defendant’s property will be subject to attachment
until judgment has been given in the main action – unless such defendant
furnishes security for the value of the claim in order to obtain the release of his
property.
EXAMPLE: John, an American tourist, comes to Johannesburg for a holiday.

He does not know the city and while he is driving around looking for
accommodation, he drives the wrong way up a one-way street. He hits Elias,
a pedestrian, causing Elias serious physical injuries. Elias, who lives in
Bloemfontein but is doing contract work in Johannesburg for two months,
wants to sue John for R305 000.
May the Free State High Court, Bloemfontein or the South Gauteng High
Court, Johannesburg issue an order for the attachment of John’s property if
this property is situated in the jurisdictional area or Division of the KwaZulu-
Natal High Court, Durban?
In terms of section 21(3), a court may issue an order of attachment ad

confirmandam for the attachment of the property of the defendant who is a
peregrinus of the whole Republic. This order may be executed in any Division of
the High Court and not necessarily only within the area or Division of the court
concerned.
The order for attachment must be issued by the court in which the main action is
to be instituted, and not in the court where the property of the peregrine defendant
is situated. In terms of the given facts, either the Free State High Court,
Bloemfontein, or the South Gauteng High Court, Johannesburg, may issue an
order for attachment, despite the fact that the attachable property is situated in
the area of jurisdiction of the KwaZulu-Natal High Court, Durban.
279
SUBMISSION / CONSENT:
Only relevant for monetary claims:
The persons who may submit to jurisdiction:
Where the defendant is an incola of the court

Will never occur, since the court is already vested with jurisdiction ratione domicilii
Where the defendant is a peregrinus of the court concerned but an incola of

some other South African court: Veneta Mineraria v Carolina Collieries, the court
held that, despite submission to jurisdiction, one of the traditional grounds of
jurisdiction, or rationes jurisdictionis, still had to be present. The defendant in this
matter was a local peregrinus and the court refused to accept that submission
vested it with jurisdiction, since the cause of action had not arisen within its area of
jurisdiction. It therefore appears that a local peregrinus cannot submit to the
jurisdiction of a court but that action must be instituted against him or her in the
court within whose area the cause of action arose, or alternatively, in the court
whose area he or she is an incola.
Where the defendant is a peregrinus of South Africa and the plaintiff an incola
of the court concerned: in the Veneta case the court stated that, in addition to
submission, one of the traditional grounds of jurisdiction also had to be present.
The fact that a court may exercise jurisdiction if the plaintiff is an incola, the
defendant a foreign peregrinus, and arrest or attachment to found jurisdiction has
taken place, was not viewed as a traditional ground of jurisdiction, but as a
development to assist incolae to litigate at home. Although this statement in the
Veneta case is obiter as far as incolae plaintiffs are concerned, the subsequent case
of Briscoe v Marais held that this meant that submission could not take place
unless the cause of action arose within the court’s jurisdictional area, irrespective of
whether the plaintiff was an incola or a peregrinus. The current position is thus that
a peregrinus defendant cannot avoid attachment to found jurisdiction by submitting
to the court’s jurisdiction.
Where the defendant is a peregrinus of South Africa and the plaintiff a local or
foreign peregrinus: the cause of action must have arisen within its jurisdictional
area and attachment to confirm jurisdiction must have taken place. If a foreign
defendant submits to a court’s jurisdiction in such circumstances, and does so
prior to an attachment order being made, submission will render an attachment
unnecessary.
In the light of recent case law, it thus appears that this is the only instance in
which submission to jurisdiction can take place. In addition, rather than being an
independent ground on which jurisdiction can be exercised, submission is merely a
substitute for the confirmation of jurisdiction by attachment.
When does submission occur? Submission can occur either by way of the mutual
consent of both parties or as a result of the defendant’s unilateral action.
Mutual consent is usually embodied in a contract or other documentary proof.
However, submission by a defendant can take place in a number of ways. If a
dispute arises about whether the actions of the defendant are consistent with a
submission to jurisdiction, the onus rests on the plaintiff to prove that the
defendant’s behaviour has given rise to a clear inference that he or she submitted to
280
the jurisdiction of the court.
A further question is whether a peregrinus defendant can submit to the jurisdiction
of a court after arrest or attachment has occurred so as to obtain the release of his
or her property. In Bettencourt v Kom the court held that submission after arrest or
attachment is too late and cannot be set aside by the court.
Claims relating to property:
Two forms of property:

Immovable or fixed property (land)
Movable property (jewellery)
The general common-law principle is that the forum rei sitae (court in whose area
the property is situated) has jurisdiction to hear claims relating to such property.
Abrahamse & Sons v SA Railways and Harbours: The proper legal meaning of the
expression ‘cause of action’ is the entire set of facts which give rise to an
enforceable claims and includes every fact which is material to be proved to entitle
a Plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his
declaration in order to disclose a cause of action.
Which of the grounds of jurisdiction apply?
As far as claims involving the title to immovable property are concerned, it is clear
that the forum rei sitae will possess jurisdiction to hear such claims. Further,
despite some evidence to the contrary in the case of Hugo v Wessels and Ward v
Burgess, it will seem that the forum rei sitae is the only court which will possess
juriscdition in such matters.
Immovable property – claims for transfer
In relationship to claim for the transfer of immovable property, once again it is

clear that the forum rei sitae will possess jurisdiction to hear such claims. As to
the question of whether or not the any other court or courts will possess
jurisdiction in such matter, the answer seems to depend upon whether the action
is in rem or in personam. According to the following extract from Pollak on
Jurisdiction, it would seem that the forum rei sitae will exercise exclusive
jurisdiction in relation to an acto in rem for the transfer of immovable property,
but will share jurisdiction with other courts (e.g. the forum domicilli) in relation to
an actio in personam for the transfer of immovable property:
It is submitted … that a provincial or local division of the Supreme Court [i.e. the
High Court] has no jurisdiction to entertain an action in rem in which the transfer
of immovable property is claimed if the property is situate outside the area over
which such division exercises jurisdiction. If, however, the court has jurisdiction
over the defendant on recognised common law grounds, it can, in an action in
personam, compel him to take whatever steps are necessary to fulfill n obligation
to transfere immovable property situate outside the area over which the court
exercises jurisdiction.
281
Movable property – claims involving title
As far as claims involving title to movable property are concerned, it is clear that
the forum rei sitae will possess jurisdiction to hear such claims. Note that
although the property must be situated within the area over which the court
exercises jurisdiction at time legal proceedings are instituted, the court will not be
deprive of jurisdiction if the property is then removed from its area of jurisdiction.
As to the question of whether or not any other court or courts, will possess such
matter, the following is stated in Pollak on jurisdiction.
Movable property – claims for delivery
In relation to the claims for delivery of the movable property, once gain it is clear
that the forum rei sitae will possess exclusive jurisdiction in such matters.
Provided that the property is situated within the Republic, the forum domicilli of
the defendant will also possess jurisdiction in a claim of delivery of movable
property. Furthermore, according to the learned author of Pollak on Jurisdiction,
other cpouts which exercise jurisdiction over the defendant on some recognised
ground (e.g. ratione contractus) may also possess jurisdictionin such matter:
If … movable property, although outside the jurisdiction of the court is within the
Republic, it would seem that any division, though it neither the forum domicilli
nor the forum rei sitae will have power to order the delivery of movable property it
is has jurisdiction over the defendant on some recognised ground. For instance, if
the contract for the delivery of the property were concluded within the area over
which the court exercises jurisdiction, then there is no reason in principle why the
court which can exercise jurisdiction over the defendant ratione contractus should
not also have power to order the delivery of the property.
Where the object of relief is immovable property

The court in whose territorial area the immovable thing is situated has exclusive
jurisdiction in actions:
- To determine the title of immovable property
- For the transfer of immovable property
- For the partition of immovable property
- Where a real right is in dispute
- Where possession of immovable property is claimed
- Where rescission of a contract for the transfer of immovable property is
claimed.
It does not matter whether the defendant is an incola or a peregrinus
Where the object of relief is movable property
The court in whose territorial area the movable property is situated has
jurisdiction in any action
- To determine the title to such property
- For delivery of the movable property
- Where a real right in respect of such property is at issue.
Whether the jurisdiction of the forum rei sitae is exclusive as far as movable
property is concerned, is open to debate. Unlike immovable property, movables
282
can be removed from the jurisdictional area of a court, while remaining under the
control of their owner or possessor. It would therefore appear that a court which
has power over the owner or possessor should also be able to exercise
jurisdiction.
Our courts have not pertinently decided this question, and the current position is
therefore that, while the forum rei sitae will always have jurisdiction, it is unclear
whether the forum domicilii of the defendant will also be able to exercise
jurisdiction.
Matrimonial jurisdiction:
Domicile and residence: In terms of common law, a woman, upon entering into
marriage, automatically adopted and followed the domicile of her husband. She
therefore lost the domicile which she had prior to her marriage, and also forfeited
her competence to acquire a domicile of choice during the subsistence of the
marriage. The wife’s domicile of dependence was abolished by the provisions of the
Domicile Act.
An independent domicile for married woman is now conferred under section

1(1) of the Act, in the following terms:
domicile of choice, regardless of such person’s sex or marital status.
The Domicile Act not only amended the concept of domicile in the context of
divorce jurisdiction, but also introduced new grounds for the exercise of divorce
on that court.
common-law definition.
The basic common-law principle regarding divorce jurisdiction was that the court
of the common domicile of the parties had jurisdiction to hear an action for
divorce. This makes sense, as the court where the parties have their home is the
court that has the greatest interest in their status and future arrangements.
Private international law determines this to be the most appropriate court to make
such an order and so its order is generally recognized and accepted.
Although, in the past, the common domicile rule was generally appropriate, it did
cause severe hardship to the wife in certain circumstances. Firstly, the “common
domicile” of the parties was viewed as that of the husband. Secondly, in South
Africa the structure of the High Court’s meant that a party who wished to obtain a
divorce was not able to rely on a countrywide jurisdiction, but had to prove
jurisdiction within the area of a particular court. The result of these factors was
that a deserted wife, whose husband had moved elsewhere, often found it difficult
or impossible to institute divorce proceedings.
283
The problems experienced by deserted wives led to the introduction of a series of
legislative changes, culminating in the changes to the Divorce Act 70 of 1979 and
the introduction of the Domicile Act 3 of 1992. The result is that the wife’s
domicile of dependence has been abolished and she now has an independent
domicile. A divorce action is clearly defined in section 1(1) of the Divorce Act and
section 2(1) of the Divorce Act provides for jurisdictional grounds in a divorce
action. What is important is that the divorce jurisdiction is not restricted to the
court within whose area the defendant is domiciled. The plaintiff/applicant may
sue in the domicile area of either of the parties or the area where one of the parties
is ordinarily resident. Section 2(1) is a departure from the common-law principle of
actor sequitur forum rei.
Current legislation regulating divorce jurisdiction:
The question of whether a particular High Court has jurisdiction to hear a divorce
is determined by the Divorce Act 70 of 1979. NBNB is that a court may exercise
jurisdiction on the basis of the independent domicile or residence of either the
husband or the wife. Domicile and residence are established as independent and
alternative jurisdictional grounds.
Independent domicile also applies to couples who enter into a civil union under
the Civil Union Act 17 of 2006, which legalised same-sex marriages. (The legal
consequences of a civil union are the same as those of a marriage under the
Marriage Act 25 of 1961, and any reference to marriage in any law is deemed to
include a civil union, and any reference to a husband, wife or spouse is deemed to
include a spouse or partner in a civil union.)
The ordinary meaning of section 2(1) is clear. A court may exercise divorce
jurisdiction if both or either of the parties are/is domiciled in its area of
jurisdiction on the date on which the action is instituted (s 2(1)(a)).
Alternatively, a court may also exercise jurisdiction if both or either of the

parties are/is ordinarily resident in its area of jurisdiction on the date on
which the action is instituted and have/has been ordinarily resident in the
Republic for a period of not less than one year immediately prior to the
institution of the action (s 2(1)(b)).
A court may exercise jurisdiction in the case of a divorce if only one of the parties
is either domiciled or resident in its area of jurisdiction. This has the following
implications:
284
1. the domicile or residence of one spouse alone is sufficient to confer the
competence to exercise divorce jurisdiction over the other spouse.
2. the domicile or residence of the one spouse is sufficient to confer jurisdiction,

even if the other spouse is domiciled or resident outside the Republic. In other
words, a spouse who is domiciled or resident outside the Republic and who has
never had any personal links with the Republic may, as plaintiff, institute divorce
proceedings in South Africa in a particular High Court on the grounds that the
other spouse is domiciled or resident within that court’s jurisdiction.
It is unclear how much time must elapse before domicile or residence in terms of
the Act has been established. Section 2(1)(a) provides that, if both or either of the
parties are/is domiciled within the area of a court, such court will be competent to
exercise divorce jurisdiction, irrespective of the period of domicile (s 1(1) of the
Domicile Act).
This contrasts with the provisions of section 2(1)(b), which require a period of
residence of not less than one year within the Republic immediately prior to the
institution of the action. The period of residence for one year in the Republic is not
clearly defined, however. It seems that this period of one year’s residence includes
any antenuptial period of residence (i.e. the period of residence before the
conclusion of the marriage). For instance, a spouse who institutes divorce
proceedings could have been resident in the Republic for a period exceeding one
year, but only have been married for a month immediately prior to the institution
of the proceedings.
Section 2(2) provides that a court that has jurisdiction to adjudicate a claim for
divorce in terms of section 2(1) also has jurisdiction in respect of a claim in
reconvention or an application in the divorce action concerned. Section 2(3) deals
with choice of law. It determines that, in the circumstances stated therein, a
“court” must apply its own law when adjudicating a “divorce action”.
With the advent of the Jurisdiction of Regional Courts Amendment Act 31 of 2008
(JRCAA), the jurisdiction of the regional courts was extended to include divorce
matters. This Act also repealed section 46(1) of the Magistrates’ Courts Act in so
far as it provided that a magistrates’ court could not grant a divorce, because a
divorce affects the status of the parties and status must be decided by the High
Courts.
Section 1 of the Divorce Act of 1979 has been amended to extend the definition of
“court” to include a reference to a regional magistrates’ court division.
The jurisdiction of the regional magistrates’ courts in respect of divorce and

related matters is now as follows:
(a) Section 28(1A) of the Magistrates’ Courts Act provides that a regional
magistrates’ court shall have divorce jurisdiction over both or either party
who is “(i) domiciled in the court’s area of jurisdiction on the date on
which the proceedings are instituted; or (ii) ordinarily resident in the
court’s area of jurisdiction on the said date and has been ordinarily
resident in the Republic for a period of not less than one year immediately
prior to that date”.
(b) Section 29(1B)(a) of the Magistrates’ Courts Act provides that a regional
285
division shall have jurisdiction to determine actions relating to the nullity
of a marriage and divorce, as well as related matters. A regional
magistrates’ court may also hear any matter provided for in terms of the
Recognition of Customary Marriages Act, 1998. In terms of this Act, a valid
customary marriage can only be dissolved through a decree of divorce on
the grounds of the irretrievable breakdown of the marriage, in the same
way as civil marriages.
(c) In terms of section 29(1B)(b), a regional magistrates’ court hearing any of

these matters shall have the same jurisdiction as any High Court
regarding such matter.
The keywords contained in section 2(1) of the Divorce Act of 1979 are as follows:
•both or either of the parties
• is or are domiciled
• area of court
• time of the institution of the action
• OR (introducing residence as the alternative ground)
• ordinarily resident
• in the area of court (local residence requirement)
• at time of institution of the action
• AND (an additional residence requirement)
• ordinarily resident
• in the Republic (national residence requirement)
• not less than one year prior to the institution of the action
Jurisdiction in respect of nullity and annulment

Falls outside the scope of the definition of “divorce action” as contained in section
1 of the Divorce Act and therefore the provisions of section 2 do not apply in this
respect.
Void and voidable marriages.

An action for the declaration of nullity of a void marriage does not alter the
status of the parties, because, in reality it is merely of a declaratory nature. In
such a case no valid marriage in fact existed and the parties are only seeking legal
confirmation of this fact before, for instance, marrying other persons.
In accordance with our common law, as interpreted by our courts, the following
courts have jurisdiction:
The forum loci celebrationis (the court of the place where the marriage was entered
into)
The court where the plaintiff or the defendant is domiciled at the time nullity
proceedings is instituted.
In an action for the annulment or dissolution of a marriage which is not void, but
simply voidable, a change of status does take place. As soon as it is set aside, the
status of the parties’ changes, and, for all practical purposes, the parties are
placed in the position in which they were at the time the marriage was entered
into.
286
The functions of The Constitutional Court:
The Constitutional Court is situated in Johannesburg. It comprises the Chief

Justice of South Africa, the Deputy Chief Justice of South Africa and nine other
judges. At least eight judges must hear a matter that comes before the
Constitutional Court. Its jurisdiction is set out in section 167(3)–(7) of the
Constitution of the Republic of South Africa, 1996, as amended by the
Constitution Seventeenth Amendment Act (CSAA) of 2012. This court has four
functions:
(1) It is the highest court of appeal in respect of both constitutional and non-
constitutional matters (s 167(3)(a)).
(2) It is the only court that may hear disputes between organs of state at national
or provincial level; hear certain applications by the legislature about the
constitutionality of parliamentary and provincial bills and Acts; take decisions on
whether parliament or the president has failed to comply with a constitutional
duty; and certify provincial constitutions (s 167(4)). As regards these matters, the
Constitutional Court has exclusive jurisdiction.
(3) This court may, in exceptional circumstances, grant anyone direct access
when it is in the interests of justice to do so (s 167(6)(a)).
(4) The final function of the Constitutional Court is to confirm orders made by
other courts in which parliamentary or provincial legislation is declared invalid.
Until the Constitutional Court confirms an order of invalidity, it has no force (s
167(5)).
This court can therefore function either as a court of first instance or as a court of
appeal.
It is the only court which may:

a) hear disputes between organs of state at national or provincial level;
b) hear certain applications by the legislature over the constitutionality or
parliamentary and provincial bills and Acts;
c) takes decisions on whether parliament or the President has
failed to comply with a constitutional duty;
d) and certify provincial constitutions
Constitutional jurisdiction:
Previously, the Constitutional Court was the highest court on constitutional
matters, whilst the Supreme Court of Appeal was the highest court on all other
matters. The Constitution Seventeenth Amendment Act of 2012 now affirms the
role of the Chief Justice as the head of the judiciary and it broadens the
jurisdiction of the Constitutional Court by giving it powers to hear matters that
have no constitutional bearing. This means that the Constitutional Court is now
the apex court on all matters. The aims of these amendments are to enhance the
independence of the judiciary, to ensure the proper and effective functioning of all
courts and to ensure the expeditious and cost-effective handling of the appeals
process. The Constitutional Court is concerned with both constitutional matters
and non-constitutional matters. Its jurisdiction is set out in section 167 of the
1996 Constitution, which you must study carefully.
287
Section 167(3): The Constitutional Court hears both constitutional matters and
non constitutional matters.
Section 167(4): This section sets out the matters in respect of which the
Constitutional Court has exclusive jurisdiction, that is, which only the
Constitutional Court may decide.
Section 167(5): Under the interim Constitution of 1993, only the Constitutional
Court could decide on the constitutionality of legislation. Section 167(5) of the
1996 Constitution authorises the Supreme Court of Appeal and the High Court of
South Africa to make such decisions. However, if a superior court makes such a
decision, it has no force until it is confirmed by the Constitutional Court. The
constitutional court exercises concurrent jurisdiction with the high courts in
respect of all other constitutional matters. It is the court of final instance, and no
further appeal is possible. It is possible, in exceptional circumstances, to approach
the constitutional court direct or to appeal to this court direct despite the fact that
the matter concerned falls within the concurrent jurisdiction of the constitutional
court, and so should first be heard by a high court or the supreme court of appeal.
The constitutional court must give leave for an approach to it and the applicant
must show that it is “in the interests of justice” that this court be approached
direct.
Jurisdiction of the supreme court of appeal

This court may decide appeals “in any matter”, which includes appeals in
constitutional matters. A decision by the Supreme Court of appeal on a
constitutional matter may be taken on further appeal to the constitutional court.
If an appeal deals with both constitutional and non-constitutional issues, appeal
must always be noted first to the supreme court of appeal.
Jurisdiction of the high courts
A high court may now hear all constitutional matters apart from those which fall
into the exclusive jurisdiction of the constitutional court, and those which have
been assigned to another court by national legislation.
The only other limitation on the constitutional jurisdiction of the high courts is
that if such a court makes a finding that parliamentary or provincial legislation or
the conduct of the President is unconstitutional, this must be confirmed by the
constitutional court.
Any order made by a high court or the supreme court of appeal on constitutional
invalidity is without effect until confirmed by the constitutional court.
Section 21(1) of the SCA – this section provides that every High Court Division
may adjudicate on any cause arising within its territorial area of jurisdiction,
except where exclusive jurisdiction has been vested in another court or tribunal.
(The phrase "causes arising" has been interpreted by our courts to mean "legal
proceedings duly arising", that is, proceedings in which the court has jurisdiction
under common law. Zokufa v Compuscan Credit Bureau 2011 1 SA 272 (ECD).
The High Court also has jurisdiction over all persons residing in its territorial area.
(In terms of common law, a court also has jurisdiction over a person who is
domiciled in its territorial area, even if that person is temporarily residing
elsewhere.)
288
MAGISTRATES COURTS:
Magistrates’ courts: creatures of statute:
Magistrates’ courts are termed “creatures of statute”. This means not only that they
have been created by statute, but also that they can only do what some statute
permits them to do.
Because the magistrates’ courts may exercise only statutory jurisdiction, the
common-law principles which you applied when determining jurisdiction in the
high courts, are not relevant when determining jurisdiction in magistrates’ courts.
Definition of the “court”

The definition of “court” in section 1 of the Magistrates Courts Act 32 of 1944 has
been amended, and in the new Act court now refers to a magistrates court ‘for any
district or for any regional division’. All mention of magistrates courts in your
study guide refers to the district magistrates courts, and not to the regional
magistrates courts. The exclusion of a case from the jurisdiction of the district
magistrates courts does not necessarily mean that such case is excluded from the
jurisdiction of the regional magistrates courts.
Limitations on the jurisdiction of magistrates’ courts

High courts: geographical limitation:
The only general limitation placed on the exercise of jurisdiction by a high court is
geographical.
Magistrates’ courts: nature and amount of claim plus geographical limitation
The first question to be asked when dealing with jurisdiction is:
“Can action be instituted in a magistrate’s court?”
This question has two parts:
“Can this type of action ever be heard in a magistrate’s court?” (s46)
And if this question is answered affirmatively, you then ask:
“Is the amount claimed so large that a magistrate’s court cannot hear the
matter?” (s29)
Only after these questions have been answered can one ask:
In which magistrate’s court may action be instituted? (s28)
Limitations on the nature of the claim:
SECTION 46 – WHAT A MAG CANNOT HEAR:
Section 46(1): matrimonial matters

Section 46(1) provides firstly that a magistrate’s court cannot grant a divorce.
Divorce affects the status of the parties and in principle matters of status must be
decided by the High Court.
The section also states that a magistrate’s court will not have jurisdiction in
matters in which the “separation … of goods of married persons…” is sought. This
has been interpreted as meaning the goods of persons married in community of
property.
However, the court will have jurisdiction to hear an action by one party against the
other, if they are married out of community of property, for the return of goods
claimed as his or her.
289
Extension of divorce jurisdiction to regional magistrate’s courts
The JRCAA (The Amendment of the Jurisdiction of the Regional Courts Act,
2008) has amended the Magistrates' Courts Act, so as to confer jurisdiction on
regional divisions of courts in respect of certain civil disputes.
The Civil Regional Court will be jurisdictionally limited to those matters where the
quantum of the claim is between R200 000 and R400 000.
Before the JCRCCA came into operation, family disputes, such as divorce and
adoption matters, were dealt with exclusively by the High Court and the Central
Divorce Court in Johannesburg.
(see above)
Section 46(2)(a): validity of wills

Although magistrates’ courts do not have jurisdiction to hear disputes regarding
the validity of wills or how they should be interpreted, these courts do have
jurisdiction to hear an action resulting from the provisions of a will, for example,
payment of an amount bequeathed in a will.
Section 46(2)(b): status as regards mental capacity

A magistrate’s court is not empowered to declare a person insane, or to declare a
person incapable of managing his or her own affairs.
However, a magistrate is authorised to appoint a curator ad litem for a person who
has already been declared insane or incapable of managing his or her own affairs.
Section 46(2) (c): specific performance – NBNBNB!!!

The traditional meaning of the phrase “specific performance” is that of specific
performance of a contractual obligation. Such orders were traditionally granted
only by the superior courts, as they require someone to perform a particular
action, and the superior courts were the only courts deemed competent to make
such orders.
Two main questions have arisen:
1. Was the phrase “specific performance” limited to performance in terms of a
contact or performance in general?
2. Could payment of money in terms of a contractual debt ever amount to specific
performance (ad factum praestandum – specific performance “proper” & ad
pecunium solvendum – to pay a sum of money) or was specific performance
limited to performance of a particular action?
The first question was decided in (Maisel) where the court held that the words
were limited to the traditional meaning of specific performance in terms of a
contract and could not be widened to include any order to perform a particular
action.
The second question was finally decided in (Tuckers Land) where the court held
that a claim for payment of a purchase price in terms of a contract, although
strictly speaking a claim for specific performance, was not a claim for specific
performance in terms of this section, and that a claim sounding in money, whether
the debt arose from a contract or not, could never be a claim for specific
performance.
This subsection applies only where there is a claim for specific performance of a
contract that is where the defendant has to perform a particular act because he
contractually undertook to do so. This restrictive approach appears to be what the
legislature intended when passing the subsection.
If Nicola decides to complete the building work, but Peter commits a breach of
contract by refusing to pay Nicola after the house has been built, Nicola is able to sue
290
Peter in the magistrate’s court for payment of the contract price, because payment of
the contract price is not seen as specific performance. (If the extensive interpretation
suggested in (2) above had been placed on section 46(2)(c), Nicola could not have
sued Peter in the magistrate’s court because non-payment of the purchase price
would be non-performance in terms of a contract.)
However, if Nicola refuses to build the house and Peter has paid him to do so, Peter
cannot ask a magistrate’s court to force Nicola to build the house. She can do this
only in the High Court, as this is a true claim for specific performance. The
magistrate’s court can make such an order only if Peter includes a claim for damages
as an alternative, in which case it will order Nicola to build the house or,
alternatively, to pay Peter damages.
The exceptions to s46(2)(c), seen below, are s46(2)(c)(ii) and (iii) which relates to
the delivery of a movable (which a Magistrate may now hear, provided the
monetary value of the delivery of the movable falls within the courts’ jurisdiction –
thus, R200 000 for district and R200 000-R400 000 for a regional court) and the
transfer of an immovable (value within court’s jurisdiction) which CAN be heard by
a Magistrate.
Section 46(2) (c) (i): “rendering of an account”

Victor Products: the right at common law to claim a statement of account is
recognised in our law, provided the allegations in support thereof make it clear
that the said claim is founded upon a fiduciary relationship between the parties or
upon some statute or contract which has imposed upon the party sued the duty to
give an account.
If the claim for specific performance without an alternative of payments of
damages if fro the rendering of an account, in respect of which the claim does not
exceed R200 000, the matter may be heard in the Magistrates’ Court.
A duty to account may arise in different circumstances. For example, this duty
may form part of contract between the parties, or it may arise out of the fact that
the parties stand in a fiduciary relationship to one another, as in the case of
partners in a partnership. Note, however, that a duty on account does not arise
simply because a debtor-creditor relationship exists between the partners
Sections 46(2) (c) (ii) and (iii)

S46(2) (c) (ii) and (iii) an order which may be granted is limited to the delivery or
transfer of movable or immovable property, and no more. Hardwood Timber, the
court refused to order that an accepted promissory note be delivered to the
plaintiff, since this would have meant that the defendant would have had to accept
the promissory note before delivery.
Delivery or transfer of property value at or under R200 000

If the claim for specific performance without an alternative of payment of damages
is for the delivery of transfer for the property, movable or immovable, which does
not exceed R200 000, the matter will be heard in the Magistrates’ Courts.
This exceptional covers many claims which arise in practice. For example, you
agree to sell me your car for R150 000 back to me, but you refuse the deliver the
car to me. You offer to pay R1500 000 back to me, but I insist that want the car as
we agreed. This is a claim for specific performance without an alternative of
payment of damages. However, since I am asking for the delivery of movable
property, the matter is not beyond jurisdiction of the Magistrates’ courts.
291
Delivery or transfer of property valued at over R200 000
If the claim of specific performance without an alternative for payment of damages
is for the delivery of transfer of property, movable or immovable, which exceeds
R200 000, the matter may be heard in the Magistrates’ Courts, provided that the
parties consent to the jurisdiction of the Magistrates’ Courts in terms of s 45.
Thus, the following methods may be used to decide whether or not the claim for
specific performance is excluded from the jurisdiction of the Magistrates’ Courts in
terms of s 46(2)(c):
1. Does the claim for specific performance arise out of contract? If not, then
the claim does not fall within the ambit of s 46(2)(c).
2. What if an alternative claim for the payment of damage is attached to the
claim of specific performance? Then the claim does not fall within the
ambit of s 46(2)(2) and the claim may be brought in the Magistrates’
courts.
3. Is the claim for the rendering of an account? If so, then the claim is n
exception to s 46(2)(c), and the claim maybe be brought in the Magistrates’
Courts, provided that the account is for R200 000 or under.
4. Is the claim for the delivery or transfer of property? If so, then the claim is
exception to s 46(2)(c), and the claim ay be brought in the Magistrates’
courts, provided the, if the value of the property is over R200 000, both
parties have consented I writing to the jurisdiction of the Magistrates’
Courts.
Section 46(2)(d): perpetual silence

A decree of perpetual silence is a court order instructing someone who has
threatened to institute litigation to do so within a set period. If action is not
instituted within this period, the person is barred from ever instituting action on
those facts.
A decision on the granting of such a decree, the court would consider the following
factors:
• The nature and subject-matter of the claim
• Prejudice to the parties
• The balance of convenience
• The period of delay since the threat of litigation had commenced
• Whether the threats of litigation constituted a disturbance of the applicant’s
rights
A magistrate’s court is prevented from making such an order presumably because
it limits the right of access to legal assistance. Garber NO V Witwatersrand Jewish
Old Age Home 1985 (3) SA 460 (W)
292
SECTION 29:
LIMITS AS TO $:
Section 29(1): subject to the provisions of this Act…
This refers to other sections of the Act dealing with jurisdiction.
Section 29(1): … causes of action

Reference is made to “causes of action” and “action”. The word “action” must be
interpreted broadly and must not be restricted to mean proceedings instituted by
way of summons only. The word refers to all proceedings in the magistrates’
courts, and includes all applications.
Section 29(1) (a): …delivery or transfer of any property…

“Value” in this section means the actual market value of the property concerned,
in other words the amount of money which would be paid for the property in an
open sale.
Section 29(1) (b): … actions of ejectment… where the right of occupation is

in dispute between the parties – briefly!!
An action for eviction is not a claim for specific performance. Therefore, the
provisions of section 29(1) (b) should not be considered an exception with regard to
section 46(2) (c).
It is extremely difficult to lay down general rules for determining whether the “right
of occupation exceeds R200 000 in clear value to the occupier”, but note the
following:
• The rental for the premises is not always the correct criterion for calculating
the value of the right of occupation, since the rental value is really the value
to the landlord, and, in certain cases, the rental value may be far below the
true value of occupation to the occupier
• The capital value of the premises is also not necessarily an indication of the
value of occupant, except where the defendant claims ownership of the
premises
• Where premises are occupied for residential purposes, the value of the right
of occupation is probably equal to the rental of other premises similar to the
one in dispute, calculated over the same period of occupation
• If, however, the premises are being occupied for business purposes, the value
of the right of occupation is probably equal to either
• The cost of renting other premises on which the occupier has a reasonable
expectancy of making the same profit as on the premises in dispute, or
• The amount of the profit which the occupier is reasonably expected to make
on the premises in dispute.
This provision must be read in conjunction with the relevant statutory provisions
regulating this area of the law, such as the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (known as PIE)
Section 29(1) (c): actions for the determination of a right of way,

notwithstanding the provisions of section 46
(THINK: “(c) = right of way (servitude)”)
It is not necessary to wonder whether a right of way is an order for specific
performance, as the provisions of section 46 are excluded here. It is also not
293
necessary to determine the value of the right of way, as no limit is placed on the
value thereof, and so it seems that magistrates’ courts may create or confirm any
right of way, irrespective of its value to the parties.
Section 29(1) (d): …liquid document or mortgage bond

(THINK “(d) = mortgage)
A liquid document is a document in which a debtor, above his signature or that of
his agent, admits that he is liable for a fixed or ascertainable sum of money.
A magistrate’s court will have jurisdiction in a claim for payment of R70 000 even
if the amount of the bond is for R500 000.
***Section 29(1) (e): …credit agreement as defined in section 1 of the Credit

Agreements Act 75 of 1980…
(THINK (e) = credit)
A credit agreement is an agreement for an instalment sale or for a lease
transaction. It is commonly found when large items such as furniture or motor
vehicles are purchased, and the purchaser cannot pay the full amount
immediately, but receives the goods concerned and pays the amount due in
payments over a period of time.
The plaintiff in such an action, who will be the person or institution who granted
credit, can seek one of two things; recovery of the property he sold by hire-
purchase or lease, or payment of money owing in terms of the agreement.
If the plaintiff’s claim is for payment of one or more outstanding payments, each
payment must not exceed the financial limit. The total amount of the various
payments can exceed the limit, as each payment constitutes a separate claim.
Section 29(1) (f): …actions in terms of section 16(1) of the Matrimonial

Property Act 88 of 1984…- Brief!!!
It was pointed out in section 46(1), that section 16(1) of the Matrimonial Property
Act is one of the exceptions to section 46(1).
Section 29(1) (f) was introduced in 1984 when the Matrimonial Property Act came
into operation. Section 16(1) of this Act provides that where a spouse refuses to, or
cannot, give consent to various transactions relating to property belonging to the
joint estate or the other spouse, and which require the consent of both parties, the
other spouse may approach a magistrate’s court for assistance.
Section 29(1)(fA): actions including an application for liquidation in terms of

the Close Corporations Act 69 of 1984
(THINK (fA) = the only insolvency case heard in a Magistrate)
This is the only insolvency application which a magistrate’s court may hear. The
Insolvency Act 24 of 1936 provides that sequestrations and liquidations must be
decided by the High Courts.
Section 29(1) (g): …actions other than those already mentioned

This section is relevant when claims in the alternative are drafted. If for example
delivery is claimed, neither the value of the property nor the alternative claim for
damages may exceed the financial limitation
Section 29(2): “Action” includes a claim in reconvention A claim in reconvention is

a counterclaim that the defendant may institute against the plaintiff when he or
she defends the plaintiff’s claim. This subsection merely confirms that these
claims are also subject to the same financial limitations
294
Jurisdiction in respect of persons (geographical considerations):
SECTION 28:
In a problem question, look where does the defendant reside; carry on business or
is employed, that court will always have jurisdiction, according to s28(1)(a) – not
ratione domicilii as in high court!
Section 28(1)(a): any person who resides, carries on business or is employed

within the district
a) Reside
The meaning of the concept is unchanged in both courts
b) Carries on business
The business carried on must be one’s own business. An artificial person, such
as a corporation or company, carries on business in the place where its head
office is situated, although a large company may clearly carry on business in a
number of places simultaneously.
c) Is employed
A person who “is employed” does not “carry on business”.
A degree of permanent employment is required.
d) Time at which position is determined
In (Mills) section 28(1)(a) was interpreted as follows: the date of service of the
summons and not its date of issue is the determining factor in establishing
whether a defendant was “employed within the district” of the magistrate’s court
concerned.
Where does a natural person reside?

Beedle & Co v Bowley:
When it is said an individual resides at a place it is obviously meant that it is his

home, his place of abode, the place where he generally sleeps after work of the day
is done.
The person must been residing within the territorial area of jurisdiction of that
court at the time legal proceedings were instituted, i.e. at the time the summons
or notice of motion was served. You do not become a resident of a place if you are
only visiting that place for a short period. For example, if you leave your home in
Pretoria to spend a two-week holiday in Durban, you do not become a resident of
Durban. DON’T confuse the concept of ‘residence’ with that of ‘domicile’. While it is
possible to have more than one place of residence, it is not possible to have more
than one place of domicile. Finally, note that choosing an address as domicilium
citandi et executandi does not mean that you ‘reside’ at that address.
Section 28(1)(b): any partnership within the district

A partnership is not a juristic entity and, if sued in terms of common law, all the
partners have to be sued jointly. This was extremely inconvenient if the partners
lived in different districts and as a result, section 28(1) (b) was introduced for the
sake of convenience. A partnership can be sued in any area where it has business
premises or where any one of the partners resides.
Section 28(1)(c): any person…in respect of any proceedings incidental to any

action
At common law, a plaintiff is deemed to submit himself or herself to the
jurisdiction of any court where he or she institutes action in respect of any
counterclaim. A plaintiff in a High Court action is therefore always subject to the
295
jurisdiction of that court if the defendant institutes a counterclaim. Common law
does not apply in respect of the jurisdiction of magistrates’ courts and so this
assumption was not valid for magistrates’ courts. The legislature introduced
section 28(1)(c) to deal with the problem, but was not completely successful,
because of the use of the word “incidental”. Different kinds of proceedings are
incidental to the main action.
Section 28(1)(d): …cause of action arose wholly within the district – VERY
NB!!!
Jurisdiction is determined by where the cause of action arose, not where the
defendant is found.
In terms of common law jurisdiction may be exercised ratione rei gestae in the High
Courts. However, in the High Court, the cause of action need only have arisen
partially for a court to be vested with jurisdiction. In contrast, in magistrates’
courts the Act provides that the cause of action must arise wholly in the relevant
area before a court will be vested with jurisdiction.
In the High Court, it is sufficient to show, in an action based on a contract that

the contract was concluded, or was to be performed, within a particular
jurisdictional area. In the magistrate’s court, however, it must be shown not only
that the contract was concluded within the district concerned, but also that
the breach occurred there as well, in other words, the cause of action must
have arisen “wholly” within the district. What does the word “wholly” mean in
the context of the Act? The concept “whole cause of action” has been considered in
a number of court decisions. It has been described in Abrahamse as 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 plaintiff must set out in his declaration in order to disclose a cause of
action.
In King’s Transport, the court drew a distinction between facta probanda (facts at
issue) and facta probantia (facts relevant to the facts at issue, and which are used
to prove the facts at issue). The facta probanda must all have occurred within the
jurisdictional area concerned, but not the facta probantia. Rule 5(6)(a) of the
Magistrates’ Courts Rules provides that, should the plaintiff sue in terms of a
capacity conferred by section 28(1)(d), the summons must state that the cause of
action arose wholly within the district or regional division, and must set out the
particulars in support of such averment. A mere averment that the whole cause of
action arose within the district magistrate’s court or regional magistrate’s court is
therefore insufficient.
Cause of the action arising ‘wholly’ states that a Magistrate’s Court will have
jurisdiction over:
any person… if the cause of action arose wholly within the district of
regional division…
The phrase, “if the cause of action arose wholly within the district’ was defined as
follows by Appellate Division in the case of Mckenzie v Farmers’ Co-operative Meat
Industries Ltd:
Every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court. It does not
296
comprise very piece of evidence, which is necessary to prove each fact, but
every fact, which is necessary to be proved.
In other words, if you want to rely on s 28(1)(d) for jurisdiction, then every fact
which your client must prove in order to succeed in his or her claim, must have
arisen within the district or regional division of the Magistrates’ Courts which you
want to institute action. It does not matter if certain pieces of the evidence, which
are necessary to prove those facts arose outside the district or regional division of
the particular Magistrates’ Court. Therefore, it is important to distinguish
between:
1. The facts, which must be proved in order to constitute a valid cause of

action. In Latin, these are called the facta propanda; and
2. All the different bits of evidence that must be led to prove the facta
propanda. In Latin, these are called facta probantia.
Section 28(1) (f): any defendant who appears and makes no objection…
If a person not subject to a court’s jurisdiction submits to it, such court will be
vested with jurisdiction by virtue of such submission.
Subsection 28(1)(f) must be compared to the situation found in section 45, in the
sense that, in the case of section 45, the defendant positively consents to the
jurisdiction of the magistrate’s court. In terms of section 28(1)(f) = a failure to
object to the court’s jurisdiction.
The defendant, by his or her failure to object, “consents” to the court’s jurisdiction
only in respect of his or her person. This means that submission in terms of
section 28(1)(f) is valid only when a court lacks jurisdiction in terms of section 28.
Submission cannot be used when a court lacks jurisdiction in terms of section 29
– then actual consent in terms of section 45 is necessary.
Section 28(1) (g): any person who owns immovable property…

Extends jurisdiction to persons who owns immovable property within the area of
jurisdiction of a court, but who are otherwise not subject to such court’s
jurisdiction in terms of any other provisions of section 28(1). Thus, if the claim is
regarding the immovable property, the court where the immovable property is
situated, has jurisdiction, BUT so does s28(1)(a)!
Section 28(2): “The State” as defendant The words “person” and “defendant” also
include the state. In Minister of Law and Order v Patterson, the Appellate Division
had to decide which magistrates’ court was competent to entertain an action
against the state. The court held that the question of whether the respondent was
entitled to sue the appellant in the Cape Town District Magistrates’ Court had to
be determined by reference to the provisions of section 28 of the Act. The court
found that on the grounds of convenience and in the interests of certainty, the
rule adopted should be similar to that which the courts apply when determining
the forum in which a trading corporation or other artificial person is sued in terms
of section 28(1)(a). The court noted that the “residence” or “place of business” of a
trading corporation is interpreted as being the place where the central
management of such corporation is exercised. The court held that Pretoria is
regarded as “the seat of the Government of the Republic”. Thus the “place of
business” of the state in terms of section 28(1) is Pretoria.
297
Other provisions that determine whether a magistrate’s court may exercise
jurisdiction
Section 30:
Section 30 provides that magistrates’ courts have jurisdiction to grant various
types of orders which might otherwise be excluded in terms of section 46(2)(c),
which prohibits magistrates’ courts from granting orders for specific performance
without an alternative claim for damages. In terms of section 30, magistrates’
courts may grant interdicts, attachment orders, and arrests. In all instances, the
provisions of sections 28 and 29 must still be complied with.
Interdicts
An interdict is a court order in terms of which a person is ordered either to
perform or not to perform a specific act.
An order that someone must not perform an act is a prohibitory interdict, while an
order that someone must perform an act is a mandatory interdict.
A final interdict is an order that remains permanently valid; a temporary interdict
is granted either for a particular period of time or as an interim measure while the
outcome of the main case is awaited.
Definition: An interdict is a court order in terms of which a person is ordered

either to perform or not to perform a specific act. An order that someone must not
perform an act is a prohibitory interdict, while an order that someone must
perform an act is a mandatory interdict. Such orders may be final or temporary: a
final interdict is an order that remains permanently valid; a temporary interdict is
granted either for a particular period of time or as an interim measure, while the
outcome of the main case is awaited.
It is clear that a mandatory interdict could be viewed as a form of specific

performance and so prohibited by section 46(2)(c), because an order to perform an
act is frequently very similar to an order for specific performance. However, in
Badenhorst v Theophanous 1988 (1) SA 793 (C), it was held that magistrates’
courts may nevertheless grant mandatory interdicts, provided that such orders do
not amount to “orders ad factum praestandum in terms of a contractual
obligation” as found in s46(2)(c) – remember MC’s cant hear claims for specific
performance “proper” in terms of Maisel & Tucker’s Land).
Magistrates’ courts may grant both final and temporary interdicts.
It is frequently difficult to determine the financial value that must be placed on an

interdict in order to decide whether it falls within the limits set by section 29.
How, for instance, do you assess the value of an order preventing an employee
from giving confidential information to another employer? It seems that if nothing
appears to the contrary in the pleadings or in evidence, or if the defendant does
not dispute the plaintiff’s allegation that the matter falls within the limits set by
section 29, the court will have jurisdiction.
However, if it is impossible to determine the value of the interdict and the plaintiff
decides to institute action in the High Court, this court will not penalise the
plaintiff by making an order for costs on the lower magistrates’ courts scale, but
will grant him/her costs on the High Court scale.
298
Procedure for obtaining an interdict
Interdicts may be obtained either by action procedure or by application procedure.
If application procedure is used, the provisions of rule 56 must be complied with.
This rule provides that all applications for orders for arrest, interdict and
attachment must be made ex parte.
After the order has been granted, the respondent is given an opportunity to show
the court why the order should not have been granted and the order may then be
discharged, varied or confirmed.
Mandamenten van spolie

A Mandamenten van spolie is a form of interdict. It is also known as a
restitutionary interdict, because it is an order forcing someone to return property
that he or she has taken unlawfully from another.
The object of the Mandamenten is to prevent people from taking the law into their
own hands, and for this reason the court does not go into the merits of the matter
until the person whose possession was disturbed is placed in possession of the
item.
Once again, this form of order appears to contravene section 46(2) (c). However,
the order is usually not “in terms of a contractual obligation” and it has been held
that a Mandamenten van spolie does not contravene the provisions of section 46,
because section 46 is not concerned with “extraordinary remedies of a temporary
nature”.
The value of the property which must be returned will determine whether a
magistrate’s court is prohibited by section 29 from exercising jurisdiction.
The procedure for obtaining a Mandamenten van spolie

The Mandamenten van spolie is usually obtained by means of an ex parte
application, in which case the procedure set out in magistrates’ courts rule 56, is
followed. The action procedure may, of course, be followed.
In his or her sworn affidavit the applicant must show
* That he or she was in peaceful and undisturbed possession of the thing to which
the application relates and
* That he or she was forcibly and unlawfully deprived of possession by the
respondent
Arrests “tanquam suspectus de fuga”

If a debtor owes money to a creditor, the creditor cannot enforce payment until a
court has given judgment against the debtor. For this reason a debtor sometimes
attempts to leave South Africa before the granting of a court judgment against him
or her because, once the creditor has such a judgment, it can be enforced in most
countries of the world.
Its purpose is to stop a debtor from fleeing South Africa to evade judgment – its
purpose is not to force him or her to pay the debt.
Abolition of arrest tamquam suspectus de fuga

The common law and section 30(1) of the Magistrates’ Court Act, which allow for
arrest tamquam suspectus de fuga, and section 30(3) have recently been declared
unconstitutional by the Constitutional Court in Malachi v Cape Dance Academy.
(a) The words “arrest tamquam suspectus de fuga”, as contained in section
30(1) of the Magistrate Courts Act, are declared unconstitutional and invalid.
(b) The whole section 30(3) of the Magistrates’ Courts Act is declared to be
inconsistent with the Constitution and invalid.
299
In Malachi v Cape Dance Academy, the Constitutional Court decried the use of
arrest tamquam suspectus de fuga “without any regard to less invasive options that
are available”.
The decision in Tatiana Malachi v Cape Dance Academy requires Magistrates’
Courts Rules 55 and 56, which regulate the section 30 process by providing that
an application for an arrest tamquam suspectus de fuga may be made ex parte, to
be amended accordingly. Both the High Court and the Constitutional Court did
not deal with arrest tamquam suspectus de fuga under rule 9 of the Uniform Rules
of Court and the common law. Therefore, such arrests are still permissible. But
given the Constitutional Court’s confirmation of the High Courts finding on the
constitutional invalidity of arrest under section 30 of the Magistrates Court Act, it
is highly unlikely that any application for arrest tamquam suspectus de fuga,
under rule 9 of the Uniform Rules and the common law, will be found by any court
to be justifiable and constitutional.
Attachments
In actions where the payment of money or relief in regard to property is sought, it
is sometimes possible to attach property in the possession of the defendant in
order to obtain security for the claim.
Attachment of property in terms of section 30 is not available in all instances –
* A person applying for an attachment must show that it is likely that the
respondent will dispose of the property in order to frustrate his creditors, or plans
to abscond with his assets
* The other instance when such attachments are granted is when a person does
not keep up his payments in terms of a credit agreement, and the creditor wants
to protect his position by attaching the goods, which he sold to the debtor, to
safeguard them.
Sections 31 and 32: rent interdicts

As soon as a lessor falls behind with his rental, the landlord acquires a tacit
hypothec over all the household effects, which are on the leased property, for the
rent which is due.
However, the moment the household effects are removed from the leased premises,
the tacit hypothec falls away. The landlord must therefore ensure that the
household goods remain on the premises, in order to maintain the hypothec.
The automatic rent interdict:

• Although an ordinary interdict may be used to prohibit the removal of
household effects, the Magistrates’ Courts Act has created a simpler and less
expensive procedure in section 31.
• This provides that, when summons is issued for arrear rental the plaintiff may
include in the summons a notice prohibiting anyone from removing from the
leased premises, any of the household effects which are subject to the hypothec,
until an order dealing with such goods has been made by the court.
• The notice in the summons serves automatically as an interdict forbidding
anyone with knowledge thereof to remove goods from the premises, and no
court application or other formalities are required. The lessee or anyone else
who is affected by the notice may apply to court to have it set aside.
Attachment of property in security of rent:
• The automatic rent interdict created by section 31 is effective only against
persons who have knowledge of it. Persons who are not aware of the contents of
the summons will not be in breach of the interdict if they remove property from
the premises.
300
• To protect the household goods against removal by anyone at all, section 32
provides for an attachment order to supplement the effect of the interdict and to
secure the goods effectively. Section 32 provides that the court may authorise
the sheriff to attach enough of the movable property on the premises, which is
subject to the landlord’s hypothec, to satisfy the amount owed as rental.
• The landlord must apply to court and, in his or her supporting affidavit, state
the following:
• The amount of rent due and in arrears - that the rent has been demanded in
writing for at least 7 days or, if this is not so, that he or she believes that the
lessee is about to remove the movable property on the premises to avoid paying
rent.
• The landlord must also provide security for all costs, damages and expenses
which may be a result of this order, should it be set aside at a later stage.
• The lessee may apply to have the order set aside.
Section 37: incidental jurisdiction:

A question may arise during the proceedings of magistrates’ courts, which falls
outside the jurisdiction of these courts. The question can be one that no
magistrate’s court may hear in terms of section 46, or it can be one that exceeds
the jurisdictional limits of the courts as imposed by section 29. Section 37
provides that, while a magistrate’s court may not make an order on matters falling
outside its jurisdiction, it may make a finding on such matters. The test to decide
whether a court may decide a matter in terms of section 37 is to look at the relief
that the court is asked to grant: if that relief falls within the jurisdictional limits of
section 46 and section 29, the court may grant such relief even if this means that
it has to consider, and make a finding on, matters outside its jurisdiction.
Section 50: removal to high court

It sometimes happens that, despite the fact that the matter falls within the
jurisdictional limits of sections 46 and 29, a party feels that a matter is too
complex for him or her to wish it to be heard by a magistrate’s court. If that party
is the plaintiff, he or she is always free to institute action in the high court. There
is nothing to prevent a plaintiff from doing so – all that he or she need fear is a
costs order against him or her on the greater high court scale.
If a defendant wishes to exercise this option, an application must be made to the
court where summons has been issued. The defendant must state that:
* The amount of the claim exceeds R3000
* The applicant objects to the matter being heard by any magistrate’s court
* Notice of intention to bring the application has been given to the plaintiff and
other defendants, if any
* The applicant will furnish such security as the court determines, for payment of
the amount claimed and costs
If the applicant complies with these requirements, the case must be stayed in the
magistrate’s court. The plaintiff may then elect to have the matter transferred to
the relevant High Court having jurisdiction, or he may decide to issue a fresh
summons in the High Court.
The only check on a defendant’s freedom to require that a matter be heard before a
High Court rather than a magistrate’s court is the costs order which the High
Court may make.
301
Provisions affecting claims that fall outside the jurisdictional limits:
Section 38: Abandonment of part of the claim NB:
If plaintiff has a claim that is higher than the limit of Mag, but still wishes to sue in
Mag, he can abandon a part of his claim to bring the main claim within the court’s
limit.
He should be careful of abandoning if the type of claim is one based on a cheque,
for example, as this will be easily proved and he’d be foolish to abandon, he should
rather sue in High.
If the claim is based on damages, he’d be wise to abandon the part in excess if Mag
jurisdiction.
The court will consider and make a finding on the FULL AMOUNT BEFORE
ABANDONMENT but can only order payment of the maximum amount allowed by
s29. If court finds amount due exceeds the limits but is not the full amount
claimed the amount that the plaintiff was unable to prove is deducted 1 st from
the amount which was abandoned. Thus a plaintiff who abandons a portion of
his claim will receive the amount proved or the maximum amount the court
can grant whichever is the LEAST!
Section 39: Deduction of an admitted debt:
If plaintiff issues summons against defendant, and defendant has a counterclaim

against him, and the plaintiff wishes to sue for an amount over R200 000 and is
aware that defendant might counterclaim, he can admit the debt owed by himself
and deduct this from his claim against the defendant.
Plaintiff can’t expect an admitted debt to be deducted from the full amount
claimed before deduction – if the full amount is not proved. Thus, the plaintiff
who uses s39 will always be awarded the amount proved in court less the
amount due to defendant.
The following is an example of what the particulars of the deduction of a claim in
the plaintiff’s particulars of claim will look like:
In terms of the above, Defendant is liable to pay the amount of R401 500 to
Plaintiff. Plaintiff admits that the amount of R1 500 is payable by him to Defendant
for services rendered by Defendant to Plaintiff during the period ... in terms of an
oral agreement between the parties.
In order to bring his claim within the jurisdiction of the regional magistrate’s court,
Plaintiff admits, in terms of section 39 of the Magistrates’ Courts Act 32 of 1944,
that he owes the Defendant the amount of R1 500 and deducts the said amount of
R1 500 from his said claim of R401 500 against the Defendant.
Wherefore Plaintiff claims: (1) Judgment against the Defendant for payment of the
amount of R400 000 ...
Example:
Thandi wants to sue Thomas for R220 000. How can she do this in Mag?
She has 2 options: she can abandon R20 000 in terms of s38 or she can
deduct an amount owed to Thomas by herself in terms of s39. If she owes
Thomas R30 000 and he will be able to counterclaim this, it will be to her
advantage to deduct the amount owed to Thomas from her claim. She will
then claim an amount of R220 000 less R30 000. If she proves the full
amount R220 000, the court will award her R190 000. If she only proves
R80 000, the court will only award her R50 000. If however, she abandoned
R20 000 in terms of s38, and proved the full amount due but Thomas had
302
instituted a successful counterclaim, she would have received R70 000
(R220 000 claimed – R20 000 = R200 000 – R30 000 (owed to Thomas) =
R170 000). If she had only proved R190 000 she would only have received
R160 000 (R190 000 – R30 000 owed to Thomas).
Comparison of s38 and s39:

- Both relevant if plaintiff’s claim exceeds Mag limit.
- S39 only applies if plaintiff’s claim exceeds Mag limit and he is in fact indebted
to defendant.
- If both these factors exist (plaintiff’s claim exceeds R200 000 and he owes def
cash) it would be better for him to use s 39 – but if there is no debt owed to
defendant then obviously 39 irrelevant and plaintiff must decide to abandon or
due in High.
Section 45: Consent:
Another possible way in which a claim for over R200 000 or over R400 000 may be
brought within the jurisdiction of the district magistrates’ courts or the regional
magistrates’ courts respectively (as the case may be) is for the parties to consent to
such jurisdiction. Section 45 gives parties the opportunity to consent that a district
or regional magistrate’s court may hear a matter between them, despite the fact
that such a court does not have jurisdiction in terms of either section 28 or section
29. Note that this section pertinently provides that parties cannot consent to a
court’s hearing a matter that is excluded from jurisdiction by section 46. Therefore,
matters excluded from the jurisdiction of the magistrates’ courts by section 46
remain excluded, no matter what the parties agree to. Note also that both parties
must consent to jurisdiction – the defendant must agree to cooperate with the
plaintiff before the provisions of section 45 can be used.
Section 45(1) deals with three possibilities:
(1) where the particular court has jurisdiction over the defendant in terms of section
28, but the amount of the claim exceeds the limitations imposed by section 29 (e.g. A
wishes to sue B in district X [where B resides] for damages ex delicto amounting to
R230 000)
(2) where the particular court has no jurisdiction over the defendant, in terms of
section 28, and the amount of the claim exceeds the limitations imposed by section 29
(e.g. A wishes to sue B in regional district Y for damages ex delicto amounting to R430
000, and the court in regional district Y does not have jurisdiction over B in terms of
section 28)
(3) where the particular court has no jurisdiction over the person of the defendant,
but the amount of the claim is within the limitation imposed by section 29 (e.g. A
wishes to sue B in district Y for damages ex delicto amounting to R200 000, but the
court in district Y does not have jurisdiction over B in terms of section 28)
Jurisdiction in terms of section 28, but not in terms of section 29

Here, written consent may be given at any time, regardless of whether the action has
already been instituted or is about to be instituted. However, the consent must be in
writing (Truck & Car Co)
No jurisdiction in terms of either section 28 or section 29

In this case the consent must be given “specifically with reference to particular
proceedings already instituted or about to be instituted in such
The following is an example of consent to jurisdiction in this type of case:
303
Whereas A intends to issue a summons against B for payment of the amount of R330
000, the parties hereby agree that the summons will be issued from the magistrate’s
court for the regional district of Trustville and B consents to the jurisdiction of the
said court.
No jurisdiction in terms of section 28, but jurisdiction in terms of section 29

For some time the view was held that section 45(1) did not apply to cases where the
court had jurisdiction in terms of section 29, but not in terms of section 28.
This view was expressly rejected in Van Heerden where it was held that even in such a
case, the consent must be “specifically with reference to particular proceedings
already instituted or about to be instituted in such court”.
Section 45(2) deals with contractual agreements to institute action in a district or
regional magistrate’s court. In Truck & Car co, it was held that this prohibition relates
only to consent given when the court has no jurisdiction in terms of section 28. The
prohibition is not relevant when the court has jurisdiction over the parties, in terms of
section 28, but lacks financial jurisdiction in terms of section 29.
It follows that a clause in a contract that reads as follows will be valid, provided the
plaintiff institutes action in a district magistrate’s court that has jurisdiction in terms
of section 28:
The parties agree that any action that might result from this contract will be
instituted in a district magistrate’s court, and the parties hereby agree to the
jurisdiction of the said court.
This clause is valid because consent has merely been given to the jurisdiction of a
district magistrate’s court, not to the jurisdiction of a particular magistrate’s court.
It is for this reason that a clause that reads as follows will not be valid, unless the
court has jurisdiction in terms of section 28:
The parties agree that any action that might result from this contract will be
instituted in the district magistrate’s court of X and the parties hereby consent to the
jurisdiction of the said court.
Procedure
The consent has to be in writing and it has to be given by all the parties involved.
Consent does not necessarily have to take the form of an agreement; there need
merely be written proof that the parties have consented to the jurisdiction of a
particular court. It would be acceptable, for instance, if the consent were contained in
correspondence between the plaintiff’s and defendant’s attorneys. Section 45 does not
require that the written consent be signed by the parties.
The onus is on the plaintiff to prove that the defendant’s consent has been obtained, if
the plaintiff avers that the court has jurisdiction in terms of section 45.
Section 43: Cumulative jurisdiction:

Where more than one claim, each with A SEPARATE CAUSE OF ACTION is contained
in one summons, the court has because of s43, the jurisdiction for the one summons
as if it would have had if separate actions were instituted.
Must be between same parties and must have different causes of actions.
Example where this cannot work – X smashes into Y’s car. Y suffers damages for his
car, hospital bills and loss of amenities of life. He can’t then sue X for all 3 amounts in
one summons under s43 as the all arose from one cause of action.
Therefore, if you have a number of separate claims, each of which is based on a
separate cause of action, these claims may be combined in one summons. Although
the total amount claimed in the summons may amount to more than R200 000 or
R400 000, the district magistrate’s court or the regional magistrate’s court
respectively (as the case may be) may still hear such a matter, provided that the
304
amount of each individual claim is not more than R200 000 or R400 000 (as the case
may be).
Section 43(2) provides for an exception to the restriction imposed by section 43(1).
Because of this exception, a plaintiff may, for instance, in the same summons in
which confirmation of an interdict is sought (or arrest granted pendente lite), claim
damages from the defendant on the grounds of his or her unlawful occupation of the
plaintiff’s land, even though both claims result from the same cause of action, and
even though the total value of the subject matter of the dispute (with regard to the
interdict) and of the amount claimed in damages exceeds the jurisdiction of the
magistrate’s court. Note: the exception only applies to interdicts or arrests, not to all
types of claims.
Section 40: Splitting of claims NBNB:
This is the defence a defendant can raise against a plaintiff who tries to take one
cause of action’s many possible claims and tries to split them to bring his case within
court’s jurisdiction (each claim then brought into jurisdiction, whereas the total
arising from one cause of action would have exceeded Mag).
Mohamed & Son v Mohamed 1959 (2) SA 688 (T) clearly illustrates how this definition
can be applied to a given set of facts. The case involved a plea based on section 40 of
the Magistrates' Courts Act of 1944 by the defendant in defence of a suit brought by
the plaintiff. The pertinent facts are that the plaintiff, a dealer, periodically sold goods
to the defendant on credit. The credit sale was an arrangement of several years'
standing. Upon failure of the defendant to pay the goods sold, the plaintiff instituted
separate actions to recover the purchase price of the delivered goods in respect of the
separate sales.
The defendant's plea was that the separate actions by the plaintiff amounted to a
splitting of claims contrary to section 40 in order to circumvent the limitations on the
financial jurisdiction. Provisions affecting claims, which fall outside limits of the
court. Section 40 prohibits the splitting of a substantive claim exceeding the
jurisdiction of the court in order to recover the claim if the parties would be the same
and the point at issue in all the split actions would be the same. The court a quo
ruled in favour of the defendant. On appeal, the court ruled in favour of the plaintiff
(appellant). According to the court, the plaintiff's claim was based on separate causes
of action, and therefore did not fall within the terms of section 40. Each sale was
entered into on different occasions, sometimes months apart, and the points at issue
in each sale were different. The defendant (respondent) failed to provide the court with
evidence that there was splitting of claims and that the plaintiff's intention with the
different actions was merely to recover the sum due to him in more than one action.
Mohamed & Son v Mohamed: SUMMARY

There is no splitting of claims where the claims are based on different causes of
action.
Claims which are not distinct and separate and which arise out of one and the same
cause of action must be sued for as one claim in one action, and must not be split.
In order to succeed with a defence based on section 40, the defendant had to prove,
apart from the splitting of claims that the objective of the plaintiff was to recover an
amount owing to him in more than one action.
According to the case, the sale of goods on credit, over several years, amounts to each
of the separate sales being a separate cause of action. In a quo, court said it was
splitting of claims, but on appeal, court decided that regarding credit sales, each sale
is a separate cause of action.
305
Section 47: Counterclaims exceeding jurisdiction:
If plaintiff’s claim under s29, but defendant’s counterclaim exceeds Mag’s jurisdiction,
defendant has 2 choices:
He can order the stay of the plaintiff’s case in Mag and institute action against him in
High in the time period set by the Mag.
Or he can abandon part of his claim to bring it within the courts jurisdiction in terms
of section 38.
Otherwise the original plaintiff can counterclaim on the original defendant’s claim in
the high court.
If the defendant does not institute action in the high court within the time given by
the Mag, the Mag may give him more time or dismiss the defendant’s counterclaim
and proceed to determine the plaintiff’s claim.
306
Small claims court:
The small claims courts are regulated by the Small Claims Courts Act 61 of 1984.
These courts were introduced in order to achieve the following objectives:
• make the administration of justice more accessible to all South Africans
• provide a forum for the settling of minor civil disputes (The small claims courts
deal with minor civil claims of up to R15 000 in a speedy, affordable and simple
manner, without using legal representation or an attorney.)
• remove time-consuming, formalistic and expensive procedures
• introduce informal and simplified procedures in order to reduce the cost of

litigation and provide for the speedy determination of small claims
• further reduce the cost of litigation by prohibiting legal representatives from

appearing in a small claims court
• establish a consumer-oriented court
The purpose of the Act is obviously to solve problems experienced by litigants in

other courts. The purpose is therefore clear: extending the basis of every citizen’s
right to have access to justice. This is facilitated by
• self-representation by both plaintiff and defendant
• simplified pre-trial proceedings
• granting the commissioner an inquisitorial function
However, the different and simplified procedures that are applied in small claims
courts do not render these courts inferior to other courts; small claims courts are
part of the structures of the court system recognised in terms of section 166(e) of
the Constitution of 1996. Moreover, since they are courts of law, their judgments
are binding and execution of judgment is enforced by the state.
Please note that a small claims court is not a court of record. In other words, the
proceedings during a trial are not put into writing. However, there is one
exception: the commissioner must record his or her judgment or order and sign it
(s 3(1)–(2)). All other courts are courts of record. Like all other courts, the
proceedings in a small claims court must take place in an open court, except in
extraordinary circumstances (s 4). In other words, a small claims court is open to
any member of the public who wishes to attend its proceedings. Finally, the
process of small claims courts is effective throughout the Republic (s 3(4))
Small claims courts are courts of law; hence their judgments are binding and
execution of judgment is enforced by the state.
307
Q: what are the shortcomings of small claims courts:
• Very low jurisdictional limit restricts consumers to extremely minor claims

• Certain claims are totally excluded from the jurisdictional competence of a
small claims court
• Only natural persons may appear in a small claims court
• Review of proceedings is permitted but appeal is prohibited
Q: what are the differences between small claims courts and other courts
o Representation of a litigant by a member of the legal profession is disallowed
o Pre-trial formalities have been simplified and reduced to the barest essentials
o Although the relationship between the litigants remains adversarial, the role
of the judicial officer has changed. In other courts, the judicial officer has a
passive role, while in the small claims court the commissioner plays an active
role in assisting the litigants to present their cases at the trial.
Establishment and nature: The Minister of Justice may by, notice in the
Government Gazette, establish small claims courts in any district or part of a district
of a magistrate’s court.
The officer presiding in a small claims court is called the “commissioner for small
claims” and is appointed by the Minister.
A small claims court is not a court of record. In other words, the proceedings during
a trial are not put into writing. One exception: the commissioner must record his or
her judgment or order and sign it.
The proceedings in a small claims court (like all courts) must take place in an open
court, except in extraordinary circumstances.
Right of appearance: Only natural persons. A juristic person may become a party
to an action as a defendant. This restriction limits the right of a juristic person to
appear in a small claims court. However, this restriction maintains small claims
courts as consumer courts which would probably otherwise be used by juristic
persons to collect small debts, thereby defeating the intention and purpose of small
claims courts.
Litigants must appear in person before small claims court and may not be
represented by any other person during the trial. A juristic person may be
represented by its authorised officer or other officer.
Jurisdiction: Jurisdiction for the Small Claims Courts Act is almost identical to the
corresponding provisions of the Magistrates’ Court Act.
Section 14 indicates the persons in respect of whom the small claims court will
exercise jurisdiction. The section coincides verbatim with section 28 of the
Magistrates’ Courts Act.
The small claims courts’ jurisdiction in respect of causes of action is regulated by
section 15 of the Act, which is essentially similar to the provisions of section 29 of
the Magistrates’ Courts Act, except that the quantitative restrictions on all claims in
small claims court is R15 000.
Section 16 stipulates which cases the small claims courts are not authorised to
hear.
Sections 17-24 deal with various instances related to jurisdiction, namely incidental
jurisdiction, abandonment, deduction of an admitted debt, splitting of claims, and
cumulative jurisdiction.
Institution of actions: In summary, the pre-trial stage is conducted as follows:
308
A letter of demand is delivered to the defendant allowing 14 days from the date of
receipt of the demand to satisfy the claim
If the defendant does not satisfy the claim set out in the letter of demand, summons
must be issued out of a small claims court
Before issuing the summons, the clerk of the small claims court must set a time
and a date for the hearing, this information also being contained in the summons
The summons is then served on the defendant. The litigants themselves may affect
service.
No pleadings are required from the litigants. However, the defendant may at any
time before the hearing, lodge with the Clerk of the court a written statement
describing the nature of his or her defence as well as particulars of the grounds on
which it is based. A copy of this statement must be supplied by the defendant to the
plaintiff.
Procedure and evidence: The rules of the law of evidence do not generally apply in
respect of proceedings in small claims courts.
Section 26(3) introduces the inquisitorial system, and provides as follows:
• A litigant may not question or cross-examine any other litigant to the
proceedings in question or a witness called by the last-mentioned litigant
• But the commissioner must proceed inquisitorially in order to establish the
relevant facts
• And in this regard he or she may question any litigant or witness at any
stage of the proceedings
• Provided that the commissioner may in his or her discretion allow any
litigant to put a question to the other litigant or any witness
• Evidence to prove or disprove any fact in issue may be submitted in writing,
or oral evidence may be heard. In this regard, a litigant may call one or more
witnesses to prove his or her claim or defence. However, the right of a litigant
to call a witness does not affect the commissioner’s power to decide that
sufficient evidence has been adduced on which a decision can be made, and
that no further evidence may be led.
Appeal and review:
• Judgment or order of small claims courts is final and that no appeal will lie
against it.
• Therefore, no appeal is possible against a judgment or order of small claims
court.
• Although appeal is not permitted, proceedings may be reviewed in terms of
section 46, but only on the following grounds:
• Absence of jurisdiction
• The commissioner’s interest in the action, or his or her bias, malice or
corruption
• Gross irregularity with regard to the proceedings
Inquiry into financial position: The Act also provides for speedy execution after
judgment. The commissioner is obliged to ask the judgment debtor, after judgment
has been given, whether he or she is able to comply with the judgment without
delay. If the judgment debtor indicates that he or she is unable to do so, the court
may conduct an enquiry into the financial position of such debtor. After this
enquiry, the court may make an order to pay the judgment debt in instalments.
This procedure is similar to the section 65A procedure in a magistrate’s court.
309
However, the most important difference here is that, contrary to the section 65A
procedure, the enquiry in the small claims courts takes place immediately after
judgment and not, as in the case of the section 65A procedure, only after the lapse
of 10 days during which the judgment debt remains unsatisfied.
National Credit Act, 2005:

Section 90 of the NCA prohibits clauses providing for consent to the jurisdiction of
the High Court in circumstances where the district or regional magistrates’ courts
have jurisdiction.
The court in Nedbank case held that the issuing of summons in the High Court, in
pursuit of a debt that could be recovered in the magistrate’s court, is unlawful and
defeats the purposes of the NCA.
Consumer Protection Act, 2008:
• In terms of section 69 of the CPA, the parties are required to exhaust all the
available remedies in terms of the regime introduced by the CPA before
approaching a court to enforce their rights.
• This means that parties whose claims are covered by the CPA must first attempt
to resolve the matter by approaching the National Consumer Tribunal, an
ombudsman with jurisdiction or a Consumer Court with jurisdiction, or by using
the alternative dispute resolution agent, as contemplated in section 70 of the
CPA. The jurisdiction of a civil court in matters in which a party has consented to
an award for damages, is a consent order.
310
ACTION AND APPLICATION PROCEEDINGS
FROM INITIATING THE CASE TO THE LAST APPEAL:
Application procedure
- Notice of motion + supporting affidavit (Supporting, replying & answering)
- Ex parte, ordinary or interlocutory application
APPLICANT & RESPONDENT
Action procedure
- Summons (Plaintiff)
- Notice of intention to defend (Defendant) (Not a pleading)
- Plea (Includes a special plea or a plea on the merits) (Defendant)
- Optional… replication(Plaintiff)
- Optional…rejoinder(Defendant)
Generally, there are 2 ways in which a litigant may approach the court, namely by
means of an application or by means of a summons.
PLAINTIFF HAS A CLAIM & DEFENDANT HAS A DEFENCE!!!!!!!!!!
AUDI ALTERAM PARTEM

This maxim means to ‘hear the other side’.
Therefore every person is entitled to be heard before an order or judgment is
granted against him/her.
This further explains why process documents and pleading are used.
Each party knows exactly what the basis of the opposing party’s claim is and will
therefore know how to reply to it.
Hence this prevents the other party from being caught unaware or unprepared
during trial.
The Demand:
The start of litigation proceedings is not necessarily preceded by a demand by or
on behalf of a person who wishes to institute such proceedings, unless a demand
is necessary to complete a cause of action that is relied upon or it is required by
legislation.
A litigant having a complete cause of action does not need to issue a demand.
A demand applies to both application proceedings and summons proceedings and
can be made either orally or in writing. The purpose of a demand is to inform the
prospective defendant/ respondent
1. that a particular attorney acts on behalf of the prospective plaintiff/applicant
2. about the nature and content of the claim against him or her
3. that payment or performance of the claim is claimed
4. about the time period within which action is required
5. about the consequences of failure to comply with the demand
in order to convince such a person to meet his or her obligations to avoid litigation.
Action and application?

In all civil courts, you may now use application proceedings rather than action
action proceedings in urgent matters – where the application procedure is required
by statute, and where no real dispute of facts is anticipated. The leading case on
311
the question is Room Hire Co (Pty) Ltd V Jeppe Street Mansion (Pty) Ltd, in which
it was held that three possible situations exist:
1. You have certain types of proceedings that must, in terms of statute, be

brought by way of application. Example would be the application to
liquidate a company; or sequestrate debtor; or rehabilitate an insolvent.
2. On the other hand, there are certain types of matters, which the court is
prohibited by statute from deciding on application. Example would be an
action for divorce; or an action to recover damages, which are unliquidated
(i.e. damages which are not fixed, and which require evidence or establish
their precise quantum or amount.
3. In between these classes of two cases, there is a grey area in which you
must choose whether to proceed by way of action or application. The
criterion which you must use to make this decision is whether or not there
is any real dispute between the parties on any material question of fact. If
there is such a dispute, then it is necessary to proceed by the way of action
in order to properly test and challenge the evidence. This is because it will
be necessary for the parties to lead the evidence of witness, and for such
witnesses to be cross - examined, for the court to decide whose vision is
more probable. The court has to make a credibility finding after hearing and
seeing the witnesses testify – this cannot be achieved merely by reading the
respective versions contained in the affidavits of the parties.
312
APPLICATIONS:
(See q’s on admission as a sworn translator; to get an interdict against yur

neighbour; to shut down a shabeen etc…….)
Why did X use application?
An application by means of a notice of motion may be made if (1) there is no

real dispute over any fundamental question of facts or (2) if there is such
dispute, it can nevertheless be decided without the necessity of oral
evidence.
When is there a dispute of fact?

1. respondent denies material allegations made by the deponents on the
applicants behalf, and produces positive evidence by deponents to the contrary
2. respondent admits the allegations contained in the applicants affidavit, but
alleges other facts which the applicants disputes
3. respondent claims that he has no knowledge of the main facts stated by the
applicant, but may deny them, putting applicant to the proof and himself giving
evidence to show that the applicant is biased and untruthful, or otherwise
unreliable, and that certain facts upon which the applicant relies to prove the
main facts are untrue.
A dispute of fact does not arise were the respondent merely states that he
disputes the truth of the applicants statement, but offers no evidential reply to
them.
In other words, where there is bare denial.
Note that a real dispute has to occur
Mere fact that the parties are not in agreement on all the facts does not mean that
a real dispute has occurred.
Procedure where a dispute of fact arises
Where a genuine dispute of fact arises which cannot be settled without a hearing
of viva voce evidence, the court hearing the motion proceedings may
3. Order the parties to trial with appropriate directions as to the pleadings, the
definition of issues, etc.
1. Ex parte applications
These applications are used only if it is unnecessary to notify another party of the
proceedings.
2. Ordinary applications
These applications are used when notice of the proceedings must be given to other
parties.
Ex parte application
This can be heard by a court without notice being given to anyone, thus this form
of application is an exception to the general rule of audi alterum partem.
Therefore, used only in the following exceptional circumstances:
313
1. When the applicant is the only person who is interested or affected by the
relief sought, for example an application for admission as a sworn translator
or an attorney.
2. Where the relief sought is a preliminary step in the proceedings, for example
an application to sue by edictal citation or to attach property ad fundandam
jurisdictionem.
3. Where this procedure (ie an ex parte application) has been laid down by Act of
Parliament or the Uniform Rules of Court.
4. Where, though other persons may be affected by the order sought, immediate
relief is essential because a delay could be dangerous, or because, if notice
were given to the person affected, such notice would in fact lead to the very
harm which the application is endeavouring to prevent, for example an
application for an urgent interdict.
5. Sometimes, even though other parties could be affected by the order, a court
will grant an order without notice to the respondents where they are so
numerous that it would be highly inconvenient, very expensive and time-
consuming to serve the application on them all.
When any application is made ex parte, a duty rests upon the applicant to disclose
fully all material facts which may affect the decision of the court, even though
such facts could be detrimental to the success of the application.
Where the rights of other persons may be affected, the court will not grant a final
order, but grant a rule nisi.
The rule nisi is an order calling upon the respondent, or on all interested parties,
to show cause on a day fixed in the rule (known as the return day of the rule nisi,
and being the day upon which these parties may, if they are so advised, oppose
the application) why the relief specified in the rule nisi should not be finally
granted. Where immediate relief is essential to the applicant, the court will order
that the rule nisi operate as an interim order (usually in the form of an interim
interdict) pending the confirmation or discharge of the rule nisi on the return day.
The court may, order that the rule nisi be served on certain interested parties, for
example the Master of the High Court, the Registrar of Companies, the state, etc.
Although these persons or bodies are not parties to the application, the court may,
in view of their official capacity, consider it necessary that they receive notice of
such an order.
Ordinary applications (Form 2(a)

This form of application differs from an ex parte application in that notice of the
application is given to another person or persons. Such person or persons receive
notice of the application in that it is served on them after it has been issued, that
is, a copy of the application is handed to them.
Interlocutory applications
A party may want to approach the court for relief in respect of matters related to
proceedings that have already been instituted. This is in the case of summons
proceedings. The notice used here by the applicant is a mere notice, not a NOM.
Urgent applications
Relief may be needed urgently, but there may not enough time for following
prescribed procedures in placing a matter before court. Eg where a divorced
spouse is about to take his or her child out of the country in breach of a divorce
order granting the other spouse access to that child, or where a newspaper or
magazine is about to publish articles or photos that could harm a particular
314
person or organisation. This does not mean that an applicant may disregard the
usual requirement for applications entirely. As far as possible, the normal rules of
procedure should be followed, and that any departure from such normal rules of
procedure must be justified by the urgency of the matter. In Luna Meubel case, it
was held that the degree of relaxation of the normal rules should not be greater
than the urgency that the case demands.
The mere fact that an applicant views the matter as urgent does not mean that he
or she may bring the application in any form and at any time and place, or with
too short a time limit for responses by the respondent. If a departure cannot be
justified, the court may strike the application off the roll with costs, or may
postpone the matter to afford the respondent more time to respond to the
application.
The different types of affidavits – NB!

In the case of ex parte applications, there is only one type of affidavit, namely the
If an ordinary application is unopposed, there will also obviously only be a
However, if the application is opposed, the situation differs (a party opposes an
application by giving written notice to the applicant within the dies induciae stated
in the notice of motion of his or her intention to oppose the application. This
notice fulfils the same function as the notice of intention to defend in summons
proceedings).
The general rule is that in all application proceedings which are opposed, the
papers will be restricted to the following three sets of affidavits:
1. The supporting affidavit of the applicant, which is attached to the notice of
motion.
2. The answering affidavit by the respondent. In this affidavit, the respondent,
supported in so far as may be necessary by other affidavits, deals paragraph
by paragraph with the allegations and evidence contained in the supporting
affidavit (attach the notice of intention to oppose to this).
3. The replying affidavit by the applicant, in which the applicant deals paragraph
by paragraph, in so far as may be necessary, with the allegations and evidence
contained in the respondent's answering affidavit.
The court is empowered, in its discretion, to permit the filing of further sets of
affidavits.
This means that a further set of affidavits will be required from the respondent.
The court will exercise its discretion in this regard only in exceptional
circumstances, for example where there is something unexpected in the
applicant's replying affidavit where new matter is raised therein, or where the
court requires more detailed information on record.
Remedy in the case of defects: motion to strike out

An affidavit may not, except in exceptional cases of urgency, contain hearsay
evidence, any other inadmissible evidence, or matter which is argumentative,
irrelevant, vexatious or scandalous.
Where an opposing party wishes to object to such matter, he or she may apply to
have the offending matter struck out. Such application is brought by means of
notice (interlocutory), upon proper notice to the other side. (See later how strike
out in an action = vexatious, scandalous and irrelevant material and NO
inadmissible evidence, as no evidence is lead in the documents for action pleading
stage).
315
Action / Summons proceedings:
Illiquid proceedings
Simple summons
Combined summons
Liquid proceedings
Provisional summons
The parties to litigation

Any action which is instituted by means of summons proceedings; there is a
plaintiff and a defendant.
The plaintiff is the person who institutes the action to enforce his alleged rights.
The defendant is the person against whom the plaintiff’s claim is enforced.
In order to institute the action, the plaintiff must have a vested interest in the
subject matter of the action and must also have locus standi.
In other words, he must have full legal capacity to litigate without assistance.
People without the legal capacity to act as litigants, can indeed act as litigants
with the necessary support.
Examples are minors, insolvents and those under curatorship.
Representation by power of attorney – NB question:

In principle, every natural person who is a party to civil proceedings is entitled to
represent himself personally.
For practical purposes, such a person would usually instruct an attorney to act on
his behalf.
These instructions are confirmed and specified in a document known as a power
of attorney.
A power of attorney is a written document in which an agent is given the authority
to act on behalf of his principal either in a specified situation or to act on behalf of
such principal in respect of all actions which the principal could perform himself.
A client may terminate his mandate to an attorney at any time, but an attorney
may, after accepting a client’s brief, withdraw only with sound reasons.
When is a power of attorney required in litigation?
There is no need for a power of attorney for issuing a summons or a notice of
intention to defend, but is required to conduct or defend a civil appeal.
The rules of the Supreme Court provide that a power of attorney need not be filed
with the registrar unless the authority of a legal practitioner to act on behalf of a
party is disputed.
Why is a power of attorney drawn up?
A carefully drawn up power of attorney is essential for the protection of both the
attorney and the client, and to determine the extent of the attorney’s brief
Therefore, there should always be a power of attorney kept on the client’s file.
The power of attorney generally contains details of the action to be instituted and
of the relief to be claimed.
litigation, or in an appeal which he never contemplated.
are concerned.
316
Should the attorney conduct litigation without the authority of the client, he will
not be entitled to recover the costs incurred from his client, since there is no
contractual relationship will exist.
Service of summons
Function and method of service

The process and documents arising out of any proceedings must be brought to the
attention of the opposite party - this requirement is derived from the audi alteram
partem rule. After issue thereof, a summons must be served on the opposite party.
Once a summons has been drawn up and is ready to be served, it must first be
taken to the office of the registrar of the relevant provincial or local division.
Here it is signed by the registrar or assistant registrar, a case number is assigned
to it, a court file is opened and the revenue stamp is cancelled on the original
summons. The office of the registrar also officially stamps the original summons
and copies thereof. Once the summons has been issued, it cannot be altered
without the consent of the person issuing it, or without leave of the court.
The summons must be served by the sheriff, or an officer in the employ of the
sheriff. After service has been affected, the officer concern must draw up a
document under his signature, known as a ‘return of service’, in which he records
the manner in which service of the summons was affected, and any other relevant
details.
Manner of service
There are different ways in which a summons may be served, that is by:
- normal service
- substituted service
- edictal citation
Normal service NB
This is the usual manner of service, and may be affected in the following ways:
- service must, if possible, be personal

- If personal service cannot be affected, the summons may be serviced at the
defendant’s place of residence or business by leaving a copy thereof with
the person in charged of the premises. This person must be older than 16
- service may be effected at the defendant’s place of employment
- service on a company may be effected by the service on a responsible
employee at the company’s registered office or at its principal place of
business within the courts jurisdiction, or , if the foregoing is not possible,
by affixing a copy to the main door of such office or place of business
- service on a partnership, firm or voluntary association is effected in terms
of Rule 4(1)
- As regards matrimonial actions, the Rules make no specific mention of
service in such actions. Personal service is preferred.
317
Substituted service - NB
- Where a person is believed to be in the Republic, but service cannot be

effected on him in terms of the Rules of the court because it is not known
precisely where such person is to be found, an application may be made to
the High court for leave to sue by substituted service, and the court will
then give directions as to how such service is to be effected.
- Substituted service is an extraordinary method of service.
- It deviates from the normal method of service provided for in the Rules.
- Consequently, an application to court must be made on notice of motion
seeking the court’s permission to serve the summons by means of
substituted service, and requesting the court to give directions as to how
the summons must be served.
- The abbreviated summons must accompany the application for
consideration thereof by the court.
- On hearing the application, and on being satisfied that it is a proper case
for substituted service, the court will give direction as to how service is to
be effected, for example by publication in the government gazette.
- In CMC Woodworking Machinery the court gave leave for a notice to
discover to be served by way of substituted service, and that service be
effected by way of a Facebook message addressed to the defendant
Edictal citation – NB MAY 2018.
- Rule 5 prescribes how service must be affected on a defendant who is, or is

believed to be, outside the Republic.
- This is so even when his exact whereabouts are known and even when
personal service is possible.
- Such a person can not be summonsed before our courts in any manner
other than by means of edictal citation.
- The consent of the court must be obtained to serve:

1. any process or document which initiates proceedings, or
2. any process or document which does not initiate proceedings
Uniform Rule 4A facilitates service by hand, registered post, facsimile or electronic

mail. Thus Uniform Rule 4A incorporates some of the provisions of the Electronic
Communications and Transactions Act 25 of 2002, by facilitating service by
facsimile or electronic mail. Service in terms of the above rule need not be effected
through the sheriff. However, the originals of those documents and notices may
not be filed with the Registrar by way of facsimile or electronic mail. The electronic
era has led to the amendment of the Uniform Rules of Court to provide for service
of documents through the electronic medium. Uniform Rule 4A incorporates some
of the provisions of the Electronic Communications and Transactions Act 25 of
2002 (specifically Chapter III, Part 2). This Rule makes provision for service of all
documents and notices, not falling under Rule 4(1)(a) but subsequent thereto, on a
party to the litigation at the address or addresses provided by such party under
the rules of court for service of such documents and notices. The documents and
notices so excluded refer to processes directed at the sheriff and which initiate
application proceedings (thus, in fact, referring to writs; ex parte and ‘‘ordinary’’
applications; and the simple and combined summons).
Service may be effected by hand; registered post; facsimile or electronic mail and
318
need not be effected through the sheriff. However, the originals of those
documents and notices may not be filed with the Registrar by way of facsimile or
electronic mail.
The illiquid summons:

1. The simple summons and declaration
When is the simple summons used?

It may only be employed where the plaintiff’s claim is for a debt or liquidated
demand.
What is meant by the expression ‘a debt or liquidated claim?’
▪ ‘a claim for a fixed or definite thing, as, for instance,

i) a claim for transfer,
ii) ejectment,
iii) for the delivery of goods,
iv) for rendering an account by a partner,
v) for the cancellation of a contract or the like’
▪ Courts have also indicated that a debt is liquidated where it is admitted, or where
the monetary value is capable of being ascertained speedily.
▪ In order to be a ‘liquidated demand’, the demand must be described in such a way
▪ What ‘ascertained speedily’ embraces is a question of fact, and the court will thus
exercise their discretion in deciding whether or not a particular claim is capable of
being ascertained speedily.
Neither an action for divorce nor an action for damages constitute a claim for a
debt or liquidated demand. It is therefore clear that the nature of the claim
determines whether a simple summons must be employed.
After service of the summons, the defendant has 2 choices:
(1) He may fail to react to the summons within the stipulated period indicated
therein. In such a case, the plaintiff may make an application for judgment by
default; or
(2) He may, within the dies induciae, react by serving a notice of intention to
defend on the plaintiff and by filling it with the court. The plaintiff must then
react by serving or filling a declaration
A plaintiff who wishes to proceed with a particular action is obliged to serve a

declaration on the defendant, and to file such declaration, if the defendant has
delivered his notice of intention to defend.
The application of the declaration is restricted to only these instances where
- the plaintiff’s claim is for a debt or liquidated demand; and
- The defendant has delivered a notice of intention to defend.
The declaration must be delivered by the plaintiff within 15 days of receipt of the
notice of intention to defend.
The declaration is a document containing a concise statement of the facts on

which the plaintiff’s claim is based.
It must contain the following:
(a) the nature of the claim
319
(b) the legal conclusion which the plaintiff will be entitled to deduce from the facts
indicated therein
(c) a prayer for the desired relief
In substance, the declaration is identical to the particular of claims of the plaintiff

contained in the combined summons. The form differs only in a few aspects from
the particular of claim. The declaration must be headed by the name of the
particular provincial division of the Supreme Court, followed by the names of the
parties.
_____________________________________________________________________
2. The combined summons and particulars of claim:
When is the combined summons used?

This form of summons is used where the plaintiff’s claim is unliquidated.
That is where it’s not a claim for a debt or liquidated demand.
What does the expression ‘unliquidated claim’ mean?
An unliquidated claim would therefore refer to any claim in respect of which the
quantum thereof must be determined (e.g. a claim for damages), or where the
status of the parties is affected (e.g. an action for divorce)
The combined summons and particulars of claim
In every case where the claim is not for a debt or liquidated demand, the plaintiff
must annex to his summons particulars of the material facts relied upon by him
in support of the claim
This summons, together with the particulars of claim, is known as a ‘combined
summons’ since it combines in 1 document a summons and a declaration. The
only difference is that the particulars, unlike the declaration, do not constitute a
separate pleading and are inseparably linked to the summons. Thus the summons
and the particulars form a single unit.
The effect of the constitution, 1996 and of the national credit act of 2005 on the
content of a summons in which execution of immovable property is relevant
In the judgment delivered in Standard Bank of South Africa Ltd v Saunderson

2006, the Supreme Court of Appeal issued the following practice directive, with
which every summons must comply: the summons initiating action in which a
plaintiff claims relief that embraces an order declaring immovable property
executable shall, from the date of this judgment, inform the defendant as follows:
‘‘The defendant’s attention is drawn to section 26(1) of the Constitution of the

Republic of South Africa which accords to everyone the right to have access to
adequate housing. Should the defendant claim that the order for execution will
infringe that right it is incumbent on the defendant to place information
supporting that claim before the court.’’
This notification is NB when immovable property is the primary or ordinary

residence of the defendant. The North Gauteng High Court, Pretoria, issued a
practice directive in First Rand Bank Ltd v Folscher and another, and similar
matters 2011 4 SA 314 (GNP) in respect of actions instituted to enforce a debt
secured by a special hypothec over such property. In terms of this practice
directive, if the issue of summons is preceded by a notice in terms of section 129
of the NCA, such notice must include a notification to the debtor that, should
action be instituted, and judgment obtained against him or her, execution against
320
the debtor’s primary residence will ordinarily follow, leading to eviction from such
home. The purpose of these steps is clearly to inform a debtor of his or her rights.
The liquid summons (Provisional sentence summons)

The exceptional nature of this procedure lies in the fact that it could be decided
before trial, and the court is concerned with only prima facie proof.
Therefore judgment is given on the assumption that the documents submitted are
genuine and valid. It accelerates the procedure for granting judgment – although
such judgment is provisional – and entitles a successful plaintiff to execute the
judgment immediately, subject to giving the defendant the necessary security de
restituendo. Thus it provides the creditor who has sufficient documentary proof
(i.e. a liquid document) with a reedy for recovering his money without it being
necessary to resort to the more cumbersome, more expensive and frequently
protracted illiquid summons proceedings.
The provisional sentence summons: It can only be used if the cause of action is
based on a liquid document.
The defendant presents his case by way of affidavit to which the plaintiff may
reply, also by way of affidavit.
The form of the provisional sentence summons: Rule 8(1) states that any
person may be summoned to a claim made for provisional sentencing calling upon
him to pay an amount claimed or failing this to appear upon the day named in the
summons to admit or deny liability. Rule 8(6) states that if at the hearing the
defendant admits liability, a court may give a final judgment against him.
Rule 8(7) states the court can hear oral evidence as to the authenticity of the
defendant’s signature.
Requirements for the use of the summons
▪ The nature of the claim determined whether a provisional sentence ought to

be used.
▪ The questions posed in respect of the 2 types of illiquid summons, are
applicable.
If a plaintiff is armed with adequate documentary evidence (i.e. a liquid
document), he can make use of this type of summons.
▪ The fact that the provisional sentence summons is actually an enforcement
procedure, the court will allow a provisional summons only if:
- the plaintiff’s claim is based on a liquid document; and
- the defendant is not able to provide such counter-proof as to satisfy the
court that the probabilities of success in the principle action will probably not
be in the plaintiff’s favour
Definition of: a liquid document – NBNBNB!!!!!

It is a document in which the debtor admits, by means of his signature, he is
liable for the payment of a certain and ascertainable amount of money, or is legally
deemed to have acknowledged such liability without the signature concerned
having in reality being appended.
NB:
(1) The document must attest to a monetary debt.
(2) The amount of the debt must be certain and ascertainable. Obviously, this
amount must be clearly apparent from the document itself.
321
(3) The indebtedness must appear unconditionally and clearly ex facie the
document. In other words, the document must contain an unconditional
acknowledgment of debt.
(4) The most common examples of liquid documents are negotiable instruments
(cheques, and bills of exchange).
Probability of success and onus of proof

The question of the onus of proof is relevant in 2 situations, namely as regards
- the onus in the provisional sentence case itself, and

- the onus in the principal action
(a) in the provisional sentence case itself
The plaintiff needs to prove nothing initially.

He is the holder of the liquid document, and hands it in.
He then asks for judgment.
Judgment is given on the assumption that the documents submitted are
authentic and valid.
If the defendant attacks the liquidity of the document by disputing his signature,
or if a condition appears ex facie the document which must be fulfilled before
payment can take place and such fulfilment is disputed, the plaintiff must prove
that the defendant signed the document, or must prove that the condition has
been fulfilled. The defendant bears the onus of showing that the probabilities of
success in the principal case lie in his favour.
Even if the defendant raises a defence which is unconnected with the liquid
document, the onus on the defendant remains the same.
Remember that the whole purpose of provisional sentence is to benefit the
plaintiff who is in possession of the liquid document.
If the rule had been that the plaintiff in provisional sentence proceedings must
show that the balance of probabilities lie in his favour, the procedure would have
been useless for the plaintiff and the plaintiff would have been in the same
position as that where he instituted an ordinary action.
(b) in the principal case
Here the onus may rest on either the plaintiff or the defendant.
Should the court be of the opinion that the probabilities of success are no in the
favour of either parties, the principle is that provisional sentence must be
granted.
The effect of the Constitution:

In Twee Jonge Gezellen the Constitutional Court considered the procedure, and
held that it constituted a limitation of the defendant’s right to a fair trial in terms
of section 34 of the Constitution in specific instances. These instances were
where
• the nature of the defence raised did not allow the defendant to show a balance
of success in his or her favour without the benefit of oral evidence;
• the defendant was unable to satisfy the judgment debt; and
• the court had no discretion, in the absence of narrowly defined special
circumstances, to refuse provisional sentence.
322
Consequently, the court held that the common law had to be developed so that
the court would in future have discretion to refuse provisional sentence only in
circumstances where the defendant demonstrates:
1. an inability to satisfy the judgment debt;
2. an even balance of prospects of success in the main case on the papers;
and
3. a reasonable prospect that oral evidence may tip the balance of prospective
success in his or her favour.
In future, when considering the probability of success in order to determine
whether or not to grant provisional sentence, this judgment will be taken into
consideration.
Nature and effect of provisional sentence – NBNBNB!!
1- The plaintiff is of right entitled to payment, or, failing such payment, to take
out a writ of execution against the defendant’s property under security de
restituendo. Security de restituendo is the security which the plaintiff must
give for the restitution of the money he has received from the defendant in
terms of the judgment in the event of defendant defending and succeeding in
the main case.
2- The judgment is provisional. The defendant may still defend the main trial,
but only within 2 months of the granting of provisional sentence, and then
only if he has paid the judgment debt and costs.
3- A defendant who may and who wishes to enter into the principle case must
deliver notice of his intention to do so within 2 months after provisional
sentence has been granted, in which case the summons will be deemed to be
a combined summons on which the defendant must deliver a plea within 10
days. In default of such notice or plea, the provisional sentence automatically
becomes a final judgment and the security given by the plaintiff falls away.
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009
(5) SA 1 (SCA)
Principles of pleadings
(1) Pleading stage: this stage extends from the issue of summons up to the close
of pleadings, and is normally relevant in illiquid proceedings.
(2) Pleading: this is a written document containing averments by the parties to
an action in which the material facts on which they rely in support of their
claim or defence are concisely set out, and which is exchange between the
parties. Term ‘‘pleading’’ is used in a generic sense to include all types of
pleadings. It should not be confused with the ‘‘plea’’, which refers to the
defendant’s statement of his or her defence to the plaintiff’s claim, and which
is merely one species of the genus of ‘‘pleadings’’.
(3) Process: the phrase ‘process of the court’ was interpreted to mean “something
which ‘proceeds’ from the court; some step in legal proceedings which can only
be taken with the aid of the court or of one of its officers”. This concept
includes subpoena, notices. See Dorfman v Deputy Sheriff.
Function of pleadings – HAS been a Q:

• Pleadings serve to determine and limit the disputed issues of fact and law
for the benefit of both the court and the parties. Money is saved and justice
can be dispensed more quickly and effectively.
323
• Pleading also serve to appraise each party to the case he is expected to
answer, the parties are given the opportunity of preparing their cases and
the evidence which they intend leading in support of their own contentions
and in rebuttal of the opponents. Pleadings prevent parties from being
taken by surprise at the trial.
• The pleadings constitute a formal, summary record of the issues in dispute
between the parties which may be decided at the trial. This may serve to
prevent future disputes between the parties regarding issues which have
already been adjudicated upon.
Rule for the drafting of pleadings

Rule 18(4) states that every pleading shall contain a clear and concise statement
of the material facts upon which the pleader relies for his claim, defence or answer
to any pleading with sufficient particularity to enable the opposite party to reply
there to.
• Pleadings must contain clear and concise statements of the material facts
upon which the claim, defence or reply is based.
• Details must be reflected clearly, logically and in a comprehensive form.
• Facts and no the law, must be pleaded. Evidence must, however, not be
pleaded.
- the simple summons is a process

- the combined summons is a process and a pleading
- the declaration is a pleading
324
Proceedings up to and including close of pleadings
1. Notice of intention to defend
default judgment has been granted provided that the plaintiff be entitled to costs if
the notice of intention to defend was delivered after the plaintiff has lodged his
The notice is not a means of raising a defence.
The defence is raised by means of a plea.
The notice of intention to defend is merely a notice.
It informs the plaintiff that the defendant intends defending the action
The defendant who neglects to file and deliver the notice to defend timeously, runs
the risk of having a judgment by default given against him.
In his notice of intention to defend the defendant must appoint an address.
This is not a post office box.
The address must be appointed within 15 km of the court where the filling of all
documents and process in the case may be affected.
This provides the plaintiff with a convenient address for the delivery of all further
process and documents, and enables him to regulate further the next step in the
conduct of the action.
2. The plea on the merits and counterclaim

A plea on the merits is the only way in which the defendant may raise a
defence against the plaintiff’s claim.
plaintiff’s particulars of claim or declaration.
The defendant must deal with each allegation in the particular of claim or
declaration.
A plea especially deals with all the factual allegations.
Just as the particulars of claim or declaration must fully disclose the plaintiff’s
claim, so must the defendant’s plea disclose his defence fully.
Rule 24(1) - that a defendant who counterclaims shall together with his plea,
deliver a claim in reconvention setting out the material facts thereof. A claim in
reconvention shall be set out in a separate document or a portion of the document
containing the plea but headed ‘claim in reconvention’.
This rule further provides that a defendant may, together with his plea, or at a
latter stage with the leave of the plaintiff, or if refused, the court, deliver a claim
against the plaintiff.
This is known as a counterclaim.
The plaintiff then has the opportunity to answer to the counterclaim with a plea
on the counterclaim.
The same pleadings as are exchanged between the parties in convention are
exchanged in reconvention.
The only difference is that the parties act in reverse.
In other words, the plaintiff in convention acts as defendant in reconvention. Rule
18(5) of the High Court Rules and rule 6(5) of the Magistrates’ Courts rules are
325
worded almost identically. Both rules essentially require that when a pleading
party denies an allegation of fact in the previous pleading of the opposite party,
denial must be based on a point of fact and not merely be for the purposes of
avoiding responding to the claim. Therefore, a response (i.e. plea) to the
particulars of claim may be an admission of facts; a denial of facts; a confession
and avoidance; a non-admission of facts; a counterclaim; a tender; or an
alternative defence.
3. Replication, rejoinder and the close of pleadings
A replication contains the plaintiff’s reply to the defendant’s plea.

be deemed necessary and issue shall be deemed to be joined and pleadings closed.
A replication will be typically relevant in the case where the defendant’s
defence is one of confession and avoidance. IF YOU SEE CONFESS & AVOID
IN EXAM – REMEMBER REPLICATION!
A plaintiff who fails to deliver a replication within the prescribed dies induciae is
barred from replicating.
If the plaintiff raises new averments of fact in the replication, the defendant is
given an opportunity of reacting thereto by way of rejoinder.
Rule 29: states that the pleadings are closed: NBNBNBNBNB!
(a) if either party has joined issue without alleging any new facts
(b) if the last day allowed for filling a replication or subsequent pleading
has elapsed and nothing has been filled
(c) if the parties agree in writing, that pleadings are closed and this is
filled with the registrar
(d) If the parties are unable to agree on the close of pleadings and the
court upon application by 1 of the parties, decides them closed.
Rule 29 now contains a reference to the close of pleadings AND regulates the
notice of set-down of trial. Rule 29(2)(a) requires the registrar to inform all parties
of the allocated trial date, while Rule 29(2)(b) requires the party that applied for
such date to deliver a notice to all other parties informing them of the date for
which the matter has been set down.
Nkala and Others v Harmony Gold Mining Company Limited and Others 2016 3
All SA 233 (GJ); 2016 (7) HCLR 881 (GJ); 2016 (5) SA 240 (GJ)
Further pleadings and processes up to and including close of pleadings
1. Inspection
Rule 35(14) states that after appearance to defend has been entered, any party to
an action, for the purposes of pleadings, can require from the other party to make
available for inspection within 5 days, a clearly specified document or tape
recording in his possession which is relevant to a reasonable anticipated issue in
the action and to allow a copy or transcription to be made thereof.
326
2. Application to strike out
Where any pleading contains averments, which are ‘scandalous, vexatious or
irrelevant’, the opposing party may, within the period allowed for any subsequent
pleading, apply for the striking out of such matter.
Offending passages in affidavits relating to motion proceedings may also be struck
out. Remember in application proceedings, inadmissible evidence may also be
struck out BUT NOT IN ACTION PROCEEDINGS PLEADING STAGE.
This procedure is used to rectify that part of an opposing party’s pleading which
contains an averment which is ‘scandalous, vexatious or irrelevant’.
It does not relate to the pleading as a whole.
Where the embarrassment goes to the root of the pleading, the pleading must be
excepted to, after the opponent has been given the opportunity of removing the
cause of embarrassment.
The whole document is not accepted by the person who is embarrassed.
He therefore takes exception to the document.
The court will grant such an application only if it is satisfied that the applicant will
be prejudiced in the conduct of his claim or defence if the application is not
granted.
This application is interlocutory in nature and is therefore made merely by way of
notice.
3. Amendment of pleadings and documents

Rule 28 provides that any party may amend any of his pleadings or documents
(excluding affidavits), which have been filed in regard to any proceedings.
Such party must, however, give notice of such amendments in the relevant notice.
The question in the exam will ask “what may be done if one of the names of the
minor children are spelled wrong the plea?” – NEVER SAY: THE PARTY WHOSE
DOCUMENT IT IS = SAY: THE DEFENDANT. If the question is the same but ends with
“in the declaration” then its the PLAINTIFF WHO MUST AMEND.
The procedural requirements of Rule 28 are:

• The party desiring to amend must notify all parties.
• Unless a written objection is given, the amendment will be effected.
• An objection must state clearly the reasons thereof.
• If no objection is given, every party given notice of amendment shall be
deemed to have consented.
• The amender is liable for costs.
• The court may amend any pleading or document before judgment is given.
The application to amend may be made both before and during the trial (but
before judgment).
The test is whether there will be any prejudice to the opposing party.
The amendment procedure is commonly used for correcting errors in pleadings, to
amplify the cause of action or to extend or limit the relief claimed.
The general rule in regard to all amendments is that the court will grant an
amendment, unless the application for amendment is made mala fide, or the
opposing party will suffer prejudice. The Two Oceans Aquarium case.
4. The exception
A party may except to the pleading on one of the following grounds:
(1) That the pleading as drafted is vague and embarrassing, or
(2) That it discloses no cause of action
327
(3) or defence, that is, even if it’s accepted that the party can prove all the
allegations in the pleading under attack, the pleading will not in law constitute a
valid claim or defence.
The purpose of excepting to a pleading may be twofold.
In the case of a pleading that is vague and embarrassing, an exception is taken in
order to prevent the person excepting form being taken by surprise or being
prejudiced in his pleading, or at trial.
Where a pleading discloses no cause of action or defence, an exception
provides a speedy and inexpensive method of determining the issue without
having to embark on the lengthy and expensive procedure of a full trial.
For this reason an exception is adjudicated upon separately before the trial.
Distinguishing feature of an exception is the fact that it must be taken to the
pleading as a whole, and not to a portion of the pleading, unless such portion
constitutes a separate cause of action or defence.
The notice of exception must be filed within the period allowed for filling any
subsequent pleading. Where a party intends to except to a pleading on the ground
that it is vague and embarrassing, he must, by notice, afford his opponent an
opportunity of removing the cause for complaint.
5. The special plea

A special plea is a means of raising an objection on the basis of certain facts which
do not appear in the plaintiff’s declaration or particulars of claim, and has the
effect of destroying or postponing the action.
If a defendant intends filling a special plea, he must still deliver a plea on the
merits IF HE DOESN’T – DEFAULT J’MENT!
Therefore a special plea does not replace a plea on the merits.
Difference between the special plea and the exception – NBNB!
▪ An exception is limited to an attack on the allegations in the pleading as a

whole, on the assumption that such allegations are true.
▪ A special plea assumes the truth of all the allegations in the declaration, and

1. It alleges fact unconnected with the merits of the action as a result of which the
action is either destroyed or postponed. (defendant only)
2. A special plea may only be pleaded to a declaration or particulars of claim,
The 2 categories of special pleas
Dilatory pleas - postpone
1. Where the defendant disputes the plaintiff’s authority to sue because of the
absence of a formal requirement, which is a condition for suing.
2. Lis pendens. If an action is already pending between the parties, and the
plaintiff brings another action against the defendant or relating to the cause
and in respect of the same subject-matter, whether in the same or different
courts, the defendant can take the objection of lis pendens.
3. Arbitration. The defendant may raise this as a special plea where the parties
have previously agreed to submit their dispute to arbitration.
328
Pleas in abatement - destroy
1. Special plea of prescription

2. Special plea on non-joinder or mis-joinder
3. Special plea of res iudicata
4. Special plea in respect of the jurisdiction of the court (sometimes referred to
as a plea in bar)
Application to set aside irregular proceedings

Where the party has taken an irregular step during the course of litigation, Rule
30 provides the other party with a mechanism by means of which the irregularity
may be set aside or dealt with.
Rule 30(2) states that an application to set aside an irregular proceeding shall be
on notice to all the parties specifying the particulars of the irregularity and made
only if:
1. the applicant himself has not taken a further step with knowledge of the
irregularity
2. The applicant has within 10 days of becoming aware of the step by
giving notice to his opponent a chance to remove the complaint within
10 days and application was delivered within 15 days.
The meaning of an ‘irregular proceeding’

It may be stated that the irregularity concern formal irregularities.
In other words, the noncompliance with formal requirements in respect of
procedural matters.
Examples of irregularities are the failure by an advocate to sign the particulars of
claim, the premature set-down of a case, and the use of the wrong type of
summons. The period within which the applicant must act commences as soon as
a party takes notice that a step has been taken or that a proceeding has occurred,
and not once the irregularity thereof has come to his notice.
The meaning of a ‘further step’

A further step would therefore include the next sequential exchange of pleadings
and any objection to the content of a pleading.
It would not include the filling of a notice of intention to defend.
The courts have held that this is merely an act done to enable the defendant to
put forward his defence.
Rule 30(2) provides that an application in terms of this Rule must be accompanied
by notice to all parties.
Such an application is interlocutory in nature.
Rule 30(4) provides that, until the party against whom the order was made has
complied with it, he may take no further steps in the main action.
Where the party is in default in complying with a request or notice in terms of
Rule 30, the other party who made the request or gave the notice may approach
the court for an order
• That notice or request be complied with, Or
• That the claim or defence be struck off
Enforcing compliance and condoning noncompliance
Both the High Court and Magistrates’ Courts Rules contain provisions designed to
329
enforce compliance and condone noncompliance with the rules of court.
In the High Court: Rule 30A – noncompliance with the rules
High Court rule 30 concerns itself only with the setting aside of an irregular step.
Rule 30A differs from this in two ways. Firstly, it deals with all types of
noncompliance with the rules generally, not just procedures that constitute steps.
Secondly, its purpose is not to set aside a step, but to enforce compliance with a
rule that has not been followed. An example of a situation in which this rule would
be used is if a party fails to take a step he is required to take. The opposing party is
able to use the procedure set out in rule 30A to compel the defaulting party to
take the necessary step. Rule 30A deals with general noncompliance with the
rules. It is not necessary to use this rule to enforce compliance with those rules,
which contain their own remedy for noncompliance.
(1) Where a party fails to comply with these rules or with a request made or notice
given pursuant thereto, any other party may notify the defaulting party that he or
she intends, after the lapse of 10 days, to apply for an order that such rule, notice
or request be complied with or that the claim or defence be struck out.
(2) Failing compliance within 10 days, application may on notice be made to the
court and the court may make such order thereon as to it seems meet.
Rule 27 – extension of time, removal of bar and condonation
High Court Rule 27 is intended for the use of parties who have not complied with
the rules and want the court to condone (i.e. excuse) their lack of compliance.
The procedure used is an application on notice to the other parties, supported by
an affidavit in which the applicant must show good cause. What constitutes good
cause will vary according to the circumstances of each case. The court will balance
two factors: the merits of the applicant’s case and the applicant’s default. The
applicant must provide an explanation for his default in his supporting affidavit,
together with a factual outline of his case in order to show that it is not unfounded
or without merit. The court has a wide discretion to grant an order under this rule
and will take into account not only the reasons for default and the strength of the
applicant’s case on the merits, but also the prejudice likely to be suffered by all
the parties. The question of prejudice is irrelevant, however, if the applicant has
not shown good cause in accordance with the rule.
330
Pre-trial judgments
1. Consent to judgment
Rule 31(1) states:

(a) Except for relief in terms of the divorce act/nullity of a marriage, a defendant
may at any time confess in whole or in part the claim in the summons.
(b) Such confession must be signed by the defendant and witnesses.
(c) Confession to be furnished to the plaintiff, where the plaintiff can apply in
writing through the registrar to a judge for judgment.
Where the rule provides that application by the registrar must be made before a
judge, this simply means that a judge sitting elsewhere (usually in chambers) than
in open court, may grant judgment.
Default judgment and bar

A party which fails to deliver a pleading or process document in time is in ‘default’.
requested.
This step is known as the giving of a notice of bar.
Bar: Bar applies only in respect of pleadings. Rule 26 clearly states that a party
who fails to deliver a replication and the ensuing pleadings, is ipso facto (i.e.
automatically) barred from doing so. In the case of all other pleadings a party
must first receive notice of bar, and, if such party still fails to deliver within the
period indicated in the notice of bar, he will be in default as regards the specific
pleading and will ipso facto be barred.
Rule 27(1) – (3)
(1) In the absence of amendment between the parties, the court, upon application
on notice and good cause, can make an order extending or abridging any
prescribed time for doing an act or taking a step.
(2) Any extension ordered can be varied, recalled or cancelled.
(3) Court can, on good cause shown, condone any non-compliance with these
rules.
2. Default judgment
Default judgment 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
Failure to file a notice of intention to defend

Rule 31(2) states:
(a) whenever in an action, the claims are for a debt/liquidated demand and the
defendant is in default of his notice of intention to defend or plea, the plaintiff
can set the action down for default judgment and the court can, after hearing
evidence, grant judgment against the defendant or grant any order it deems fit.
Rule 31(5) states:

Where defendant is in default of notice of intention to defend or plea, the plaintiff
can file with the registrar an application for judgment against the defendant.
331
The registrar may:
(1) grant the judgment required
(2) grant judgment for part of it
(3) refuse it in whole or in part
(4) request oral or written submissions
(5) Require the matter be set down for hearing in open court.
When the defendant is in default of delivery of notice of intention to defend or of a

plea, the plaintiff must submit to the registrar of the court a written request for
judgment.
The registrar is empowered to make a variety of orders and no evidence in respect
of the claim need to be led.
In contrast with the above mentioned, when judgment by default is requested in
respect of unliquidated claims, and the defendant is in default of delivery of a
notice of intention to defend or of a plea, judgment by default may be granted only
once evidence has been led in respect of the amount of the claim.
Where a defendant enters an appearance out of time, but before default judgment
is granted, the plaintiff cannot merely ignore this and proceed to request judgment
by default.
The correct procedure is for the plaintiff to approach the court first to have the
appearance set aside as an irregular proceeding, before any action is considered.
Failure to file a plea: Here the position is that notice of bar must first be delivered.
Only where the defendant still fails to deliver the plea, will he be in default.
Failure to deliver a declaration: Because a pleading other than a replication or one
of the ensuing pleadings is in issue, a notice of bar must be served on the plaintiff.
Should the plaintiff there after fail to deliver the pleading, he will be in default and
will ipso facto be barred from doing so.
The orders which the defendant may request are, namely
(1) absolution, owing to the fact that the plaintiff has not proved his claim, or
(2) ‘judgment’
Setting aside of default judgment

Ito Rule 31(2)(b) a defendant may, within 20 days after he has knowledge of a
default judgment, apply to court to set aside such judgment.
The defendant must also advance sound reasons for the failure concerned.

“Application” does not refer to a notice of motion.
3. Summary judgment
Summary judgment procedure is aimed at protecting the plaintiff, who has a claim
if a particular nature, against a defendant who has no valid defence to his 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 seeks and deserves.
Summary judgment should not be lightly granted, and the courts will deprive a
defendant of his defence in this matter only in clear cases.
332
The courts are cautious and conservative in this regard because of the audi
alteram partem rule, since this procedure does to a certain extent infringe on this
principle.
- Grounds: Rule 32(1) states: Where a defendant has delivered a NOITD, the
plaintiff can apply to court for summary judgment, only if the summons is on a
liquid document or for a liquidated amount in money, for delivery of movable
property or ejectment. Thus, it should be clear that an application for summary
judgment may follow only from a simple summons.
- procedure and content of affidavit: Rule 32(2) provides that the plaintiff must,
within a specified period after receipt of a notice of intention to defend, deliver a
notice of application for summary judgment, together with an affidavit made by
himself, or by someone else who can confirm the fact upon which the cause of
action and the amount (if any) are based.
(1) that, in his opinion, there is no bone fide defence to the action
(2) that the purpose of entering appearance is merely to delay the action
If the claim is based on a liquid document, a copy thereof must be attached to the
application.
- courses of action which the defendant may take in response to the

application: Rule 32(3) states
Upon hearing the application for summary judgment, the defendant may:
(b) Satisfy the court by affidavit, to swear he has bona fide defence and the
affidavit will disclose the nature and grounds of the defence and the material
facts relied upon.
Although the plaintiff is not permitted to include evidence in support of his claim
in the affidavit, the defendant must fully disclose the nature and grounds of his
defence.
The reason for this is related to the nature of the claim, which, in turn, results in
the fact that the court grants summary judgment on the assumption that the
plaintiff’s claim is unimpeachable. Consequently, the defendant must convince the
court that this is not the case.
Defendants who wish to defend themselves in terms of the NCA against an
application for summary judgment should be aware:
The Supreme Court of Appeal, in Rossouw, held that there is compliance with the
provisions of section 129(1)(a) of the NCA if the credit provider despatches the
required notice to the consumer in the manner chosen by the latter (e.g. by
sending it to the consumer’s last-known address by registered mail) – actual
receipt thereof is the consumer’s responsibility.
Here, van Vuuren , it was held that the attaching of the notice by the sheriff to the
main gate of a property other than the mortgaged property provided no evidence
that the notice in terms of section 129 reached the respondent, and that this
accordingly was a bona fide defence.
Bald allegations by a consumer that there was ‘‘reckless credit’’ or of
‘‘overindebtedness’’ do not constitute a bona fide defence – a reasonable amount of
verificatory detail is required.
333
Thus, a defendant should, inter alia, provide the following: a statement showing
his or her assets and liabilities, and income and expenditure, in a way sufficient to
enable the court to determine whether the allegation of overindebtedness is bona
fide; particulars of the particular debt counsellor and the date on which such
person was approached; the assessment by the debt counsellor.
- powers of the court when hearing the application: The court may put
questions for the purposes of clarification.
If the defendant provides security, or convinces the court that he has a bone fide
defence, the court will grant the defendant leave to defend.
- Costs: Where either plaintiff or defendant acts unreasonably or improper in

summary judgment proceedings, the judge can, for such conduct, have an order
as to costs awarded against him on the attorney and client scale.
- summary dismissal: Summary dismissal is the counterpart of summary

judgment procedure and affords the defendant an inexpensive and speedy
method of dismissing the plaintiff’s action if it is vexatious or frivolous.
The high court has inherent jurisdiction to prevent an abuse of its process.
Joinder:
Under common-law, it was generally not possible for different plaintiff with
different causes of action to join in the same action against the same defendant.
It was also impossible to sue 2 different defendants, liable on 2 different causes of
action, in 1 summons
The uniform rules of the court have amended the common law position.
With the result that joinder is in fact possible, provided the provisions of Rule
19(1) and Rule 10(3) are complied with.
Voluntary joinder:
Plaintiffs
There are a number of requirements for a proper joinder, and that there are 2
circumstances in which joinder may take place (234 PL’S IN A QUESTION)
Requirements:
- each person (plaintiff) must have a claim
- must act against the same defendant(s)
- 1 or more of the plaintiffs must be entitled to act against the
defendant(s) in a separate action.
Circumstances:
The legal claim must depend on substantially the same question of law or
fact. The question of law or fact must have originated in each individual
action which could have been instituted (and which is now not being
instituted on the account of the intended joinder).
Defendants
A joinder of defendants will, for example, arise in the following case:
A pedestrian has been injured as a result of a collision between 2 cars, but does not
know which driver was negligent.
He may sue them jointly, and also alternatively, and is not expected to take the risk
of first proceeding against the 1, and then against the other.
334
Compulsory joinder:
The court, irrespective of the wishes of the parties, will not hand down a judgment
nor make an order unless another party (3rd party) is joined in the action.
The court will only deem it necessary if such a party has, or may have, a direct
and real interest in any order in which the court may make or if such order will
prejudice that party, unless the court is satisfied that the party has distanced
himself from his right to be joined in the proceedings.
Joining of persons 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, any, after notice to all parties at any stage of the action,
apply for leave to join as a plaintiff or defendant.
The court may in its discretion make an order upon such a request and may lay
down the further procedure in the action.
However, before leave to intervene is granted, the applicant must show that he has
a prima facie case and that his application is made seriously and not frivolously.
In FORMA PAUPERIS proceedings

This is a procedure in terms of which indigent persons may obtain free legal aid by
approaching the registrar after which legal representatives are appointed.
The following requirements are laid down:
1- the person must have household goods, clothes and tools of his trade to the
value of R10 000
2- he must lodge an affidavit with the registrar proving that he only has a value
of R10 000
3- And with regards to costs, the attorney includes his bill of costs, fees and
disbursements to the registrar and then to the deputy sheriff.
Another option by a person who receives a summons, besides defending is:
Offer to settle, tender and interim payments
▪ A defendant in a claim sounding in money, or in the claim for the

performance of an act, is at liberty to attempt to settle such matter.
▪ A settlement is often reached by agreement between the parties, but, where
such negotiation fail, the defendant can utilize the procedure laid down in
Rule 34 in a further attempt at settling the matter.
▪ An offer to settle need, however, not be made in terms of Rule 34, but such an
offer provides no protection against cost being awarded to the other party,
unless it is pleaded.
▪ This type of offer is known as a tender.
▪ Another way of trying to achieve a settlement between parties is by way of an

interim payment.
335
1. Offer to settle NBNB
Ito Rule 34, a defendant may, at any time, unconditionally or without prejudice,
offer to settle a plaintiff’s claim where

Claim for payment of a monetary sum


offer by delivering a notice of acceptance at the address of the defendant indicated
for the purposes hereof. If the plaintiff fails to accept the offer within the period, it
may thereafter be accepted only with the written consent of the defendant, or with
the courts consent. The defendant must, within 10 days of delivering the
acceptance, effect payment as offered. If he fails, the plaintiff may, after giving 5
day’s written notice to this effect, apply through the registrar to a judge for
judgment in terms of the offer, plus costs. To receive payments, the plaintiff would
then have to take steps to obtain execution against the defendant. An offer may
not be disclosed in court before judgment has been given, and no reference to
such offer may appear on any file in the office of the registrar containing the
papers of the case.
Performance of an act
2. Common law tender

A party to litigation is not obliged to offer a settlement in terms of the Rules.
A tender can be made even before proceedings are instituted.
If such a tender is satisfactory, it will provide a defendant with protection against
costs, which accrue from the summons stage. The concept of tender is derived
from common law. A tender is equivalent to payment by way of an offer of
settlement. Common law requires that payment be made in money.
The amount offered in settlement need not be paid into court, and need be
available in the form of money or a cheque. The plaintiff must be notified of the
manner of payment. If the defendant wants to use a tender in order to protect
himself against costs, he must plead a tender, which must be proved like any
336
other fact. Where a tender is raised as a defence, it is done to show that the tender
is accepted or that the plaintiff is not entitled to costs from the date on which the
tender is made. A tender must be unconditional. If the tender is not accepted, the
tendered amount must be paid back. If it is accepted, the plaintiff may not sue for
the balance of the claim.
3. Interim payment
Interim payments may be ordered only in an action for damages as a result of
either personal injuries or the death of a person. Personal injuries naturally refer
to the plaintiff’s own injuries.
An application for an order for such payments may be made at any time after the
lapse of the dies induciae in respect of the intention to defend.
The damage which are relevant are confined to
- the plaintiff’s medical costs
- the plaintiff’s loss of income as a result of his physical incapacity
- The plaintiff’s loss of income as a result of the death of another person.
This order is made by way of application.
The court is not obliged to make an order for interim payment, but has a
discretion. In addition, the court must be satisfied that certain prescriptions have
been complied with.
The plaintiff must satisfy the court that
1. the respondent has in writing admitted liability in respect of the plaintiff’s
damages, OR
2. that he (plaintiff) has obtained judgment against the defendant for the damages,
the amount of which still has to be determined, AND
3. That the defendant is insured in relation to the plaintiff’s claim, or that the
defendant has the means to make such an interim payment.
AFTER THE CLOSE OF PLEADINGS, THE PARTIES THEN PREPARE FOR

TRIAL:
Steps which may be taken both before and after the close of pleadings
- medical examinations
The rule applies only where a party to an action claims compensation or damages
in respect of an alleged physical injury and if the party’s state of health is relevant
in determination of the amount.
Any party causing such an examination to be undertaken must ensure that the
person conducting the examination provides a complete, written report on his
findings.
The Rule further states that the party, must on request, furnish the other party
with a copy thereof and must bear the expense of the examination.
- examination of inanimate objects

This examination is relevant where the condition of the inanimate object may have
a bearing on deciding a point of dispute in an action.
- medical reports, hospital records, x-ray photographs and similar documents

Any party who is entitled to demand a medical examination such as this, may by
written notice, require that the above mentioned documents be made available to
him if they are relevant to the assessment of damages.
337
- expert evidence
Rule 36(9) states
No person shall without leave of the court or parties concerned consent, be
entitled to call as a witness any person unless he,
1. Not less than 15 days before the hearing delivered his notice of intention to do
so.
2. Not less than 10 days before trial delivered a summary of the expert’s evidence
or opinions and his reasons thereof.
The purpose of the abovementioned provisions relating to expert evidence is to
prevent a party from being surprised at the trial, and to give a party the
opportunity of arriving in court prepared to rebut the expert evidence presented by
the opposite party.
If the expert witnesses themselves get together to exchange opinions, this could
shorten the duration of the trial.
Steps which may be taken only after the close of pleadings
- request for further particulars for trial

Rule 21(2) states
After the close of pleadings any party may, not less than 20 days before trial,
deliver a notice requesting only such further particulars as are strictly necessary
to enable him to prepare for trial (within 10 days). This does not mean that the
requesting party is entitled to know what evidence that other party is going to
lead, but he is entitled to such particulars as are necessary to put him in a
position to prepare for the trial and to prevent him from being taken by surprise
by evidence given against him, which he could not reasonably anticipate would be
produced.
- the pre-trial conference

A conference may not take place later than 6 weeks before the date of trial.
The purpose of the rule has always been to shorten the trial.
The rule now provides that, at the trial, the court must consider whether a special
order as to costs should not be made against the party, or his attorney, owing to
failure to attend the conference, or because there has been substantial failure to
promote the effective disposal of litigation. Also note that a conference may be held
before a judge in chambers, after which minutes are prepared which must be filled
with the registrar. Minutes of the pre-trial conference must be prepared and
signed by those present and must be filed with the Registrar not later than five
weeks prior to the trial date. Also note that a conference may be held before a
judge in chambers, after which minutes are prepared which must be filed with the
Registrar.
- discovery of documents and tape recordings

Discovery may not be requested until after the close of pleadings.
The purpose is to ascertain from other parties what documents and tape
recordings are in existence which might be relevant to the action.
This enables a party to prepare fully and properly for trial and prevents him from
being taken by surprise.
Discovery is obtained by written notice addressed to any party to the action to
make discovery under oath within 20 days of such request.
338
Discovery related to all documents relevant to any matter in dispute in the action
which are, or have at any time been, in the possession or under the control of
such other party.
Discovery must be made within 20 days, and is made by disclosing the necessary
information in an affidavit – known as a discovery affidavit.
In this discovery affidavit the party making the discovery must set out
NBNBNB!!!!
(1) those documents relating to the matter in dispute in the action which are in
his possession or under his control
(2) those documents, although relating to the matters in dispute in the action and
being in the party’s control or possession, the party objects to producing, and
the reasons for such objection must be stated
(3) those documents which he had in his possession or which were under his
control, but which he does not now have in his possession or which are now
not under his control. Such party must also state when such documents were
last in his possession or under his control, and where such documents now
are.
A party may validly object to the discovery of a document if he is able to claim
privilege for its contents.
If the party who requires discovery believes that certain documents have not
been disclosed, such party may require the party who has made discovery to
make them available for inspection or to state under oath that such
documents are not in his or her possession, in which event he or she must
state their present whereabouts if known.
A party may validly object to the discovery of a document if he or she is able to
claim privilege for its contents. Examples are communications made ‘‘without
prejudice’’, documents which fall under legal professional privilege, incriminating
documents and documents, which affect the security of the state. Privilege is
usually seen as a matter falling within the law of evidence.
A document or tape recording not discovered in terms of the Rules may not
be used at the trial by the party who failed to do so (unless the court allows
him or her to do so), but any other party is entitled to use such document or
tape recording.
The definition of ‘‘tape recording’’ is wide enough to cover all types of material on
which visual images, sound and other information may be stored, the precise
position with regard to all electronically stored information is unclear. Today, most
documents are digitally stored and are often never printed. This, of course, poses
challenges, especially with regard to the interpretation of a ‘‘document’’ for
purposes of discovery.
Examples are incriminating documents, or documents which affect the security of
the state.
- set-down of cases for trial

The plaintiff is dominus litis and consequently has the right to apply for set-down
in the first instance.
After pleadings have closed, the plaintiff may, by giving notice to the registrar, set
down the case on the roll for the allocation of trial dates.
If the plaintiff neglects to do so within a certain period after the close of pleadings,
the defendant may set the matter down in a similar manner. See Rule 29.
339
Ways in which evidence may be placed before the trial court NB:
1. Unless special circumstances exist, a witness must give evidence viva voce
(orally) and in open court (Rule 38(2)).
If a person is within the Republic, such a person can be compelled to attend
any High Court in the Republic by issuing a subpoena from the office of the
Registrar and by having it served on the witness required, by the sheriff (Rule
38(1))
The form and contents of the subpoena have to conform to Form 16 of the First
Schedule of the Act.
Note that, where a witness is required by a subpoena to make available at the
trial a document, instrument or object which is in his or her possession, or is
under his or her control, such a subpoena is termed a subpoena duces tecum.
A witness duly subpoenaed to appear in court and who fails to do so (or fails to
remain present) may be arrested after the court authorises a writ for his or her
arrest.
2. If a witness cannot give evidence in person, and if the necessary circumstances
are present, he or she may be allowed to give evidence in the following ways:
a) on commission (commission de bene esse)
b) by way of interrogatories
(NBNB!! Interrogatories differ from commissions de bene esse in that, while in the
latter case evidence is given generally, in the former case specific evidence only is
taken, and for this purpose specific questions are formulated which must be put to
the witness by the commissioner. This method is used if a person resides outside
the court’s jurisdiction or is outside this area at that stage (s40 of the Superior
Courts Act, 2013).)
3. By way of affidavit. The court will permit it if there is adequate reason. If the
court believes that the opposing party has reason to want to cross-examine a
witness, and the witness can be brought before court, evidence by way of
affidavit will not be permitted. The court has a discretion to allow this, and
factors such as the costs involved in bringing a witness from overseas, illness
and the nature of the evidence to be presented are relevant for the court’s
consideration.
The courts are reluctant to grant such leave, and are usually disposed to do so
only when the evidence so required is of a formal nature.
The trial and costs

Costs of the action
(a) A court has a wide discretion when awarding costs.

(b) That a party who loses a case will automatically be ordered to pay the winner’s
costs, is by no means a forgone conclusion.
(c) The conduct of the parties plays a role and is one of the factors which the
court considers.
Attorney and client costs
 meaning of the concept
340
1. The liability of a client to pay costs to his attorney arises from the contractual
relationship between them and is wholly unrelated to the outcome of the legal
proceedings in which he may have been involved.
2. These costs are known as ‘attorney and client costs’, and it includes
remuneration for all professional services rendered by the attorney as well as all
expenses incurred by the attorney (including council fees) in the execution of
his client’s instructions.
3. A client who feels that costs are excessive may have such costs taxed.
Practitioners found guilty of charging excessively may be struck of the roll.
 the awarding of attorney and client costs

A court will not lightly grant attorney and client costs.
The most common ground on which a court will order a party to pay the other
party’s attorney and client costs is that where the former party has been guilty of
dishonestly or fraud in conducting the suit, or where his motives have been
vexatious, reckless or malicious.
Meaning of the concept
- Party and party costs are those costs which have been incurred by a party to
legal proceedings and which the court orders that other party to pay him.
- These differ fro attorney and client costs, in that they do not include all the
costs which the party to litigation may have incurred, but only such costs,
charges and expenses as were incurred in the actual litigation and which are
allowed by the taxing master.
- The taxing master is a civil servant who is attached to the office of the registrar
of each Supreme Court and whose function it is to check bills of costs.
- This he does according to a tariff, in which is laid down the maximum fee
permitted for each item in the litigation process.
- Once a ‘reasonable’ figure has been ascertained, the bill of costs is then
presented to the other party for payment.
- Generally, the costs incurred before the issue of a summons are not considered
party and party costs, for example the cost of obtaining council’s opinion as to
the party’s prospects of success in a contemplated action.
- A party who wins a court case and who is awarded party and party costs does
not have all his expenses paid by the loser.
The awarding of party and party costs
The following principles of awarding party and party costs are summarised as
follows:
As a general rule, the successful party is entitled to his costs.
In determining who the successful party is, the court must look to the substance
of the judgment and not merely its form.
The court may in its discretion, deprive the successful party of part, or all, of his
costs.
In the exercise of this discretion, the judge will take into account the following
circumstances in connection with the successful party’s conduct:
- whether the demands made are excessive
- how the litigation was conducted
341
- the taking of unnecessary steps or adoption of an incorrect procedure
- misconduct
Costs de bonis propriss

This order is relevant only where a person acts in a representative capacity.
NB different types of costs for MCQ and written definitions.
Enforcement of judgment
1. Procedures exist which compel the party against whom judgment has been
given to comply with such judgment, if he refuses to do so voluntarily.
2. No judgment or order of court would be of any use to a successful plaintiff if it

could not be enforced, for the very object of litigation is to obtain the money or
other relief claimed.
3. If the defendant refuses to comply voluntarily with the judgment, steps must
be taken to enforce such judgment.
4. Such judgments are subdivided into judgments ad pecuniam solvendam (i.e.
judgment in which the debtor is ordered to pay a sum of money) and
judgments ad factum praestandum (i.e. judgments in which a person is
ordered to perform, or to refrain from performing, some act). Judgments ad
pecuniam solvendam are enforced against the property of the judgment
debtor, while judgments ad factum praestandum are enforced against his
person.
The enforcement of judgments ad pecuniam solvendam ($)
a) Enforcement by means of execution against the debtor’s property
1. If a debtor does not voluntarily comply with this judgment, the creditor may
approach the registrar of the court to issue a writ of execution.
2. This writ is addressed to the Sheriff, who is required to execute it by attaching
property of the debtor and by selling this in execution to satisfy the judgment.
Movable property must be attached and sold in execution before immovable
property.
Immovable property can only be attached and sold in the following three cases in
terms of Rule 46(1)(a):
(1) where a writ has been issued against the movables and the sheriff has made a
nulla bona return, that is, has indicated that insufficient movable property exists
which can be attached.
(2) where a special order declaring certain property specially executable after an
application on notice of motion to the debtor, setting out that there is no movable
property which can be attached and sold in execution, has been made by the
court
(3) where the Registrar, in an instance where judgment was given in terms of
Rule 31(5), declared immovable property specially executable.
Hypothecation of immovable property as security entitles a creditor to have such

property declared executable. In such instance, a creditor may immediately
proceed to satisfy the judgment out of the proceeds of the property.
342
Rule 46(1)(a) authorises the Registrar when granting default judgment in terms of
Rule 31(5) to declare immovable property specially executable, the Constitutional
Court in Gundwana held that it is unconstitutional for the Registrar to make such
declaration to the extent that this permits the sale in execution of the home of the
debtor. Only a court is competent to declare the primary residence of a person
specially executable after having considered all relevant circumstances. Some of
these circumstances include
(1) the debtor’s payment history
(2) whether the property is occupied or not
(3) whether the property is in fact occupied by the debtor
(4) the position of the debtor’s dependants and other occupants of the residence
(5) the arrears outstanding on the date default judgment is sought
A debtor’s rights in respect of incorporeal property may also be attached in
execution (Rule 45(8)).
(Gundwana v Steko Developments and others 2011 (3) SA 603 (CC) and Jaftha v
Schomena and Others; Van Rooyen v Stoltza and others 2005 (2) SA 140 (CC), the
registrar is no longer allowed to hear a matter declaring residential property
executable in default and must refer the matter to court).
b) Enforcement against the debtor’s person:
This type of enforcement was known as civil imprisonment, but such process
was abolished. If, therefore, a debtor has no assets or income against which
execution can be relieved, the judgment cannot be enforced.
The enforcement of judgments ad factum praestandum (DOING SOMETHING)
(1) This judgment directs a person to perform, or to refrain from performing, a

specific act.
(2) Examples of such orders are orders to transfer property, to deliver movable
property or to follow a right of way.
(3) This remedy available to the party in whose favour a judgment ad factum
praestandum has been given is the common law contempt of court.
(4) Although it is possible to lay a criminal charge against the judgment debtor
and for the state prosecution then to take place, what usually happens is
that the judgment creditor institutes civil proceeding for contempt.
(5) He approaches the court by way of notice of motion for an order to commit
the defendant to prison for contempt.
The requirements for an order to commit the defendant for contempt of court are
- the existence of an order ad factum praestandum
- knowledge by the defendant of the order, usually, but not necessarily, as a
result of its having been served on him
- the ability of the defendant to comply with this order
- disobedience of the order; and
- Wilfulness on the part of the defendant regarding the disobedience of the
order.
343
The requirements for an interdict
An interdict may either be temporary or final.

A temporary interdict is an order granted provisionally, and does not finally
determine the rights of the parties.
It’s granted on an interim basis and remains in force only until the respective
rights of the parties have been finally determined by the court.
A final interdict is of permanent effect.
Final interdict NBNBNBNB!!!!!!!!

The requirements for the granting of a final interdict are
- a clear right established on a balance of probabilities
- an actionable wrong or interference already committed, or at least, a
reasonable apprehension that such an act will be committed
- An absence of any other ordinary and satisfactory remedy affording
similar protection to the applicant.
The fact that an applicant may sue for damages, and that such damages will
provide adequate compensation, is sufficient to bar an application for an interdict
where the infringement of the right is capable of being assessed in monetary
terms.
There are 3 exceptions to the general rule.
Even if the injury could be compensated for by awarding damages, the court will
usually grant an interdict if
1. the respondent is not financially competent to pay any award of damages,
or
2. the injury is a continuing violation of the applicant’s rights, or
3. The amount of damages is difficult to assess.
Temporary interdicts NBNBNB!!!!!!

The requirements for granting a temporary interdict are as follows:
1. There must be a clear right or, if it can’t be established, 1 that is
prima facie established, though open to some doubt.
2. If the right is established only prima facie, the applicant must show in
addition, that, if the interdict is refused, he will suffer irreparable
harm, whereas, if the interdict were to be granted, the respondent
would suffer such irreparable harm.
3. The balance of convenience must favour the granting of the interdict.
The court must weigh up the prejudice that each party will suffer if the
interdict is granted or refused.
4. There must be no other statutory remedy available to the applicant.
Myflor Investments
Procedure
• Final interdict are usually sought by way of action, but may also be sought
by way of notice of motion where the facts are not in dispute.
• Where a temporary interdict is sought, the applicant always approaches the
court by way of notice of motion.
A temporary interdict will, if granted, be valid only: NBNBNB!

(a) Until action has been instituted to establish the rights of the parties, where a
dispute of facts exist, or
344
(b) Until the application which was launched to obtain the temporary interdict is
finally determined, or
(c) Until the order is confirmed on the return date stated in the temporary order.
Once the dispute has been finally determined, the temporary interdict will be
confirmed, or, if not confirmed, will cease to be of any effect.
In matters of urgency the applicant approaches the court by way of application,

without giving notice to the respondent. In such a case, a rule nisi is issued,
calling the respondent to show cause on the return day why the rule should not be
confirmed and an interdict granted. Rule nisi operates as a temporary interdict
pending confirmation on the return date.
345
MAGISTRATES COURT:
The application procedure:

The plaintiff must first decide whether his claim falls within the jurisdiction of a
magistrate’s court, and choose the correct magisterial district to institute action.
Litigation may occur in this court by means of either the application procedure, or
the action procedure, and the choice between the 2 is based on the same
considerations that apply in the case of litigation in the High Court.
Ex parte applications
An ex parte application is one in which notice is not given to another party, and in
which the applicant is the only person before court. The notice of motion must
comply with Form 1, Annexure 1 (rule 55(3)(b)).
Sometimes, relief may be sought against another party ex parte. In order to
succeed, the applicant must show that
(a) the giving of notice to such party would defeat the purpose of the application,
or that
(b) the degree of urgency is so great that it justifies dispensing with notice (rule
55(3)(a)). Any order made against a party on an ex parte basis shall be of an
interim nature & shall call upon the party against whom it is made to appear
before the court on a specified return date to shoe cause why the order should not
be confirmed.
If the application is brought with undue haste and without good reason, the court
will not grant the application and the applicant will have to bear the costs of the
failed application.
The founding affidavit contains the facts on which the applicant relies for relief,
namely the facts upon which his or her cause of action is based and why no notice
has been given to the respondent. An applicant is obliged to furnish the court with
all possible facts, including adverse facts.
The reason for this exception is that a speedy remedy, where relief is urgently
required, would be frustrated if the other party is notified of the intended
application in advance.
Powers of the court: The ex parte application is an exception to the audi alteram
partem rule which literally means ‘hear the other side’.
Thus the court will not issue a final order without this person concerned being
given an opportunity to put his case. After hearing the application, the court
grants a temporary order and determines a return day on which the respondent
must give reasons why the order should not be made final – rule nisi.
The application procedure where the respondent is cited:
All applications must be supported by affidavits, which set out the facts on
which the applicant relies for relief.
The notice of motion is addressed to the party (or parties) against whom relief is
sought, as well as to the registrar or the clerk of the court and to any other any
other person if it is necessary or appropriate to inform that person of the
application (rule 55(1)).
These requirements ensure that the audi alteram partem principle is adhered to.
The notice of motion shall be similar to Form 1A of Annexure 1 (rule 55(1)(d)) and
the applicant shall appoint a physical address within 15 kilometres of the office of
the registrar or clerk of the court at which notice and service of all documents in
346
the proceedings will be accepted. It shall also state the applicant’s postal, fax or e-
mail addresses, the day on or before which the respondent must notify the
applicant of his or her intention to oppose the application, as well as the day on
which the matter will be set down for hearing if no such notice is given. If the
respondent opposes the application, he must give the applicant written notice of
the intention to oppose and state the address at which notice and service of all
documents will be accepted, as well as his or her postal, fax or email addresses.
After receipt of a notice of intention to oppose, the applicant must immediately
lodge the original notice of motion plus annexures, as well as the return of service
(if applicable) with the registrar or the clerk of the court.
The court’s powers to deal with an application that cannot properly be decided on
affidavit, are set out in rule 55(1)(k) and are similar to those of the High Court.
Where an application cannot properly be decided on affidavit, the court may
• dismiss the application, or
• make such order as it deems fit to ensure a just and expeditious decision.
The court may direct that oral evidence be heard on specified issues in an
effort to resolve any dispute of fact.
The court may
• order any deponent to appear personally, or
• it may grant leave for any person to be subpoenaed to appear and to be
examined and cross- examined as a witness, or
• it may refer the matter to trial with directions as to pleadings or definition of
issues.
A court may also, after hearing an application (whether ex parte or otherwise),
make no order thereon, but grant leave to the applicant to renew the application
on the same papers and supplemented by further affidavits if the case so
requires.
Interlocutory and urgent applications

Applications incidental to pending proceedings must be brought on notice. If facts
need to be placed before court, such facts must be contained in a supporting
affidavit(s) and must thereafter be set down.
If a court is satisfied that a matter is urgent, it may make an order dispensing
with the forms and service provided for in the rules, and may dispose of the matter
at such time and place and in accordance with such procedure (but as far as
practicable in accordance with the rules) as the court deems appropriate. An
application brought on an urgent basis must be supported by an affidavit which
sets out explicitly the circumstances which the applicant avers render the matter
urgent and the reasons why the applicant claims that he or she cannot be
accorded substantial redress at a hearing in due course.
Striking out
Rule 55(9) provides for the striking out on application from any affidavit any
matter that is scandalous, vexatious or irrelevant, together with an appropriate
order as to costs, including costs as between attorney and client. However, unless
the court is satisfied that the applicant will be prejudiced in his or her case, the
court will not grant such application.
347
ACTION / SUMMONS PROCEEDINGS:
The summons:
As in the High Court, one uses, for action proceedings, a simple summons (for a
debt / liquidated demand); a combined summons (for a claim of damages –
regional court R200 000-R400 000 and district R200 000 limit – and for a divorce
– only in Regional).
Follow the same steps as High Court regarding the use of the summons.
A power of attorney does not have to be filed, since the rule provides that it’s not
necessary for anyone to file a power of attorney to act in a magistrate’s court.
However, the authority of a person acting for a party may be challenged by the
other party within 10 days after he has received such notice that such person is so
acting, or with the court’s leave, for good cause shown at any time before
judgment.
When a person’s authority is challenged in this manner, he may not, without the
court’s leave, act any further without satisfying the court that he had authority to
act.
The court may adjourn the proceedings in order to enable him to do so.
Form and content of the summons

A summons may be described as a process of court used to commence an action.
It calls upon the defendant to appear in person to defend the action within a
certain period (dies induciae) and to respond to the plaintiff’s claim, and it warns
the defendant of the consequences of failure to do so.
The following particulars must be included in the summons NBNB!!!!!
Every person making a claim against any other person may, through the office of
the registrar or clerk of the court, now sue out a simple summons or a combined
summons.
In every case where the claim is not for a debt or liquidated demand, the summons
shall be a combined summons similar to Form 2B of Annexure 1, to which
summons shall be annexed a statement of the material facts relied upon by the
plaintiff in support of the plaintiff's claim, and which statement shall, amongst
others, comply with Rule 6.
Where the claim is for a debt or liquidated demand, the summons may be a simple
summons similar to Form 2 of Annexure 1.
The following particulars must be included in the summons:
• the surname and first names or initials of the defendant by which the
defendant is known to the plaintiff, the defendant's residence or place of
business and, where known, the defendant's occupation and employment
address and, if the defendant is sued in any representative capacity, such
capacity
• the full names, gender (if the plaintiff is a natural person) and occupation and
the residence or place of business of the plaintiff, and if the plaintiff sues in a
representative capacity, such capacity
• a form of consent to judgment
• a form of appearance to defend
• a notice drawing the defendant's attention to the provisions of section 109 of
the Act
348
• a notice in which the defendant's attention is directed to the provisions of
sections 57, 58, 65A and 65D of the Act in cases where the action is based on
a debt referred to in section 55 of the Act
• where the defendant is cited under the jurisdiction conferred upon the court
by section 28(1)(d) of the Act, an averment that the whole cause of action arose
within the district or region, and the particulars in support of such averment
• where the defendant is cited under the jurisdiction conferred upon the court
by section 28(1)(g) of the Act, an averment that the property concerned is
situated within the district or region
• any abandonment of part of the claim under section 38 of the Act and any set-
off under section 39 of the Act
• where the plaintiff issues a simple summons in respect of a claim regulated by
legislation, the summons may contain a bare allegation of compliance with the
legislation, but the declaration, if any, must allege full particulars of such
compliance (provided that where the original cause of action is a credit
agreement under the NCA, the plaintiff seeking to obtain judgment in terms of
section 58 of the Act shall in the summons deal with each of the relevant
provisions of sections 129 and 130 of the NCA, and allege that each one has
been complied with)
• where the plaintiff sues as cessionary, the plaintiff shall indicate the name,
address and description of the cedent at the date of cession as well as the date
of the cession
• A summons in which an order is sought to declare executable immovable
property which is the home of the defendant shall contain a notice in the
following form:
• The defendant's attention is drawn to section 26(1) of the Constitution of the
Republic of South Africa, which accords to everyone the right to have access to
adequate housing. Should the defendant claim that the order for eviction will
infringe that right it is incumbent on the defendant to place information
supporting that claim before the Court.
Dies induciae
This refers to the stipulated period mentioned in the summons within which the
defendant is called upon to enter an appearance to defend after service of the
summons.
The rule provides that appearance to defend the action must be entered within 10
days after the service of the summons.
Address for service of pleadings

Rule 5(3)(a) makes reference to the attorney’s and plaintiff’s facsimile or electronic
mail address. Rule 5(3)(a) provides for an address within 15 km of the courthouse.
Rule 5(3)(b) to (d) provides for service by facsimile or electronic mail under certain
conditions.
Declaration / particulars of claim

Rule 5(7) provides that a party relying on an agreement governed by legislation
shall state the nature and extent of his or her compliance with the provisions of
the legislation.
In any action based on the NCA, the summons must allege compliance with
sections 129 and 130 of the NCA.
Rule 5(7): a simple summons in respect of a claim regulated by legislation may
contain a bare allegation of compliance with the legislation, but a declaration (and
349
a combined summons’s particulars of claim) must allege full particulars of such
compliance.
Rule 5(10) contains a reference to section 26 of the Constitution, which accords a
right to access adequate housing to everyone. Rule 5(10) provides that, in actions
where an order is sought to declare immovable property which is the home of a
defendant, executable (and also probably in actions where an eviction of a lessee is
sought), the defendant’s attention must be drawn to section 26 of the
Constitution, which accords everyone the right to access adequate housing.
It should be noted that, in practice, a plaintiff has a choice whether to use a
simple or a combined summons. The insertion of the word ‘‘may’’, as opposed to
‘‘shall’’. Rule 5(2)(b) sets out that, in every case where the claim is based on a debt
or liquidated demand, a simple summons may be used. However, where a claim is
not based on a debt or liquidated demand, rule 5(2)(a) provides that a combined
summons must be used.
If a party fails to comply with any of the provisions of this rule, such summons
shall be deemed to be an irregular step and the opposite party shall be entitled to
act in accordance with rule 60A (rule 5(11)).
Averments of jurisdiction
Usually, the plaintiff is not required specifically to allege in the summons that the
court has jurisdiction.
However, there are 2 exceptions to this rule:
• If the plaintiff relies on jurisdiction in terms of S28(1)(d), he must state in the
summons that the whole cause of action arose within the court’s area of
jurisdiction.
• If the plaintiff relies on the court’s jurisdiction in terms of S28 (1)(g), he must
specifically allege that the property concerned is situated within the district.
Issue of summons NB
1. The clerk of the civil court issues the summons by furnishing the summons
with a serial number, and by signing and dating it.
2. The clerk may refuse to issue a summons in which an excessive amount is
claimed for attorney’s cost and court fees, or if the addresses of service does not
comply with the provisions of the act.
3. In a decided case, a summons was issued by the clerk in spite of the fact that
such summons had not been signed by the plaintiff or his attorney.
4. The court decided that, although the summons was invalid, the defendant
would be running the risk of default judgment against him if he did not take
steps to defend the action.
5. Thus the court awarded costs in favour of the defendant.
6. The issue of a summons has certain consequences.
7. The preferred view is that an action is instituted at the time that the summons
is issued and not by the service of the summons.
8. The issue of the summons also establishes jurisdiction
9. It should be noted that the issue of a summons does not interrupt the running
of prescription.
10. Prescription is only interrupted by the service of the summons.
Service of the summons

Rule 9(3) provides for service of processes by way of mainly the following
methods:
350
(1) personal service on the defendant or on his or her duly authorised
representative (If the defendant is a minor or under disability, service is
effected on his or her guardian, tutor or curator.)
(2) at the residence or place of business of the defendant and on a person who is
apparently not younger than 16 years and apparently lives or works there
(3) at the defendant’s place of employment and on a person who is apparently not
younger than 16 years and apparently in authority over the defendant, or, in
the absence of such a person apparently in authority, on a person apparently
not younger than 16 years and apparently in charge of the defendant’s place of
employment
(4) at the defendant’s chosen domicilium citandi
(5) at the registered office or the principal place of business of a company or other
juristic person situated within the area of jurisdiction of the court concerned,
and on a responsible employee or, if none, by affixing a copy to the main door
(6) by registered post when the plaintiff so instructs the sheriff in writing
(7) at the national or local offices of the State Attorney where the defendant is a
state organ or civil servant
(8) at the offices or place of business of a partnership or otherwise upon any
member of the partnership
(9) upon curators, executors, liquidators and guardians in their representative
capacity
(10) upon clubs, societies, churches, public bodies and similar bodies at the local
office or place of business of such body, or otherwise on the chairperson,
secretary or similar officer
Rule 9(5) provides that if a person keeps his or her residence or place of business
closed in order to prevent service, it is sufficient service if a copy of the document
is affixed to the outer or principal door or security gate, or is placed in the post
box.
Service of a notice, request, statement or any other document that is not a
process, may be effected by hand or by registered post, or may be sent by fax or
electronic mail.
Chapter III, Part 2 of the Electronic Communications and Transactions Act of
2002 applies to service by fax and electronic mail.
If a summons has been improperly served, a defendant may raise an exception to
the summons.
Substituted service:
If service by one of the usual methods of service is not possible and the matter
falls within the jurisdiction of the court concerned, the court may make an order
allowing service by a person and in the manner specified in such order (rule 9(10)).
As is the case in the High Court, the court must be approached on application for
leave to serve documents by means other than the usual methods on a defendant
(or respondent) who is known or believed to be within the borders of the Republic.
Rule 10(2)(a) prescribes the contents of the application in respect of proceedings
that initiates proceedings.
Edictal citation:
In contrast to substituted service, edictal citation is used if service has to be
effected outside the borders of the Republic, whether or not the defendant’s or
respondent’s address in the foreign country is known. Rule 10 substantially
replicates Uniform Rule 5, and provides that no document or process that initiates
proceedings may be served outside the Republic without leave of the court. The
same allegations (set out in rule 10(2)(a)) contained in an application for
351
substituted service are contained in an application to serve by means of edictal
citation. If leave is given, service is effected by a person in the administration or
professional section of the South African diplomatic service or who is a foreign
diplomatic or consular officer (rule 9(14)). The certificate by the person effecting
service in the foreign country constitutes proof of service. Not only must such
person identify himself or herself, but he or she must also mention that he or she
is authorised in terms of the law of the country concerned to effect service, and
that service is taking place as required by that country’s legal system, and he or
she must indicate the method of service as well as the date of service.
EG:
XYZ (Pty) Ltd is a sneaky customer and manages to avoid service of the summons.
Advise the messenger which method of service will constitute sufficient service in
these circumstances.
Rule 9(5) provides that, in these circumstances, it will be sufficient for the sheriff
to affix a copy of the summons to the outside door, the door of the main entrance
or to the security door of the defendant’s place of business. The sheriff may also
place the copy in the post box of the business.
Amendment of summons – NBNB!

This may be affected at any time before the service, provided that they are
initialled by the clerk of the court.
If the amendments are not initialled, they have no effect.
Amendment after service may be brought about only by following the procedure
set out in rule 55(A).
Amendment concerning the defendant’s first name or initials can be brought
about at the plaintiff’s request without the court’s intervention.
Delay in the continuance of the action: The summons lapses if it is not served
within 12 months after issue, or, if it is served, the plaintiff fails to take further
steps within 12 months thereafter.
Rule 10 provides that the plaintiff may, in particular instances, obtain an
extension of time.
Notice of intention to defend

If the defendant wishes to defend the action, he must file a notice of intention to
defend. The time limit for a defendant to enter an appearance to defend or dies
induciae after receipt of summons is now 10 days. Rule 13(3)(a) provides that the
defendant shall indicate his facsimile address and electronic mail address if
available (in addition to physical or postal address). Rule 13 authorises service by
facsimile or electronic mail under certain conditions.
If it appears to the registrar or clerk of the court that the defendant intends to
defend the action but that his or her notice of intention to defend is defective in
that the notice
If the notice if defective in that certain requirements in terms of the rules have not
been complied with, for example if NBNBNB!!!
• It has not been properly served
• It has not been properly signed, or
• It does not comply with the requirements in respect of address for service;
the plaintiff must, and firstly, file a written notice requesting the defendant
to file a proper notice within 5 days of service of the plaintiff’s said notice.
352
• exhibits any two or more of such defects or any other defect of form, he or
she shall not enter judgment against the defendant unless the plaintiff has
delivered a notice in writing to the defendant calling upon him or her to
deliver a notice of intention to defend in due form within 5 days of the
receipt of such notice (Rule 12(2)(a)).
• After receipt of a notice of intention to defend a plaintiff must immediately
lodge the original summons and the sheriff‘s return of service with the
registrar or the clerk of the court
The plaintiff is entitled to apply for default judgment if the defendant fails to
submit a proper notice of intention to defend.
Even if the defendant does not timeously give his notice to defend, his notice will
nevertheless be valid, provided that it is submitted before a request for default
judgment
If the notice and the request of default judgment are delivered on the same date,
the notice remains valid, provided that judgment has not been granted.
Therefore, the defendant is allowed to submit a late notice, provided that default
judgment has not been granted, and such a notice will be considered valid in spite
of its late delivery.
Failure to take steps: default judgment
If the defendant takes no steps in respect of the summons, the plaintiff is entitled
to apply of default judgment.
This judgment is regarded as a judgment entered or given in the absence of the
party against whim it is given.
Default judgment may be granted in the following instances:
1. If the defendant fails to enter appearance to defend within the stipulated time
in the summons
2. Where the defendant enters appearance to defend, but thereafter fails to
deliver a plea within the time stipulated in the notice of bar.
3. If the plaintiff or applicant does not appear at the time set down for the
hearing in the trial of the action or in the application.
4. If a party fails to comply with a court order obliging him to comply with the
provisions of the rules of court in terms of rule 60(2) and (3).
The following aspects deal with default judgment:
• The application for default judgment is not ordinarily heard in open court.
The plaintiff merely lodges a written request with the clerk of the court.
• The clerk may grant the judgment in all liquidated claims.
• In any unliquidated claims, such as damages, the request for judgment
must be referred to a magistrate in chambers. The plaintiff must give
evidence either orally or on affidavit regarding his quantum for damages.
• In any request for judgment made in respect of a claim arising out of a
credit agreement, the request must also be referred to the court.
• If the application is based on a liquid document, this document must be
filled before judgment is entered. If the original document cannot be
located, the plaintiff must file an affidavit setting out the reasons why the
original document cannot be attached to the request.
353
• Please note that the proceeding only take place in open court when evidence
is led. Furthermore, an official of the court may grant judgment in certain
cases.
The documents that need to be handed to the court:

(c) In the case of unliquidated claims (eg damages as a result of motor-vehicle
collision) affidavits which prove the nature and extent of the damages must be
attached.
(d) In the case of a claim based on a liquid document, the original document duly
stamped or an affidavit setting out reasons to the court's satisfaction why
such original cannot be filed.
(e) In the case of an action based on a credit agreement which is subject to the
Credit Agreements Act, the agreement and certain affidavits must be lodged.
(f) In the case of an action based on a written agreement, the agreement duly
stamped must be lodged.
▪ Rule 12(5) has been amended to provide for actions based on the NCA instead
of the Hire Purchase Act.
▪ Rule 12(6) has been amended and provides that, as is the case in actions
based on liquid documents, the original written agreement also has to be filed
together with a request for default judgment in instances where an action is
based on a written agreement or an affidavit setting out reasons why the
original cannot be filed. There is no provision in the Uniform Rules similar to
Rule 12(6) which provides that, together with the request for default
judgment, a plaintiff has to file the original liquid document or the original
agreement or, should such originals not be available, an affidavit setting out
the reasons why.
▪ Rule 12(6A) has been inserted, and it provides that default judgments in
actions based on legislation must include evidence proving compliance with
such legislation.
▪ A defendant may apply for a default judgment against a plaintiff who has
been barred from delivering a declaration in terms of Rule 15(5) which deals
with declarations (where a pl has been barred from delivering a declaration
the def may set down for hearing upon not less than 10 days notice to the
defaulting pl, and apply for absolution from the instance or, after adducing
evidence, for judgement, and the court may make any order it deems fit).
▪ In the magistrates’ court default judgments, even for debts or liquidated
demands, must be considered by magistrates as opposed to registrars or
clerks when such claim is founded on any cause of action arising out of or
based on an agreement governed by the NCA. See Rule 12(5).
Bar:
Bar is a procedure, which prevents the delivery of any further pleadings in an
action. Provision is now made for automatic bar in the magistrates‘ court in terms
of rule 21B, which is similar to Uniform Rule 26 in the High Court. In the
magistrates‘ court bar is dealt with in three separate rules, namely in rule 12(1)(b)
in respect of a plea which was not delivered on time; in rule 15(5) in respect of a
declaration, and in rule 21B. The bar procedure to be followed is the same as in
the High Court. In the case of a declaration, the defendant after notice to the
354
defaulting plaintiff, may set the matter down for hearing and apply for absolution
of the instance or, after deducing evidence, for judgment. However, where the
defendant has been barred in terms of rule 21B(3) from delivering a plea, the
plaintiff may lodge with the registrar or clerk of the court a request in writing for
judgment in the same manner as when the defendant has failed to deliver the
notice of intention to defend.
In the case of a declaration, the defendant after notice to the defaulting plaintiff,
may set the matter down for hearing and apply for absolution of the instance or,
after deducing evidence, for judgment. However, where the defendant has been
barred in terms of rule 21B(3) from delivering a plea, the plaintiff may lodge with
the registrar or clerk of the court a request in writing for judgment in the same
manner as when the defendant has failed to deliver the notice of intention to
defend (rule 12(1)(b) – if the defendant has delivered a NOITD but has failed to file
plea within the time prescribed, the plaintiff may deliver a notice in writing calling
upon the def to deliver a plea within 5 days of the receipt of such notice and on
failure of the def to deliver his plea within such period, he shall be in default with
such plea and ipso facto be barred. When the pl has complied with the aforesaid,
he may lodge with the registrar or clerk of the court a request in writing for
judgement in the same manner as when the def has failed to deliver a NOITD.)
As in the case of the High Court, bar is not associated only with default judgment:
bar is a procedure, which prevents the delivery of any further pleadings in an
action. Provision is now made for automatic bar in the magistrates‘ court in terms
of rule 21B, which is similar to Uniform Rule 26 in the High Court. In the
magistrates‘ court bar is dealt with in three separate rules, namely in rule 12(1)(b)
in respect of a plea which was not delivered on time; in rule 15(5) in respect of a
declaration, and in rule 21B. The bar procedure to be followed is the same as in
the High Court.
Consent to judgement NBNBNB:

Rule 11 provides for judgment by consent in actions, excluding actions in terms of
the Divorce Act or the nullity of a marriage.
Rule 11(1) provides that a defendant may consent to judgment before delivering
notice of intention to defend by signing the consent form on the original summons,
which must be lodged with the registrar or the clerk of the court.
Rule 11(4) provides that consent to judgment may also be given after notice of
intention to defend has been delivered by delivering a consent form similar to that
endorsed on the summons. Such consent must also be signed by the defendant or
his or her attorney. If a defendant’s consent is for a lesser amount than claimed,
the defendant may deliver a notice of intention to defend in respect of the balance
of the claim, and the action may proceed in respect of such balance.
Payment into court and tender
Offer to settle (Rule 18) NBNBNB:
In terms of Rule 18(1) a defendant may at any time unconditionally or without

prejudice make an offer to settle the plaintiff’s claim where
(a) a sum of money is claimed, either alone or with any other relief or
(b) the performance of an act is claimed.
355
An offer to settle the plaintiff's claim shall be signed either by the defendant
himself or herself or by his or her attorney if the latter has been authorised thereto
in writing.
Where the plaintiff claims the performance of some act by the defendant, the
defendant may at any time tender, either unconditionally or without prejudice,
perform such act.
In the event of a tender contemplated in 2(a) the defendant shall, unless the act
must be performed by him or her personally, execute an irrevocable power of
attorney authorising the performance of such act, which he or she shall deliver to
the registrar together with the tender.
It should be noted that the notice of any offer or tender in terms of this rule shall
be given to all parties to the action and shall state
(a) whether the same is unconditional or without prejudice as an offer of
settlement;
(b) whether it is accompanied by an offer to pay all or only part of the costs of
the party to whom the offer or tender is made, and further that it shall be subject
to such conditions as may be stated therein;
(c) whether the offer or tender is made by way of settlement of both claim and
costs or of the claim only; and
(d) whether the defendant disclaims liability for the payment of costs or for part
thereof, in which case the reasons for such disclaimer shall be given, and the
action may then be set down on the question of costs alone.
A plaintiff or party may within 15 days after the receipt of the notice, or thereafter
with the consent in writing of the defendant or third party or order of court, on
such conditions as may be considered to be fair, accept any offer or tender,
whereupon the registrar or clerk of the court, having satisfied himself or herself
that the requirements have been complied with, shall hand over the power of
attorney to the plaintiff or his or her attorney.
In the event of failure to pay or to perform within 10 days after delivery of the
notice of acceptance of the offer or tender, the party entitled to payment or
performance may, on 5 days' notice in writing to the party who has failed to pay or
perform, apply through the registrar or clerk of the court to a magistrate for
judgment in accordance with the offer or tender as well as for the costs of the
application.
If an offer or tender accepted in terms of this rule does not satisfy a plaintiff's
claim and costs, the party to whom the offer or tender is made may apply to the
court, after notice of not less than 5 days, for an order for costs.
It is important to note that no offer or tender in terms of this rule made without
prejudice shall be disclosed to the court at any time before judgment has been
given, and no reference will be made to such offer or tender in the court file.
Interim payments (Rule 18A) NBNBNB

A new rule has been introduced and it is in essence a copy of the Uniform Rules.
Interim payments may be ordered in an action for damages for personal injuries or
the death of a person.
o An application for an order for interim payments may be made at any time after
the expiry of the period for the delivery of the notice of intention to defend.
o The damages which are relevant are confined to:
- plaintiff’s medical costs
- plaintiff’s loss of income arising from his or her physical disability or
- plaintiff’s loss of income as a result of the death of a person.
o Note that the order is made by way of application.
356
o Rule 18 describes the contents of the affidavit: the affidavit in support of the
application shall contain the amount of damages claimed and the grounds for the
application, and all documentary proof or certified copies thereof on which the
applicant relies .
o The court will grant the order for interim payment in circumstances such as the
following:
If at the hearing of an application for interim payment, the court is satisfied that
• the defendant against whom the order is sought has in writing admitted
liability for the plaintiff's damages; or
• the plaintiff has obtained judgment against the respondent for damages to be
determined,
• the defendant is insured in respect of the plaintiff’s claim or that he or she
has the means at his or her disposal to enable him or her to make such a
payment.
• In an action where an interim payment or an order for an interim payment
has been made, the action shall not be discontinued or the claim withdrawn
without the consent of the court.
Security
Rule 62(1) reads exactly the same as Uniform Rule 47.
The rule states that a party that chooses to request security for costs from another
shall, as soon as practicable after the commencement of proceedings, deliver a
notice setting forth the grounds upon which such security is claimed, and the
amount demanded.
her decision shall be final.
If a party from whom security is requested in terms of rule 62(1) contests his or
her liability to give security, or fails or refuses to furnish security in the amount
requested or the amount fixed by the Registrar or clerk within ten days of the
demand or the registrar’s or clerk’s decision, the other party may apply to court on
notice for an order that such security be given and that the proceedings be stayed
until the order is complied with.
If the requested security is not given within a reasonable time, the court has the
power to dismiss any proceedings instituted or strike out any pleadings filed by
the defaulting party, or make such other order as it deems fit.
Any security for costs shall, unless the court otherwise directs, or the parties
otherwise agree, be given in the form, amount and manner directed by the
registrar or clerk of the court.
The registrar or clerk of the court may, upon written request of the party in whose
favour security is to be provided and on notice to interested parties, increase the
amount thereof if he or she is satisfied that the amount originally furnished is no
longer sufficient; this decision shall be final.
Summary judgement NBNBNBNB!!!!

This is an extraordinary procedure available to a plaintiff for a specified type of
claim, if, once he’s received the defendant’s NOITD, the defendant’s NOITD has no
bona fide defence or if he has entered one to waste time.
Its only available for a claim on a simple summons – thus, based on a debt or
liquidated demand, or based on a liquid document.
357
A liquid document: is a document from which an acknowledgement of debt or an
undertaking to pay is clearly apparent, and in respect of which no extrinsic
evidence (evidence of the document itself) is required to prove the debt.
This need not, however, be a single document. It may comprise a number of
documents, for example a hire-purchase agreement and a cession thereof.
The test applied by a magistrate's court to determine whether or not a document
qualifies as a liquid document, is whether the High Court would grant provisional
sentence on such document.
A liquidated amount of money: a claim for work done and material supplied.
The amount that is fixed and certain. It is an amount that has been precisely
quantified, or that is readily capable of accurate determination and that is not in
dispute.
Eg’s of liquidated sum of money: an account rendered to a shopkeeper, insurance
premiums, and taxed bills of costs.
Initiating the application:

It should be stressed that the application for summary judgment may be made
only after the defendant has entered appearance to defend.
The plaintiff is required to bring the application for summary judgment on at least
15 days notice to the defendant and the application must be brought not more
than ten days after the defendant’s appearance to defend has been delivered
(application for summary judgment must now be made within 15 days of service of
notice of intention to defend. A copy of the served notice of intention to defend
must now be attached to the affidavit which accompanies the application for
summary judgment).
The plaintiff proceeds by way of application. If the claim is based on a liquidated

amount of money or for the delivery of specified movable property or for ejectment,
the plaintiff must attach a copy of an affidavit made by him or her, or by someone
else who is able to confirm the facts under oath. The cause of action and the
amount (if any) claimed must be confirmed and the plaintiff must aver that in his
or her belief there is no bona fide defence to the claim and that the notice of
intention to defend has been given solely for the purpose of delaying the action. If
the claim is based on a liquid document, the plaintiff is required to attach a copy
of the liquid document to the application. However, the original liquid document
must be handed in at the hearing of the application.
Therefore:
The three requirements are as follows: NBNBNBNB
(a) It must be signed by the plaintiff personally and he or she must state that he
or she has personal knowledge of the facts; or, in the case of a legal person, it
must be signed by someone who alleges that he or she is duly authorised to
make the affidavit; in addition, he or she must state his or her capacity in
respect of the plaintiff and that he or she has personal knowledge of the facts.
(b) The plaintiff must verify or confirm the amount or cause of action.
(c) The deponent must state that, in his or her belief, there is no bona fide
defence to the claim and that appearance has been entered solely for the purpose
of delaying the
action (rule 14(2)).
358
Steps which the defendant may take to ward off a summary judgment
application NBNB!
Defendant’s answering affidavit has to be delivered before noon on one day
preceding the day on which the application is to be heard.
(a) The defendant may give security that he will satisfy whatever judgment may be
given against him in the action.
(b) The defendant may give evidence that he or she has a bona fide defence or
counterclaim against the plaintiff
The defendants affidavit must contain the following NBNBNB:

(a) the allegation that he has a bona fide defence
(b) a denial that the appearance to defend has been entered solely for the purpose
of delaying the plaintiff's action
(c) a disclosure of the nature and grounds of the defence or counterclaim.
Orders the court can make NBNBNB:

(a) The court may give leave to defend to a defendant so entitled and give judgment
against a defendant not so entitled.
(b) It may give leave to defend to a defendant as to such part of the claim and give
judgment against the defendant as to the balance of the claim unless the
defendant shall have paid such balance into court.
(c) It may make both such orders
An Exception:
Rule 19 (1) sets out the grounds for an exception:
• Where any pleading is vague and embarrassing
• or lacks averments which are necessary to sustain an action or defence the
opposing party may, within the period allowed for filing any subsequent
pleading, deliver an exception and set it down for hearing in terms of Rule
55(1)(j)). This means thus, a declaration / POC with no cause of action and a
plea on the merits with no defence. (as with HC).
However, where a party intends to take an exception that a pleading is vague and
embarrassing, such party shall within the period allowed by such notice afford
such opposing party an opportunity to remove the cause of complaint within 15
days. The party excepting shall within 10 days from the date on which a reply to
such notice is received or from the date on which such reply is due, deliver the
exception.
Striking out:
The grounds for striking out are the following:
Where any pleading contains averments which are scandalous, vexatious, or
irrelevant, the opposite party may, within the period allowed for filing any
subsequent pleading, apply for the striking out of such averments.
Such application may be set down for hearing in terms of Rule 55(1)(j). The court
shall not grant the order unless it is satisfied that the applicant will be prejudiced
in the conduct of his or her claim or defence if it is not granted (Rule 19(2)).
Irregular proceedings:
Rule 60A is based on Uniform Rule 30, and expressions carry the same meaning.
Also note that this particular step’s purpose is to address technical defects (in
contrast to substantive defects). Rule 60A(2)(4) sets out the procedure for the
359
setting aside of irregular proceedings. According to this, a party may lodge such an
application only if he or she
• has not taken a further step in the matter after he or she became aware of the
irregular proceeding,
• within ten days after he or she became aware of the irregular step/proceeding
has given the opponent the opportunity to remove the cause for complaint
within ten days, and
• the application has been delivered within 15 days after the expiry of the
second period mentioned above.
At the hearing of the application, the court may set aside the proceedings in whole
or in part and grant leave to amend, or make any other order as it deems fit (rule
60A(3)). Until a party has complied with the court’s order, he or she may take no
further step in the matter (rule 60A(4)).
In the Magistrates’ Courts - Rule 60 – noncompliance with rules, including

time limits and errors
Rule 60 of the Magistrates’ Courts Rules deals with noncompliance with rules,
including time limits and errors. It is the nearest equivalent in the Magistrates’
Courts Rules to High Court rule 30A, but also deals with one aspect of
condonation provided for in High Court rule 27, namely the extension of time
limits.
Magistrates’ Courts rule 60(2) and (3) makes provision for two different
applications to the court, which represent two successive steps in a process. In
terms of rule 60(2), the court may be asked to order the opposing party to comply
with a particular provision of the rules, or with a legitimate request made in terms
of the rules. If the opposing party thereafter refuses to comply with the rules
within the time period provided in the order, the original applicant may again
apply to court in terms of rule 60(3) asking for judgment against the opposing
party. Magistrates’ Courts rule 60 may not be used to enforce a rule that contains
its own internal provision for relief. Rule 60 can be used to enforce discovery when
there is no response or an inadequate response to a notice in terms of rule 23(1).
Rule 60(5) deals with the extension of time limits prescribed by the rules from the
point of view of a party who has failed to keep to these limits. Most time limits may
be extended with the written consent of the other parties in the matter. If such
parties fail to consent to the extension, the court may on application allow such an
extension. In using its discretion to allow such an extension, a court should
consider the sufficiency and acceptability of the explanation given for
noncompliance. The general approach a court should adopt when making this
assessment has been stated in the case of Evander Caterers (Pty) Ltd v Potgieter, in
the following terms: a time limit in the rules of court is directed at a delay in the
particular procedural step. It is not concerned with the merits of the case as such,
and, because of the existence of the sub-rule under consideration, it is not
intended without more to deprive a litigant of his claim or defence, as the case
may be. It is intended to prevent delay or an injustice being done, owing to delay.
It would seem to follow that an extension of a time limit should not be granted as
a matter of course, merely for the asking, and it should also not be lightly refused
if the delay did not prejudice the other party in respect of the merits or in the
conduct of his case, other than the procedural advantage gained by him owing to
the existence of the time limit. Indeed everything should be done to secure a fair
trial between the parties in the litigation so that the disputes and questions
360
between them may be settled on their merits. Although every effort must be made
to comply with the time limits and requirements set out in the rules, they are not
set in stone. The whole purpose behind the rules is to ensure that the parties
eventually get to court and present their respective cases. This spirit is reflected in
rule 60(7), which provides that: no process or notice shall be invalid by reason of
any obvious error in spelling or in figures or of date.
Plea on the merits

There are many ways in which a defendant may defend a matter such as raising
an exception, filing a special plea or making a payment into court.
But the most common way of defending a matter is to raise a defence on the
merits.
The plea contains the defence.
It contains the defendant’s answer to the plaintiff’s averments in the particulars of
claim attached to the summons. It should be delivered 20 days after the
declaration (simple summons) / NOITD (combined summons)
The following provisions governing the form and content of the plea are
important, namely it must
- have a case number
- be in writing
- be dated and signed by the defendant or his attorney
- It must comply with the provisions of sub rules 19(4) and 19(6).
The defendant may file 1 plea only.
A new defence may be pleaded orally on application at the trial, if it appears
during the trial that there is prima facie evidence of a plea on the ground other
than that pleaded.
The plea must be formulated sufficiently clear to inform the plaintiff precisely of
the basis of the defendant’s defence.
A bare denial of liability or a defence of general issue is not permissible.
Every allegation in the summons and details with regards thereto, must thus be
dealt with separately in the defence.
The defence must consequently

1. admit or
2. deny; or
3. confess and avoid all the material facts alleged in the summons, and,
4. clearly and concisely state the nature thereof and
5. Provide all the material facts on which his defence rests.
Special plea
A special plea is a defence which is not an answer to the factual allegations made
by the plaintiff but which goes beyond the merits.
Examples of special pleas are
o the court has no jurisdiction
o the plaintiff’s claim has become prescribed
o the defendant or the plaintiff has no locus standi
o lis pendens
o res judicata
o arbitration
o splitting of claims
o non-joinder and misjoinder
361
Usually the onus is on the defendant to prove his special plea.
Counterclaim (a.k.a. a claim in reconvention)

The counterclaim is also used in a magistrate’s court.
Rule 20(2) provides that the counterclaim is made by filling, within the time period
laid down for the delivery of a plea, a statement in writing giving such particulars
of the claim in reconvention as are required for claims in convention.
The defendant who institutes a counterclaim is known as the plaintiff in

reconvention, while the plaintiff (in the main action) is known as the defendant in
reconvention.
Rule 20(1) provides that the provisions of the rules of the magistrate’s court apply
mutatis mutandis to claims in reconvention, except that it is not necessary for the
defendant in reconvention (i.e. the plaintiff in the main action) to enter
appearance.
Replication & rejoinder:

All periods relating to replication and plea in reconvention have been amended to
comply with those applicable in the High Court.
The new rule additionally introduces the concept of further pleadings following a
plaintiff’s replication in the magistrates’ courts.
The plaintiff shall deliver a replication to the plea and a plea to any claim in
reconvention within 15 days after service of a plea, and such plea shall comply
with Rule 17
No replication or subsequent pleading which would be a mere joinder of issue or
bare denial of allegations in the previous pleading shall be necessary, and issue
shall be deemed to be joined and pleadings closed in terms of Rule 21A(b).
A plaintiff in reconvention may, within 10 days after the delivery of the plea in
reconvention, deliver a replication in reconvention. Further pleadings may be
delivered by the respective parties within 10 days after the previous pleading
delivered by the opposite party (Rule 21(5).
Close of pleadings (Rule 21A)

This rule has been drastically amended and is in essence a copy of the Uniform
Rules. Rule 21A sets out when pleadings may be closed, namely:
Pleadings shall be considered closed if
• either party has joined issue without alleging any new matter, and without
• the last day allowed for filing a replication or subsequent pleading has elapsed
and it has not been filed;
• the parties agree in writing that the pleadings are closed and such agreement
is filed with the registrar or clerk of the court; or
• the parties are unable to agree as to the close of pleadings, and the court upon
the application of a party declares them closed.
Amendment of pleadings
In Rosner, the court held that the general rule was that an amendment of notice
of motion, a summons or pleading in action, would always be allowed unless the
application to amend was mala fide or the amendment would cause injustice or
prejudice to the other side.
The aim of the amendment is to obtain a proper solution to the dispute between
the parties and to identify the real issues in the matter.
362
However, the party seeking to amend its pleadings should not consider itself to
have the right to that effect.
Instead, it is seeking an indulgence, and has to offer an explanation as to the
reasons for the amendment.
S111 (1) provides that the court may, at any time before judgment, amend a
pleading.
The considerations for the amendment of pleadings, which are applicable in the
high court, also apply in the magistrates’ courts. S111(1) In any civil proceedings
the court may anytime before judgement, amend any summons (or other doc
forming part of the record) provided that the amendment doesn’t prejudice any
other party affected.
Rule 55A provides an easy way of effecting amendments to pleadings.

If the other party objects to the proposed amendment, the party who wishes to
amend must, within 10 days, lodge an application for leave to amend. If no
objection is delivered within the 10 days above, every party who received notice
shall be deemed to have consented, and the amendment as applied for, may be
effected.
Amendments may be made any time before service.

However, such amendments may be initialled by the registrar or clerk of court.
However, rule 55A still applies to amendments after service of summons. in
actions for divorce or nullity of marriage where a summons has been served
personally on the defendant, and this defendant remains unrepresented, rule
55A(1) and (7) require that the notice of amendment in terms of rule 55A as well
as the relevant pages in an amended form must be served personally on the
defendant by the sheriff. These sub-rules are clearly designed as a protective
measure in respect of unrepresented defendants
PLEADINGS CLOSE THEN THE PARTIES PREPARE FOR TRIAL:
Preparation for trial
The parties are obliged to disclose to each other certain aspects of the evidence
they wish to place before the court before the matter can go to trial. Thus the aim
of the pre-trial procedures is to facilitate an orderly and speedy trial and to
prevent the parties from being taken by surprise at the trial by unexpected
evidence.
Set-down for trial
(1) As dominus litus it is the plaintiff’s duty to set the matter down for trial.
(2) However, if the plaintiff fails to set down the matter timeously (within 15 days
after the pleadings have closed), the defendant may set down the trial.
(3) The defendant may decide not to pursue the matter further, and may allow the
matter to die a natural death.
(4) The defendant also has the option to apply for dismissal of the plaintiff’s
action.
363
Discovery of documents
- This is a process whereby each party can compel the other to reveal the
documentary evidence which it hopes to adduce at trial, and also to reveal other
documents in its possession which tends to prove or disprove its case.
- In order that the parties may prepare for the trial and not to be taken by
surprise, it is deemed expedient that each party should know what books and
documents the other has in his possession, or under his control.
- He is entitled to be informed only of those books in the custody or under the

control of his adversary which the latter intends using in the action, or which
tends to prove or disprove either case.
- Rule 23 sets out the application for such information and the way in which
such information is to be furnished.
- Documents in respect of which privilege is claimed must be listed separately in

the schedule, and the grounds for each particular claim of privilege must be
specified.
- Legal professional privilege applies to communication between attorney and
client in the following circumstances:
(1) where the communication pertains to the professional, or intended
professional, relationship,
(2) made for the dominant purpose of seeking or giving legal advice,
(3) whether written or oral, or even
(4) Where the client confesses to the attorney the commission of a prior crime or
fraud.
Rule 23(2) refers to the consequences of a failure to disclose.
However, 1 party can compel the other to disclose by means of rule 60(2).
If the party called upon to make discovery fails to comply with this request to do
so, the party calling for discovery may make an application in terms of rule 60(2)
before the trial to compel compliance with the request.
If an order is made compelling discovery within a certain period and the other
party persists in his default, a further application can be made for judgment
against the defaulting party.
Rule 23(4) provides that the parties may be compelled to produce the books or
documents disclosed in their schedules, and any other books or documents
specified in a notice to that effect, at the trial.
Rule 23(3) provides that each party is allowed to inspect and make copies of the
documents so disclosed, and of the documents specified in rule 23(4).
Pre-trial conference – NBNBNB!!!
(a) Section 54(1) provides that a party to a suit may request the court to convene
a pre-trial conference.
(b) At such conference, the parties try to limit the point at issue by, making
admissions not already contained in the pleadings.
(c) The parties further tries to curtail the time taken up by the conduct of the
trial.
(d) They try to reach agreement on matter that may be mutually admitted and the
precise points in issue between them.
(e) This also helps curb the leading of unnecessary evidence.
364
Further particulars for the purposes of trial:
As is the position in the High Court, any party may after close of pleadings not
less than 20 days before trial, deliver a notice requesting only such further
particulars as are strictly necessary to enable him or her to prepare for trial (rule
16(2)(a)). Such a request must be signed by an attorney or the party if such party
is unrepresented. The request must be complied with within ten days of receipt
thereof. Failure to do so enables the requesting party to apply to court for an order
compelling delivery, or for the dismissal of the action or the striking out of the
defence (rule 16(4)).
The trial
Place of trial
The trial should take place in open court at the courthouse from which the
summons was issued, unless the court has ordered otherwise.
Judgment!
S48 sets out the judgments which a magistrate’s court may make in the action –
plaintiff wins, defendant wins or absolution: The effect of an absolution from the
instance is to leave the parties in the same position as if the case had never been
brought. The plaintiff may take out a summons and sue on the identical cause of
action.
Absolution from the instance may be given at the close of the plaintiff’s case or at
the close of the defendant’s case.
Absolution from the instance at the close of the plaintiff’s case
Absolution will be granted if there is insufficient evidence upon which the court
may reasonably find for the plaintiff.
It should be refused where there is evidence on which a reasonable person may
find for the plaintiff. The principles regarding absolution from the instance were
laid down in Riviera. It was held that the plaintiff has to make out a prima face
case regarding all the elements of the claim in order to survive absolution.
Absolution at the end of the plaintiff’s case should be granted sparingly, but when
the occasion arises a court should order it in the interests of justice.
Absolution from the instance at the close of the defendant’s case
This arises in 2 situations, namely when the burden of proof rests on the plaintiff,
and when the burden of proof rests on the defendant.
(a) onus on plaintiff

Where the court is unable to find that the plaintiff has proved his case on a
balance of probabilities at the close of the defendant’s case, and the court cannot
also find that the defendant has established his defence on a balance of
probabilities, it must grant absolution from the instance. Therefore, if the court
cannot decide on which side the truth lies, after hearing the evidence of both
parties, the proper judgment is absolution.
But if the court finds against the plaintiff, judgment for the defendant, rather than
absolution, must be granted. If the final decision of a case depends entirely upon
the credibility of witnesses, and the court cannot find that either set of witnesses
is untruthful, it should also grant absolution.
(b) onus on defendant

Where the onus is on the defendant, the court can never grant absolution from the
instance at the end of the entire case.
365
Where the defendant fails to discharge this onus on a balance of probabilities, the
court must grant judgment for the plaintiff.
Where the defendant does discharge this onus on a balance of probabilities, the
court must give judgment in his favour.
Thus there is no room for a judgment of absolution in this situation.
Costs
In Hoosan v Joubert the court held that a magistrate’s court had no jurisdiction to
grant costs on an attorney and client scale.
However, in terms of S3 of the Act, the power to make an order for attorney and client
costs was specifically conferred on magistrates’ courts.
The question of costs is a matter within the discretion of the magistrate, but this
discretion must be exercised judicially and in accordance with general rules as to
costs.
On application by a party the court may, in certain circumstances, award costs on a
higher scale than would usually be applicable. The attorney must be careful to avoid
excessive fees, because to charge seriously in excess of what is reasonable is to
overreach the payer.
An attorney found guilty of overreaching can expect to be struck off the roll.
An attorney must also be careful regarding trust monies deposited in his trust
account.
The enforcement of judgment

No court judgment or order would be of any use to a successful plaintiff if it could
not be enforced.
Because the object of litigation is to obtain money or other relief.
If the defendant refuses to comply voluntarily with the judgment, steps may be
taken to enforce judgment.
The process whereby compliance with any judgment, decree or sentence is enforced
is known as execution.
Execution may be defined as a court process whereby a successful litigant can
enforce the court judgment or order grant in his favour.
The process of execution may be used against the person or property of the debtor.
The judgment debtor’s person
Execution against the judgment debtor’s person has been abolished.
The magistrate’s court act, which ordered the committal of debtors to prison for
failure to satisfy the judgment debt, was declared invalid by the CC.
The judgment debtor’s property
S68 contains the provisions regarding the property of the debtor which is
executable.
Execution may be levied against the following property of the judgment debtor:
(a) movable property
(b) immovable property
(c) certain incorporeal property
The sheriff of the magistrate’s court is expressly authorised in terms of the act to
attach certain incorporeal property.
Procedure adopted when levying execution
Execution - when the court gives judgment for the payment of a sum of money or
makes an order for the payment of money, in instalments, and the debtor fails to
pay the money forthwith, or fails to pay any instalment at the time and in the
manner ordered by the court.
366
Where a warrant of execution is issued before an enquiry into the financial
position of the judgment debtor and a nulla bona return is made, the judgment
creditor will not be entitled to costs in connection with the issue and execution of
such warrant.
The order in which execution must be levied:

* first against the movable property of the judgment debtor;
* then against his immovable property, provided that there is not sufficient
movable property to satisfy the judgment or order, or if the court, on good cause
shown, orders that execution be levied against the debtor’s immovable property.
Debt collection & administration:

The Magistrates’ Courts Act of 1944 provides for the section 65 debt collection
procedure, an emoluments attachment order, an administration order and debt
collection where a debtor offers to pay off debt in instalments in terms of section
57 or 58.
The section 65 procedure is applicable where a court orders payment of an
amount and the order or judgment has remained unpaid for ten days from date of
such order or judgment. The debtor is called upon to appear in court for a
financial enquiry to enable the court to establish the debtor’s financial position in
order to make a fair and appropriate order.
Emoluments attachment orders are applicable when the court, in certain cases,
orders the debtor’s employer to pay a certain portion of the judgment debtor’s
salary to the judgment creditor. Section 65J(8) regulates the position where the
judgment debtor leaves the employ of his or her employer, and when the new
employer will be bound by the order or judgment.
Administration orders are dealt with in terms of section 74 of the Act. This process
affords some measure of debt relief to debtors whose debt does not exceed a
specified amount as determined by the minister from time to time, and in effect
amounts to a rescheduling of a debtor’s debt repayments. The court appoints an
administrator and the debtor is obliged to make regular payments to the
administrator who, in turn, divides the money and makes regular pro rata
payments to the creditors. The order lapses as soon as the administration costs
and the listed creditors have been paid in full; the administrator files a certificate
to this effect with the clerk of the court, and sends copies thereof to the creditors
EFFECT OF NATIONAL CREDIT ACT 34 OF 2005
The Act regulates aspects of consumer credit regarding goods to be purchased, leased
or otherwise acquired, services rendered, or credit granted.
Sections 129 and 130 of the NCA create impediments regarding the enforcement of a
credit agreement by means of legal proceedings: the creditor is required to furnish a
notice to terminate a debt review under section 86(10) or a notice in terms of section
129(1) drawing the consumer’s attention to his or her default, and proposing that the
consumer refers the credit agreement to a debt counsellor, alternative dispute
resolution agent, consumer court or an ombudsman with jurisdiction, with the view
to resolving any dispute and agreeing on a repayment plan.
The aim of the NCA is to promote and advance the social and economic welfare
of all South Africans in a fair, transparent, competitive, sustainable, responsible
and efficient manner, and to promote fair and accessible credit-marketing
practices. In essence the Act provides greater consumer protection and debt
367
relief when a consumer is over-indebted or in the event of reckless credit having
been extended.
1. Service and delivery of documents

Section 168 of the NCA regulates service by registered mail or by delivery in person to
the last-known address. Section 65 prescribes delivery to a consumer, and expands
on the delivery options in instances where no specific method for delivery is indicated,
such as delivery in person, by ordinary mail, by fax, by e- mail or by printable web
page.
2. Procedures and pleadings:
(a) Letter of demand

The NCA requires the debt collection process to commence with either a letter of
demand or a summons. A section 129(1)(a) demand constitutes a legal notice in terms
of section 96(1) of the NCA, and it must be delivered to the consumer at his address
as set out in the agreement, or the most recent address provided by the consumer to
the credit provider in terms of section 96(2).
(b) Notice
Section 129(1)(b) of the NCA provides that the credit provider may not commence any
legal proceedings to enforce the credit agreement before providing notice to the
consumer in terms of section 129(1)(a) or section 86(10), and complying with further
requirements in section 130 (debt procedures in court). Legal proceedings may not
commence before a written notice in terms of section 129(1)(a) has been properly
served on the consumer. The credit provider must prove delivery of the notice, and
the consumer bears the onus to rebut proof of delivery.
Section 129(1)(a) does not indicate the method of delivery, nor the address where
notification is to take place.
After several conflicting judgments, it was held in Rossouw that the actual receipt of
the default notice by the consumer is not required – despatching the notice in the
manner chosen by the consumer to his or her chosen address as set out in the credit
agreement is sufficient to establish compliance with this section.
(c) Summons
As the NCA requires many averments to show compliance, a combined summons is
preferred in matters relating to the NCA. In addition to the information required by
magistrates’ courts rule 6(1)(a), a summons for the enforcement of a debt in terms of
the NCA must contain sufficient particulars to determine whether the requirements
set out in the NCA have been met. A number of allegations may potentially be made
in the particulars of claim, but it should contain at least the following averments:
• citation of the parties
• that the NCA applies to the agreement
• type and category of the credit agreement
• date when the agreement is concluded
• details regarding the principal debt
• alleged compliance with the Act
• other material terms of the agreement
• locus standi : that the plaintiff (or credit provider) is duly registered with the
National Credit Regulator
in accordance with section 40 (or exempt from registration), and has paid the renewal
fees or applied
for registration which has not been refused
368
• that the consumer is in default under the relevant agreement for a period of 20
business days or
longer
• that written notice in terms of section 129(1)(a) has been properly served on the
consumer
• that 10 or more business days have elapsed since the delivery of the notice
• that the consumer either did not respond to the section 129(1)(a) notice or
rejected it
• that the consumer did not refer the credit agreement to a debt counsellor,
alternative dispute resolution agent, consumer court or an ombudsman with
jurisdiction
• that there is no pending matter before the Consumer Tribunal that relates to the
credit agreement
• that the consumer who is under an instalment agreement or lease had failed to
surrender the goods voluntarily (if applicable)
• if the consumer returned the goods that are subject to an instalment agreement
or lease, that the provisions of section 127 have been complied with and facts to
prove compliance have been averred
• a credit assessment was conducted in accordance with section 81, and the credit
extended to the consumer was not reckless
The following documents should be filed with a request for judgment:

• original credit agreement
• copy of the section 129 notice and proof that it has been properly served on
the consumer
• copy of certificate of registration with the National Credit Regulator
(d) Summary judgment and default judgment

Section 129(1)(b) of the NCA provides that a credit provider may not commence “any
legal proceedings” to enforce the agreement before first giving notice to the consumer
and meeting any further requirements set out in section 130.
This means, first, that “any” proceedings may refer to action as well as application
proceedings. Secondly, the provisions of this section also apply to an application for
summary judgement and an application for default judgment. In the case of summary
judgment, that in addition to complying with Uniform Rule 32(2) and rule 14(2) of the
magistrates’ courts rules, when applying for summary judgment an application under
the NCA must contain the necessary averments.
369
Review:
The meaning of the term ‘‘review’’ was laid down in Johannesburg Consolidated
Investment Company Ltd “In its most usual signification it denotes the process by
which, apart from appeal, the proceedings of inferior Courts of Justice, both Civil
and Criminal, are brought before this Court in respect of grave irregularities or
illegalities occurring during the course of such proceedings. But there is a second
species. Whenever a public body has a duty imposed upon it by statute disregards
important provisions of the statute, or is guilty of gross irregularity or clear
illegality in the performance of the duty, this Court may review the proceedings
complained of. The Legislature has conferred a power of review (of certain
statutory bodies).
The Promotion of Administrative Justice Act 3 of 2000 (PAJA) creates, as it were, a
fourth situation where review may occur. This Act was passed to give effect to
section 33 of the Constitution, 1996, that requires administrative actions to be
lawful, reasonable and procedurally fair. Because ‘‘administrative action’’ refers to
a decision taken or a failure to take a decision by (a) an organ of state, or (b) a
natural or juristic person when exercising a public power or performing a public
function in terms of an empowering provision which adversely affects a person’s
rights. The grounds for review in terms of this Act are contained in section 6 and
the procedure for review in section 7
In general terms, it can be said that review is essentially concerned with the
decision-making process (as opposed to the decision per se). Therefore, the
question is whether or not the procedure followed is regular and valid.
Distinction between appeal and review
(a) An appeal is aimed at the result of the trial, whereas a review is aimed at
the method by which the result is obtained. This may prove an
unsatisfactory distinction as both forms of proceedings is aimed at
reversing the judgment of the court a quo.
The very object of review is to show that the proceedings were improperly
conducted, and it seeks to have the judgment set aside on these grounds
without being concerned with the merits of the case.
(b) The second distinction is that, in the case of an appeal, the parties are
restricted to the record of the proceedings and may not go beyond it,
whereas in the case of a review, the parties may, beyond the record.
(c) The rules governing civil appeals usually provide that an appeal must be
noted within a stipulated number of days, and that the steps to prosecute it
must be taken within a further limited period.
In regards of reviews, there is generally no fixed period within which the
proceedings must be brought, but this must be done within a ‘reasonable
time’.
What is reasonable will depend on the case.
(d) The final distinction is that the procedure differs.
An appeal must be noted and prosecuted according to statutory provisions,
supplemented by the rules of the court.
Reviews, on the other hand, are brought on notice of motion.
370
Grounds for review
Lower courts
S24 of the Supreme Court act lays down uniform grounds for the reviewing of the
proceedings of any lower court.
The following grounds for review are mentioned in this section:

(1) absence of jurisdiction on the part if the court
(2) interest in the cause, bias, malice or corruption on the part of the presiding
judicial officer
(3) gross irregularity in the proceedings
(4) The admission of inadmissible or incompetent evidence of the rejection of
admissible or competent evidence.
(1) the meaning of ‘gross irregularity’
This phrase refers not only to incidents in the court room, but also to any
irregularities which lead to prejudice to any of the parties.
To illustrate this, if the court conducts an inspection in loco in the absence of the
parties, the court’s conduct will amount to gross irregularity.
A gross irregularity must be prejudicial before review proceedings will proceed.
As mentioned above, there are instances where either review proceedings or an

appeal may be instituted, but naturally only when it is not necessary to go beyond
the record.
The following 2 examples will illustrate this:
a) Where the court a quo had no jurisdiction, the proceedings may be review
in terms of the act. However, the judgment can also be appealed against.
b) Where the magistrate has admitted inadmissible or incompetent evidence,
the proceeding may be reviewed in terms of the act. It is also permissible to
appeal in a proper case, but then the appellant is restricted to the record.
Grounds for reviewing the proceedings of quasi-judicial bodies
Superior courts have inherent jurisdiction to entertain all causes arising within
their area of jurisdiction.
If a statutory body (e.g. a liquor licensing board) does not conduct its proceedings
in fair and reasonable manner, a superior court will have the inherent jurisdiction
necessary to correct such shortcomings.
This type of review is therefore often termed a ‘review under the common law’.
A superior court has jurisdiction to review the proceedings of any body or tribunal
empowered to perform statutory duties, as well as to review the proceedings of
quasi-judicial bodies.
A court will not interfere on review with a decision taken by a quasi-judicial
tribunal, unless the party requesting review has suffered prejudice.
Where it has been proved that a party has suffered prejudice as a result of an
irregularity, the onus of disproving prejudice must be discharged by the tribunal
that committed the irregularity.
371
Procedure on review
The procedure pertaining to review is set out in Rule 53.

The Rule provides that motion proceedings must be used when the review of a
decision of any inferior court or quasi-judicial body is sought.
(2) What does the notice of motion contain?
The notice of motion calls upon the presiding officer to dispatch the record of the
original proceedings to the registrar of the relevant division of the High court
where the review proceedings have been instituted.
This record must be dispatched within 15 days after receipt of the notice of
motion. The notice must contain reasons for judgment which the presiding officer
must, or wishes, to furnish.
The notice also calls upon the other interested parties (i.e. parties who would be
affected by the review proceedings) to show cause why the decision should not be
reviewed.
The notice of motion must also be accompanied by a supporting affidavit setting
out the grounds, facts and circumstances on which the applicant relies for
requesting the review.
The presiding officer then sends the record to the registrar, who must permit the
applicant to make copies thereof.
The applicant gives 2 copies to the registrar and a copy to every other party to the
proceedings.
After the receipt of the record, the applicant has a 10 day period within which he
may amend or add to his notice of motion or affidavit by means of a notice
together with a supplementary affidavit.
He may only do this if the record contains further information which he wishes to
bring to the court’s attention.
If the presiding officer, or any interested party wishes to oppose the application for
review, he must file a notice of intention to oppose within 15 days of receipt of the
notice if motion.
He must also file an answering affidavit within 30 days of the filling of the
applicant’s supplementary affidavit.
After the answering affidavit has been filed by the respondent, the applicant may
file a replying affidavit.
The application will then be set down for hearing.
From the above, it is clear that the normal, opposed application procedure is
followed in review proceedings, with 2 important additions, namely
(1) the provision for making the record available to all parties and
(2) The provision that the applicant may amend or add to the documents on
the basis of which he institutes review proceedings, after receipt of the
record.
Powers of the court on review

If review proceedings are successful, the High Court will set aside the decision or
the proceedings that it has reviewed, and remit the matter to the particular body
to decide in accordance with the correct procedure.
However, the court will not substitute its own discretion for that of the body or
official whose decision is has review, unless there are exceptional circumstances.
372
It should also be noted that the court will not remit the matter to the particular
body whose proceedings are reviewed, in the following circumstances:
o when the end result is clear and referring it back will merely waste time
o when a remittance will be futile
o When there are valid reasons why the court should exercise its
discretion in favour of the applicant and substitute its own discretion for
that of the respondent.
APPEALS:
Appeals from magistrate’s court decision
When can an appeal be noted?
A party's right to appeal from a magistrate’s court entails that leave to appeal need
not be obtained. This right to appeal may, however, be excluded by a written
agreement by the parties before the trial commences that the decision of the court
will be final (s 82). In terms of section 83, the right of appeal accrues only to a
party to a civil suit or proceeding, and this section also provides that appeals may
be brought only against the following three types of decision:
1. any judgment described in section 48
2. any rule or order having the effect of a final judgment, including an order
relating to execution in terms of Chapter IX of the Act and on an order as to
costs
3. in certain circumstances, any decision overruling an exception
What is meant in section 83(b) by a rule or order ‘having the effect of a final
judgment’?
In Pretoria Garrison Institute v Danish Variety Products, it was held that the test for
determining whether a rule or order has this effect is whether it disposes of any
issue, or any portion of any issue, in the main action, or irreparably anticipates or
precludes some of the relief which would, or might, be given at the main hearing.
If the effect of a rule or order is final, this means that the matter has ended for one
of the parties. Therefore, one can appeal against that order or rule. This differs
from an interim order, in that the granting of an interim order does not mean that
a party has lost the case. Thus the party may not appeal against a provisional or
interim order.
Examples of orders that are final and definitive:
• the granting or refusal of a final interdict
• the granting of a summary judgment, the upholding of a special plea that the
court lacks jurisdiction,
• the upholding of a defence of prescription.
In Makhetha, it was held that the granting of provisional sentence in a manner
that would render it pointless to go into the principal case, had the effect that
the provisional sentence order was final in effect and accordingly appealable.
Examples of orders which are interlocutory, with no final effect are:
• a refusal to grant absolution from the instance at the end of the plaintiff's case,
• an order for (or refusal to order) further particulars.
In Livanos v Absa Bank, the court held that an order granting leave to execute
subject to security de restituendo is interlocutory and not appealable.
373
A judgment, which may be rescinded or varied in terms of section 36, is not
immediately appealable; a party must first exhaust his or her remedies in the
lower court before appealing.
An appeal against the costs awarded in pursuance of a non-appealable judgment
or order - section 83(b), ‘... a party ... may appeal ... against ... any order as to
costs’.
Thus section 83 also renders appealable any order as to costs - in deciding
whether the award of costs was correctly made, ‘the merits of the dispute’ in the
Court below must be investigated in order to decide whether the order as to costs
made in that dispute was properly made or not. The result is that a court of
appeal may allow an appeal as to costs where it is of the opinion that the dispute
in regard to which the costs were awarded was wrongly decided, but it cannot alter
the judgment or order – even if it is of the opinion that such judgment or order
was incorrectly made.
The effect of noting an appeal

The noting of an appeal automatically suspends execution of the judgment,
pending the outcome of the appeal.
Upon application, the court may order that the judgment be put into effect.
Therefore, the onus rests on the successful party who is now seeking to execute,
to approach the court for an order allowing execution despite the noting of an
appeal.
The court hearing the appeal

In terms of section 83, a party may appeal to the “provincial or local division” of
the High Court having jurisdiction to hear the appeal. However, the Superior
Courts Act, 2013 no longer makes this distinction, and reference is made only to a
“Division”. The Act further distinguishes between a “local seat” and a “main seat”
of a Division, where this is applicable.
The procedure on appeal

An appeal may be noted either by an appellant in person or by his or her duly
authorised legal representative. The appeal procedure can be divided into two
phases: the first is governed by rule 51 and refers to the procedure in the
magistrates court, while the second is governed by Uniform Rule 50 and refers to
the procedure in the High Court.
The procedural steps to be taken in an appeal from a magistrate’s court decision
are the following:
(1) Reasons for judgment before noting an appeal – NBNB!!
Rule 51(1) provides that the appellant must within ten days after judgment in
writing request the judicial officer against whose judgment he or she wishes to
appeal to hand to the clerk of the court a written judgment, which becomes part of
the record in the case. The judicial officer must furnish the written judgment
within 15 days of the request to the clerk of the court.
The following is an example of a written request:
(Heading) ______________________________________________________________
REQUEST FOR REASONS FOR JUDGMENT
______________________________________________________________
374
Kindly take notice that the Plaintiff in the abovementioned case hereby requests
that the Honourable Magistrate....................... within 15 days of the date hereof
hands to the clerk of the court a written judgment in the abovementioned case
forming part of the record showing:
1. (a) the facts he found to be proved, and
2. (b) his reasons for judgment.
Dated at ...................................... on this .......... day of
............................................ 20 .....
TO: THE CLERK OF THE COURT
Note that the grounds of appeal must be clearly specified. A notice which merely
sets out that ‘the judgment is bad in law and against the weight of the evidence’
will generally be regarded as fatally defective and the appeal will be struck from
the roll. Where it is absolutely clear what the grounds of appeal as to facts and law
are, so that the respondent will not be taken by surprise, then such a notice will
be allowed.
(Address)
.................................... Plaintiff's attorneys
(2) Noting an appeal.

This matter is regulated by rule 51(3).
(a) If a party wishes to appeal, he or she must note the appeal within 20 days of
the date of the judgment appealed against, or within 20 days of the clerk of the
court providing a copy of the written judgment, whichever period is the longer. He
or she notes the appeal by delivering a notice, and, unless the court of appeal
directs otherwise, by furnishing security for the respondent's costs of appeal to an
amount of R1 000. No security is required from the state.
(b) A notice of appeal must state
• whether the judgment as a whole, or only part of the judgment or order, is being
appealed against, and if only part, then what part
• the grounds of appeal, specifying the findings of fact or rulings of law appealed
against
The following is an example of a notice of appeal:
(Heading)
______________________________________________________________
NOTICE AND GROUNDS OF APPEAL
______________________________________________________________
Kindly take notice that the Appellant hereby gives notice of appeal against the
entire judgment of the Magistrate delivered on ...................... in case no
.................. held in the magistrate’s court for the District of ................ at
..............., in which he dismissed the Plaintiff's claim for damages in the amount
of R ........... with costs.
The grounds of appeal are as follows:
1. The Honourable Magistrate incorrectly decided that the Plaintiff failed to
discharge the onus of proof resting upon him.
2. The Honourable Magistrate erred in law in finding that,........
3. Honourable Magistrate erred in making the following findings of law:
(i) in deciding that .................
(ii) in deciding that …………….
4. Honourable Magistrate erred in making the following findings of fact:
(i) in deciding that ..........................
375
(ii) in deciding that ..........................
(3) Reasons for judgment after the appeal has been noted:
Within 15 days after the notice of appeal has been delivered, the judicial officer
must deliver to the clerk of the court a statement in writing showing (as far as may
be necessary, having regard to any written judgment already delivered by him or
her)
(a) the facts he or she found to be proved (i.e. found but did not include in his or
her original judgment; not facts which he or she now finds)
(b) the grounds upon which he or she arrived at any finding of fact specified in the
notice of appeal as appealed against
(c) his or her reasons for any ruling of law, or for the admission or rejection of any
evidence, so specified as appealed against (rule 51(8)).
This statement becomes part of the record. The same procedure applies to the
noting of a cross-appeal.
In Regent Insurance Co Ltd, the court held that rule 51(8) was peremptory and had
to be complied with. The magistrate's written explanation formed an integral part
of the appeal record. The reasoning behind this was to encourage the speedy and
effective disposal of appeals by placing the court of appeal in a position to get to
the heart of the appeal and deal with it in a speedy, efficient and cost-effective
manner. Failure to comply with the provision undermined and delayed effective
legal administration.
(4) Prosecution of appeal.

Once the appeal has been noted, it remains to prosecute it. The first step is to
have it set down for hearing. Application must be made to the Registrar for a date
within 40 days of noting the appeal, on notice to all other parties (Rule 50(4)).
Should the appellant fail to apply for a date within this period, the respondent
may apply for a hearing date within the next 20 days.
If neither party has applied within the relevant time limits, the appeal will lapse.
On receipt of the application, which must be accompanied by two copies of the
record of the proceedings, the Registrar selects a date for the hearing.
The Registrar must immediately give the applicant written notice of such date,
whereupon the applicant must immediately deliver a notice of set-down, and give
notice in writing thereof to the clerk of the court from which the appeal emanated.
At the hearing of the appeal, the parties must be represented either in person or
by counsel.
The appeal, unless otherwise required to be, permitted by any law, is heard by two
judges in the normal course of events. However, if these judges are not in
agreement, the Judge President (or Deputy) may direct that a third judge be added
to hear the appeal (s14(3) of the Superior Courts Act, 2013).
If the appellant is in default on the day of the hearing, the respondent is entitled to
an order that the appeal be struck off the roll, with costs.
If the respondent is in default, the appellant will have to persuade the court of
appeal that the judgment of the lower court ought to be reversed.
(5) Further appeal.

There is, as a general rule, only one appeal as of right.
If a magistrate's decision has been taken on appeal to a Division of the High Court,
there is a further appeal to the Supreme Court of Appeal, but only with the special
leave of the Supreme Court of Appeal (s16(1)(b) of the Superior Courts Act, 2013).
376
An appeal does not lie to the full court of the particular division of the High Court
– this court does not possess such jurisdiction, and a noting to the full court is a
nullity (Enslin).
Powers of the court of appeal:

Section 87 of the Magistrates' Courts Act of 1944 specifically provides that a court
of appeal may
• confirm, vary or reverse the judgment appealed from, as justice may require
• remit the matter to the court a quo so that further evidence may be taken and
the appeal be determined
• if desirable, order any party to produce further proof
• take any course which may lead to the just, speedy and inexpensive
settlement of the case
• make such order as to costs as justice may require
Haan Solo institutes proceedings in a magistrates’ court against Luke Skywalker for
damages arising out of breach of contract. The magistrate grants judgment against
Haan. John is dissatisfied, and takes the matter on appeal.
1. Must John apply for leave to appeal to a High Court?

2. How many judges will hear the appeal?
3. Describe how John must note his appeal to a High Court.
4. Explain the implications for John if Jane abandons part of the judgment
granted in her favour.
5. How does the noting of the appeal affect the execution of the judgment given in
the magistrates’ court?
ANSWERS:
1. No, John is allowed one appeal as of right in terms of section 83 of the
Magistrates’ Courts Act of 1944. The appeal lies to the appropriate Division of
the High Court from judgments of magistrates’ courts. See section 83.
2. An appeal from an inferior court is heard by two judges. See section 14(3) of
the Superior Courts Act, 2013.
3. This matter is regulated by rule 51(3). John must note the appeal within 20
days of the date of judgment appealed against, or within 20 days of the clerk
of the court providing a copy of the written judgment, whichever period is the
longer. John notes the appeal by delivering a notice and, unless the court of
appeal directs otherwise, by furnishing security for the respondent's costs of
appeal to an amount of R1 000. A notice of appeal must state the following:
— whether the judgment as a whole, or only part of the judgment or order, is
being appealed against, and if only part, then what part
— the grounds of appeal, specifying the findings of fact or rulings of law against
the grounds of appeal must be clearly specified in order for the notice to pass
muster.
4. Jane was the plaintiff in the original application. If a plaintiff abandons any
part of a judgment granted in his or her favour, judgment in respect of the
part abandoned is entered for the defendant (John) with costs in terms of
section 86(2) of the Magistrates’ Courts Act 32 of 1944.
5. The noting of an appeal automatically suspends execution of the judgment,
pending the outcome of the appeal. Upon application, however, the court may
order that the judgment be put into effect. The court's discretion will be made
on such terms as the court may determine about security for the due
377
performance of any judgment, which may be given upon the appeal or
application. Section 78 of the Magistrates’ Courts Act.
APPEALS IN SUPERIOR COURTS

Prior to 2013 the Supreme Court of Appeal was the highest court in civil matters,
and the Constitutional Court was the highest court in all constitutional matters.
The Constitution Seventeenth Amendment Act, 2012, which took effect on 22
August 2013, not only provided for a single High Court of South Africa, but also
provided that the Constitutional Court is now the so-called apex court or highest
court in all matters.
The amendment brought about the following situation:
The Constitutional Court’s jurisdiction is no longer limited to purely constitutional
matters, and the Supreme Court of Appeal is no longer the court of final instance in
non-constitutional matters, but will be an “intermediate appeal court” in such
matters.
The Constitutional Court still retains its exclusive jurisdiction with regard to the
matters set out in section 167(4) of the Constitution, and is therefore the court of
first and final instance in these matters.
However, the amendment does not mean that every matter will eventually be
heard by the Constitutional Court – very specific grounds have to exist before the
Constitutional Court will grant leave to appeal in matters other than constitutional
matters. The Supreme Court of Appeal mainly decides appeals in any matter
arising from the High Court or a court of a status similar to the High Court.
There is no right of appeal against a decision of a High Court, and leave to
appeal is required each time, either from the court that gave the judgment, or from
the Supreme Court of Appeal.
Leave to appeal will only be given if the judge(s) concerned is/are of the opinion
that:
• the appeal would have a reasonable prospect of success, or that there is some
compelling reason why the appeal should be heard
• it cannot be said that the issues are of such a nature that the decision will
have no practical effect or result, and
• the appeal would lead to a just and prompt resolution of the real issues
between the parties (s 17(1)).
Appeals from High Courts

Section 16 of the Superior Courts Act, 2013 refers to an appeal against “any
decision”, whereas its predecessor (s 20 of the Superior Courts Act of 1959)
referred to “a judgment or order”.
The effect of noting an appeal

The common law rule of practice in the superior courts is that the execution of a
judgment is automatically suspended upon the noting of an appeal. This common
law rule is reflected in both the rules of court (see Uniform Rule 49(11)) and in the
Superior Courts Act, 2013 (see s18(1) and 18(5)).
Section 18(1) provides that unless there are exceptional circumstances, the
“operation and execution” of a decision is suspended pending the decision of the
application for leave to appeal or the appeal.
In addition to proving exceptional circumstances, the party approaching the court
to order otherwise, has to prove that he or she will suffer irreparable harm if the
court does not order otherwise (while the other party will not) (s18(3)).
378
Uniform Rule 49(11), it is not merely the right to levy execution, which is
suspended, but the ‘operation and execution’ thereof.
This has the result that, pending the appeal, the judgment cannot be carried out
and no effect can be given to it.
Secondly, to obtain leave to execute the judgment, the party in whose favour
judgment was given must apply to the court, which gave the judgment, and only
this court is competent to grant leave to execute.
The applicant bears the onus of showing why the judgment should be carried into
execution, and, if his or her application is successful, he or she will be required to
furnish security de restituendo (Uniform Rule 49(12)).
Peremption (lapse) of appeal

The Superior Courts Act, 2013 does not contain a section that corresponds with
section 85 of the Magistrates’ Courts Act of 1944. The position in regard to the
peremption of appeals is therefore governed by the common law, in terms whereof
a person who has acquiesced to a judgment cannot subsequently appeal against
it. Such acquiescence will be inferred from any act, which is inconsistent with the
intention to appeal, for example payment, or acceptance of payment, in terms of a
judgment. If peremption of appeal is raised during proceedings, the onus of proof
is on the person alleging such acquiescence.
Abandonment of judgment Rule 41(2): Unlike the corresponding provisions in the

Magistrates’ Courts Act, this subrule makes no mention of a party's liability for
costs. It appears that the party abandoning would be liable for costs up to the date
of abandonment.
Courts hearing the appeal
A court of first instance is usually constituted before a single judge, and a full
bench hearing an appeal against the judgment of a single judge comprises three
judges (s 1 of the Superior Courts Act, 2013). No judge whose judgment is
appealed against may sit at a hearing of such an appeal (s 14(8)).
An appeal lies upon leave being granted in the following instances:
o against a decision of a Division as a court of first instance
• if the court consisted of a single judge, the appeal lies either to the full court
of that Division, or to the Supreme Court of Appeal (s 16(1)(a)(i)).
• If the court consisted of more than one judge, the appeal lies to the Supreme
Court of Appeal (s 16(1)(a)(ii)).
Leave to appeal may be granted by the judge(s) against whose decision is being
appealed (s 17(2)(a)), or if refused, by the Supreme Court of Appeal on
application (s 17(2)(b)).
If the leave to appeal is granted against a decision of a single judge sitting as a
court of first instance, the judge(s) granting such leave must direct that the
appeal be heard by a full court of that Division (s 17(6)), unless the decision
involves a question of law of such importance that it requires a decision by the
Supreme Court of Appeal, or that the administration of justice requires the
Supreme Court of Appeal to consider it (s 17(6)(i)-(ii)).
o against a decision of a Division as court of appeal The
appeal lies to the Supreme Court of Appeal upon special leave to appeal granted
by the Supreme Court of Appeal (s 16(1)(b)).
o against a decision of a court of a status similar to the High Court The
appeal lies to the Supreme Court of Appeal upon leave to appeal granted by that
court of by the Supreme Court of Appeal (s 16(1)(c)).
Should a Division have one or more local seats, the main seat of that Division has
concurrent appeal jurisdiction over the area of jurisdiction of any such local seat,
379
and the Judge President of the Division may direct that an appeal against a
decision of a single judge or of a magistrates’ court within that area of jurisdiction
may be heard at the main seat of the Division (s 6(4)(a)).
Procedure on appeal
Procedure on appeal to full bench
Leave to appeal may be requested at the time the judgment or order is made. If
this is not done, an application for leave to appeal must be filed within 15 days of
the judgment or order appealed against.
This application is heard by the judge who made the judgment or order (Rule
49(1)).
The appellant must, within 60 days of delivering his or her notice of appeal,
submit a written application to the Registrar for a date for the hearing of the
appeal (Rule 49(6)(a)).
The appellant must simultaneously file three copies of the appeal record with the
Registrar and must provide the respondent with two copies (Rule 49(7)). At this
stage, the appellant must also furnish security for the respondent's costs of
appeal. If the parties cannot agree on the amount, the Registrar will determine the
amount.
Rule 49(13) has been amended to allow the court on application to it, to release
the appellant wholly or partially from the obligation to enter into good and
sufficient security for the respondent's costs of appeal.
The Registrar then assigns a date for the hearing of the appeal, and gives both
parties at least 20 days notice thereof (Rule 49(7)(c)).
Should the judge against whose decision leave to appeal is sought refuse leave to
appeal, the party wishing to appeal may file an application for leave to appeal with
the registrar of the Supreme Court of Appeal within one month after such refusal
(section 17(2)(b) of the Superior Courts Act, 2013).
This time-frame also applies in respect of an application for special leave to appeal
under section 16(1)(b).
These applications must be considered by two judges (s 17(2)(c)) who need not
hear oral evidence, and who may grant or refuse the application or refer it to the
court for consideration (s 17(2)(d)).
The procedure on appeal to the Supreme Court of Appeal

If leave of the Supreme Court of Appeal is necessary, an application for leave to
appeal shall be lodged in triplicate with the Registrar within the time limits
prescribed by that law (Rule 6(1)).
The application for leave to appeal must furnish all the information necessary to
decide the application and must deal with the merits of the case only where it is
necessary to explain and support the particular grounds upon which leave to
appeal is sought or opposed.
The application must be accompanied by the following:
• a copy of the order of the court a quo appealed against;
• where leave to appeal has been refused, a copy of that order of the court a quo;
• a copy of the judgment of the court a quo; and where leave to appeal has been
refused by that court, a copy of the judgment refusing such appeal (Rule 6(2)).
The Registrar may, on written request, extend the period for filing a copy of the
judgment or judgments for a period not exceeding one month.
Every affidavit in answer to the application must be lodged in triplicate within one
month after service of the application on the respondent. An applicant who has
applied for leave to appeal, must within ten days after receipt of the aforesaid
380
affidavit, lodge an affidavit in reply dealing only with new matters raised in the
answer.
The application is then considered by the judges, who may request submissions or
further affidavits; the record or portions of it; and additional copies of the
application.
The party concerned must lodge the required documents within the period
prescribed by the Registrar. If the party concerned fails to comply with the
Registrar's direction or fails to cure the defects in the application within the
prescribed period, the application will lapse (Rule 6(8)).
A notice of appeal must then be lodged with the Registrar of the Supreme Court of
Appeal and the Registrar of the court a quo. The notice of appeal must be lodged
within one month after the date provided for in Rule 7(1).
The notice of appeal and cross-appeal must state what part of the judgment or
order is appealed against, and also state the particular respect in which the
variation of the judgment or order is sought. The notice of appeal must be
accompanied by a certified copy of the order (if any) granting leave to appeal
(Rule 7(3)). The parties to the appeal may extend the time limit for lodging the
notice of appeal by written agreement (Rule 7(4)).
In terms of Rule 8 the appellant must within three months of the lodging of the
notice of appeal, lodge with the Registrar six copies of the record of the
proceedings in the court a quo. The appellant must also deliver copies to the
respondent. The respondent may decide on the number of copies that are
necessary. The time limit for lodging of the record may be extended by written
agreement of all the parties to the appeal, and by the Registrar upon written
request, with notice to all the parties. However, the Registrar may not extend the
period for more than two months. The appeal will lapse if the appellant fails to
lodge the record within the prescribed period or within the extended period.
The appellant may be ordered by the court granting leave to appeal, to provide
security for the respondent's costs of appeal. The appellant must furnish the
requisite security before lodging the record with the Registrar, and inform the
Registrar accordingly. If the parties contest the form or amount of security, the
Registrar of the court a quo will determine the issue and this decision will be final.
Unless the President otherwise directs, the appellant must lodge six copies of his
or her main heads of argument with the Registrar of the Supreme Court of Appeal
within six weeks from the lodging of the record. The respondent must lodge with
the Registrar of the Supreme Court of Appeal six copies of his or her main heads
of argument within one month after receiving the appellant’s heads of arguments.
The heads of arguments will comprise the main points to be made in counsel’s
address to court, will be accompanied by a list of authorities to be quoted in
support of the argument, and will define the form of order sought from the Court.
A photocopy or printout from an electronic database of the statute, regulation or
decree must accompany the heads of argument in a separate file: Rule 10(3)(f).
The President or the Court may mero motu (of its own accord) or on application,
extend or reduce any time period prescribed in these rules and may condone
noncompliance with these rules. The Registrar shall notify each party by registered
letter of the date of the hearing. If the appellant fails to appear on the designated
date, the appeal will be dismissed for non-prosecution, unless the Court otherwise
directs. Regarding an application for condonation, in terms of Rule 12, in
Darries, court held that condonation of the non-observance of the Rules of the
Supreme Court of Appeal is not a mere formality and that some acceptable
explanation must be given for any delay in seeking condonation. The appellant
should apply for condonation as soon as possible, and the petition should set forth
381
briefly and succinctly essential information, which might enable the Court to
assess the appellant's prospects of success. This is so because the appellant's
prospect of success is one of the factors relevant to the exercise of the Court's
discretion. However, where non-observance of the rules of court has been flagrant
and gross, an application for condonation should not be granted, whatever the
prospects of success might be.
All appeals are heard in Bloemfontein, although the court may sit elsewhere in
exceptional circumstances.
The Court may make an order for costs to be borne personally by any party or
attorney or counsel if the hearing of the appeal is adversely affected by the failure
of that party or his or her legal representative to comply with the rules of the
Supreme Court of Appeal (Rule 11A).
Powers of the court on hearing of appeals
Section 19 of the Superior Courts Act, 2013 provides that the Supreme Court of
Appeal and a Division exercising appeal jurisdiction may
• dispose of an appeal without the hearing of oral evidence
• receive further evidence
• remit the case to the court of first instance, or the court whose decision is
appealed against, for further hearing with any instructions regarding the taking
of such evidence, or
• confirm, amend or set aside the decision appealed against and give any decision
which the circumstances require.
Position of the Supreme Court of Appeal
Section 168 of the Constitution, 1996 provides that this court may decide appeals
in any matter arising from the High Court of South Africa, or from a court of a
status similar to the High Court. Appeals in respect of labour and competition
matters are expressly excluded in this regard. Section 168(3)(b) makes it clear that
this court may decide only appeals, issues connected with appeals and matters
referred to it in terms of an Act of Parliament.
Should the Supreme Court of Appeal make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct of the President,
such an order of constitutional invalidity will have no force unless it is confirmed
by the Constitutional Court (s 172(2)(a) of the Constitution, 1996).
The position of the Constitutional Court

As the highest court of the Republic, the Constitutional Court may decide not only
constitutional matters, but also any other matter, provided it grants leave to
appeal on the grounds that “the matter raises an arguable point of law of general
public importance which ought to be considered” by the Court.
This Court also makes the final decision whether a matter is within its jurisdiction
(s 167(3) of the Constitution, 1996). When it is in the interests of justice and the
Constitutional Court has given leave, a person may bring a matter directly to the
Court, or appeal directly to the Court from any other court (s 167(6)).
Carrie Fisher institutes an action for damages against Harrison Ford in the High
Court. Both the court a quo and, on appeal, the full bench of the applicable Division
of the High Court, reject his claim. Carrie now wishes to appeal either to the Supreme
Court of Appeal, or to the Constitutional Court
1. What procedure must Carrie follow to apply to appeal to the Supreme Court of
Appeal?
2. If leave to appeal is granted, what is the next step that Carrie must take?
3. What essential information must be included in a notice of appeal?
382
4. What is meant by the term “heads of argument”?
5. Suppose that Carrie is unsuccessful in his appeal. Can she now apply to the
Constitutional Court?
ANSWERS:
1. An application for leave to appeal must be lodged in triplicate with the Registrar
of the Supreme Court of Appeal within the time limits prescribed by the law.
2. A notice of appeal must be lodged with the Registrar of the Supreme Court of
Appeal and with the Registrar of the court a quo within one month after the
date of the granting of leave to appeal.
3. The notice of appeal must state what part of the judgment or order is appealed
against and state the particular respect in which the variation of the judgment
or order is sought.
4. The “heads of arguments” comprise the main points to be made in counsel's
address to court as well as a list of the authorities to be quoted in support of
each point. The heads of argument will also define the form of order sought
from the Court.
5. Only if the matter raises an arguable point of law of general public importance
which ought to be considered by the Constitutional Court, and if the
Constitutional Court grants leave to appeal (see section 167(3) of the
Constitution, 1996). On the given facts the answer is probably “no”.
Substantive and Adjective law
The rules of substantive law define the rights and duties of persons in their
ordinary relationship with each other.
Adjective law deals with the procedure to be adopted in order to enforce a
right or duty.
For example: X lends his car to Z, who refuses to return it. Adjective law
sets out the procedural steps, which X must follow in order to regain
possession.
Adjective law is accessory to substantive law.
383
FORMS OF PROCEEDINGS: (Page 155 – 175) prescribed book
(1) APPLICATION PROCEEDINGS

• By notice of motion
• Parties: applicant and respondent
• Documents: affidavits
(2) ACTION /SUMMONS PROCEEDINGS: (Page 176 -251)

• By summons
• Parties: plaintiff and defendant
• Documents: pleadings
TYPES OF APPLICATION
PROCEEDINGS:
EX PARTE APPLICATIONS (Form 2)
• No Notice to other party

• Use in exceptional circumstances e.g. only interested person or
affected person
• Affidavits
ORDINARY APPLICATIONS (Form 2 (a)
• Notice to other party

• Different affidavits such as supporting, answering and replying
RELATED FORMS:
- INTERLOCUTORY (already instituted/related proceedings); Rule
6(11)
- URGENT (urgent relief such as access rights); Rule 6(12)
DISPUTE OF FACT:
- When it arises?
SUMMONS PROCEEDINGS: ILLIQUID AND LIQUID SUMMONS
PROCEEDINGS THREE TYPES OF SUMMONS:
384
- SIMPLE SUMMONS (types of claims, debt or liquidated debt
such a claim for a fixed or definite thing, when is the
declaration used? procedural events)
- COMBINED SUMMONS (Unliquidated claim e.g. divorce/damages)
- PROVISIONAL SENTENCE SUMMONS (liquid document e.g.
cheque); liquid document falls within definition of liquidated
debt or demand.
DIFFERENCE BETWEEN PLEADINGS AND PROCESSES:
PLEADING: written document containing averments by parties, material facts

supporting claim or defence are set out e.g. particulars of claim, plea on the
merits, declaration
PROCESS: emanates from the court e.g. subpoenas, notices
BRIEF OUTLINE OF STUDY UNITS: PROCEDURES/PROCEEDINGS/PLEADINGS:

PARTIES AND MODES OF SERVICE
NOTICE OF INTENTION TO DEFEND – merely a notice informing the plaintiff that the
defendant intends defending the action, it is not a means of raising a defence!
PLEA: raise a defence, know when a counterclaim (claim in reconvention) is

raised/used?
REPLICATION: plaintiff’s reply to the defendant’s plea, when is it relevant? (defendant’s

plea is one of confession and avoidance; defendant raises new averments)
CLOSE OF PLEADINGS: See Rule 29
APPLICATION TO STRIKE OUT, AMENDMENT of documents and pleadings,

EXCEPTION, SPECIAL PLEA (types): when do you use these proceedings/pleadings?
Know the grounds etc.
IRREGULAR PROCEEDINGS (formal irregularities): know meaning, identify examples

e.g. premature set down of a case, using wrong type of summons…
Achieving settlement - Know when to use offer to settle (Rule 34), tender (must be
pleaded) and interim payment (Rule 34A)
PRE- TRIAL JUDGMENTS: when do you use these judgments? consent to judgment
(Rule 31(1)), default judgment (Rule 31(2) - (4)), application of notice of bar (Rule 26),
summary judgment (Rule 32) (grounds, procedure, powers of court)
385
6 LOWER COURTS PROCEDURE:
LOWER COURTS PROCEDURE (Magistrates’ courts and Regional

courts):
General
comments:
• rule 15: declaration
• rule 16: further particulars for purposes of
• rule trial interim payments
• 18A: exceptions and applications to strike
• rule 19: out replication and plea in
• rule 21: convention
• rule close of pleadings
21A: irregular
rule proceedings
APPLICATION PROCEEDINGS – know contents of
60A:
rule 55.
TWO TYPES:
• EX PARTE APPLICATION (no notice to other party)
• ORDINARY APPLICATION (notice to other party); know different

affidavits.
ACTION PROCEEDINGS:
THREE TYPES OF SUMMONS (same as High Court):

• SIMPLE SUMMONS (liquidated claim or demand),
• COMBINED SUMMONS (unliquidated) and
• PROVISIONAL SENTENCE (liquid document)
SUMMONS:
• REACTION: Notice of intention to defend (rule 13)
• Consent to judgment (rule 11).
• Offer to settle and tender (rule 18)
• NO REACTION: Default judgment (rule 12)
• SUMMONS - Types, Know the particulars or averments to be included in

the summons; issue and amendment.
• Provisional sentence summons: Know the benefits for the plaintiff;
procedure.
• Service; different methods of service
Personal service now required for divorce and nullity of marriages
• Litigation proceedings: 386

• Notice of intention to defend (Rule 13)
• Plea on the merits (raising defence)
• Special plea – examples
• Counterclaim (rule 20): A counterclaim may be delivered at the same
time as a plea.
• Replication – when necessary (defendant raises new averments)
• Close of pleadings (rule 21A): know the circumstances when pleadings
may be closed.
Pre-trial judgments:
• Summary judgment: claims; application; steps in terms of rule 14(3);

procedure (application to be made within 15 days of service of Notice
of intention to defend)
• Default judgment: when granted? Also see rule 12
• Notice of bar: prevents the delivery of any further pleadings (rule
12(1)(b) and rule 15(4) and (5))
• Consent to judgment: rule
11 Remedial steps taken:
• Exceptions – grounds (rule 19)

• Striking out - grounds
• Irregular proceedings (rule 60(A)
• Enforcing compliance
• Amendment of pleadings: rule 55A; aims of amendments; section 111
• Offer to settle - Know the contents of rule 18 (application, types of
claims, contents of notice, whether disclosure can be made to court)
• Interim payments: Rule 18A (when ordered, type of proceedings,
relevant damages, contents of affidavit, requirements, court’s orders)
• Security – rule 62(1)
Preparation for trial

• Rule 22 – set down
• Discovery – rule 23: scope of Rule 23 (what rule covers), definition of
tape recording, no automatic discovery in magistrates’ courts.
• Rule 24 – medical examination, expert evidence
• Pre-trial conference – rule 25
• Subpoenas
• Non-appearance of party (rule 32(2))
• Further particulars for purposes of trial (rule 16(2)(a)
387

Civ Exam Packs

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Civ Exam Packs

Uploaded by

Copyright:

Available Formats

CIV 3701

2020 EXAM PACK

1. All assignments with the Memos

Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor

Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a

Indicate the most accurate statement:

Indicate the most accurate statement:

(2) Disputes concerning the constitutional status, powers or functions between

The most accurate statement is: (2)

Indicate the most accurate statement:

A High Court may exercise jurisdiction to obtain an order for:

(1) Attachment ad confirmandam iurisdictionem if the defendant is a peregrinus of the

(3) Attachment ad fundandam iurisdictionem if the plaintiff is a peregrinus of the court

(4) Attachment ad fundandam iurisdictionem if the plaintiff is an incola of the

The most accurate statement is: (4)

Statement (2) is incorrect. See comments under statement (1) above.

Indicate the most accurate statement:

(3) A magistrates’ court would be competent to exercise jurisdiction if the cause

The most accurate statement is: (3)

Indicate the most accurate statement:

(1) Substituted service

(2) Normal service

(3) Edictal citation

(4) A combination of substituted service and edictal citation.

The most accurate statement is: (1)

Substituted service is used when normal service cannot be effected on a defendant

Statement (2) is incorrect. Normal service is effected when the defendant’s

Statement (3) is incorrect. Edictal citation is a form of service that is effected on a

Indicate the most accurate statement:

(3) Whether an action is instituted by way of a combined or a simple summons,

Indicate the most accurate statement:

The most accurate statement is: (3)

In the High Courts the position is as follows --

(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a

(4) It is possible to inspect a clearly specified document or tape recording in a

The most accurate statement is: (4)

Statement (2) is incorrect. When a defendant files a counterclaim, the claim in

Indicate the most accurate statement:

The most accurate statement is: (4)

Statement (2) is incorrect. An appeal must be noted and prosecuted according to

• In ADR processes the outcome is reached through the consent of both

• ADR processes emphasis the relationship between the disputants 9 is thus

• Apart from arbitration, ADR processes do not concentrate on and apportion

(a) Could Y institute proceedings against X in –

(i) the Cape Town High Court (1)

On the given facts, X, the defendant, is a resident of Cape Town.

(ii) the Durban High Court (1)

(b) If the Durban High Court has jurisdiction, could Y –

• to determine the title of the property

• for delivery of the movable property

• to determine a real right in respect of such property

Whether the jurisdiction is exclusive, is unclear, and it is considered that the

(i) C issues a combined summons against D. (1)

(i) The procedure is incorrect (a combined summons is used in respect of

(iii) The procedure is incorrect. An exception is raised when a pleading is vague or

Y may require X to discover the documents relating to any matter in the

Y may request further particulars to enable him to prepare for trial.

Indicate the most accurate statement:

(4) Disputes concerning the constitutional status, powers or functions between

The most accurate statement is: (4)

Indicate the most accurate statement:

The most accurate statement is: (4)

Statement (2) is incorrect. Party presentation is one of the cornerstones of the

Indicate the most accurate statement: