THEME 11

Civil Procedure

Introduction
 A private-law dispute arises when one party violates the subjective right of another or
threatens to do so.
 If the parties cannot solve the dispute themselves, they must make use of the
prescribed civil procedure in order to solve their dispute.
 The solution will be given by the court.
 Section 34 of the Constitution – Access to courts:
 ‘Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.’
 The law of civil procedure does not only assist a legal subject in the case of violation
of subjective right.
 It can be used for the following purpose:
 To obtain a declaratory order
 To prevent damage or injury
 To make damage or injury good
 To claim specific performance
 The rules of the law of civil procedure are found in common law, rules of practice,
legislation and in the Uniform Rules of Court laid down in terms of legislation.
 The most important legislation is the Superior Courts Act 10 of 2013 (complemented
by the Uniform Rules of Court – called the High Court Rules) and the Magistrate’s
Court Act 32 of 1944 (complemented by the Magistrate’s Court Rules)
Map of civil procedure

STAGE 1
Before Litigation

STAGE 2
Litigation

STAGE 3
After Litigation

STAGE 4

Additional Procedures
General principles
Action proceedings
 Fundamental differences between parties with respect to the facts of the case.
 Parties are the plaintiff and the defendant.
 The plaintiff initiates the case (dominus litis) and institutes action to claim
performance
 Defendant is the person against whom the action is instituted and who may raise a
defence against the action
 The procedure is more time-consuming and expensive than the application
procedure.
 Example: Payment for damages.

Application proceedings
 No Fundamental differences between parties with respect to the facts of the case.
 Parties are the applicant and respondent.
 Applicant is person who initiates the case and approaches the court for a particular
kind of relief.
 Respondent is the person against whom the relief is sought.
 Application proceedings are also used to obtain a declaratory order.
 Example: X and Y are involved in a car accident. Both feel aggrieved and blame each
other for the accident.
 Applications before court in form of affidavits
 Ex parte application: application without notice to respondent
 On-notice application: application with notice to respondent
Stages of proceedings
Pleading stage
 In the hands of the parties and their legal representatives.
 Pleadings are documents that parties exchange
 These documents contain the facts of the case and not applicable to legal principles.
 Purpose of pleadings:
 To reduce dispute between the parties to a condensed and abbreviated version.
 To prevent parties from surprising each other in court.
 To make the judge or magistrate familiar with the case beforehand.

Trial
 Pleading stage is followed by the trial.
 Proceedings are accusatorial and not inquisitorial.
 Accusatorial system: two parties oppose each other. The parties collectively
decide on which documents and witnesses to present to the court. The judge
acts as a referee and supervises the court.
 Action proceedings: Oral evidence is presented.
 Application proceedings: No oral evidence is needed.
 The judge or magistrate applies the relevant legal principles to the facts and gives
judgement.