Civil Procedure 371: Semester 1

 Take note:
o Helpful to take legislation into test  Allowed to flag legislation book, no writing on flags, allowed to highlight
o Focus on class discussions

Table of Contents
STUDY UNIT 1: GENERAL INTRODUCTION............................................................................................................................2
1.1 WHAT IS CIVIL PROCEDURE.......................................................................................................................................................2
1.2 COURT SYSTEM AND OFFICIALS (JUST READ THROUGH)............................................................................................................5
1.3 WHERE TO FIND THE RELEVANT LAW........................................................................................................................................9
1.4 CONSTITUTIONAL IMPACT ON CIVIL PROCEDURE.......................................................................................................................9
1.5 MAP OF CIVIL PROCEDURE.......................................................................................................................................................11
STUDY UNIT 2: CAUSE OF ACTION (BEFORE LITIGATION)............................................................................................15
2.1 INTRODUCTION.........................................................................................................................................................................15
2.2 DELICTUAL CLAIMS..................................................................................................................................................................15
2.3 CONTRACTUAL CLAIMS............................................................................................................................................................16
2.4 DIVORCE ACTIONS....................................................................................................................................................................18
2.5 CLAIMS BASED ON LIQUID DOCUMENTS...................................................................................................................................18
STUDY UNIT 3: LOCUS STANDI (BEFORE LITIGATION)...................................................................................................20
3.1 INTRODUCTION.........................................................................................................................................................................20
3.2 DIRECT AND SUBSTANTIAL INTEREST.......................................................................................................................................20
3.3 CAPACITY TO LITIGATE............................................................................................................................................................25
3.4 REPRESENTATION OF PARTIES..................................................................................................................................................31
STUDY UNIT 4: JURISDICTION.................................................................................................................................................33
4.1 INTRODUCTION.........................................................................................................................................................................33
4.2 MAGISTRATES’ COURTS JURISDICTION....................................................................................................................................37
4.3 HIGH COURT JURISDICTION......................................................................................................................................................48
STUDY UNIT 5: DEMAND.............................................................................................................................................................63
5.1 WHAT IS A DEMAND?...............................................................................................................................................................63
5.2 FORMS OF DEMAND..................................................................................................................................................................63
5.3 CONTENTS OF THE DEMAND.....................................................................................................................................................63
5.4 CIRCUMSTANCES WHERE DEMAND MUST BE MADE..................................................................................................................64
5.5 OTHER CONSEQUENCES OF DEMAND: COSTS & INTEREST........................................................................................................65
5.6 COMPONENTS TO A LETTER OF DEMAND & WORKED EXAMPLE...............................................................................................66
STUDY UNIT 6: CALCULATION OF TIME LIMITS...............................................................................................................69
6.1 INTRODUCTION.........................................................................................................................................................................69
6.2 TIME PERIODS WITHIN A CERTAIN PERIOD................................................................................................................................69
6.3 TIME PERIODS AFTER A CERTAIN PERIOD.................................................................................................................................70
6.4 PRACTICAL NOTE: SERVICE OF COURT PROCESS.......................................................................................................................71
STUDY UNIT 7: SERVICE OF LEGAL DOCUMENTS............................................................................................................72
7.1 INTRODUCTION.........................................................................................................................................................................72
7.2 THE ISSUE OF PROCESS & DUTIES OF THE SHERIFF...................................................................................................................72
7.3 METHODS OF SERVICE..............................................................................................................................................................73
7.4 SUBSTITUTED SERVICE & EDICTAL CITATION...........................................................................................................................75
7.5 JURISDICTION & SERVICE DISTINGUISHED................................................................................................................................76

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Study Unit 1: General introduction
1.1 What is Civil Procedure
 Civil procedural law is that part of the adjective law that regulates civil litigation. It is, therefore, the
mechanism by means of which rights derived from substantive law are enforced.
 Law: is about creation and enforcement of rights
 Procedure: is that part of the law that deals with enforcement
 Therefore, Civil Procedure is “that part of civil law which enables a person to go about [recovering what is
due to him] in practice”
 Procedural law is the machinery used to bring about legal relief
o [Civil procedure] denotes the mode of proceeding by which a legal right is enforced, as distinguished
from the law which gives or defines the right, and which by means of the proceeding the Court is to
administer the machinery as distinguished from its product.” Poyser v Minors 1881
o Machinery created not for own purpose but for purpose of manufacturing a product
o Product of civil procedure is the enforcement of rights and obligations that have a basis in law

South
Civil procedural law Criminal procedural law

Civil action: Plaintiff vs. Defendant (institutes State vs. Accused

action vs. defends)
Civil application: Applicant vs. Respondent
(brings application vs. opposes)

Decision: defendant/respondent liable for Decision: accused guilty of crime/offence?

plaintiff/ applicant’s claim?

Liable on a balance of probabilities Guilty beyond reasonable doubt

Liable for claim or not Guilty of crime or offence

Punishment: liable to pay damages or specific Punishment: fine, imprisonment or both

performance

Aim of punishment: monetary compensation for Aim of punishment: less focus on monetary value
loss suffered or to compel/prevent a party from but rather retribution, deterrence, rehabilitation and
doing something etc.

Private in nature: State provides a system of civil Public in nature

courts for matters to be fought in, but it is up to
parties to initiate and pursue matters. Should they
not pursue it, the state won’t intervene. Therefore,
plaintiff or applicant may be known as the
‘Dominus litis’ as the Lord/Master of their
litigation.

African court system

 More adversarial than inquisitorial

o The parties dominate the procedure/the pace of the litigation
o The judge sits as an impartial 3rd party & only intervenes if there is a deviation from the court rules/
procedure
 We have inquisitorial components:
o Small Claims Court is very inquisitorial
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 o Like case management under dispute
 Eg: class actions
o More & more SA courts are implementing directives – saying judge has to participate more Eg. Limit
the facts in dispute, limit the issues that need to be solved.

What happens when it becomes a civil liability?

 Money plays a significant role

 Majority of judgements include payment
 Not all civil cases involve claim for payment of money
o Eg. claim for specific performance in terms of a contract, where it’s possible for damages to be
claimed in addition. Other e.g. include ejectment, sequestration and divorce

Worth noting:

 Civil procedure is wider in scope and more complex than criminal procedure
 No single right existing outside of criminal law can be enforced without the use of civil procedure
 POD: Place evidence before the court and the evidence will dominate

Historical development; W de Vos articles

 South African Civil Procedural Law in Historical And Social Context 2002 Stell LR 236
o 1652-1795
 Discusses two time periods specifically
 He does this to show the development of civil procedural law
 VOC, Holland, R-D law
i. Only & most prominent court in the Cape at the time = Raad van Justitie
o Problematic to a certain extent
o Members of the court were laymen – had no experience
o Court could be seen to be paternalistic
o Proceedings conducted in secret – lack of transparency
o 1795-1910
 Dutch rule ended
 British occupation
 English constitutional principle – the law of a conquered country remains in place until
changed by the conqueror
 But English were dissatisfied with our legal system, with the lack of transparency
 Led to commission of enquiry being launched into civil procedure & led to the 1 st & 2nd
Charters of Justice
 Effect of these was to replace the Roman-Dutch civil procedural law with an English model
 = hybrid legal system
i. Holistically we have English common law influences, we have Roman-Dutch Law
influences + customary law influences
ii. Distinction between Roman-Dutch substantive law & English procedural law
iii. English were mostly satisfied with the substantive law but changed the procedure
o 1910
 British rule ended
 Legislative reforms
 All these changes facilitated a move to the current system that we have
 Our current system = adversarial
i. Principle of morality
ii. Litigants have more say in court
 Constitution: W de Vos “Civil Procedural Law and the Constitution of 1996” (1997) TSAR
444
o Constitutional impact
 Litigation involving organs of state: before/after constitutional dispensation
 Access to courts: s38 Constitution

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  Common law rule requiring arrest of foreign peregrini to found/confirm jurisdiction: Bid
Industrial Holdings (Pty) Ltd v Strang and another (minister of Justice & Constitutional
Development, Third Party) 2008 (3) SA 355 (SCA)
i. Found to be unconstitutional
 Arrest tanquam suspectus de fuga
i. A former remedy in our civil proc law – to arrest someone (a debtor) that is suspected
of fleeing to avoid payment of the debt.
ii. Not for the purpose of establishing jurisdiction – it is just to keep the person here.
 Skim over  Civil Procedural Law and the Constitution of 1996: an appraisal of procedural guarantees in
civil proceedings 1997 TSAR 444
o “Introduction
 Aim of this paper is to focus on the recognition of procedural guarantees in the 1996
Constitution
 Before new constitutional dispensation: fundamental rights or guarantees of civil litigants
were not accorded constitutional protection & parliament had the final say in this regard.
 Interim Bill of Rights importance: made elaborate provision for the protection of procedural
guarantees in the context of criminal proceedings, little attention was paid to that of civil
proceedings. For the first time in our history constitutional recognition was accorded, albeit in
brief fashion, to some civil procedural guarantees. The most important of these were the right
of "access to court" & the right to "equality before the law".' Other rights mentioned included
the right to "freedom and security of the person", the right to "privacy' and the right of "access
to information held by the state". In addition, the interim constitution explicitly recognised the
principles of the independence & impartiality of the courts.
 The final Constitution breaks with tradition by giving more comprehensive protection to the
rights of civil litigants.
o Main features of the constitution
 Structure of judicial authority
 The Constitutional Court retains its name and remains the highest court in all constitutional
matters.
 The Supreme Court has, however, undergone a structural change & a name change. The
provincial & local divisions of the Supreme Court have been replaced by separate high courts;
& the appellate division of the Supreme Court has made way for the SC of Appeal (SCA).
 The SCA may now decide appeals in any matter, which means that it has the same
jurisdiction as the High Courts’ in connection with constitutional matters. This entails the
power to decide any constitutional matter, except one which falls within the exclusive
jurisdiction of the CC.
 The Magistrates' Courts are not allowed to "enquire into or rule on the constitutionality of any
legislation or any conduct of the president".
o Application of BOR as seen in s8 of Constitution 1996
 Having regard to the wording of this section, the main grounds supporting a direct horizontal
operation of the BoR can be summarised as follows:
i. The BoR applies to all law (including private law) & binds not only the legislature &
the executive, but also the judiciary.
ii. The BoR binds private persons in so far as the provision in question is applicable to
the circumstances.
iii. When applying the BoR to a private person, the court is enjoined to (it must) apply or
develop the common law with a view to give effect to the right in question
 "[Civil procedural law] should be viewed as embracing the whole range of matters which lie
at the heart of the civil legal process. It covers the entire field of administration of justice."
i. Result = civil procedure has also become the instrument to enforce rights in the
public law domain, seen as evidenced by actions against the state administration. And
to the extent that a public interest action has been recognised, civil procedure has
become the device by means of which the public interest can be vindicated.
 The final Constitution has further broadened the scope of civil procedure, by providing not
only for a vertical but also a full horizontal operation of the BoR. Thus, civil procedure serves
as the method to enforce the BoR in the wide spectrum of matters falling within the private &
public law domain, but outside the area of criminal justice.
o Rights with a bearing on civil litigation
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  The final Constitution endorses all of these rights, but also gives a new dimension to the right
of access to a court, by providing for "a fair public hearing"
 Rights confirmed by the final constitution:
 Equality  s9(1)
 Freedom and security of the person  s12(1)
 Privacy  s14
 Access to information  s32(1)
 Enforcement  s38
 Limitation of rights  s36(1)
 Access to a court  34
o Access to a court
 S34 Con: "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."
 This section gives recognition to the following guarantees:
 Access to justice
 Public hearing
 Fair hearing
 Judicial independence and impartiality
 Equality and the right to be heard
 Legal representation
 Party control
 Oral hearing
 Evidence obtained unlawfully
 Reasons for judgment
 Finality of court decisions and appeal
o Conclusion
 Cappelletti: "[E]mbodied in [the] practices and rules [of civil procedure] are the great waves
of history: the socio-economic as well as the intellectual changes, revolutions, and stagnations
of history."
 The most notable example in this regard, which lays the foundation for future development, is
the right to a fair trial.”

1.2 Court system and officials (just read through)

1.2.1 A practical approach
The basic court system (from less to more serious):

1. Magistrates’ Court (MC)

2. High Court (HC)
3. Supreme Court of Appeal (SCA)
4. Constitutional Court (CC)

1.2.2 Magistrates’ Court: District and Regional

 Creature of statute
 Created and functions within MC Act
 2 levels:
o District MC
 RSA divided into magisterial districts
 Each district is served by a MC
 Magisterial districts are in the process of being rationalized.
 Aim of this? To make their boundaries consistent with provincial and municipal
boundaries
o Regional MC
 MC for regional divisions
 These magistrates’ courts absorb the district MC

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1.2.3 High Court
 High Court system after constitutional dispensation
o 1 March 2009: High Court’s names changed (renaming of High Court’s Act 30 of 2008)
 Prior to enactment of 1996 Constitution:
o Single Supreme Court of SA
 Divided into numerous divisions
 There were 6 provincial and 3 local divisions, with 1 appellate division (which was the
highest in ranking)
 Each provincial division had its own territory with the appellate division trying to unify the
court by providing the final decision
 Homelands had their own courts too
 After the enactment of the 1996 Constitution:
o System of High Courts introduced
 Each HC is a separate entity within a system of HCs
o New appellate court named as SCA
 Completely separate and outside of the HC system
o CC also established
 Serves as the final arbiter in constitutional matters

Provincial Divisions

Name Seat Jurisdiction

1 Cape Provincial Division (CPD) Cape Town Old Cape Province (OCP)

2 Eastern Cape Division (ECD) Grahamstown Eastern part of OCP

3 Northern Cape Division (NCD) Kimberley Northern part of OCP

4 Natal Provincial Division (NPD) Pietermaritzburg Old Natal Province

5 Orange Free State Provincial Division (OPD) Bloemfontein Old Orange Free State

6 Transvaal Provincial Division (TPD) Pretoria Old Transvaal

 Schedule 6 made Transitional Arrangements and during this period the HC system looked like this:

Local Divisions

Name Seat Jurisdiction

1 Durban and Coast Local Divisions (DCLD) Durban Coastal KZN

2 Witwatersrand Local Division (WLD) Johannesburg Johannesburg

3 South-Eastern Cape Local Division (SECLD) Port Elizabeth PE

Supreme Courts of former TBVC States

1. Transkei General Division (TGD)

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 2. Bophuthatswana General Division (BGD)
3. Ciskei General Division (CGD)
4. Venda Supreme Court (VSC)

 These supreme courts had the status of provincial divisions but lacked jurisdictional powers but exercised
concurrent jurisdiction with a particular division
 Schedule 6 rationalized the courts’ structure, composition and functioning with a view to establish a judicial
system suited to the Constitution
 It was a slow rationalization process

HCs

Name Seat Abbreviation

1 Eastern Cape HC, Bhisho Bhisho ECB

2 Free State HC, Bloemfontein Bloemfontein FB

3 Western Cape HC, Cape Town Cape Town WCC

4 KwaZulu-Natal HC, Durban Durban KZD

5 Eastern Cape HC, Grahamstown Grahamstown ECG

6 South Gauteng HC, Johannesburg Johannesburg GSJ

7 Northern Cape HC, Kimberley Kimberley NCK

8 North West HC, Mafikeng Mafikeng NWM

9 Eastern Cape HC, Mthata Mthata ECM

10 KwaZulu-Natal HC, Pietermaritzburg Pietermaritzburg KZP

11 Eastern Cape HC, Port Elizabeth Port Elizabeth ECP

12 North Gauteng HC, Pretoria Pretoria GNP

13 Limpopo HC, Thoyandou Thoyandou LT

 1 March 2009: Renaming of High Courts Act came into operation

 The Schedule 6 Transitional Arrangements ended in 2013, with entering into force of the Constitutional
Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013.

Amended Names of HCs

Name Seat

1 Eastern Cape Division Grahamstown

2 Free State Division Bloemfontein

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 Amended Names of HCs

3 KwaZulu-Natal Division Pietermaritzburg

4 Limpopo Division Polokwane

5 Mpumalanga Division Nelspruit

6 Northern Cape Division Kimberley

7 Gauteng Division Pretoria

8 North-West Division Mahikeng

9 Western Cape Division Cape Town

 the Superior Courts Act 10 of 2013 also made allowance for the Minister of Justice & Correctional Services to
establish one or more local seats for a division but none have been established yet
 Replacements were also made to the local divisions (ito S50(1) of Superior Courts Act 10 of 2013):

Local Divisions

Name

1 Eastern Cape Local Division, Bhiso

2 Eastern Cape Local Division, Mthatha

3 Eastern Cape Local Division, Port Elizabeth

4 Gauteng Local Division, Johannesburg

5 Limpopo Local Division, Thohoyandou

6 KwaZulu-Natal Local Division, Durban

1.2.4 The Supreme Court of Appeal

 SCA consists of a President, Deputy President and a number of judges of appeal
 Seat: Bloemfontein
 Jurisdiction: whole country
 In terms of Schedule 6: Appellate division became the SCA
 SCA = Highest court of appeal in SA, except in constitutional matters, of which the CC has exclusive
jurisdiction
 Changes in the Constitution Seventeenth Amendment Act of 2012 made changes to hierarchy of SA court
system
o CC = Highest court for all matters, constitutional and non-constitutional
o SCA = Intermediate appeal court

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  SCA may decide on appeal in any matter arising from the HC or any court of a status similar
to the HC

1.2.5 The Constitutional Court

 CC consists of a Chief Justice (CJ), a Deputy Chief Justice (DCJ) and 9 other judges.
 Seat: Johannesburg
 Jurisdiction: When established, was a specialist court dealing with only constitutional matters
o In a few limited cases, possible to approach the CC as a court of first instance. This is still the case if
it falls within the CC’s exclusive jurisdiction or when the matter justifies direct access.
 Constitution Seventeenth Amendment Act of 2012 caused significant change to jurisdiction of CC
o Retained exclusive jurisdiction for constitutional matters
o Became highest court of appeal for all matters, constitutional and non-constitutional matters
o CC still required to confirm any declarations of invalidity made by the SCA or any division of the
High Court
o (Read with provisions of the Superior Courts Act) – regarding administration of justiciary
 CJ of CC is charged with administration of justice in all SA courts
 Therefore, office of CJ established to national function assist/provide support to CJ
 In 2014: CJ published ‘Norms and Standards for the Performance of Judicial Functions’
- binding all judicial officers and applicable to all courts in SA

1.2.6 Officials
 All the organisational work in each division of HC falls under the registrar of the court (Equivalent official in
District MC = clerk of the court and in Regional MC = registrar of the court)

 High Court
o Judges
o Organisational work: Registrar
o Delivery of legal documents: Sheriff
o Bill of costs: Taxing master
o Master of the HC
o Legal practitioners
 Magistrates Court
o Magistrates
o Organisational/administrative work
 District MC: Clerk of Court
 Regional MC: Registrar
o Delivery of legal documents: Sheriff
o Bill of costs: Taxing master
o Legal practitioners

1.3 Where to find the relevant law

 Civil procedure is found in various statutes and in case law regarding interpretation of these statutes
 Most NB statutes are:
o The Superior Courts Act 10 of 2013 (which replaced the Supreme Court Act 59 of 1959 and the
Constitutional Court Complementary Act 13 of 1995)
o The Magistrates Courts Act 32 of 1944
o The Small Claims Court Act 61 of 1984
 Each court also has a set of rules that should be read in conjunction with the applicable statute.
 Read together, acts and rules of various procedures forming the core of civil procedure
 There is a difference in how acts and rules are amended
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 o Acts - appealed and amended through the process set out by the constitution
o Rules - regularly through the body known as the ‘Rules Board’

1.4 Constitutional impact on civil procedure

 Significant: Bill of Rights impact on the law of civil procedure
 Examples of constitutional impact on civil procedural law
o Debt collection procedures:
 Decision: Coetzee v Government of the RSA; Matiso and Others v Commanding Officer, Port
Elizabeth Prison, and Others 1995 4 SA 631 (CC)
 Person cannot be imprisoned for failing to pay civil debts
 CC held: certain sections of the MC Act relating to debt collection procedures were
unconstitutional & declared the procedures to be invalid from date court made order
 As a result, s65 of MCA was redrafted completely to bring debt collection procedures
in line with Constitution.
 However, this section’s constitutionality was brought forward in 2016 & was
challenged & found to be wanting
 University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional
Services and Others; Association of Debt Recovery Agents NPC v University of Stellenbosch
Legal Aid Clinic and Others; Mavava Trading 279 (Pty) Ltd and Others v University of
Stellenbosch Legal Aid Clinic and Others
 CC declared various words in s65J(2)(a) and (b) of MCA, providing for the
emolument attached orders, unconstitutional for failure to provide judicial oversight
over the emolument attached orders process.
 After finding the section unconstitutional, the CC ordered the reading of safeguards &
thus the act now requires emolument attachment orders to be issued through the court
 This provides the court the ability to decide on the equity of attachment
o Litigation involving organs of state: before/after constitutional dispensation
 Past: prescription relating to litigation against state organs is very short & included strict
notice requirements & this denied legal relief based on technical requirements only
 Eg. If this happens (like to do with fraud, petty theft etc) you have 6 months to
institute litigation
 Today: prescription periods are longer
 Notice requirements & prescription periods applicable to cases
 Written notice of any legal action against the police or Defence Force
 Therefore, enactment of Institution of Legal Proceedings Against Certain Organs of the State
Act 40 of 2002 - bring this area of civil procedure in line with the Constitution
 Made it easier to litigate against state
o Access to courts: S 38 of Constitution (standing clause)
 In terms of common law: Direct & substantial interest in matter
 Access broadened by Constitution
 Locus Standi in terms of s38
 Persons given access to courts includes
a) anyone acting in their own interest;
b) anyone acting on behalf of another person who cannot act in their own name;
c) anyone acting as a member of , or in the interest of, a group or class of persons;
d) anyone acting in the public interest; and
e) an association acting in the interest of its members
o Common law rule of equality
 Nedcor Bank Ltd v Hennop and Another
 The requirement to state their sex & for females to have to put their marital status
down. This is outmoded & offends the equality provision S9
 Raised in limine
 Plaintiff’s summary judgement was fatally defective because it didn’t comply with
the requirements of rule 17(4) of the Uniform rules of court
 The sub-rule, inter alia, provides specifications of the summons, including the marital
status of a female but not a male’s.

10
  Thus, a woman is unfairly discriminated against and this against her right to equality
before the law and directly against the stipulation of S9(3) of the Constitution which
states “no person shall be unfairly discriminated against”
o Common law rule for the arrest of foreign peregini in order to find/confirm jurisdiction
 Bid Industrial Holdings (Pty) Ltd v Strang and another (Minister of Justice and
Constitutional Development, Third Party 2008 (3) SA 355 (SCA)
 Foreign peregini = persons (foreigners) not domiciled/residing in the country
 This is contrary to spirit and purport of the BOR = abolished
o Arrest tanquam suspectus de fuga
 This is the arrest of someone who is suspected of imminent flight to evade his/her debts
 The practice is no longer permitted due to constitutional scrutiny
o Constitutionality of the provisional sentence procedure
 Twee Jonge Gezellen v The Land & Agricultural Development Bank of SA 2011 (CC)
 This is a farm owned by ‘two young bachelors’
 Application by the bachelors concerned the constitutionality of the provisional
sentence procedure.
 The High Court granted a judgment against the applicants (R37m) under the
provisional sentence procedure
o High Court said that the applicants hadn’t established that if the case went to
full trial that they would be likely to succeed with the defences they raised.
 Provisional sentence is available to a creditor in possession of a document that proves
unconditional acknowledgement of indebtedness (condition of owing money) by the
debtor
 In certain narrowly defined circumstances it constituted an unjustified limitation on
the defendants right to a fair hearing in terms of s34 Constitution.
 The court therefore developed the common law to give itself the discretion to
refuse provisional sentence in certain specified circumstances.
o Access to housing
 Due to various judgments, the MC & HCs practice for execution against immovable
property have also been reshaped to better protect the right of access to housing provided in
S26(1) C
o NB pieces of legislation that have had an impact on Civil Procedure
 National Credit Act 2005
 Consumer Protection Act 2009

1.5 Map of civil procedure

1.5.1 The big picture

STAGE 1
Before Litigation

STAGE 2
Litigation

STAGE 3
After Litigation

STAGE 4
Additional Procedures

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The stages & parts
Stage 1: Before Litigation

 Before the court becomes involved in the process

 Deals with all the basics issues that need to be dealt with before any legal action is taken

1) Preliminary questions

A. Cause of Action
o Substantive law  does the client have a valid cause of action?
 Eg. In a contractual matter, is the client able to prove the existence of a valid contract? (in
terms of law of contract)
 Or, Is the client able to prove all the elements (conduct; unlawfulness; fault; causation;
damage) of the particular delict that the client alleges was committed against them?
B. Locus Standi
o Who are the parties?
o Do they possess the necessary standing to appear before the court?
o Do they have a direct & substantial interest in the matter?
o Do they have the requisite capacity to litigate? Old enough? Sane enough? Etc.
C. Jurisdiction
o Which general court may hear a particular matter; and then which particular court has jurisdiction to
hear the matter? This is NB in relation to MC or High Court
 Geographical
 incola – resident & domiciled in jurisdiction of court
 peregrinus – not domiciled in the jurisdiction of a particular court

2) Pre-litigation issues

A. Demand
o Types & reasons for demand
B. Calculation of time limits
o Various time limits prescribed in the relevant Acts & Rules give rise to the calculation of time limits
o (You cannot keep time if you’re unable to calculate it)
C. Service of legal documents
o Strict rules prescribing the manner in which legal documents are to be served
o (Strictly part of litigation but easier if done prior to litigation period)
D. Action or Application
o Deciding the necessary route of litigation

Stage 2: Litigation

 What happens when court becomes involved in the case

 There are two possible litigation procedures in civil procedure, namely:
o 1) Applications
o 2) Actions
1 Applications (motion)
o Parties:
 Applicant
 Respondent
o Parties set out respective cases in writing and court decides matter thereupon by considering the
documents before it
o In terms of evidence & witness testimonies:
 Submitted in the form of affidavits
 Completely paper-based
 No oral evidence
o Intention of written submissions?
 Matter will be decided without having to lead oral evidence

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 o No trial, so there can be no dispute of fact, therefore applications are more suited to straightforward
matters
o Sometimes application made without notice to a respondent (like when an urgent interdict is
requested) & this is known as an ex parte application
o An application in which notice is given to the respondent is known as an on notice application
2 Actions
A) Pleadings
 Paper-war style  file heads of argument
 Parties exchange documents containing allegations and counter-allegations
 Purpose of allegations? Define issues in dispute
B) Pre-trial procedure
 Preparations for trial
 Eg. date & time of trial (set down); inspect each other’s documents (discovery);
secure the attendance of witnesses (subpoenas) etc.
C) Trial
 Both sides lead evidence with witnesses
 Witnesses are subject to cross-examinations to test the truth/merits other evidence
D) Judgement, interest & costs
 Judgement of the court which usually includes an order as to interest and costs

Stage 3: After litigation

 Issues that arise after the court case has been finalized

1) Appeals and Reviews

 ‘The second bite at the cherry’ for those litigants who are dissatisfied with the original judgement or order of
the court
A) Appeals
 Lodging an appeal against an order or judgement wherein you are satisfied by the procedures
adopted by trial or hearing (i.e. they were fair) but you disagree with decision reached by
presiding officer on the merits.
 I.e. the presiding officer isn’t guilty of bias, malice or corruption, so they are fair in manner
but reached the wrong decisions based on the facts/ the law/ both.
B) Reviews
 An application for review is used when there was a serious irregularity in the procedure
adopted during the trial.
 I.e. the presiding officer is guilty of bias, malice or corruption

2) Debt Collection Procedures

 Used in cases where a judgement debtor refuses to pay the judgment debt
o Additional procedures are also applicable
o More specific & focussed procedures adding detail to civil procedure as set out in stages 1, 2 & 3.
o State will not take initiative because civil procedure is private in nature
o Instead, the onus of collection is burdened upon the judgement creditor (i.e. the person to whom the
money is owing) to take the initiative to make use of the debt collection procedures provided by the
state
A. Writs and warrants of execution
o One of main legal methods of collecting a judgement debt is to issue…
 A writ of execution if in HC (a document which entitles the sheriff to execute the property of
the judgment debtor)
or
 A warrant of execution if in MC
o Effect of these is to instruct the sheriff of the court to attach the property of the judgement debtor
o If judgement debt isn’t paid, the attached property is eventually sold at a public auction & the
proceeds are used to pay the judgment creditor
o Corporeal property (movable & immovable) may be attached as well as incorporeal property

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 B. S65 procedure of the MCA
o Involves bringing the judgment debtor before court in order to conduct an enquiry into his/her
financial affairs
o If enquiry reveals they can afford to pay the judgement debt in instalments, court will make an order
to this effect
o Non-compliance? Liable for arrest and imprisonment for disobeying an order of court
C. Administration orders
o Aka ‘Magistrates’ Courts sequestrations’
o When debtors are deeply indebted to more than 1 creditor
o Distribution scheme is put in place: pro-rata payments to all creditors

Stage 4: Additional procedures are also applicable

 More specific/focused procedures adding detail to parts 1-3

A) Settlement
o Making and accepting a ‘without prejudice’ offer
o Recording this effectively
B) Provisional sentence
o Shortcut for those clients who wish to recover a debt based on a liquid document.
o Claims based on liquid documents are common & frequently used in practice
C) Interim relief pending judgement
o Allowing for relief to be granted to a plaintiff before judgement has been granted
i. HC rule 34A & MC rule 18A: interim relief is allowed in certain circumstances in the case of
actions for bodily injuries
ii. In terms of HC rule 43 & MC rule 58: interim relief is allowed in certain circumstances in
pending divorce actions
D) Arrest tanquam suspectus de fuga
o Persons fleeing the country in order to avoid paying their debts were liable to arrest tanquam
suspectus de fuga
o Can’t do this anymore because of the Constitution
E) Multiple parties & actions
o Involving more than 2 parties = Joinders
o Eg: co-defendant in Magistrates' Court or third party in High Court
F) Interdicts
o An interdict is an order of court either ordering someone to do something (mandatory interdict) or to
stop doing something (prohibitory interdict).
o Interdicts may be either temporary (interlocutory) or final.
o Each type of interdict has its own requirements.
G) Drastic procedures
1. Anton Piller orders; used to secure & preserve evidence, if in danger of being hidden/ destroyed
2. Knox D’Arcy interdicts (sometimes called Mareva injunctions) are used to prevent assets from being
hidden/ disposed of with the intention of defeating the applicant’s claim.
3. The Prevention of Organised Crime Act 121 of 1998 allows the National Director of Public
Prosecutions to apply for civil order for the preservation (attachment) of property suspected to have
been obtained as a result of criminal activity. This property may later be forfeited to the state.
4. The Domestic Violence Act 116 of 1998 provides certain remedies for those who are the victims of
domestic violence.
5. Spoliation order may be used to recover property unlawfully removed from the possession of your
client.
H) Declarations of rights & states cases
o Circumstances in which a declaration of rights may be granted by the court on application, as well as
in special cases in terms of the HC rules.
o Essence of this procedure?
i. Parties agree on a written statement of facts
ii. Court then declares what the law is that applies to that set of facts
I) Small Claims Courts procedures
o SCCs deal with matters involving claims up to R20 000
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 o No legal representation is allowed in these courts, and its decisions may not be appealed.
J) Other civil courts
o Variety of civil courts

Study Unit 2: Cause of action (before litigation)

Stage 1: Before litigation

Part A: Preliminary questions

1. Cause of action
o Does the client have a valid claim?
2. Locus standi
o Do they have capacity?
3. Jurisdiction
o Is the court able to hear the matter?

Part B: Pre-litigation issues

1. Demand
2. Calculation of time limits
3. Service of legal documents
4. Action or application

2.1 Introduction
Part A: Preliminary questions
 Before litigation and before court involved in case
First, does the client have a valid cause of action?

 The first thing you find out from your client – do they have a valid COA?
o COA: look towards substantive law to figure out if there was a valid contract & breach thereof
 If not, there is no way to proceed with a matter  No COA/ merits = no case
 Most NB part of entire litigation process because if you don’t have a valid COA you waste
client’s time & money & risk adverse finding & being held accountable for negligence
 Nature of client’s COA will affect how you proceed with the case
 Places where different elements occurred are NB when questions regarding jurisdiction arise.
o Remember to also establish on behalf of whom are you litigating (prodigal, child, mentally ill, do
they need curator ad litem?) – as this will influence your citations & certain processes
o Must send a letter of demand to have a complete COA
o Why set out material facts as clearly as possible = So the dispute can be resolved expediently
o Prescription starts running when the COA is complete

2.2 Delictual claims

 Most common type of claims in civil law
 Most common delictual claims: assault & motor vehicle accidents
 To sustain a claim in delict you must prove the main elements of your client’s COA:
1) Wrongful act = unlawful act causing prejudice
2) Fault = in the form of intention/negligence
3) Causation = causal link between elements
4) Damage = patrimonial loss, non-patrimonial loss, liquidated/unliquidated amount, pre-collision value,
post-collision value, medical expenses, pain & suffering etc.
i. Damages for patrimonial loss are always recovered under the Lex Aquilia (Roman law
concept)
ii. Compensation to property owners where their property was injured due to someone’s fault
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 5) Vicarious liability = the responsibility of a superior for his/her subordinate(s) (eg. Kings Transport v
Viljoen)
 Elements linked to location where COA occurred, may arise in different places
o It is NB to identify place(s) where elements arose
o Determines which court has jurisdiction

Motor vehicle collision example:

Your client’s wife is driving your client’s car. A drunk taxi driver drives through a red traffic light & hits your client’s
car while your client’s wife is driving. Your client & his wife are married out of community of property with an ANC.
 Step 1:
o Do not confuse the criminal aspect of this case with the civil part as these two parts will be dealt with
separately.
o Did your client’s wife suffer any physical injuries? If yes, special rules apply.
 Claims for bodily injuries in motor accidents: ‘third party claims’ or ‘MVA claims’
 Special legislation requires you to sue the Road Accident Fund (RAF), not the driver.
o If no, then establish who may sue for damage to the car.
 Your client’s wife cannot sue because the car belongs to your client. The damages suffered
were your client’s, therefore your client may sue.
 Step 2:
o Now establish who is being sued.
 The drunken driver was to blame but if he was employed by a company then your client may
sue that company BECAUSE OF vicarious liability, i.e. the driver was acting within the
course & scope of his employment when the collision occurred.
o Result?
 There are two defendants to the action.
 The driver & the company are liable to pay the claim but as soon as one of them pays the
claim, the payment absolves the other defendant of needing to pay.
 Step 3:
o Establish the main elements of your clients cause of action
 i.e. Wrongfulness, Fault, Causation, Damages & Vicarious Liability

Assault example:
A bouncer at a club punches your client’s 16 year old child in the face. He needs surgery to straighten the broken
nose & is left physically scarred. Due to injuries he must miss 2 school rugby matches. Your client paid the medical
bills for the injuries.
 Step 1:
o Do not confuse the criminal aspect of this case with the civil part as these two parts will be dealt with
separately.
o Who may sue for damages?
 Both may sue because both adversely suffered damages BUT;
 The minor child must be duly assisted or duly represented by his father (your client)
 Father will most likely sue in his dual capacity (on his own behalf and on behalf of his minor
child)
 Step 2:
o Who is being sued?
 Both the bouncer & the club owner because the bouncer caused the damage but the club
owner is also liable due to vicarious liability.
 Step 3:
o Establish the main elements of your clients cause of action against the bouncer & the club owner.

2.3 Contractual claims

 Common in practice
 Most common contractual claims: contract of purchase & sale
 Cause of action arises in terms of the material term to which the litigation relates AND the actual breach of
the contract

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Sale on credit – seller’s remedies examples:
Your client sells a car to a student for R20 000, who pays half and then promises to pay the other half by the next
Sunday – a sale on credit agreement. Your client needed the money by the next Sunday as she was going to use it as
a down payment for her new car. The student takes up ownership of the car the day that she fetches it – not the day
when it is paid off. Your client waits until the Sunday & no payment from the student has been made further, despite
numerous attempts to contact the student. In addition, the student crashes the car, causing R2 000 damage.
 Your client has 2 options;
o Specific Performance: Enforcing the contract by demanding the student pay the outstanding balance
(R10 000).
 She can also claim damages because she couldn’t put a down payment in for her new car, so
she had to use a taxi to go to work. The taxi cost double what transport in her car would have
cost.
 Your client can therefore claim half the amount of the taxi costs as damages (since it
is money she wouldn’t have spent but for the lack of the R10 000)
 Must be able to prove the valid sale contract & that the purchase price is still due & payable
due to delivery having been made already in terms of the contract
o Cancellation & restitution: cancelling the contract & getting the car back.
 She can also claim R2000 in damages because the car is not in the same condition any longer
after the student crashed it.
 In addition, she can claim damages for half the cost of the taxi travel.
 Client must prove valid sale contract & breach of contract & right to cancel contract based on
a material breach of the terms
 Whichever option your client chooses, your client must prove there was a valid contract of sale by proving:
I. An agreement to buy & sell
II. Agreement as to the item being bought & sold (the bakkie)
III. Agreement on the purchase price of the item (R20 000)

Sales for cash – seller’s remedies example:

Previous facts apply, except your client made it clear to the student that ownership would not pass until the full
payment was made. Thus, the ownership remains in your client’s name.
 Firstly, your client would have the same remedies available as in the previous example.
 Secondly; if your client wishes to recover the vehicle then he/she may reclaim possession by using the rei
vindicatio
o Client must prove:
I. She is the car’s owner
II. The student possessed the car at the time this action was instituted
o If the claim succeeds, she must return the R10 000 to the student to avoid being unjustifiably
enriched
o She could also institute a delictual claim for the R2000 damages caused in the crash
 Thirdly; your client may claim alternative relief in the form of the actio ad exhibendum
o This claim is for payment of the car’s value
o Client must prove:
I. She was the car’s owner when the student disposed of the car
II. The student possessed the car
III. The student knew your client owned the car when it was disposed of (mala fide)
IV. The student intentionally disposed of the car

Buyers remedies – example:

Previous facts apply – except that the student pays the car in full. A day later the car’s brakes fail & in her garage, she
crashes into her surfboard, causing R2000 damage to the car & destroying the surfboard of R1000. The defect in the
car was latent (hidden) not patent (obvious). If the defect was patent, the student would’ve had no remedy.
 If the seller knew of the defect & withheld this, these remedies are available to the student;
I. Claim ‘benefit of the bargain’ (i.e. full repair to the car) & damages (i.e. for the broken surfboard)
II. Contract cancellation (return car & claim back money) & damages (broken surfboard)

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  If the seller didn’t know about the defect, these remedies are available to the student;
o If the car was sold with a voetstoots (an ‘as is clause’):
 No remedies are available in terms of the common law
o If no voetstoots:
 Actio redhibitoria: brings contract to an end
 Applies if the defect renders the car completely unfit for its purpose
 Student would need to offer to return the car for purchase price + reasonable
expenses in terms of the car
 No damages for the surfboard can be claimed
 Actio quanti minoris: reduction in purchase price if defect doesn’t render bakkie unfit for its
purpose  probably the remedy to use in this scenario
 Lower price would be what the student paid minus what the car is worth

2.4 Divorce actions

 Differs from other actions
 With divorce actions there are usually several claims – each constituting a separate CoA
o Most important claim: marriage irretrievably broken down
 Further claims & what it entails:
o Future maintenance of plaintiff/defendant spouse,
o Division of estate,
o Forfeiture of marriage benefits,
o Sharing of pension benefits,
o Redistribution of marital assets,
o And future care, maintenance/guardianship of children
 The person claiming divorce must satisfy court;
1. That a valid marriage exists,
2. That the court has jurisdiction,
3. What the marital regime is,
4. Whether or not there are minor/ dependent children & satisfactory provision for welfare,
5. Claim for sole guardianship, right to care for/maintain contact with children,
6. Amount of maintenance,
7. That the regulations promulgated in the Mediation in Certain Divorce Matters Act, are complied with
8. The grounds for divorce,
9. Whether or not the parties have drawn up a settlement agreement

2.5 Claims based on liquid documents

 Liquid documents are documents referring to liquid sums such as:
o Cheques
o Written acknowledgement of debt
o Mortgage bond
 Characteristics of a liquid document:
o Unconditional, written acknowledgement of liability for a specified amount of money which is due to
be paid to the creditor
 Procedure:
o If you have a COA based on a liquid document, you are entitled to use: a special procedure/
provisional sentence procedure to enforce your claim
 Where does COA arise?
o From the place where the cheque was drawn & the place where it was dishonoured
 Example of two separate causes of action:
o You sell someone a car, who pays by cheque, which you bank. The cheque bounces. You can choose
to base your claim on a breach of contract of sale or on a liquid document, which is easier to prove.

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  Steps:
a. Gather the facts  The cheque was drawn & signed by the defendant
b. Write down the main/ material facts of your clients’ version  Client is the legal holder of the
cheque
i. It was made out to the client as the payee; or
ii. It was made out to someone else who endorsed it in your client’s name on the back; or
iii. Your client was in lawful possession of the cheque
iv. Your client presented the cheque for payment
v. The cheque was dishonoured by non-payment
vi. Notice of dishonour of the cheque was given to the defendant; or
vii. Notice was not necessary in terms of the Bills Exchange Act
c. Leave out irrelevant information
d. Contextualise: what area of law is applicable?
e. Research the area of substantive law, identify elements of the COA.
.

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Study Unit 3: Locus standi (before litigation)
Stage 1: Before litigation

Part A: Preliminary questions

1. Cause of action
o Does the client have a valid claim?
2. Locus standi
o Do they have capacity?
3. Jurisdiction
o Is the court able to hear the matter?

Part B: Pre-litigation issues

1. Demand
2. Calculation of time limits
3. Service of legal documents
4. Action or application

3.1 Introduction
Part A: Preliminary questions
 Before litigation and before court involved in case
First, does the client have a valid cause of action?
Second, determine locus standi:

 Locus standi in iudicio:

o Person with right to sue/be sued
o When you’re satisfied that there’s a COA, your client may validly stand before a court of law
o Whether a person, including a juristic person, has standing in court.
 2 tests to determine locus standi:
1. Direct and substantial interest
2. Legal capacity
 Various limitations to persons ability to stand in court. Eg’s: children under the age of 18,
prodigals, mentally incapacitated individuals.
 *** Look at annexure E (at back of textbook)  examples of different citations (need to
know ALL citations here)  this will be done later

3.2 Direct and substantial interest

3.2.1 Common law position; general rule
 1st step to determine whether someone has locus standi:
o Must have D&S (direct & substantial) interest in the right which forms the subject matter & the
outcome of the litigation
 Considered at the case’s outset, before the merits (point in limine)
 Not part of the case’s substance
 Requirements for D&S interest (financial interest alone isn’t satisfactory)
1. Plaintiff/ applicant must have adequate interest in litigation’s subject matter & relief sought
2. Interest must not be too far removed
3. Interest must be real, not abstract/ academic
4. Interest must be current, not hypothetical
 Company shareholders & directors can initiate actions on behalf of the company to protect its legal interests
due to special provision in the Companies Act.

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3.2.2 Actions based on the Bill of Rights
 Constitution broadened common law rule on locus standi to include persons/ groups who in the past wouldn’t
have had D&S interest for BOR based actions
 In terms of s38 Constitution (standing clause), relief may be sought by:
a) Anyone acting in their own interest.
b) Anyone acting on behalf of someone who can’t act in their own name/interest
c) Anyone acting as a member of/ in the interest of a group/ class (class actions)
d) Anyone acting in the public’s interest
e) Associations acting on behalf of its members
 Not confined to relying on only 1 ground in terms of s38 but you must substantiate each ground you rely on
 We will consider (a) & (c) below, with additional focus on (c).

Own interest standing: s38(a)

 Prove that in terms of s38(a), you have interest.
o Litigant must show rights/ interests are directly affected by the law/ conduct
o NB to establish in papers & pleadings, the nature of the interest relied on.
 Factors establishing own-interest standing:
a. Litigant doesn’t need to show same level of D&S interest compared to common law
i. Must still show law/ conduct directly affects current or potential rights & interests
b. Requirements must be broadly & generously interpreted
c. Interest must be real, not hypothetical, abstract & academic
d. Purely financial interest may not be enough
e. Standing isn’t technically or strictly defined
f. Each case depends on facts & context – no hard & fast rule.
g. Realistic & sensible approach is needed to determine standing

Class actions: s38(c)

Class action lawsuit aims to shut down ‘scam’ lenders: SU Law Clinic

 Facts
o “Stellenbosch University Law Clinic is bringing a class action suit to the Western Cape High Court to
stop internet loan lender Lifestyle Direct and 18 other respondents from deceiving the public into
applying for bogus loans… Customers who signed up complained that they did not receive any loans,
but had their bank accounts debited for so-called “legal services packages”.”
o Online websites which purport to provide access to loans
o Consumers said they visited these websites, under the impression that if they enter their details they
would receive information about a loan
o They received an email saying R400 was deducted from their accounts & a further R200 per month
would be deducted per month for 12 months.
o Claim exceeds R500 000
o Response by SU Law Clinic
o “The clinic alleges the “purported agreements concluded between the relevant consumers (the
members of the class) and the relevant websites (19 respondents in total), are unconscionable, unjust,
unreasonable and unfair in terms of sections 40, 41 and 48 of the Consumer Protection Act (CPA) 68
of 2008, or alternatively unlawful under the common law”.
o It also alleges the respondent’s conduct and demands for payment, are unconscionable in terms of the
CPA, or unlawful under the common law.
o The applicants want an interdict ordering the respondents to shut down the relevant websites & to
restrain them from debiting bank accounts & threatening consumers.
o They are asking for the certification of the class in order to represent them in the class action against
the operators of these websites. They demand that victims must be refunded and compensated for
their losses.
o Clinic head Professor Theo Broodryk said: “Certification of an opt-out class action will assist to
facilitate access to justice for the thousands of vulnerable consumers who appear to have been
exploited by the respondents’ reprehensible conduct.”

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 o Senior clinic attorney and lecturer Stephan van der Merwe said the 8 applicants are representatives of
the class, which include more than 700 members of a Facebook page, “Action against Lifestyle Legal,
Loan Hub SA and other scams” and 500 complainants on Hello Peter.
o “It’s an opt-out class action, which means anyone, once certification has been done, will be included
unless they opt out. Victims don’t have to appoint an attorney; they’ll just receive the benefit of the
outcome of the case. If we lose, members of the class will not carry any of the risk.”

The South African class action mechanism: a cornerstone of access to justice

 A legal procedure that enables a group of individuals to litigate against the same defendant(s) in relation to
common issues of law and or fact to be determined in a single suit. The class members are bound by the
outcome of the litigation on the common issues.
o Rei judicata: if you are part of the class, you are bound to the outcome of the litigation. You cannot
litigate independently in relation to the issue.
o Difference between rei judicata & lis pendens (which is a form of special plea)
 Litigant who litigates on behalf of class = class representative
 Class action = Collective redress mechanism
 Class members don’t need to be individually identifiable (i.e. by name)
 Objectives
o Primary objective: provision of access to justice
o You litigate collectively, without doing much you form part of a class action, even if an individual
doesn’t have money to litigate this gives them access to justice
o The class action makes litigation possible
o Legal relief to the entire class, you will be affected by the legal relief if you form part of the class
action
o If you don’t form part, you may litigate individually

Historical overview of class actions

 SA has a mixed legal system

 Civil procedural law is largely based on English common-law
 Representative action of the common law was never received into South African law
 Joinder
o Development
 Before 1994, the only way to litigate in a group was if you all individually instituted your
case, then afterwards the individuals would join the cases (joinder mechanism)
 But now you have the class action mechanism.
 Interim constitution
o The class action mechanism was introduced in our interim Constitution & was enforced in the final
Constitution
 Enforce rights entrenched in the BOR
o It was envisaged to be a mechanism that you could use to enforce constitutional rights
 1995: Working Paper on class actions prepared by the South African Law Commission (‘SALC’)
 1998: SALC final report
 Key recommendation: principles underlying class actions should be introduced by an Act of Parliament and
the necessary procedures by rules of court
 25 years later we have NOTHING that regulates class actions
o Our courts have been forced to regulate class actions

Class action framework:

 Section 38(c) of the Constitution

 Anyone acting as a member of/ in the interest of a group/ class = class actions
o “38. Enforcement of rights - Anyone listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a court are- …
(c) anyone acting as a member of, or in the interest of, a group or class of persons…;”
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  Remember:
o If you form part of class action, you’ll be affected by the legal relief
o If you don’t form part of the class action you may choose to institute legal action on the same matter
 Class actions to enforce non-constitutional rights
o Children’s Resource Centre Trust 2013 (SCA): circumstances when a class action may be
instituted and the procedural requirements that must be satisfied
o These rules apply to all areas of law, not just to certain sectors e.g. consumer claims, personal injury
claims, environmental claims etc.
o First procedural step prior to the issuing of summons: certification of the class action
 Requirements/framework of class action (changed in Mukkaddam)
a. There must be a class, identifiable by objective criteria (not individually identifiable)
b. There must be a cause of action raising triable issues
c. There must be issues of fact and/or law, common to all the members of the class
d. Relief/ damages claim must flow from the cause of action & must be capable of determination
e. Damages, must be appropriate procedure for allocating it to class members
f. Must be suitable representative
g. Class action must be appropriate to adjudicate the dispute (this is vague because what can we compare
this process to other than joinder?)
 Opt in vs opt out
o Opt in class action – dealing with more significant individual claims
 Class members have to be identifiable
 Because nobody forms part of the class action, you will need to do your best to give notice/
inform all persons that qualify to be part of the action
 Opting in is easy – as simple as calling the class rep
o Opt out class action – automatically form part of the group
 Class members do not need to be identifiable
 Impossible to ensure that notice gets to all
 An advert on the radio or in the news suffices
 Automatically bound by courts finding
 Unlikely to get individuals to opt out as it is unlikely that they will benefit from withdrawing
from proceedings
o Res judicata
 If you don’t opt in  you cannot benefit but the judgment is not res judicata in relation to
your COA. You may still litigate individually.
 If you opt out  you are free to litigate independently, the judgment is not res judicata.
 Bifurcation
o Certification of more than one phase e.g. phase 1 common issue and phase 2 individualised issues
 The court splits it into a common phase where the common issues are dealt with and then
individual phases where individual issues are dealt with
o Nkala judgment (largest class action in SA) [not prescribed]
 Court approved bifurcation of class action
 Split proceedings into 2 parts & certified two different parts of the proceedings
 Part 1 Common issues  opt-out
 Part 2 Individualised issues  opt-in
o If you don’t opt in, then you can litigate separately
o Subclassing for determining individual damages  made separate sub-
groups to help the process
 Procedure
o Sui generis procedure
 Stage one: certification of class action
 Stage two: proceedings (unlikely)
o Starts with application and then when it concludes, & it is certified, & if it goes to trial then it
transforms into an action trial
 90-95% of class actions settle after certification (easier than going to court)
 During certification, court considers merits on prima facie basis, which scares the defendants
 pro-plaintiff mechanism
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  Not requirements, but factors court must use when considering certification
 Interests of justice NB
o If class action is certified, the court will typically agree with parties on a notice regime (to notify class
members affected)
o Only after certification, do you engage in the trial procedure
 Notice of motion (set out the order you want the court to make)
o Applicant sets out the proposed class definitions
o Once certified, NOTICE is given to class members (according to notice requirements)
o Annexures: incl. EVIDENCE – docs/ photos etc. attached.
o Certification order of the class action is a DRAFT ORDER
 Class representative is responsible for legal costs

Class action cases (not prescribed)

 Ngxuza
o This considered the value of class actions, how class actions can be used to enforce rights in the
Constitution.
o Before 1996, had to do a joinder to be part of proceedings
o Now, class actions cut through the proceedings
o Your judgment binds everyone, and benefits accrue to all
 Children’s Resource Centre Trust
o Judge Wallace
o Case deals with circumstances when a class action may be instituted & the procedural requirements
that must be satisfied for certification (class action requirements)
 These rules apply to all areas of law, not just to certain sectors e.g. consumer claims, personal
injury claims, environmental claims etc.
 An application must be made for a class action lawsuit & then the certification process will
begin
 First procedural step prior to the issuing of summons: certification
 Court must assess whether it is a valid COA (whether this is a triable COA)
 Judge provides you with his preliminary view of the COA
 If he endorses the COA (i.e. says it is likely to succeed) then the case will typically
not go further
 In 2013, the judge said if you want to succeed with certification then you have to show
compliance with the 7 requirements;
a. There must be a class, identifiable by objective criteria
b. There must be a cause of action raising triable issues
c. There must be issues of fact and/or law common to all the members of the class
d. Relief/ damages claim must flow from the cause of action & must be capable of
determination
e. Damages, must be appropriate procedure for allocating it to class members
f. Must be suitable representative
g. Class action must be appropriate to adjudicate the dispute
o Facts of case:
 Unfair, anti-competitive conduct by bread producers  price fixing in the Western Cape
 This case was both an opt-in & an opt-out class action
 Followed by competition commission proceedings
 Class action defined persons who suffered
 Consumers & distributors instituted a class action.
 Distributors: opt-in class action. More significant claim
 Consumers: opt-out class action. General class action; a class action outside Constitution’s
ambit can be used to enforce non-constitutional rights. Automatically form part of class
action. The judgement is rei judicata in terms of me and I am bound. Your smaller individual
claims that make up one larger amount.
 Class comprised of millions, but damage suffered by each individual was relatively
insignificant, unlikely that individuals would approach legal help since they would lose more
money than the damages were worth.

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  Mukkadum v Pioneer Foods 2013
o The court here commented on Children’s Resource Centre Trust & believed the approach that
Wallace J used was too rigid.
o The court added a new guiding criterion
o The court should be guided by the interests of justice as the overarching guiding principle when
looking at the requirements.
o This is the current approach of our courts
o Conflicting opinions over whether they are requirements or factors.

3.3 Capacity to litigate

 General rule: Natural persons and juristic persons can sue or be sued  rebuttable presumption that persons
have locus standi
 Exceptions: Some persons need to be either assisted or represented.
o Children, mentally disabled persons, prodigals etc.
 *** Note: Citations will be asked in test 1

Citation of plaintiff as principal Citation of defendant

litigant

Full names Surname, first names or initials by which

defendant is known to the plaintiff

Gender (if natural person) Business or residential address

Occupation Where known, the occupation / employment

address

Residence / place of business When defendant sued in a representative

capacity, a description of such capacity

When plaintiff sues in a representative

capacity, a description of such capacity

3.3.1 Children
 What is a ‘child’?  S17 of the Children’s Act: a natural person under the age of majority (18 years) is
defined as a child.
 A child has no locus standi & must be either: duly assisted /represented by a guardian.
o Guardians: both the biological father & mother necessary for civil litigation.
o Children’s Act: subject to law & court orders, both are competent to assist & represent.

Represented by: “The plaintiff is Fila Komotie, an adult female doctor, who resides at 007 Bond
Street, Cape Town, and who is cited in her representative capacity as mother and
natural guardian of Ben Komotie, a male pre-school child, who resides with his
mother at 007 Bond Street, Cape Town.”

Duly assisted by: “The plaintiff is Ben Komotie, a male primary school child, who resides at 007
Bond Street, Cape Town, and who is duly assisted herein by his mother and natural
guardian, Fila Komotie, an adult female doctor, who resides at 007 Bond Street,
Cape Town.”

Important:
 Children under the age of 7: Infans must be represented.
The child is the litigant in
both cases and, unless the
25 guardian acts recklessly,
will be liable for costs or
damages
 o The guardian in his/ her name will represent the child in bringing & defending actions & applications.
 Children from 7 and above: May choose between either
o Bringing an action in the name of the guardian in his or her representative capacity or;
o to institute actions in the name of the child while being duly assisted by guardians.
 Duel capacity: Guardian acts on own behalf (eo nomine) & as a representative (nomine officio)
o Typically occurs when a child suffers due to a 3rd party’s negligence.
 Affects the guardian’s estate for eg. with regards to medical bills / taking time off from work.
 Child can claim for pain & suffering, loss of future income and/or amenities of life.
 Carefully decide in which capacity the guardian will be acting in, with regards to each claim.

Citation: “The plaintiff is Dora Explorer, a female game ranger, who resides at 456 Banana
Lane Street, Johannesburg, who sues herein in her personal capacity, as well as in
her representative capacity as mother and natural guardian of Max Explorer, a
male pre-school child who resides with his mother at 456 Banana Lane Street
Johannesburg.”

 Appointment of a curator ad litem: to act/manage litigation on the child’s behalf is made after a court
application.
o Applications are made before proceedings are instituted in cases where
1) The child had no guardian,
2) the guardian refuses to act on the child’s behalf,
3) the guardian of the child cannot be found, or
4) there is a conflict of interest between the child and the guardian.
o The court can also allow an application after the commencement of the proceedings provided that it
would be to the child’s benefit and that the court would have granted the application if it was
instituted at the correct time.
 Appointment of a curator bonis: Manages financial affairs
o Sometimes with mental incapacity, both a curator ad litem and a curator bonis will be appointed BUT
when it comes to a child it will only be a curator ad litem

Citation: “The plaintiff is Jack Arrow, a male pre-school child who resides at 987 Ocean
View Street, Durban, duly assisted by Patrick York, an adult male advocate who
resides at 357 Rock Street, Port Elizabeth, in his capacity as curator ad litem.”

 Litigation without assistance: will be allowed when:

o Applying for a curator ad litem
o A court grants child permission to litigate unassisted (when a child is emancipated)
o Applying for permission to marry without the consent of parents or guardians
o The proceedings are permitted by statute.
 The Children’s Act and Bill of Rights
 S15 of the Children’s Act extends locus standi to any person listed in this section,
alleging that their rights in terms of the Bill of Rights or the Children’s Act were
infringed upon (reinforces s38 of the Constitution)
(1) A child who is affected or involved in the matter to be adjudicated
(2) Anyone acting in the interest of the child or on behalf of another person who
cannot act in their own name
(3) Anyone acting as a member of, or in the interest of, a group or class of
persons and
(4) Anyone acting in public interest.

3.3.2 Married Women

 Abolition of marital power: abolished on 1 Dec 1993. Before this date women’s locus standi was a very
complex issue.

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 o Women who married before the Matrimonial Property Act of 1984 without excluding marital
power through an antenuptial contract were married in community of property & subject to marital
power. They thus had no standing to sue or be sued without the husband’s assistance, consent did not
suffice.
o After 1 December 1993: Matrimonial Property Act 88 of 1984
 While the 1984 Act had no retrospective effect, women who married after the Act were free
of marital power as the Act abolished it.
o The 1993 amendment of 1984 Act abolished ALL marital power in respect of all marriages. Now all
women, irrespective of when they got married, have locus standi  with retrospective effect
 Despite this, for years after, the HC rule 17(4) still required the mentioning of a female’s marital status.
o Nedcore Bank Lmt. v Hennop (HC) established it to be outmoded & anachronistic as it infringed on
the right to equality (S9) between men & women
 Today, the plaintiff or the defendant, irrespective of being male or female, needs to specify
their sex.
 Everyone has the right to be equal before the law
 Everyone has the right not to be unfairly discriminated against based on listed ground.
 Consent to litigate – marriages in community of property
o In terms of s17(1) of the MPA, a married in community of property spouse, may not institute or
defend actions without the written consent of the other.
o But do not need consent in the following situations;
 Between spouses
 In respect of a spouse’s separate property (you can litigate from separate estate – don’t need
spouse’s consent)
 For the recovery of damages, cannot be for damages for patrimonial loss, by reason of the
commission of a delict against the spouse
 To claim for pain & suffering as a result of an accident
 In respect of a matter relating to his profession, trade or business.
o Note: Not getting written consent in terms of s17 of the MPA, does not affect a litigant’s locus standi.
It is in place so a defendant cannot raise a special plea with regards to the lack of standing in order to
challenge the validity of the proceedings.
 Lack of consent does affect the litigant negatively in the situation where he would lose the case.
o Can be ordered to pay the cost from his separate estate or;
o the joint estate, but with an adjustment to compensate the other spouse when dividing the estate. (e.g.
when they divorce)

3.3.3 Mentally disabled persons

 Mentally disabled people have no locus standi due to mental disorders, as they can’t understand the nature of
legal proceedings.
 HCR 57, through which a person is declared mentally ill, is an important procedure as it allows for a curator
bonis AND ad personam to be appointed.
o The rule requires a curator ad litem to represent the persons interests.
 Application (usually ex parte) – founding affidavit containing;
I. Proof of the applicant’s locus standi in the matter
II. Proof that the specific court has jurisdiction over the matter
III. The personal details of the patient & the relationship between applicant & patient
IV. The reason for approaching the court
V. A list of nominated names of potential curators
VI. Letter of consent – indicating the willingness of these people to accept acting as
curators to the patient
o Affidavits of 2 medical practitioners are required to support the application.
 Powers of the curator will be set out by the court which will typically include
o Investigating and reporting on;
This report will be handed over to the
 nature and extent of the patient’s illness court to consider when appointing a
 the patient’s assets and liabilities curator bonis or ad personam
 other affairs of a patient.
 If you suspect a client to be mentally unwell, find out if he has been declared as such by a HC.
o If not, decide if the client’s estate can afford a curator
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  Estate < R200 000 & annual income < R24 000 – proceed in terms of the Mental Health Care
Act.
 The act provides similar & cheaper mechanisms.

3.3.4 Prodigals
 Capacity to litigate is limited only in so far as the court’s orders
 Prodigals are spendthrift who are unable to control their finances & a HC may be approached to declare
them as such & incapable of managing their own affairs.
o The court order specifies which legal capacities are limited & the prodigal retains the capacities not
covered by the order.
o A curator bonis or ad litem will assist /represent the prodigal with regards to the exercise of their
capacities covered in the order.
 Unless there is reason to believe that the prodigal does not understand the nature & effect of the proceeding,
there is no reason for a curator ad litem.
 A prodigal may litigate unassisted, unless the court that declared him a prodigal denies permission.

3.3.5 Insolvents
 After an insolvent’s estate has been sequestrated, the Master of the HC who takes power of the estate,
appoints a trustee (not a curator) to administer it.
o Trustee will litigate in his/her representative capacity (cited in representative capacity)
 The insolvent still has locus standi to sue or be sued in matters not relating to his estate.
o S23 Insolvency Act  lists instances/ exceptions where it is possible for the insolvent to litigate in his
own name;
 In relation to issues unrelated to the sequestrated estate,
 The legal status of the insolvent
 Recovery of non-patrimonial damages
 If the trustee is responsible for the maladministration of the estate
 Recovery of pension monies
 If relating to the trade/business/occupation of the insolvent
 Where a litigant during proceedings is declared to be an insolvent, the proceedings stop until the insolvent can
be replaced with a trustee.

3.3.6 Fugitives from justice

 General approach: fugitives have no locus standi.
o Cannot institute proceedings but can defend if brought against them.
 If a default judgement is taken against a fugitive of justice, he can apply for rescission of the
judgement so he can defend himself  only instance where a fugitive from justice may
institute proceedings.
 Situations when a default judgment may be given:
o When the accused fails to appear in court,
o Failure by opposing party to file court documents timeously
 To apply for rescission of the default judgment  Must provide good cause for
failure to appear;
o Maybe you were in a car accident
o Perhaps the notice to appear was defective
 A party changed his domicile & never received notice of the court
date
 Cannot enforce a judgement in his favour by means of a writ of execution.
 Contrary to the general rule, a court will always consider each case on the facts.
o Denying litigations is a serious step especially with regards to the right to have access to courts.

3.3.7 Diplomats and the like

 The Diplomatic Immunities & Privileges Act 37 of 2001 provides certain immunities and privileges to the
following:
1. Diplomatic mission & consular posts & the members of such missions & posts.

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 2. Heads of state, special envoys & certain representatives.
3. The UN, certain specialised agencies such as specified in the Act, certain international organisations
& their officials in the Republic
4. Officials & experts of the UN, or any specialised agency & of any organisation & representatives of
any state, participating in international conference or meeting convened in the republic.
 The Minister of International Relations must keep register of all persons entitled to benefit from the Act.
o A frequently updated list of all these people must be made public.
 When suspecting that a party in a matter in which you are involved in, is entitled to immunity:
o You need to confirm your suspicion (consult the Act and the website of Department of International
Relations) and determine the extent and nature of the immunity enjoyed by the party.

3.3.8 Judges
 S47(1) Superior Courts Act: no civil proceedings can be instituted against a superior court judge unless a
plaintiff first obtained consent to do so.
o The section contributes to the judiciaries independence by protecting itself from interference.
 Obtaining consent: informal application to the senior judge of the relevant court division, after which notice
is given to the judge who is sued/ subpoenaed
o Once consent is obtained, the court attendance date is determined in consultation with the most
senior judge of the court to which the judge being summonsed/subpoenaed belongs
 Criticism;
o Lack of transparency
o S47 applies to action/ application proceedings against either their personal / professional capacity.
 Are we protecting judges as well as allowing for administration of justice?
 There should actually be other checks and balances in place to check accountability
 If a judge is sued, the defendant needs the consent of the head judge of the division or court in which the
judge operates to summons/subpoena the judge
o When suing a CC judge  consent of Chief Justice is needed
o When suing a SCA judge  consent of the President of the SCA is needed
o When suing a HC judge consent of the Judge President of the Division is needed
o When suing a MC judge  consent of the Judge President of the HC with jurisdiction to hear
appeals from that inferior court is needed
 Supreme Court Provision has been repealed without replacing it.
o In effect you can sue magistrates without consent.
 If suing the President of the SCA/ Judge President of HC, the consent of the Chief Justice is needed
 If suing the Chief Justice, the consent of the President of the SCA needed

3.3.9 Members of parliament, provincial legislature and municipal councils

 In terms of s58 of the Constitution, all the above are not civilly or criminally liable, can’t be arrested or
imprisoned and nor are they liable for damages incurred as a result of their functions.
o Even if vocally they reveal something of some sort they are still protected from liability.
 The delegates of the NCOP, according to ss 71 & 117 provincial legislatures, are also protected from
liability.
 Consent is also needed to sue parliamental precincts.

3.3.10 Trusts
 Sui generis – do not have legal persona.
o Increasingly popular among families to avoid liability on the estate duty.
 Trusts cannot be a plaintiff/defendant for it has no locus standi.
o Only trustees can sue/be sued on behalf of the trust in their official capacities
 If sued, all the trustees in their official capacities are sued, unless one or more trustees are
authorised by the others to act on their behalf as representatives
 A trustee acting in his official capacity is nominee officio and “NNO” will appear after their names, or “NO”
if only one trustee is acting on behalf of the others

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  Citation: “The plaintiff is Betty Cooper in her official capacity as trustee of Maple trust/trustee, for the time
being, of ABC trust.”

3.3.11 Partnerships, firms, associations and the like

 General approach: No locus standi – the above bodies do not exist apart from/in extension to the individuals
who make up the group.
 Common law: Each individual member of the partnership must be joined & cited by name in any action
involving the partnership.
o This was a problem as partnerships could evade legal proceedings due to technical errors which was
made in the summons.
 Special provisions were made in the HCRs & MCRs which allowed bodies to sue/be sued in their own name,
without referring to the individual members (who did not have to be named)
o Harmse JA: The rule deals with procedure & not with substantive law.
 High Court Rule 14 & Magistrates' Court Rule 54 discussed below

Hight Court rule 14

 Provides a definition of an ‘association’ & ‘firm’:

o Association: unincorporated body of persons (not being a partnership).
o Firm: a business carried on by a body corporate/ carried on by the sole proprietor.
 A partnership, firm or association may sue/be sued in own name.
 To gain legal personality according to the common law, the partnership etc. must possess “corporate
character” (universitas personarum) which implies:
o Perpetual succession  the entity will continue to exist even though its members change.
o Have the ability to acquire rights & incur obligations independently of members, particularly the
ability to own property.
 Rule 14 gives legal personality in these instances
 When suing partnership/firm, there is no need to allege the partners’/proprietors’ names.
 Obtaining a judgment against partnership, will lead to the assets being ‘excussed’ (taken in execution) first to
satisfy the judgment.
o If the partnership does not have enough assets to satisfy the judgement debt, then the assets of the
individual partners may be excussed.
o The plaintiff or defendant suing/being sued by an association requires a notice at the date when the
COA arose
 A true copy of the current constitution of the partnership and the names, and addresses of the office bearers
and their respective offices, if partners refused to provide this information, they can be compelled by the
court.

Magistrate’s Court Rule 54 (equivalent to the HC rule 14)

 Differences:
o Partners at time COA arose may sue/be sued in the partnership’s name
o An individual conducting business at the present, in a name other than his own, may sue/be sued in
the name he conducts business with
o This is also applicable to unincorporated companies, syndicates, & associations (bodies with no legal
personality of their own)
o If suing/being sued by the entity – entitled to send a notice demanding that the party be provided with
the names & places of residence of the partners (who were partners when the COA arose) the present
proprietor or the members of the entity – which must be provided within 10 days
o This is a further mechanism for linking suspected partner/proprietor/member to proceedings which
can be invoked before and after the judgement

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3.4 Representation of parties
3.4.1 Power of attorney (PoA) – rule 7 Uniform Rules
 Note: * The requirement to draft a PoA is usually asked in ethics exams not civils exams .
 It’s not locus standi – we are discussing when and in what circumstances may a legal representative appear in
court to argue a matter on behalf of a client
 Definition of PoA: “Written document which confers authority upon an agent to act for his/her principal.”
 2 kinds:
1 Special: authorises agent to act in specific matter(s)
 Institute or defend legal proceedings on a client’s behalf
 We are mostly concerned with special PoA in ordinary civil proceedings
2 General: gives agent general authority to perform all acts on behalf of principal, which principal
might normally perform himself.
 Attorney/family member/friend – usually when the principal plans to travel or is incapacitated
& needs financial affairs to be dealt with
 Civil procedure context: client gives attorney special PoA, authorising attorney to initiate/defend specific
legal proceedings on his behalf & perform functions incidental to legal proceedings
 Purpose of the written document (of the PoA): protect both parties & facilitate representation in certain
instances or in general.
o Protecting the client  maybe the attorney exceeds his authority to purposefully earn extra fees.
o Protecting the attorney  client can’t later dispute attorneys abilities to perform task & must
compensate attorney for services.
 Details included in special PoA;
o Description of nature of particular action to be instituted/defended
o Nature of relief sought
o Names of parties
o Names of attorneys
 Juristic person wishing to institute/defend legal proceedings
o Attorney must receive direct authority from juristic person (company, CC or local authority) to
institute/defend legal proceedings on its behalf
o Attorney needs a resolution from juristic person, authorising action
o Affidavit & supporting documents (like relevant resolutions) – written instructions conferring
authority

3.4.2 Representation of parties in High Court – rule 16 Uniform Rules

 Natural person with locus standi: entitled to conduct his/her own case & appear in person at hearing OR be
represented by attorney/advocate.
 Juristic persons: may ONLY be represented by attorney/advocate
o Exception: High Court may allow a member of a CC to represent the CC if in the interests of justice
 Legal representation of a party in the High Court, need not file PoA to prove he/she has authority
o But PoA must be filed in appeal cases!
 The representative’s authority may be disputed at any time before judgment;
o Authority is suspended until solved
o Must be done within 10 days of learning who the representative is
 But court is lenient, so long as a good reason is provided for not raising the question within 10
days
 Attorney acts on client’s behalf, attorney must;
o Notify all other parties involved – notice of withdrawal
o Provide his/her name and address
 Client may terminate attorney’s authority to act by himself, or appoint another attorney
 If attorney is no longer acting – ‘notice of withdrawal as attorney of record’ to former client, registrar & all
other parties
o Client must deliver notice within 10 days

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3.4.3 Representation of parties in Magistrates’ Court – rule 52(1)(a) of MC
 Magistrates’ Courts rule 52(1)(a): “A party may institute/defend and may carry to completion any legal
proceedings either in person or by a practioners (advocate/attorney/candidate attorney).”
 Attorneys entitled to fully represent in MC
o Attorneys Act 53 of 1979:
 Scope of advocates’ work in MC
 Advocates:
 Act prohibits advocates from doing attorney’s work in the MC – like sign pleadings
or sign forms prescribed in Annexure 1 to the Magistrates Courts Rules
 Restricted to drafting pleadings and applications, and appearances in court
 Before appearing, duly briefed by attorney
 Candidate attorney’s:
 S8(1) – restrictions on appearance in court
 May appear on behalf of his principal
 This section has been replaced by s25 of the Legal Practice Act: mirrors the
content of s8 of the Attorney’s Act – candidate attorneys have limited right of
appearance
o May practice almost immediately in the DMC but may only appear in the
RMC after a year of experience as a candidate attorney
 Local authority/company/other incorporated body may act through nominated officer
 Partnership/group of persons associated for common purpose may act through nominated member
o Person appointed need not file PoA
o Person’s appointed authority may be challenged by other party before judgment

3.4.4 Representation of indigent persons

a) In forma pauperis proceedings in High Court [NOT PRESCRIBED]
 Indigent persons = ‘a needy person’
 In forma pauperis proceedings = proceedings where one party does not have money to pay for the case
o High Court rule 40 provides assistance to these persons
o Legal aid is also an option for these persons eg. Legal Aid Board, Legal Resources Centre etc.
 High Court rule 40
o Requirements:
 Person may not possess property over R10 000
 Unable to obtain amount from earnings within reasonable time
o Procedure
 Application to registrar
 If registrar satisfied, refers applicant to attorney and informs Society of Advocates (40(1)(a))
 Attorney looks into case and applicant’s financial position
 Attorney satisfied with merits of case and lack of applicant’s means, request Society of
Advocates to nominate advocate to act in forma pauperis (40(2)(b))
 3 documents are then drafted:
 Affidavit with registrar, stating person satisfies requirements (financial position)
 Advocate and attorney’s statement, that their services are free
 Certificate probabilis causa by advocate – if there is a fair/reasonable hope of success
 Matter proceeds as normal, except all pleadings, processes & documents must be headed
accordingly

b) In pro deo proceedings in the Magistrates’ Courts

 Magistrates’ Courts rule 53
o Insufficient means to institute/defend legal proceedings, may apply for leave to sue/defend as pro deo
litigant (53(1))
o Procedure is equivalent but different to in forma pauperis in the High Court
 Refer to MC rule 53

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Remember:

Part A: Preliminary questions

1. Cause of action
o Does the client have a valid claim?
2. Locus standi
o Do they have capacity?
3. Jurisdiction
o Is the court able to hear the matter?

Part B: Pre-litigation issues

1. Demand
2. Calculation of time limits
3. Service of legal documents
4. Action or application

Study Unit 4: Jurisdiction

4.1 Introduction
Part A: Preliminary questions
 Before litigation and before court involved in case
First, does the client have a valid cause of action?
Second, determine locus standi.
Third, ask which court is able to hear the matter/ possesses jurisdiction:

4.1.1 What is jurisdiction

 SCC done below
 “Power/ competence which a particular court has to hear and determine an issue between parties before it.”
 Many different types of courts & some courts consist of different divisions

NB FORMULA:

 Determine by asking two crucial jurisdictional questions:

1. What general type of court is competent to hear your clients’ case?
 Est which court hears the matter – HC, MC, Small Claims Court, Labour Court, etc.
 2 sub-questions;
 (1) monetary value of the claim [higher the value of the claim – more senior the
court]
o Eg: When suing in terms of eviction/ejectment, how do you quantify the
value?
 (2) nature of the claim/matter
o Eg: Dispute between employer and employee, lower court i.e. Labour Court.
2. Which particular one of the different divisions of that type of court?
 Link the matter to a geographical area of jurisdiction of a particular court(s)
 Where the person is domiciled?
 And/or where the cause of action arose?
 If the incorrect court is approached, there are remedies & mechanisms that will allow you to get the matter
kicked out of the court.

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4.1.2 Why only High Court and Magistrates’ Courts
Specialist courts
 Examples:
o Magistrates’ Courts sitting as Children’s Courts
o District Magistrates’ Courts sitting as Maintenance Courts
o Divisions of High Court and Magistrates' Court sitting as Equality Courts
o Tax Courts
o Land Claims Court etc.

Small Claims Courts

 Characteristics
o Small Claims Court Act 61 of 1984 (operation August 1985)
 There are small claims courts in every district around South Africa
o Aim: cheap & speedy resolution of low-value civil disputes
o May not exceed R15 000 [changed to] R20 000
o Presiding officer is a commissioner & he/she questions to establish facts
 Inquisitorial role instead of an adversarial role
 Actively involved in the resolution of the dispute in the SCC
o Locus standi:
 Only natural persons may sue
 Juristic persons may only be sued
o State may not be sued  s14(2) SCC Act
o No-cross examination of witnesses (because this is a typical adversarial procedure & is not the
purpose of the SCC)
o Can’t appeal judgments but it is possible to review SCC decisions to the High Court
 Eg: Where there is a gross procedural irregularity, like if the presiding officer was biased.
o No legal representation
 Does not stop parties from seeking legal advice/assistance outside the court
o Area of jurisdiction
 Stipulated in s2 read with s12 of Act
 Almost every magisterial district has 1 or more SCC
o Jurisdiction in respect of persons
 S14: SCC jurisdiction over all persons (natural or legal) within its area
o In respect of causes of action
 Actions not exceeding R20 000;
(i) For delivery or transfer of any property, movable or immovable
(ii) For ejectment
(iii) Based on a liquid document or a mortgage bond
(iv) Arising out a credit agreement (s1 National Credit Act)
(v) For counterclaims found in s15 of SCC Act
(vi) All other actions not mentioned in s15
o Matters beyond the SCC jurisdiction
 No jurisdiction in;
 Dissolution of marriages or customary unions
 Validity or interpretation of will
 Status of a person’s mental capacity
 Grant specific performance without an alternative claim for damages
 Grant decree of perpetual silence
 Actions for damages – defamation, malicious prosecution, wrongful arrest, wrongful
imprisonment, seduction, breach of promise to marry, & interdicts.
o Abandonment
 S18 of SCC Act – party may abandon portion of claim/counterclaim to lower claim into
R20 000 limit
 Must be stated in summons but not in letter of demand that precedes the issuing of
summons
o Concurrent jurisdiction with the District Magistrates’ Courts

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  Although this doesn’t make economic sense due to low monetary limit
 Not obliged to go to SCC, may go to DMC

Instituting legal action [read through]

1 The letter of demand
o Prior to clerk issuing summons, 2 requirements for valid letter of demand:
 Must be delivered by hand or registered post
 Defendant must be given 14 days from date of receipt of demand
 If defendant is not given 14 days, then premature summons may be raised and your
claim will be defeated
o Summons will only be issued if letter of demand satisfies requirements
2 Summons and particulars of claim
o Prepared by plaintiff (with legal assistance)
o Issued by clerk upon receipt of letter of demand after 14 day period
o Served personally by plaintiff on defendant, or by sheriff of court
3 Defendant’s response: statement of defence
o Defendant doesn’t need to respond to summons
o Must arrive prepared for trial on date
o Entitled to deliver written statement to clerk – nature of defence & grounds of defence
4 Procedure at court
a) Legal representation:
 Parties not permitted to be legally represented
b) Pleadings and decision of the court:
 Only pleadings required before the hearing – letter of demand and summons
 Defendant may prepare a statement of defence
 Court records decision not entire hearing because it’s not a court of record
 Post-judgment collection procedures done in terms of MC Act and Rules
c) Court procedure:
 Inquisitorial and informal
 Commissioner ask plaintiff to outline case;
 defendant has opportunity to question plaintiff;
 plaintiff may call a witness;
 defendant responds to plaintiff’s case;
 plaintiff may question defendant;
 defendant may call witness;
 Commissioner:
 Decides if questions are to be allowed
 Make a decision on the law
 May end proceedings and refer to another court, if complex questions of law arise
d) Review proceedings:
 No right of appeal against decision of SCC
 Review to High Court if gross irregularities in proceedings
 Grounds: no jurisdiction, bias, malice and/or corruption
e) Judgment and rescission of judgment:
 S46 SCC Act – default judgment obtained for non-appearance & if judgment made by fraud
or common mistake then it may be rescinded (revoked/cancelled)
 Application for rescission of a default judgment – within 6 weeks
 Application for rescission on other grounds – within a year

Supreme Court of Appeal (don’t need to study)

 Appeal cases therefore do not need to be concerned with jurisdiction of court

Constitutional Court (don’t need to study)

 Cases come on appeal
 CC has exclusive jurisdiction in these matters;
o Disputes between organs of state (national/provincial sphere) over constitutional status, powers or
functions

35
 o Constitutionality of parliamentary or provincial Bills
o Applications of unconstitutionality of an Act of Parliament, by members of national Parliament or
provincial legislatures
o Constitutionality of amendment to Constitution
o President or Parliaments failure to fulfill constitutional obligations
o Certification of a provincial Constitution

4.1.3 What are the main issues?

  with regards to jurisdiction relating to the High Court and Magistrates' Court?
 Remember the formula provided above! Ask:
(1) Which general type of court? ‘Must I bring this matter in the High Court or a Magistrates'
Court?’
1.1 Ask: Monetary value of the claim?
 General rules:
o If over R400 000 = jurisdiction of High Court
o If over R200 000 but less than or equal to R400 000 = jurisdiction of the
Regional Magistrates’ Court (RMC)
o If R200 000 or less = jurisdiction of the District Magistrates’ Courts (DMC)
 Exceptions:
1 Can consent to court’s jurisdiction & abandon portion of claim to bring the
case in line with a lower court’s jurisdiction;
2 Or deduct an admitted debt if you know there is a counterclaim for which
you will likely be held liable.
3 Opposing party consents to the case being brought within the jurisdiction of
a lower court.
1.2 Ask: Nature of the claim?
 Certain claims involve amounts of R400 000/less, but not allowed in MC due to
nature
 Eg: If your matter relates to a mental capacity issue (i.e. that is the subject of the
litigation) & you know matters such as this are excluded from the jurisdiction of the
Magistrates' Court, even though the value of the claim might fall within the monetary
jurisdiction of the Magistrates' Court, the matter must be referred to the High Court.
 Further eg’s: interpretation of will (HC), claim for specific performance without
alternative of damages (HC)
(2) Geographical area. ‘In which particular division of the High Court, or Magistrates' Court, must
I bring the matter?’
 2 ways
 Person against whom action is instituted lives/works in area
 Incident(s) giving rise to claim happened in area
o Eg: the car accident occurred in the court’s jurisdiction, it is arguable that that
court is vested with jurisdiction to hear the claim.

4.1.4 When is jurisdiction determined?

 At the time when proceedings are instituted.
 Proceedings are deemed to be instituted when papers have been served upon opposing party.
o Eg. In an Action, when your summons served on defendant. In an application, when your notice of
motion is served.
 Jurisdiction existing at start of proceedings continue to exist until end.
o Won’t change if defendant happens to move houses and now resides outside area of jurisdiction of the
court

4.1.5 Why is it important to get jurisdiction right?

 Defendant may defeat your client’s claim if legal proceedings proceed in wrong court
 Action: Opponent may raise a special plea of lack of jurisdiction – will end the matter
o If effect of special plea is successful: defeat applicants claim in that particular court
o Doesn’t mean the person can’t go to another court to institute the claim
 As the attorney – you will be in trouble
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  In terms of the application: court will not hear matter if not satisfied that it has jurisdiction, based on facts in
papers
 Concentrate on lack of jurisdiction & why it is NB.

4.2 Magistrates’ Courts Jurisdiction

4.2.1 General overview
 Magistrates’ Courts are creatures of statute  which means they only have jurisdiction conferred by statute
 Ss26 – 50 of Magistrates’ Court Act  deal with jurisdiction
o Read through considerations in s29 of the MCA (very helpful section)
 General mindmap:
o Question 1: High Court/MC?
 1.1: What is the value of the claim?
 1.2: What is the nature of the claim?
o Question 2: Which particular MC?

Question 1: Which general court? High Court or Magistrates' Court?

4.2.2 The value of the claim: s29 of the MCA

4.2.2.1 General rule with regards to value of the claim
 If over R400 000 = jurisdiction of High Court
 If over R200 000 but less than or equal to R400 000 = jurisdiction of the Regional Magistrates’ Court (RMC)
 If R200 000 or less = jurisdiction of the District Magistrates’ Courts (DMC)
 Exceptions: S38 (abandonment), s39 (deduction of admitted debt) & s45 (consent)

Section 29 MCA (Jurisdiction in respect of causes of action) sets out basis for which you can approach the
court, it is your POD for establishing what the monetary value of the claim is:

 S29(1)(a): delivery/transfer of property (immovable/ movable) - majority of claims relate to this

o District Magistrates' Court: actions for delivery/transfer of property (movable/immovable) ≤
R200 000
o Regional Magistrates' Court: actions for delivery/transfer of property (movable/immovable) >
R200 000, but ≤ R400 000
 Note: If you want to sue in MC, on basis of goods sold & delivered, specifically delivery of
moveable/ immovable property, in your summons or particulars of claim, mention this sub-
ground.
 Eg: an action for rei vindicatio in the MC would fall under s29(1)(a).
 Eg: you purchased a vehicle, you paid for it, it hasn’t been delivered to you yet, it cost
R125 000, you can claim transfer or delivery of moveable property so in your summons you
have to indicate that your claim is based on s29(1)(a). It sets out different monetary limits
compared to sub-section c.
 S29(1)(b): ejectment
o DMC:
 Action for ejectment can be instituted in lower courts. DMC possess jurisdiction in respect of
actions of ejectment, against occupier of any premises/ land in the relevant district.
 This general rule is qualified; where the right of occupation of any such premises/ land is in
dispute, the right must be ≤ R200 000 in clear value to the occupier.
 Therefore; if you (the plaintiff) institute an action for ejectment, if the defendant raises a
bona fide dispute (i.e. his/her contention is that he/she has a right to occupy the premises)
ONLY THEN does it need to be shown that the clear value of the right to occupation does
not exceed R200 000 or R400 000 (DMC or RMC respectively).
 In other words, if you institute an action for ejectment, you do not need to allege that the
clear value associated with the ejectment proceedings, falls within the monetary value of
the Magistrates' Court. However, as soon as it is disputed by the defendant, then the
plaintiff must show that the clear value does not exceed the monetary value/ jurisdiction
of the DMC/ RMC.
o RMC:
 Actions of ejectment – occupier of premises/land within regional division
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  Right of occupation in dispute
 Right > R200 000, but ≤ R400 000 in clear value
o How to determine the clear value of occupation:
 Clear value is the value over and above the rent that is payable.
 NB eg: The client pays R10 000 rent per month. The lease still has 12 months left for which
the client must pay R10 000 per month. The landlord wants to bring an action to eject the
client. Remember; landlord doesn’t need to allege that this falls within the monetary value of
the DMC/ RMC. But in this case, the client has raised a bona fide dispute regarding the
landlord’s right to terminate his occupation. Thus the landlord needs to demonstrate that the
clear value of the right of occupation is less than R200 000 or R400 000. Assume it would
cost the client R30 000 pm to rent a similar property. The clear value is determined as follows
(applicable to residential premises):
 Take the difference between what the client would pay for the new property & the
amount that he/she is currently paying
 If he is paying R10 000 at present & would need to pay R30 000 for a similar
property, the difference is R20 000.
 The R20 000 is multiplied by the remainder of the lease period. R20 000 x 12 =
R240 000.
 The amount is outside the DMC jurisdiction & would be needed to be instituted in the
RMC.
 Ejectment from business premises:
 Additional method of calculation when suitable alternative premises not available.
 Calculate profit occupier reasonably expects to make over occupation period.
 S29(1)(c): right of way
o Possess jurisdiction in respect of actions for the determination of a right of way, notwithstanding (in
spite of) the provisions of s46
 Do not need to determine value of right of way, regardless of monetary value, you may
approach a MC.
 MC confirms existing right of way & create a via necessitates (necessary access route)
o Most often will be instituted in a DMC.
 S29(1)(d): liquid document/mortgage bond
o DMC:
 Actions on or arising out of liquid document/mortgage bond
 Claim ≤ R200 000
o RMC:
 Actions on/arising out of liquid document/mortgage bond
 Claim > R200 000, but ≤ R400 000
o Liquid document indicates;
 An acknowledgement of indebtedness,
 in an ascertained amount of money,
 the payment of which is due to creditor
  Identity of parties is clear from document.
 It is only a liquid document if there is no need to resort to extrinsic evidence to prove that it is
a liquid document.
o Examples:
 Cheques, acknowledgements of debt, mortgage bonds, etc.
 Document not liquid if it shows that the payment is conditional
 However, a ‘simple condition’ will not destroy liquidity of document – as it is
unlikely to give rise to dispute, or if disputed, is easily proved.
o Eg. Acknowledgment of debt which contains a condition that notice must be
given to the debtor before payment is claimed, still qualifies as a liquid
document
 S29(1)(e): credit agreements
o MC: actions on/arising out of credit agreement (S1 National Credit Act, 2005 (NCA))
 Credit agreement as an agreement that meets all the criteria set in s8 of the Act.
o S29(1)(e) MC Act read with s172(2) of NCA: provides the MC with unlimited monetary jurisdiction
in matters falling under the NCA.
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 o Take note: limitation of RMC jurisdiction
 In terms of the Gov Notice 216, the Minister of Justice & Correctional Services claims to
limit jurisdiction of the RMC under s29(1)(e) – although it is still unclear THUS it is better to
say the monetary jurisdiction of the RMC is not limited in this way.
 S29(1)(f): Matrimonial Property Act 88 of 1984
o DMC:
 Actions in terms of s16(1) MPA
 Claim/value of property in dispute ≤ R200 000
o S15(2) & (3) Matrimonial Property Act require a spouse (in community of property) to obtain
consent of the other spouse if he/she wishes to deal with the communal property in certain ways.
o S17 Matrimonial Property Act  obtain consent before instituting or defending legal proceedings
when married in community of property.
o Exceptions:
 Possible in terms of s29(1)(f) to institute action for consent from the court where a spouse
withholds consent, if the plaintiff is of the view that the spouse should consent to litigation
proceedings.
 S29(1B): Divorce & related matters – RMC
o S29(1B)(a) RMC
 Has jurisdiction to hear/ determine nullity of marriage/ civil union
 Hear any matter/ grant any order provided for in Recognition of Customary Marriages Act
120 of 1998.
o S29(1B)(b) RMC
 RMC concurrent jurisdiction with High Court in these matters.
 ‘General rule’ (which provides monetary limits for most types of claims which may be dealt
with by the RMC & the DMC) is not applicable to s29(1B)(a) claims.
o S29(1B)(c) RMC
 RMC presiding officer may summon 2 persons to act as assessors in advisory capacity on
questions of fact
 S29(1)(fA): Close Corporations Act 69 of 1984
o MC
 Actions/application for liquidation in terms of CCA
 Typically liquidation & insolvency matters are restricted to the HC – the MC possess
jurisdiction to wind up cc, irrespective of amounts.
 HC possess concurrent jurisdiction (s7 CCA)
 S29(1)(g): all other actions
o MC
 This section is a ‘catch-all’
o Provides jurisdiction in actions other than those listed above.
o It is NB to know that once you’re provided with a set of facts, look at the subsections in 29(1). If your
action doesn’t fall into one of those but it is less than R200 000 or R400 000, then you may link it to
s29(1)(g). Will still follow ordinary route to est whether a court has jurisdiction – sections 46 & 28 of
MCA are still applicable as you need to determine whether the court has jurisdiction by virtue of the
nature of claim & whether the court has geographical jurisdiction.

4.2.2.2 How to calculate the R200 000 & R400 000 limits
 Splitting of single claims not allowed in terms of s40 MCA
o Substantive claim (that arises out of a single COA) exceeding jurisdiction of a particular Magistrates'
Court, may not be split with the object of recovering the same in more than 1 action, if all the parties
to such actions, would be the same, & the points of issue would also be the same.
o Eg: cannot take a single claim for R600 000 & split it up into two separate claims for R300 000 each
in order to bring the matter within the jurisdiction of the RMC
 Combining separate claims allowed in terms of s43(1)
o If 2/more claims, each based on a different COA, are combined in 1 summons
o Court has same jurisdiction to decide each claim as it would have had if each claim had formed sole
subject of separate action
o Possible to combine all of those Causes Of Action for practical purposes, even though the monetary
limit might be exceeded in totality, s43 allows it to be combined into a single summons.
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  When calculating the R200 000 & R400 000 limit, only capital amount claimed is taken into account in
terms of ss37(1) & 37(2)
o S 37(1):
 When the claim is for the balance of an account (a part of the account has been paid & the
claim is for the remainder) it is possible for the court to take evidence in relation to the whole
account even if the whole account exceeds the court’s jurisdiction.
 What is NB is that the balance of the account falls within the court’s jurisdiction
o S 37(2):
 Amount claimed/other relief sought within MC jurisdiction
 Jurisdiction not ousted because court must give finding on matter beyond jurisdiction
 Interest & costs not taken into account in terms of s37(3)
o No prayer for interest on principal sum claimed or costs or for general or alternative relief shall be
taken into account
 Prayer for ‘general or alternative relief’ ignored for jurisdictional purposes

4.2.2.3 Exceptions to the general rule

 3 ways to bring a matter involving a claim; for over R200 000 to the DMC, or for over R400 000 to the RMC:
1. Consent
2. Abandonment
3. Deduction of an admitted debt
1. Consent  s45
o S45 was amended in August 2018 by the Courts of Law Amendment Act. The following is the
amended version of the MCA.
o S45(1) (subject to provisions of s46)
 If the parties consent in writing – allowing the MC to determine the action/proceeding that
was otherwise beyond its jurisdiction in terms of s29(1)
 This is provided that no court other than court with jurisdiction under s28 has
jurisdiction
 Parties must consent in writing
 Doesn’t need to be an express agreement signed by parties
 Some sort of writing(s) is sufficient = proof each party consented to jurisdiction
 May be informal correspondence
o S45(2)
 Any contract provision whereby person undertakes to consent to jurisdiction, when
proceedings have been/are about to be instituted, he/she will give such consent to jurisdiction
as contemplated in s45(1), shall be null and void.
 Parties cannot avoid the 2nd limitation (below)
o S45(3)
 Any consent given in proceedings instituted in terms of section 57, 58, 65 or 65J by a
defendant or a judgment debtor to the jurisdiction of a court which does not have jurisdiction
over that defendant or judgment debtor in terms of section 28, is of no force and effect.
o But there are limitations to s45
 First limitation
 S46 certain claims must be heard in HC
 S46 provisions cannot be overridden by written consent in terms of s45
 Second limitation
 Parties not allowed to consent to particular MC’s jurisdiction
 Unless that particular MC has jurisdiction over defendant’s person in terms of s28
MCA
 If proceedings have already been instituted/about to be instituted, parties are entitled
to consent to any particular MC’s jurisdiction.
o In the past: s45 previously created two situations which depended upon whether or not the court had
jurisdiction over the defendant in terms of s28. If the court did have jurisdiction in terms of s28, the
def could consent in writing to an increase of the jurisdictional limit at any time. If the court lacked
jurisdiction, in terms of s28, then the only consent to an increase to the jurisdictional limit which
would be valid, would be the consent given once the proceedings have been or are about to be
instituted.
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  The amended s45 makes no reference to s28 other than in relation to those sections listed in
s45(3). Meaning that s45 is no longer dependent on geographical jurisdiction in terms of
s28.
 If a matter is not excluded from the jurisdiction of a Magistrates' Court by virtue of s46
(deals with issues that must go to the High Court due to the nature of the case, eg; mental
incapacity claim) regardless of whether or not the court has jurisdiction over the defendant
in terms of s28 – it’s possible to consent to the jurisdiction of a district or a regional court.
 Jurisdiction over the defendant in terms of s28 is however required for proceedings instituted
in terms of sections 57, 58, 65 or 65J.
2. Abandonment  s38
o S 38(1)
 In order to bring a claim within the jurisdiction of the Magistrates' Court, the Plaintiff may in
his/her summons or anytime thereafter, explicitly abandon a part of such a claim
 Plaintiff abandons part of claim > R200 000/ > R400 000
 For eg: “The Defendant is indebted to the Plaintiff in the amount of R205 000. In order to
bring his claim within the jurisdiction of the DMC, in terms of s38(1), the Plaintiff hereby
abandons the amount of R5 000.”
o S 38(2)
 Any part of claim abandoned in terms of s38(1) is finally extinguished.
 However, if the claim is upheld in part only, the abandonment first takes effect on the part of
claim that is not upheld
 Eg 1: “The claim is for R210 000, damage to a motor vehicle. The body of the vehicle
sustained damages in the amount of R190 000. R20 000 constitutes damage to the
air-conditioning system. You would need to abandon R10 000 to bring it within the
jurisdiction of the DMC. If you abandon R10 000, the general rule is you get what
you can prove up to a maximum of R200 000. If you can prove R200 000 worth of
damages, you are entitled to that amount. If you can prove R140 000 damages, you
are entitled to that amount.”
 Eg 2: “If you claim for R430 000 you would need to abandon R30 000 to bring it
within the jurisdiction of the RMC. If the defendant is only 50% to blame for the
collision, the plaintiff will receive R215 000 damages.
 When you need to abandon an amount to bring your claim within the jurisdiction of either the
DMC or RMC, the formula is the following: You get what you can prove up to the
maximum of R200 000/ R400 000 respectively.
3. Deduction of admitted debt  s39
o “… to bring claim within the [Magistrates' Court] jurisdiction plaintiff may, in his/her summons or at
any time after the issue thereof, deduct from his/her claim, whether liquidated/unliquidated, any
amount admitted by him/her to be due by himself/herself to the defendant.”
o The position in relation to the deduction of an admitted debt is that you also get what you can prove
up to the max of R200 000/R400 000 BUT then you have to deduct the admitted debt.
 Eg: “You sustain damage to your vehicle and claim for an amount of R220 000. However,
you still owe the defendant an amount of R25 000 for services rendered by the defendant. You
can therefore deduct from your claim amount, R25 000, which would bring your claim
amount to R195 000 placing it within the DMC jurisdiction. If only R170 000 of the
R220 000 claim is upheld, the general rule is that you get what you can prove up to a max of
R200 000/ R400 000. In this case you’ve proved only R170 000 damages. You still have to
deduct the admitted debt  R170 000 minus R25 000  taking your entitlement to
R145 000.”

4.2.3 Nature of claim: s46 MCA

 Claims which, although they fall within the monetary jurisdiction of the Magistrates' Court, they must be
heard in High Court
o These are claims beyond MC jurisdiction
o Parties cannot consent to MC jurisdiction
o If a s46 matter is brought to the MC, it must, mero motu, decline jurisdiction, even though issue not
raised in defendant’s plea
 S46 involves 2 types of claims: ‘status’ claims & ‘specific performance’ claims
(1) Status claims
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  Claims affecting personal status
 3 types of status claims:
 Wills  s46(2)(a)
o High Court must hear matters relating to validity/ interpretation of will or
other testamentary document
o May not approach a Magistrates' Court to assist in interpreting a will, even if
the value of that will is lower than the monetary jurisdiction of the
DMC/RMC
 Mental capacity  s46(2)(b)
o Application to declare person to be of unsound mind/incapable of managing
own affairs (appointment of curator bonis) – must go to High Court
 Perpetual silence  s46(2)(d)
o MC has no jurisdiction.
o General rule: a plaintiff may choose her own time, as the dominis litis, within
which to institute action against the defendant.
o Exception relates to a decree of perpetual silence  where a prospective
plaintiff publicly threatens a defendant that he/she will institute action against
the defendant, the defendant may approach a court to ask the court to ‘put the
plaintiff to terms’.
 The defendant is asking the court to tell the plaintiff to bring his/her
action within a certain amount of time or otherwise, order a decree
of perpetual silence (the plaintiff will not be allowed to institute
action proceedings at a later stage).
o Example of a decree of perpetual silence  Garber NO v Witwatersrand
Jewish Aged Home 1985 (3) SA 460 (W) [not prescribed]
(2) Specific performance claims
 General rule  s46(2)(c): Magistrates' Court does not have jurisdiction over specific
performance claims, if an alternative claim for the payment of damages is not included.
 Cannot simply approach a MC with a specific performance claim on its own, you also
need to claim damages in the alternative. Then the DMC or RMC has jurisdiction
over the dispute.
 Some debate as to meaning of ‘specific performance’ in terms of s46
 Is s46 limited to acts arising out of contracts or is it any act whatsoever?
 There is conflicting authority on this matter. Prof Broodryk agrees with the views
presented in Olivier v Stoop 1978.
 Is it a claim for the payment of an amount of money vs is it a claim for the
performance of an act?
o Claims ad pecuniam solvendam (claims sounding in money):
 Remember: S46 provides that specific performance claims must go to
the High Court, however if you claim damages in the alternative,
then you may go to the Magistrates' Court with your specific
performance claim. BUT what is specific performance?
 Thus we need to establish whether a claim sounding in money
amounts to specific performance in terms of s46.
 In Tuckers Land and Development Corporation v Van Zyl 1977,
court held that orders sounding in money, regardless of the COA,
are NOT orders for specific performance for purposes of s46 & are
thus not excluded from the jurisdiction of the Magistrates' Court.
Therefore, a claim sounding in money does not need to be
accompanied by an alternative claim for damages.
o Claims ad factum praestandum (claims for the performance of an act):
 The obligation to do something in terms of a contract.
 Eg: I’ve contracted to paint the house & the opposing party seeks an
order forcing me to paint the house as we contracted.
 Olivier v Stoop 1978 as well as various other academics, are of the
view that specific performance in s46, is confined to specific
performance of a contractual obligation. Thus, other claims for the

42
 performance of an act is excluded from jurisdiction of the
Magistrates' Court only if the obligation to perform has arisen from a
contract.
 Accordingly, when s46 prohibits a magistrate from hearing claims
for specific performance without an alternative claim for damages 
it should be understood to only prohibit a magistrate from hearing
claims for the performance of an act which arises from a contract.
 Claims for the performance of an act are LIMITED to claims arising
from a contract.
 Exceptions to the general rule  s46(2)(c)(i-iii)
1 Rendering of an account in which claim is ≤ R200 000
o Magistrates' Court has jurisdiction
o Duty to account (i.e. duty to render an account) may arise in different
circumstances.
o Eg: upon the dissolution of a partnership, the one partner might want to force
the other partner to account in relation to the partnership’s profits. In these
circumstances the partner will not need to include an alternative claim for
damages in relation to proceedings in the Magistrates' Court, the Magistrates'
Court will simply have jurisdiction over that claim.
o No duty to account due to debtor-creditor relationship
2 Delivery/transfer of property (movable/immovable) ≤ R200 000
o MC has jurisdiction
3 Delivery/transfer of property (movable/immovable) > R200 000 with parties’ consent
(in terms of s45)
o MC has jurisdiction
o But parties must consent to MC jurisdiction

Question 2: Which particular MC?

4.2.4 The area to which the claim may be linked: s28 MCA
 So we’ve asked which court may hear the matter. If it is concluded that it is the MC, then the next question is
to establish which particular MC or Courts has/have jurisdiction to hear this matter?
 S28 MCA involves tying the matter in question to the area of jurisdiction of a particular MC.
1. Does the defendant reside, carry on business, or is he employed within this particular court’s area of
control? (s28(1)(a))
2. Did the COA arise wholly within this particular court’s area of control? (s28(1)(d))

4.2.4.1 Defendant’s residence/business/employment  s28(1)(a)

 POD: If a district court, for example, has jurisdiction over your matter, it is possible to go to a specific district
court on the basis of that district court having jurisdiction because the defendant is resident within the
jurisdiction of that court.
o NB to understand what it means to “reside”/ what is “residence” within the context of s28
 Magistrate’s court jurisdiction  s28(1)(a):
o Where does natural person reside?
 Courts’ general approach: Beedle & Co v Bowley 1895
 = The defendant’s place of residence is his home. His place of abode, where he
generally sleeps after a day of work.
 It is NOT possible to have no residence!
 BUT, more than 1 place of residence is possible.
 Mayne v Maine 2001 (SCA)
 Decision concerned proceedings in the High Court (but also applies to Magistrates'
Court matters)
 Court had to consider whether the respondent was resident within the courts area of
jurisdiction at the time the summons was served upon him.
 Facts about the respondent
o Born in the UK in 1961
o Educated in Natal

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 o In 1981 he immigrated to the USA
o Subsequently moved to the UK
o Corporate financing consulting career, travelled a lot. Was not office bound.
o Started doing more business in South Africa & spent less time in the UK
o In 1992, he spent 27 days in South Africa
o In 1995, he spent 270 days in South Africa – mostly in JHB
o Developed a romantic relationship with someone in JHB, he lived with her
o Set up office in JHB & leased a vehicle in JHB
 Ratio & decision of court
o Referred to Beedle v Bowley to consider whether JHB is the respondent’s
home
o “Residence conveys a sense of stability, something of a settled nature.”
o A common sense & realistic approach needs to be adopted to establish where
a natural person resides.
o Comments that residence connotes something more than just a temporary
visit.
 It is not possible to be a resident in a specific jurisdiction if the visit
is only for a short period.
o On the facts, court: the respondent must have resided somewhere. It is clear
that the respondent spent majority of his time in JHB – more than just a
temporary visit. Considered existence of a romantic relationship. Indicative
of the fact that the respondent was not in JHB just for business.
o Court: emphasises recognition of the concept of vagabundus (one cannot
argue not to be resident anywhere).
o Court: no alternative place of residence had been proposed. Court is bound by
consideration of the objective facts, despite subjective intention of the
respondent.
o = Therefore, respondent WAS resident of JHB… jurisdiction is determined
at the time the proceedings are instituted (when summons was served on
the respondent)
o (In this case, it would have been possible for the respondent to have moved
back to the UK after the proceedings were instituted upon him. But this
would not deprive the court of the jurisdiction it had in respect of the matter)
 To determine where a natural person resides, it is NB to draw a distinction between
residence & domicile.
 Domicile is acquired by establishing residence at a particular place with the intention
of remaining there permanently.
 A person may have more than 1 place of residence.
o If a person has more than 1 residence, then jurisdiction is established in the
area in which the person is at the time summons is served.
o Person does not reside at a place where he/she is only visiting temporarily
o Example:
 Person who resides in CPT & is sent to Tshwane on a course for a
period of 2-3 weeks would not be a resident of Tshwane. The person
would at least have had to be in that specific area for such a degree of
time, that one could say that it is the place where he/she typically
sleeps after a day of work. A degree of regularity, something of a
settled nature. It is a question of fact, dependent on each case.
Hence why an approach of common sense must be adopted.
 More than 1 domicile not possible!
o Where does company/close corporation (juristic person) reside?
 = Where it has its principal place of business &/or registered office
 If head office & registered office are in different magisterial districts/regional
divisions: each of those Magistrates' Courts would have jurisdiction
 If registered office is not place of business, you can choose which district you
approach based on residence.
 Plaintiff as dominus litis may choose where he wishes to sue
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  Position under the new Companies Act has changed following the decision in  Sibakhulu
Construction v Wedgewood Village Golf Country Estate 2013 (not prescribed)
 Court held that a company resides only at its registered office.
 Therefore, under the new Companies Act, the registered office is the same as its
principal place of business.
 This is where the choice between registered office & principal office, falls away.
 Largely criticised. Submitted that you should be able to choose.
 But this is the law as it stands.
 *Principal place of business = central management & control of company/ close
corporation
 Judgment does not apply to close corporations, only to companies.
 Position regarding CC’s seemingly remains unchanged. In other words, a CC resides at its
place of central control &/or at its registered office.
o Where does partnership reside?
 Remember, in terms of common law, a partnership is not a legal person/ entity
 Thus all partners have to be sued jointly
 However, this section revises the position. One may now sue the partnership in the
partnership name, provided it has a business premises within the jurisdiction of the court
OR one of the partners is resident in that area.
 In Metlika Trading v Commissioner of South African Revenue Service  it was held that if
the principal place of business of the partnership is located within the jurisdiction of a specific
court it is likely to be sufficient to confer jurisdiction on that court. A notice may then be
served on the partnership requiring it to divulge who all the partners were at the time the COA
accrued.  Rule 54(1) MCR
 S2 Interpretation Act 33 of 1957: partnership defined as ‘person’
 = Resides where principal place of business situated
o Where does state reside?
 S28(2) “‘Person’ & ‘defendant’ in this section include the State”
 = Pretoria  But there is no absolute certainty
 Minister of Law and Order v Patterson 1984
o Residence of the State:
 Court said state resides in Pretoria as it is the principal place of
business.
 Based on 1961 Constitution
 The current Constitution no longer designates PTA as the seat of the
government of the Republic
 Position regarding state
o Uncertainty over where seat of state is.
o No case has come after Patterson.
 Meaning of ‘carries on business’?
o Difference between place of employment & place where person ‘carries on business’?
 Typically refers to a sole proprietorship sort of scenario.
o = Where someone conducts their day to day business (regularity)
 One’s own business, not employer’s
 It is possible to conduct business in more than 1 district/regional division at a time, but a
person whose permanent place of business is situated within one district/ regional division,
but who temporarily carries on business in another district/ regional division, cannot claim
that the latter is the principal place of business.
 It is unlikely that the person will be able to argue that it constitutes a place of business at all if
one considers the views of Jones & Buckel.
 Temporary visit to another area of jurisdiction doesn’t amount to residence, therefore
temporarily conducting business in another jurisdiction is unlikely to constitute a
place of business for the purpose of carrying on a business in terms of s28.
 Also does not need to have a ‘place of business’ to carry on business at that place
 Not so with company/close corporation
 Minister of Law and Order v Patterson 1984

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 o Court: place of business of a trading corporation is restricted for jurisdictional
purposes, to the place where its central management is exercised.
 General Accident Insurance Co SA Ltd v Mbonambi 1986
o Friedman J disagreed with Patterson decision but considered himself bound
by it.
o Means that a trading corporation would indeed need to have a place of
business for purposes of establishing jurisdiction in terms of s28(1)(a) on the
basis of it carrying on a business within that jurisdiction.
 Meaning of ‘employed’
o It’s possible to link case/claim to a specific court on basis of it being the persons place of
employment.
o Section refers to jurisdiction in relation to a person who is employed by another.
o Measure of permanence is required in the employment. Defendant may not be sued when he/she is
employed only temporarily within the jurisdiction of the court.
o The date of service of the summons, is the critical date for the determination of this issue. Rather than
the date of issue of the summons.

4.2.4.2 COA arising ‘wholly’  s28(1)(d)

 MC jurisdiction  “any person… if the COA arose wholly within the district/regional division…”
o To succeed with claim, every fact (all facta probanda) must arise within district/regional division.
 Here it is NB to distinguish: facta probanda & facta probantia
o All facta probanda, not facta probantia, must occur within district/regional division for it to validly
be argued that the COA arose wholly within that jurisdiction
 Mackenzie v Farmer
 Explains difference between terminology.
 Facta probanda: Your COA comprises the material facts that you need to prove to
succeed with your claim.
 Facta probantia: Evidence that you need to lead to prove those material facts.
 King's Transport v Viljoen 1954 (C)
 Car accident. Car driven by employee who was acting within the course & scope of
his employment. Defendant = employer.
 Defendant was sued on the basis of vicarious liability
 Proceedings were instituted in Somerset West as the COA arose, allegedly, wholly
within that district
 Defendant disputed this & argued that the COA did not arise wholly within the
Somerset West district
 Defendant argued that the plaintiff had to prove events surrounding the collision &
the existence of an employment relationship
 The employment contract was signed in Saltriver & therefore according to the
defendant, the COA arose partly in Somerset West & partly in Saltriver. Therefore
the COA did NOT arise wholly in Somerset West.
 In other words, it’s used to prove he was acting within the scope of his employment
which is the facta probanda, it is not the signing of the employment contract but
rather that the driver was acting within the course and scope of his employment that
needs to be alleged by the plaintiff to demonstrate that the COA wholly arose in
Somerset West.
 A COA based in delict will usually, but not always, arise wholly in the place where
the wrongful act is committed.
 But problem occurs where the wrongful act & the damage does not occur at the same
time. Creates problems to establish jurisdiction based on s28(1)(d) which is where the
COA arose wholly.
o Eg: Car manufactured in JHB. Then driven down to CPT. As a result of a
manufacturing defect, a car accident occurs in CPT. = the wrongful act & the
damage occurred in different jurisdictions.
 In the High Court it would be possible to use COA as a basis to
establish jurisdiction in these circumstances.

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  But in context of s28(1)(d) Magistrates' Court jurisdiction, the COA
cannot on those facts, be said to have arisen wholly within the district
of CPT or in the district of JHB.
 Regarding a COA based in contract, Jones & Buckel argue that a plaintiff suing in contract
must prove: (1) conclusion of the contract, (2) its terms, & (3) breach having occurred in
the district/ region.
 Both offer & acceptance must have occurred in the district/region otherwise the
whole COA cannot be said to have arisen in district/region.
 THUS, according to Jones & Buckel  Contract conclusion forms part of the facta
probanda.
 Authors of the textbook: disagree. They say that acceptance is facta probanda, offer
is facta probantia & breach is facta probanda.
o They’re saying that the offer doesn’t need to be made/ alleged to be made, in
the district/region to enable a person to rely on the COA arising wholly
within the district/region as a possible jurisdictional basis.
 Prof Broodryk agrees more with Jones & Buckel.

4.2.4.3 Other grounds of territorial jurisdiction

 Partnerships s28(1)(b)
o MC has jurisdiction
o Partnership with business premises
o Member residing within district/regional division
 Incidental proceedings s28(1)(c)
o MC has jurisdiction over any person in respect of any proceedings incidental to any action or
proceeding instituted in court by such person himself/ herself.
o Basically, if you start proceedings in a particular Magistrates' Court you cannot object to the
jurisdiction of that court in respect of any proceedings which are incidental to those proceedings.
o Incidental = arising out of same facts
 If a counterclaim does not arise from the same facts, then the counterclaim is not incidental.
 Interpleader proceedings s28(1)(e)
o An interpleader is a procedure for dealing with a situation in which one person (a ‘stakeholder’) has
possession of property which is not his but which is being claimed by two other people, each of whom
claims exclusive ownership of the property.
 Essentially, the person is unsure who to give the property to.
 So, he/she uses the interpleader to ask the court to decide.
o Eg: Where the sheriff attaches property of a judgment debtor at the instance of a judgment creditor &
then the judgment creditor & a 3rd party both claim exclusive ownership. Sheriff asks the court to
decide who the owner of the property is.
o Read through:
 S 28(1)(e)(i): execution creditor & claimants reside/employed/carry on business in
district/regional division
 S 28(1)(e)(ii): court – warrant of execution issued
 S 35(2): interpleader summons issued – court of district – judgment debtor’s property
attached
 S 28(1)(e)(iii): interpleader proceedings under S 69(2)
 S 28(1)(e)(iv): consent to jurisdiction
 Consent (S 28(1)(f)) [read through]
o MC matter; enter appearance to defend/oppose – no objection to jurisdiction – assumed to consent to
jurisdiction
o Jurisdiction not conferred under s 28(1)(f) in s46 matters
o S28(1)(f) may not circumvent parties’ consent in terms of s45(1) where claim is > R200 000/R400
000
 Immovable property (s 28(1)(g)) [read through]
o MC has jurisdiction
o Person who owns immovable property
o Within district/regional division served by court
o Actions in respect of property/mortgage bonds thereon
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4.2.4.4 Divorce & related matters – which Regional MC? [read through]
 RMC
o Hear/determine nullity of marriage/civil union, relating to divorce between persons & any question
arising therefrom
o Hear any matter/grant any order provided for in Recognition of Customary Marriages Act 120 of 1998
 S 28(1B): for purposes of S 29(1B)
o Regional MC has jurisdiction
o Parties are/either party domiciled in court’s jurisdiction area
o Date on which proceedings instituted
o Ordinarily resident in court’s jurisdiction area on said date
o Has/have been ordinarily resident in Republic
o Not less than 1 year immediately prior to date

4.3 High Court jurisdiction

4.3.1 General overview
Recap: The POD to determine which court has jurisdiction is to ask which general type of court has jurisdiction,
i.e. if the matter is excluded from the monetary jurisdiction of the MC ito S29 or if it is a matter regulated by S46
of the MC Act, and therefore needs to be adjudicated by the HC. If not within HC jurisdiction, apply S28 of the
MC Act to determine which type of MC has jurisdiction (district/regional). If it is found that the HC has
jurisdiction in the matter, we revert to the common law as opposed to S28 of the MC Act. We do this because a
MC is a creature of statute, which a HC is not. In the High Court you consider primarily the common law
supplemented by various provisions in legislation  (1) ratione domicilli (residence/domicile), (2) ratione rei
gestae (cause of action arose), (3) ratione rei sitae (area where movable/immovable property situated).

 4 important principles that form the basis of our discussion on High Court jurisdiction:
(1) Powers of the High Court in terms of s169 Constitution
 “The High Court of South Africa may decide any constitutional matter, except a matter that
the CC has agreed to hear directly in terms of section 167(6)(a); or is assigned by an Act of
Parliament to another court of a status similar to the High Court of South Africa; and any
other matter not assigned to another court by an Act of Parliament.”
 S120; jurisdiction for persons & jurisdiction in terms of cause of actions
(2) The jurisdictional power of the High Court in terms of s21 of the Superior Courts Act 10 of
2013
 Previously s19 of the Supreme Courts Act
 S21(1) “A Division has jurisdiction over all persons residing or being in, & in relation to all
causes arising & all offences triable within, its area of jurisdiction & all other matters of
which it may according to law take cognisance…”
 ‘causes arising’ = doesn’t mean ‘causes of action arising’ but rather means ‘legal
proceedings duly arising’
o Refers to proceedings which arise in a court that has jurisdiction according to
common law.
o In other words, the way the courts have interpreted the old s19(1) of the
Supreme Court Act & now s21 of the Superior Courts Act leads us back to
the common law.
 Intention of legislature in enacting s21 = interfere as little as possible with the common law in
this area
 Thus we use the common law to establish the fundamental principles of High Court
jurisdiction – exceptions found in statutory provisions
(3) Doctrine of effectiveness
 Most NB general principle underlying High Court jurisdiction  Underlies civil jurisdiction
 Basic idea: Don’t waste the court’s time with a matter where it is evident that the court’s
judgment will be ineffective
 Roman law basis
 Able to make order meaningful

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 o Court needs to assume jurisdiction but also needs to consider what happens
after order – if it can’t effect the order – shouldn’t hear the matter
 Able to carry out judgment
o For enforcement, court needs control over judgment debtor’s person/property
o Judgments enforced by ‘writ of execution’/‘writ of arrest
 Writ of execution: Sheriff of court attaches & sells the defendants
property to secure payment of the judgment debt
 Writ of arrest: Judgment debtor is arrested & charged with contempt
of court
o Eg: won’t adjudicate matter against foreigner where their property hasn’t
been attached
 Effective judgment = enforceable judgment
(4) Principle of convenience
 Assume jurisdiction if it is convenient for it to do so
 Court will assume jurisdiction on the basis of convenience where the cause of action arose in
its jurisdiction, most of the evidence is there, most witnesses are in that area = principle of
convenience

4.3.2 Three most common grounds of High Court jurisdiction

(a) Ratione domicilii
 Defendant/ respondent domiciled/resident in court’s area
o Based on common law principle: actor sequitur forum rei  plaintiff/applicant must follow the
defendant/respondent to the latter’s place of domicile or residence & institute action against him there
in the forum domicilii
 Court with territorial jurisdiction = forum domicilii
 Either domicile/ residence is sufficient to constitute particular court as forum
domicilii
 Decided by the AD in Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991
 Hoexter JA: if the defendant/respondent is an incola, the court will be prepared to
decide the matter. If defendant is either domiciled/resident in the area – this will be a
sufficient jurisdictional connecting factor.
o Incola = person who is either domiciled/resident within the court’s area of
jurisdiction
o Peregrinus = person domiciled/resident outside the area of the court’s
jurisdiction but domiciled/resident within borders of South Africa
o Foreign peregrinus = person domiciled/resident outside SA borders
 If the defendant is present in RSA  may be brought to court by summons in the
ordinary manner. If he is absent/outside RSA, subject to Rules of Court  summons
may be effected by edictal citation/ substituted service.
 Domicile & residence refer simply to the notarial connection with the court’s area.
Absence is relevant only in regard to the procedural matter of service.
o Meaning of ‘domicile’  s1(2) Domicile Act 3 of 1992
 Domicile of choice = lawfully present at a particular place & the person has the intention to
settle there for an indefinite period.
 According to Chetty J in Chinatex Oriental Trading Co v Eskine 1998
 Domicile of choice is acquired when two elements are satisfied.
1 Physical presence (objective fact)
 Requires more than a visit
 Longer the person is settled in a particular place – the more likely
that the court will regard him as resident/domiciled there
2 Intention to remain indefinitely – animus manendi (subjective test)
 Doesn’t require intention to remain permanently
 Person must display a state of mind consistent with the intention of
remaining indefinitely
 Thus excludes residence for a limited period or for a specific purpose
 Having more than 1 residence is possible

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 o Eg. Staying in res at university for most of the year & staying at home for the
remainder.
 Having more than 1 domicile is NOT possible
o & having no domicile is not possible  Can’t lose domicile before you have
acquired a new domicile
 Once jurisdiction has been established  Continues to exist until end of legal matter.
Irrespective if party to proceedings leaves the area of jurisdiction in which the matter is in
process.

(b) Ratione rei gestae

 ‘Res gestae’ = ‘thing done’  it is used to refer to the act(s) or transaction(s) in issue in a particular case, or
the critical events – in essence, the facta probanda
 Idea behind it: a court will have jurisdiction to hear a particular matter if the critical events relating to that
matter took place within its area; if the relevant COA arose in that area.
o Court = forum rei gestae
o Cause of action has been defined in many cases.
 In judgment of Mackenzie v Farmers’ Co-operative Meat Industries Ltd 1922
 “Proper legal meaning of the expression ‘COA’ is the entire set of facts which give rise to
an enforceable claim & 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 COA.” (Abrahamse & Sons v SA Railways)
 Unlike with the MC, not necessary for all facta probanda to occur in court’s jurisdiction area
 It is submitted that for jurisdictional purposes, court of area where these elements occurred has jurisdiction &
the plaintiff (as dominis litis) has choice of court:
1) A contractual COA arises;
 Where the contract was concluded (locus contractus) & where the contract was to be
performed (in whole/in part) (locus solutionis).
 Possible to proceed either in the court in whose area of jurisdiction the contract was
concluded, or in the court within whose area of jurisdiction the contract was to be
performed.
 Often the place of the breach will coincide with the area where the contract was to
be performed.
 Note: forum contractus used in wider sense to refer to both locus contractus & locus
solutionis
 Veneta Mineraria Spa v Carolina Collieries  summarises wider meaning of forum
contractus
o Breach of contract – a plaintiff may sue in the court of the place where the
contract was concluded, which is understood to include the place where the
contract is to be performed.
 When the place of performance is relied upon for jurisdiction “the
breach in respect of which the defendant is sued must be a breach of
a duty which he was bound to perform within the jurisdiction” –
contractual right infringed must be anchored in a contract that has a
direct connection with the area of jurisdiction of the court.
2) Delictual COA
 Arises where delict committed/occurred
 Court = forum delicti commissi & is said to have jurisdiction by virtue of the ratione delicti
commissi
 COA may arise in 1/more places
 Typically, damage follows the wrongful act directly & materialises at the same place
(= 1 place)
 But, sometimes the wrongful act happens in one place & the damage arises later at a
different place (= more than 1 place)
 Thomas v BMW South Africa
o “Most apparent solution to the problem of determining the locus of a delict
for jurisdictional purposes, appears to be to devise qualitative & quantitative
criteria to determine, with reference to the elements of the delict in question,

50
 the court which is most closely associated with the delict, the locus whereof
has to be determined.”
 Criteria should accord with principles of our common law regarding
jurisdiction, consistent with developments in case law &
accommodate demands of society.
o Court said that if the COA arose in different areas – the court may assume
jurisdiction, having regard to the (1) materiality & the (2) number of
ingredients which occurred in the courts jurisdiction.
3) Other causes of action
 Jurisdiction depends on where res gestae occurred
 Where there are sufficient connecting factors between matter & court, to enable court to hear
& determine the matter
 Principle of convenience & doctrine of effectiveness taken into account

(c) Ratione rei sitae

 Property involved in claim is in court’s area
 Court: Forum rei sitae  territorial jurisdiction where movable/immovable property constituting subject
matter of plaintiff’s/applicant’s claim situated

4.3.3 Two most common types of claims

1) Claims relating to PROPERTY
2) Claims sounding in MONEY

(1) Claims relating to PROPERTY

 What it is & which grounds of jurisdiction apply:
o What? Court asked to make an order directly affecting specifically identified property
o Many different types of claims relating to property – we will limit our discussion to the following
two:
 (A) Claims dealing with TITLE to PROPERTY (not money)
 What?
o Claims for title of ownership/possession of immovable property.
 Eg: I have occupied this piece of land for a continuous period of 30
years. Therefore I have become owner due to acquisitive
prescription. I want the court to order the Registrar of Deeds to alter
the title deeds to reflect that I am now the owner of the property (s1
Prescription Act).
o Claims for title ownership/possession of movable property
 Eg: I am the owner of this car. You borrowed it from me, but now
refuse to return it. I shall ask the court to order that the motor
vehicle be returned to me.
 Jurisdiction?
o Immovable property – claims involving title
 Forum rei sitae always has jurisdiction
 Where the immovable property is situated in respect of which title is
claimed – the court that has jurisdiction over the area in which the
property is situated, has jurisdiction over the matter.
o Movable property – claims involving title
 Forum rei sitae has jurisdiction (not exclusive)
 Note: although property that is subject to dispute must be in area over
which court has jurisdiction at any time legal proceedings are
instituted, court will not be deprived of jurisdiction if the property is
then removed from its area of jurisdiction.
 (B) TRANSFER/ DELIVERY of PROPERTY (not money)
 What?
o Claims in terms of a contract entered into between 2 parties – situations
where you have paid for a car & you want delivery of the vehicle.
o Claims for transfer of immovable:

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  Eg: I have bought & paid for this piece of land in terms of a contract
entered into between us, but you refuse to sign the necessary
documents to enable the property to be transferred into my name. I
shall ask the court to order that the property be transferred into my
name.
o Claims for delivery of movable:
 Eg: We agreed that I would buy your car for R110 000. I have paid
you the R110 000, but you have not delivered the car to me. I shall
ask the court to order that you deliver the car as agreed.
 Jurisdiction?
o Immovable property – claims for transfer
 Forum rei sitae has jurisdiction
 Determine whether the action is in rem or in personam
 Actio in rem – action based on a real right enforceable
against the whole world. Eg: right to not be dispossessed as
an owner of property.
o Forum rei sitae has exclusive jurisdiction
 Actio in personam – personal right rising out of a contract
o Forum rei sitae shares jurisdiction with other courts
o Movable property – claims for delivery
 Forum rei sitae has jurisdiction (not exclusive)
 If property situated in Republic, then the defendant’s forum domicilii
also has jurisdiction in claim for delivery of movable property.
 Other courts which exercise jurisdiction over the defendant on some
recognised ground (eg. ratione contractus) may also possess
jurisdiction
 Eg. if contract for the delivery of that property were
concluded within the area over which the court exercises
jurisdiction (COA), then there’s 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.
o Incorporeals
 Immovable incorporeals  forum rei sitae = exclusive jurisdiction
 The SA High Court does not have jurisdiction over foreign
intellectual property rights (territorial immovable
intangibles)

(2) Claims sounding in MONEY

 What it is?
o Plaintiff is seeking payment of money (action brought in court ‘sounding in money’)
 Claim for MONEY brought on its own
 Eg: contractual claim  We agreed that you would buy my car for R410 000. I have
given you the car but you haven’t paid me. Please pay me what you owe me.
 Claim for MONEY brought as an alternative
 Eg: Alternative to a claim for specific performance  agreement over car & price.
Either you give me the car as agreed (claim for specific performance) or else give me
my money back (claim sounding in money as an alternative).
 Claim for specific performance brought without a claim for money.
 Eg: You agreed to build me a house for R620 000. I gave you the R620 000, but now
you refuse to build the house. I insist that you build the house as agreed.
 Which grounds of jurisdiction apply:
o Dependant on whether defendant/respondent is an incola or peregrinus of SA.
 Incola = person who is domiciled/resident within court’s area of jurisdiction
 Peregrinus = person who is neither domiciled/nor resident within court’s area of jurisdiction
 Local peregrinus

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 o Peregrinus of the court in question, but who is resident/domiciled within SA
borders
 Eg: person who is resident & domiciled in CPT is an incola of the
Western Cape Division (WCD) but a peregrinus of all the other
divisions of the High Court in the country.
 Foreign peregrinus
o Person who is a resident & domiciled in a foreign country, & is a peregrinus
of SA as a whole
o Nationality has nothing to do with it
 Eg a citizen of France with permanent residence rights in SA & is
living in CPT, is an incola of the WCD.
o = Majority of matters involve defendants/respondents = who are incolae of SA
 May use ratione domicilii / ratione rei gestae (including ratione contractus & ratione delicti
commissi) to ground jurisdiction
o Different jurisdictional principles apply when defendant/respondent is a peregrinus of SA –
 Usually attachment of property to found or confirm jurisdiction is required (jurisdictional
principles applicable to certain additional claims) – because it becomes more complicated
when a peregrinus is concerned, additional steps are often required to establish jurisdiction.
 For the purposes of effectiveness the court would not want to waste its time adjudicating over
proceedings that could result in an unenforceable judgement – in essence, the first question
when dealing with HC jurisdiction is to ask whether the defendant is resident or domiciled
within SA borders.
 If yes, look at HC common law grounds of jurisdiction.
 If not, follow the procedure mentioned below.

4.3.4 Jurisdictional principles applicable to certain additional claims

(1) Claims sounding in MONEY against foreign peregrini
 S42(2) of the Superior Courts Act 10 or 2013
o High Court civil process runs throughout the country
 This means any process/judgment/order served, is enforceable in jurisdiction of any other
High Court in RSA
 Also means that even if a defendant/his property is situated outside a court’s jurisdiction, the
court is able to exercise control over defendant’s person/property, provided he is an incola of
SA
o Judgment ineffective if: defendant is a peregrinus of SA & the defendant &/or his property not in SA
when judgment given against him
 Establish jurisdiction for claim sounding in money against foreign peregrines – attachment of
defendant’s property required

 Attachments to found & confirm jurisdiction

o Before you are permitted to institute a claim sounding in money against a defendant/respondent who
is a peregrinus of SA, it is usually necessary to attach property:
 Attachment of defendant’s property required
 To establish jurisdiction for claim sounding in money
 To ensure court’s judgment will be effective
 Eg: Swedish tourist on holiday in CPT, drives over your client’s carbon fibre bicycle.
Attach property of the Swedish tourist before he returns to Sweden. Exception to this:
if he has no property to attach, there must be service on him while he is in SA & there
must be sufficient connection between the suit & the court’s jurisdiction.
o Common law steps to found & confirm jurisdiction
 Step 1: Establish whether foreign or local peregrinus
 Defendant must be peregrinus of SA
 S28 Superior Courts Act  no attachment of property to found jurisdiction shall be
ordered by a division against a person who is resident in the Republic – a local
peregrinus
 Step 2: Ask yourself
 In which court(s) territorial jurisdiction did COA arise?
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  In which court(s) territorial jurisdiction is plaintiff domiciled and/or resident?
 Step 3: Application to either confirm or found
 Confirm jurisdiction (ad confirmandam jurisdictionem): any court with territorial
jurisdiction over area where part of COA arose (you are confirming a ground of
jurisdiction – ratione res gestae – which already exists)
 Found jurisdiction (ad fundandam jurisdictionem): court exercising territorial
jurisdiction over area where plaintiff domiciled/resides (you are confirming a ground
of jurisdiction – ratione domicilii)
 In both cases, to establish jurisdiction, you need to attach the defendant’s property.
 Step 4:
 Defendant’s property must be in RSA
 Example: Sophie resides in Hermanus. A Mozambican tourist who is resident & domiciled in
Mozambique is vacationing in Durban. Sophie is visiting a friend in Durban during which she
& the Mozambican tourist are involved in a motor vehicle collision. Sophie wants to institute
legal proceedings to recover damages from the Mozambican tourist.
 1st question; whether the prospective defendant is resident/domiciled in SA – the
tourist is resident/domiciled in Mozambique. We now know that because he is not
resident/domiciled in SA borders, extra steps need to be taken  application to
found/confirm jurisdiction needs to be brought, which entails attaching property
belonging to the defendant. We can assume that the tourist owned the vehicle that
was involved in the accident.
 Next, consider where the COA arose & where the plaintiff is resident/domiciled. In
this case, the COA arose in Durban, where the accident occurred. However, the
plaintiff is resident in Hermanus, which means that it is possible that the plaintiff can
institute proceedings in Durban (by confirmation), or in the WCD (by founding
jurisdiction).
o S21(3) – deals only with attachment of property to confirm jurisdiction
 This means that the principles of the common law in respect of attachment to found
jurisdiction must be considered first.

Bid Industrial Holdings v Strand 2007 (SCA)

 This decision is important from 2 perspectives:

i. The case considered the issue of the constitutionality of the arrest of a person for the purpose of founding
or confirming jurisdiction
 Before this case, it was possible to attach property belonging to a defendant in order to
found/confirm jurisdiction, as well as to arrest a person for these purposes in terms of the old
s19(1)(c) Supreme Court Act.
 Facts: BIH is a SA company with its registered office in Johannesburg, & the respondents
were citizens of Australia & were resident & domiciled there. Respondents were directors of
two Australian companies with extensive interests within SA. BIH sued out of the JHB HC
for delictual damages. To establish jurisdiction they applied for an order of the
respondent’s arrest. The application was opposed on two grounds:
(i) No prima facie case on the merits was made
(ii) Foreign peregrinus, while within SA, enjoy the protection of the Constitution, & that
arrest would be contrary to various provision in the BOR.
o The respondents therefore attacked the constitutionality of S19(1)(c) of the
old Supreme Court Act (the predecessor to the SCA of 2013)
 NB points: respondents were not in SA at any time relevant to the application, & an asset
belonging to the respondents that was at one time capable of being attached to confirm
jurisdiction was not used as an opportunity by BIH. The record also did not reveal where the
COA arose, but there were some factual connections to the JHB High Court.
 Arguments for & against arrest were advanced:
 For  arrest would not infringe constitutional rights because it would not involve
physical restraint/ retention in custody. It would simply involve informing the
arrestee of the arrest, & only serve as a symbol, with no greater significance.
 Against  constitutional arguments, i.e. the infringement of the rights to dignity,
equality, the right not to be unfairly discriminated against, etc.
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  The court considered the principle of effectiveness as a POD & referred to Thermo Radiant
Oven Sales v Nelspruit Bakeries 1969 AD  court held that the crucial purpose of attachment
& arrest is to enable an effective judgement. The court held that S19(1)(c) does not refer to
detention, but the process of arrest always involves engaging the state to effect an arrest & to
restrict the arrestees freedom for some lawful purpose. It was held that detention can only
ordinarily be in prison, therefore limiting the person’s freedom.
 The court then asked whether this is without just cause. In this regard, the court held that
arrest does not necessarily result in an effective judgment. The court makes the example that
it would not serve as a legal mechanism to enforce security for payment, & a failure to pay a
judgement debt does not expose the defendant to civil imprisonment. The court held that there
are less restrictive means to establish jurisdiction, e.g. attachment of property.
 Therefore, according to the court, common law arrest should be abolished & the wording in
S19(1)(c) should be declared redundant.
 NB to note that this case did away with the possibility that one could arrest a defendant
to found or confirm jurisdiction.
ii. The court held that the common law should be developed by adopting the practice that where the
attachment of property is not possible, the HC will have jurisdiction if the summons was served while the
peregrinus is still in SA & if there is a sufficient connection between the suit & the area of jurisdiction.
 The court held that the specific court would need to be appropriate & convenient.
 Accordingly, as the law currently stands, if you sue a foreign peregrinus, you essentially have
the following options at your disposal:
(i) You can attach property to found or confirm jurisdiction
(ii) If that is not possible, you can serve summons to the defendant while they are within
SA borders. Must also prove that there is a sufficient connection between the suit &
the area of jurisdiction, e.g. if the COA arose in that court’s jurisdiction (so this is the
THIRD GROUND UPON WHICH JURISDICTION CAN BE ESTABLISHED
other than founding/confirming jurisdiction)
 This 3rd ground in terms of this judgement has (understandably) attracted much criticism
because in theory, this judgement has made it is possible to litigate in the forum rei gestae
(the court where the COA arose) without the defendant being resident/domiciled within SA
borders & without the plaintiff being resident/domiciled in that forum, & without the
defendant possessing any property that has been attached for the purpose of
founding/confirming jurisdiction. The only thing that actually ties the matter to the court is
the COA – & so the issue then becomes one of effectiveness; if that is the only link between
the matter & the specific forum, it raises questions as to whether the judgement will be
effective, i.e. whether it can be enforced when no property belonging to the defendant has
been attached.
 It is also unclear what exactly is meant by convenience & appropriateness, & whose
convenience it is that must be taken into consideration.

Claims against foreign peregrine continued…

 Consent to jurisdiction
o Considered to be a fundamental common-law principle
o Focus  Whether in the absence of attachment to found or confirm jurisdiction, consent by the
parties to the jurisdiction of the court, is sufficient?
 Answer differs depending on whether the plaintiff is considered to be an incola or a foreign
peregrinus.
 We often deal with consent to jurisdiction in relation to claims against foreign
peregrini
 Remember when dealing with a claim sounding in money against a foreign peregrini
– an attachment ad confirmandam or ad fundandam jurisdictionem is usually
required
 If a foreign peregrinus consents to jurisdiction – it renders attachment
impermissible
 When the foreign peregrinus defendant consents to jurisdiction after the order of
attachment has been granted but before it has been put into effect = entitled to discharge of
the order

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  When the foreign peregrinus defendant consents to jurisdiction only after the writ of
attachment has been executed = not entitled to a discharge of the order
o Limits:
 Consent by parties cannot confer jurisdiction on a court when there is no other link (other
than the consent) between the court, parties, & claim
 But some legal scholars think it can be interpreted wider than it is
 Eg: if the plaintiff is an incola of the court, consent to jurisdiction by a local
peregrinus defendant should not, in the absence of any other ground of jurisdiction,
be sufficient to establish jurisdiction
o American Flag
o Veneta Mineraria Spa v Carolina Colleries 1987
 Brief facts
 Appellate division judge = Viljoen
 Defendant was a local peregrinus of Natal and an incola of Transvaal
 Plaintiff was a foreign peregrinus.
 COA did not arise in Natal.
o Both parties were therefore peregrinus of the court a quo (Durban & Coastal
Local Division)
 Court a quo  trial judge upheld a special plea that despite a written consent to the
court’s jurisdiction, the trial court did not have jurisdiction.
 Legal question/issue
 Whether consent to jurisdiction can stand alone as conferring jurisdiction on a court,
or whether it can only be used alongside an existing ground for jurisdiction?
 Trial judge held the latter view. Consent can only be used with an existing ground
of jurisdiction.
 Ratio & decision
 AD referred to Thermo Radiant Oven Cells v Nelspruit Bakeries & held that a court
can only be said to have jurisdiction in a matter if it has the power not only to take
cognisance of the suit, but to also give effect to its judgment.
o The requirement of effectiveness has to be satisfied which can only happen if
the person’s property is attached.
 Court referred to the leading authority on jurisdiction in SA - Pollock - & finds that
Pollock does not say that submission alone confers jurisdiction on the court.
 Also referred to the dictum of Inis CJ, in Oekerman v Finesteen, that there can be no
prorogation in regard to cases where the court has no authority at all, to adjudicate on
the subject matter of the dispute. Further held that this dictum has never been
departed from in SA.
 AD court held that the consent of a defendant to jurisdiction of a court, was
insufficient in itself to confer jurisdiction on the court.
 Therefore, according to the court, one of the traditional common law grounds of
jurisdiction must always be present.
 The role of submission to jurisdiction is reduced to providing a replacement for
attachment ad confirmandam jurisdictionem. I.e. if there is consent to jurisdiction,
you can go to the court where the COA arose without having to attach property
belonging to the defendant. The COA is a recognised common law ground of
jurisdiction, being the ratione res gestae. When one founds jurisdiction, you are not
founding jurisdiction on the basis of recognised ground of jurisdiction. Reverting to
the plaintiffs residence or domicile is not a recognised ground of jurisdiction.
o Briscoe v Marais 1992 (W)
 Brief facts
 Respondent was an incola
 Applicant was a peregrinus
 Ratio & decision
 Court held that in the case of attachment ad fundandam jurisdictionem, of assets of a
peregrinus defendant (the attachment being the sole ground upon which the court can
exercise jurisdiction) cannot be replaced by a consent to jurisdiction. As such consent
in itself, cannot confer jurisdiction on a court.
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  Only where a causa jurisdictionis (a valid common law ground of jurisdiction) apart
from attachment exists, can the attachment become unnecessary as a result of consent
to jurisdiction.
 Briscoe confirms the position in Veneta.
o American Flag v GATS 2000
  Submission to jurisdiction in absence of causa jurisdictionis
 Brief facts
 Plaintiff is a foreign peregrinus (American Flag)
 Defendant (GATS) is a South African CC, principle place of business in JHB, an
incola of JHB.
 Defendant had signed an acknowledgment of debt, owing to AF for $280 000.
 Defendant defaulted on its payments & the full sum had become payable.
 AF instituted action by way of provisional sentence summons.
 Defendant gave notice of intention to defend the action & also made an application
for the attachment to found jurisdiction in respect of a claim for damages against AF.
Thus, AF was the plaintiff in convention.
 AF submitted to the court’s jurisdiction. Defendant nevertheless persisted with the
application to attach to found jurisdiction because there was no rationes jurisdictionis
and therefore submission would be ineffective.
 Ratio & decision
 Such an approach would be consistent with the judgments of Veneta & Briscoe.
HOWEVER, AF applied to intervene in the application for attachment.
 The court postponed the provisional sentence action, the attachment application
& the application for leave to intervene, for hearing by the full bench of the court.
 Court held that where the plaintiff was an incola, submission to jurisdiction by a
peregrinus defendant was effective. Court referred to Veneta & Briscoe, effectively
saying that the court in Briscoe relied on Veneta but failed to distinguish factually
between the two cases. Briscoe was distinguishable from Veneta because in Veneta,
both parties were peregrinus of the court. In Briscoe, the plaintiff was an incola and
the defendant a peregrinus.
 Court listed reasons why it was clear that the Veneta dictum in the context of the
entire judgment, was not meant to extend to a case where a peregrinus defendant
consented to the jurisdiction of the court, of the area of which the plaintiff was an
incola.
o Eg: the court finds that the policy of our law was to assist the incola to
litigate in their local courts. Hence the right given to them to establish
jurisdiction by attachment of property. There was no policy reason why effect
should not be given to consent to jurisdiction where the intended plaintiff was
an incola of the court.
 Court finds that the AD in Veneta could not have intended to overturn the long course
of practice supported by many cases without reference to such cases.
o The courts in those cases had made dicta to the effect that actions by an
incola against the peregrinus defendant, were entertained solely on the
ground of consent to jurisdiction.
 Court ultimately concluded, that the effect of AF’s consent to jurisdiction was
that an attachment to property was neither necessary nor permissible.
 Court noted that SA courts recognise submission to jurisdiction as a ground for
exercising it where the plaintiff was an incola & the submission preceded an
attachment to found or confirm jurisdiction.
o Ex Parte Jamieson: in re Jamieson v Sabingo 2002
 Brief facts
 Plaintiff was an incola & the defendant was a resident of Luanda, Angola (foreign
peregrinus).
 Application made to attach property to found jurisdiction
 After the attachment order had been granted, but before the attachment was effected,
the defendant consented to the jurisdiction of the court.

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  Court had to decide whether the defendant’s consent rendered the attachment
unnecessary/ impermissible.
 Ratio & decision
 The court stated that it was bound by the decision in American Flag in terms of which
consent to jurisdiction is sufficient & attachment should not be permitted.
 Stated that the decision in AF was probably incorrect but did not expand on its reason
for saying so.
 Decision confirmed on appeal, by Farlam JA.
 Decision is also authority for the fact that submission after an order for attachment is
granted, may preclude attachment of property.
o Rosenberg v Mbanga 1992
 Held that where submission or consent to jurisdiction by a peregrinus, before an order of
attachment to confirm jurisdiction has been granted, the court will not grant an order of
attachment because the court’s jurisdiction would have already been secured.
 Court will accordingly not concern itself thereafter with whether any judgment, that might be
given, will be effective or not.
 Held that submission after attachment has been executed is too late & a court will not, in such
an event, set aside the attachment.
o Read: Hay Management Consultants v P3 Management Consultants 2005 SCA
 Considered the different approaches in Veneta & American Flag
 Court gave its stamp of approval to the approach followed in American Flag. Court
dedicated an entire section of its judgment, on discussing the correctness of the
decision in AF.
 Said that recognising consent by a peregrinus as sufficient of itself to found
jurisdiction in an action for money brought by an incola of the court, reflected “sound
commercial reality”. The wisdom of that concession is according to the court “borne
out by reference to foresight”.
 There should be no bar on the submission to the SA courts of disputes, where neither
party is an incola and there may be no obvious link with SA.
 Such use of the SA courts is a tribute to them, & it encourages international trade &
commerce to the general benefit.
 Court in Hay Management states that the judge in AF disposed thoroughly &
comprehensively of the argument that Viljoen in Veneta intended to enunciate the principle
applicable to all peregrine defendants irrespective of whether the plaintiff was an incola or a
peregrinus.
 According to Hay Management, our courts have long treated an incola plaintiff more
leniently than his peregrinus counterpart.
 The former may found jurisdiction by attachment, no other ground of jurisdiction is required.
The practical advantages of recognising jurisdiction are manifest.
 Court also refers to Jamieson v Sabingo, it finds that “nor can counsel be right in contending
that attachment is required when a submission already exists”. As pointed out in this case, the
reasons for requiring an attachment to found jurisdiction against the peregrinus, are as
well if not better satisfied by a submission.
 What is additionally required in both cases is the link between the cause & the court. A link
that is indeed established when the plaintiff is an incola.
 Accordingly, as things currently stand, a plaintiff who litigates against a foreign peregrinus
defendant would need to apply to attach the defendant’s property to found or confirm
jurisdiction. Where the defendant consents to jurisdiction, such consent would obviate the
need to attach property belonging to the defendant.
 In other words, when confirming jurisdiction, the COA in itself is sufficient to confer
jurisdiction on the court, or when founding jurisdiction the plaintiff’s residence or
domicile is sufficient to confer jurisdiction on the court.

(2) Claims for divorce & associated relief

 Regulated by statute  Divorce Act 40 of 1979
o Definition of ‘divorce action’: S1(1)  “an action by which a decree of divorce or other relief in
connection therewith is applied for, and includes:

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 (i) an application pendente lite for an interdict or for the interim custody of, or access to,
a child of the marriage concerned or for the payment of maintenance; or
(ii) an application for a contribution towards the costs of such action or to institute such
action, or make such application, in forma pauperis, or for substituted service of
process in, of the edictal citation of a party to, such action or such application.”
 The Act offers additional jurisdiction grounds to the High Court common law grounds for jurisdiction:
o S2(1)  Court shall have jurisdiction in a divorce action if the parties are or either of the parties is –
(i) Domiciled in court’s jurisdiction area on date action instituted; or
(ii) Ordinarily resident in court’s jurisdiction area on said date & have/has been
ordinarily resident in RSA for period not less than 1 year immediately prior to date.
o This is a radical departure from the common-law principle of actor sequitur forum rei
 Plaintiff’s domicile/residence also relevant for jurisdiction
 Jurisdiction not restricted to court where defendant spouse domiciled/resident
o Eg of s2(1)(a):
 A wife leaves her abusive husband who lives in CPT & moves to Durban where she obtains
employment. She intends to settle in Durban for an indefinite period, Durban will be her
domicile of choice. Therefore she’s entitled to bring an action for divorce in the KZN Local
Division, Durban or in the Regional Magistrate’s Court, Durban.
o Eg of s2(1)(b):
 Wife moved to Durban on a fixed one-year contract & intends to move back to CPT
afterwards. In this case it cannot be said that she is domiciled in Durban. She is however,
ordinarily resident in Durban & has presumably been ordinarily resident in SA for at least one
year immediately before she moved to Durban. Therefore entitled in terms of s2(1)(b) to
institute action in the KZN Local Division, Durban or in the RMC, Durban.
 Note that jurisdiction in a divorce matter may not be conferred on a court by consent/ submission

(3) Claims for interdicts

 What it is: Order by courts that a person either;
o Perform some action (mandatory interdict), or
o Refrain from performing some action (prohibitory interdict)
 Eg. Want your neighbour to stop digging a large hole next to your common boundary fence
which is threatening to collapse your house.
 To determine jurisdiction of which particular High Court division, ask:
o (a) Is respondent incola/peregrinus of the court?
o (b) Is act you are trying to force the respondent to perform/refrain from performing, linked to the
court’s territorial jurisdiction area?
 Four possibilities arise, regarding jurisdiction:
o 1) Respondent incola & act is within jurisdiction
 Court has power over respondent & act
 Court can grant mandatory/prohibitory interdicts in personam against the incola respondent
o 2) Respondent incola & act is outside jurisdiction
 Prohibitory interdicts
 Court has power over respondent, may grant prohibitory interdict
 Despite act to be carried out in another part of SA/another country
 Mandatory interdicts
 Court has jurisdiction – act to be performed in SA, although not in court’s territorial
jurisdiction area
 Court has no jurisdiction – act to be performed outside SA
o 3) Respondent peregrinus & act is within jurisdiction
 Court may compel/prohibit acts within jurisdiction area
 Court may grant mandatory/prohibitory interdicts
o 4) Respondent peregrinus & act is outside jurisdiction
 Court has no power over respondent/act
 No jurisdiction to grant mandatory/prohibitory interdict
 Applies whether respondent local/foreign peregrinus

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(4) Single claims involving two or more jurisdictions
 It doesn’t make sense for two or more courts to deal with a single matter, thus you may wish to turn the
ground of jurisdiction known as the ratione causae continentiae (cohesion of a COA)
o  which may allow 1 court to exercise jurisdiction in respect of whole matter
 The causae continentiae doctrine was extended by the SCA in the Ngxuza judgment
o Not all the persons in the case resided within the jurisdictional area of the Eastern Cape Division of
the High Court, thus Cameron JA invoked the causae continentiae for considerations of convenience
justice & good sense.
o The court expressly left open further development & application of the doctrine.

4.3.5 Inherent jurisdiction (self-study)

 Is a superior court’s discretionary power
o “may be described as the unwritten power without which the Court is unable to function with justice
& good reason”
 Traditionally courts would make use of their inherent jurisdiction to avoid a procedural injustice from
occurring
o Either by overriding the rules of court or providing some procedural remedy where none existed
o Despite a perception that inherent jurisdiction was the power of superior courts to do whatever they
wished, provided it wasn’t prohibited by law, it was pointed out that “the court… does not enjoy the
inherent power to change or otherwise create substantive rights which previously were not part of our
law.”
 Considered a procedural power but not entirely procedural in nature
o Discretionary in nature
o Court was not obliged to use its inherent jurisdiction
 Practical examples of courts using their inherent jurisdiction:
o Regulate proceedings & prevent abuse of its process
o Protect its dignity, repute, authority & compel observance of its lawful orders (s108 of MCA –
punishment of those found guilty of contempt of court)
o Control & supervise its officers
o Restrain irregularities in inferior courts’ proceedings
o Restrain irregularities in administrative (and like) authorities’ proceedings
o Create/modify remedies
 In the post-apartheid period, the traditional approach to inherent jurisdiction must be read in light of the
provisions of the SA Constitution – specifically s173 “the CC, the SCA & the HC of SA each has the inherent
power to protect & regulate their own process, and to develop the common law, taking into account the
interests of justice”
o Enabled our courts to develop a range of innovative new orders which promote the interests of justice
o S173 must be read with s39(2)

Chunguete v Minister of Home Affairs 1990

 Facts
o Applicant applied for his release on bail from custody, having been arrested as a prohibited
immigrant in terms of the Admission of Persons to the Republic Regulation Act 59 of 1972
o Although the Act made no provision for bail, applicant asked for his release on bail pending
a decision on his proposed application for rights of permanent residence
o No criminal prosecution was pending
o The applicant did not challenge the validity of his arrest, custody or the declaration that he was a
prohibited person or that he was liable to removal from the Republic
o The only basis on which the applicant applied for release was that the Court had an “inherent
jurisdiction” to order his release in such a situation
 Ratio & Judgement
o Term “inherent jurisdiction” can justifiably be applied at most to the “procedural field”
o The reception of British law or spontaneous developments in SA did not bring about an inherent
jurisdiction extending beyond the innate jurisdiction of the Court & that the term was correctly used
for purposes of distinguishing  only to describe orders in the “procedural field”

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  What was appropriately called the “inherent jurisdiction” was related to the Court's
functioning towards securing a just & respected process of coming to a decision & was not a
factor which determined what order the Court might make after due process had been
achieved – that was a function of the substantive law.
 “The jurisdiction of the court which is comprised within the term "inherent" is that which
enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of
the inherent jurisdiction of the court is that it is part of procedural law, both C civil and
criminal.... The inherent jurisdiction of the court enables it to exercise (1) control over process
by regulating its proceedings, by preventing the abuse of process and by compelling the
observance of process, (2) control over persons, as for example over minors and mental
patients, and officers of the court, and (3) control over the powers of inferior courts and
tribunals”
o The judicial process as such requires to be maintained & protected
 There are various aspects:
 (1) The acceptability of the Court's administration of justice and therefore the
interests of an orderly society is likely to be harmed if the Court is brought into
contempt or if there is a pre-judging in the community of what is then still sub judice
o The Court, and through it the administration of justice, accordingly needs
protection, sometimes even against its own officers
 (2) The procedures designed to enable a party to air his views may be used as a
weapon of vexation or may, because of deficient formulation (cf the Stewart
Chartering Ltd case), cause unacceptable unfairness
o In that sense it may be that a party requires protection, in the name of better
administration of justice, against the consequences of the Court's own
procedures
o In other cases he may need assistance additional to what the acknowledged
procedures provide
 (3) It may occur that it is an officer of the Court who needs protection or disciplining
in the interests of the administration of the law
o The jurisdiction of the Supreme Court did not extend to the power to deviate from the substantive law
o S v Hlongwane settles that the Supreme Court's non-statutory empowerment to grant bail rests upon
the power to regulate its own procedure
 In the case of an appeal against a decision of the Supreme Court, the Court governs the
execution or not of its own order
 But when no litigious proceedings are pending, e.g. when the matter has already been
disposed of by the Appellate Division, the Court has no empowerment
 It is a short step from a pending criminal trial to pending extradition proceedings
 Also in such a case: Court can govern the means of securing the attendance of the accused at
the proceedings before the Supreme Court or before a lower court which is within its area and
whose orders and proceedings are therefore subject to interference by the specific Supreme
Court
o The analogy with the present case does not hold
 The real content of an order granting bail is that the accused is liberated. That remains so even
if conditions are attached to his continued freedom
 The liberation is ordered in a criminal matter in the interests of the individual's right to his
own freedom – a right existing in substantive law – on the basis that the interests of the
administration of justice do not require that he remain in custody
 Custody would have only the function of a means to secure the attendance of the accused at
the proceedings
 The Court has the right to accept a warning or a warning coupled with a threat of detention in
the event of non-appearance (or the breach of conditions of bail) as adequate to ensure
attendance at the trial
 The detention in the present case is not part of securing the attendance of the applicant at any
litigious proceedings
 The nature of his detention & custody is related to getting & keeping the immigration officer
in a position of ability to effect a physical transportation of the prohibited immigrant to a
point outside this country

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  If the Court were to order liberation in this case, it would not be as a matter of being satisfied
with an alternative method in order to secure the due process of law in regard to achieve a
completed judicial trial
 It will order something which makes it impossible for the immigration officer
to exercise the rights which the Legislature bestowed on him
 Until applicant leaves this country his right to free movement is burdened with the
rights vested in the immigration officer
o Although the Supreme Court had a non-statutory power to grant bail this was a power which was
linked to pending criminal proceedings & the detention of the applicant in the present case was not
part of securing his attendance at litigious proceedings to achieve a completed judicial trial.
o Application dismissed.

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STUDY UNIT 5: DEMAND

Stage 1: Before litigation

Part A: Preliminary questions

1. Cause of action
o Does the client have a valid claim?
2. Locus standi
o Do they have capacity?
3. Jurisdiction
o Is the court able to hear the matter?

Part B: Pre-litigation issues

1. Demand
2. Calculation of time limits
3. Service of legal documents
4. Action or application

5.1 What is a demand?

 It is a precursor to civil litigation. Request for payment/performance of legal obligation (or alleged legal
obligation)
 When? Before legal proceedings start – attempt to avoid litigation costs
 Used when there is a failure to respond to informal requests for payment/performance.
 Demand may be made by person or by attorney.
 Need only be made once.
 Person sending the demand also has a legal obligation to take reasonable steps to ensure demand reaches
recipient

5.2 Forms of demand

 Orally/written (letter of demand) or institution of legal action
o Preferable to send a written letter of demand. Because it leaves defendant with less scope to dispute
the issuance & the particularities of the terms
 Summons may constitute legal ‘demand’ – doesn’t need a preceding letter of demand
 Sometimes, in terms of certain statutes: it is a legal requirement/compulsory to send letter of demand
(which is called a notice) giving notice to recipient of intention to take legal action.

5.3 Contents of the demand

 General rule: the demand, in whichever form it takes, must contain sufficient detail to inform recipient of
whole COA (remember purpose of demand is to enable recipient to determine his/her liability & assess
whether to meet demands or engage in formal litigation)
o Eg. Letter of demand – it means the recipient must receive information covering all the elements of
the alleged claim (eg. 4 elements of delictual Aquillian Action) to be able to decide his/her course of
action (whether he/she wishes to defend or settle the claim)
o Letter must contain:
 Demand clause for payment or performance
 Time period within which payment or performance must occur
 Consequences of non-compliance
 Keep in mind: possible evidentiary effect of letter of demand’s contents
o If the matter goes to trial, the letter will be used in comparison to the particulars of the claim & if
there are discrepancies – they could be exploited in cross-examination
 In some circumstances;
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 o Unnecessary to spell out COA’s elements
 Because previous communications may provide the context for only a brief demand for
payment/performance
o Unnecessary to deliver demand at all
 Where the date/deadline for the performance of the obligation is known & undisputed
o When is demand always necessary?  below

5.4 Circumstances where demand must be made

1. Where legislation requires that notice be given, or a letter of demand be delivered prior to litigation; &
2. Where demand must be made to complete a cause of action

5.4.1 Demand (or notice) required by statute

 Institution of Legal Proceedings against Certain Organs of Sate Act 40 of 2002*
o Relevant provisions in the Act
 Part 2: legal proceedings for recovery of debt
 Can’t go forward unless the creditor has given the organ of state notice in writing of
the intention to institute legal proceedings, or the organ of state consented in
writing to the institution of those proceedings
 S3(2)(b): notice requirements
 Must briefly set out the facts giving rise to the debt & the particulars of the debt
 Notice must be given within 6 months of the debt becoming due
 S4: methods of service of notice
 For eg: Electronic mail
 S5: methods of service of court process
 No court process may be served on the organ of state concerned before the expiry of a
period of 30 days after the date on which the notice was served on that organ of state
 If served before, it will be regarded as having been served the first day after the
expiry
 Interim interdicts against the government: the General Law Amendment Act 62 of 1955
o S35: no court may issue rule nisi as an interdict against National/Provincial Government/Official
without 72 hours’ notice before application hearing
 The Customs & Excise Act 91 of 1964*
o S96:
 Legal action against department within 1 year of debt becoming due/ COA arising
 Written notice of intention to institute legal proceedings at least 1 month before legal
proceedings instituted
 National Credit Act 34 of 2005
o Specifies various legal requirements in respect of notice & commencement of legal proceedings
o Eg. A credit provider may not commence legal action against consumer before first giving notice in
terms of s129(a) or s86(10), and then only after having complied with other requirements contained in
s130 of the Act.
 Small Claims Court Act 61 of 1984*
o S29: Plaintiff must deliver letter of demand to defendant by hand/registered post before legal action is
taken
 In the context of SCC proceedings, you have to issue a letter of demand before issuing
summons in the SCC. At least 14 days must have lapsed after you have served a letter of
demand, before you may issue a summons.
o Why?
 To compel parties to first issue a demand before engaging in litigation because it reflects
sound rational to first settle when possible.
o New rule being introduced?
 When you issue summons or notice of motion, you must add a doc which indicates your
willingness to engage in mediation, if you refuse then you must provide why.
 The t’s & c’s makes it quasi obligatory, because your refusal to engage in mediation may
affect the court’s decision when awarding costs.
 Why?

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  Perhaps, if there is a discrepancy between the award given by the court and what the
defendant already sought…
 *** if mediation is voluntary, but there is a rule that exposes you to a cost order if you don’t
provide sufficient reason, to what extent do you think it impacts your right to access to court?
Why litigate when you can mediate? Do you think our courts should make mediation
mandatory?

5.4.2 Demand essential to complete a cause of action

 Payable ‘on demand’
o Contract clause: certain amount payable ‘on demand’
o Until amount has been demanded, it is not due & payable, no COA arises for failure to pay
o Demand necessary to complete COA
 Notice of breach clauses
o Certain contracts contain stipulation: parties may not commence action for breach of contract, unless
party intending to commence action gives written notice of intention
o No notice = no COA (COA is incomplete & legal proceedings may not be instituted)
 Placing debtor ‘in mora’
o Sometimes contract does not stipulate specific time for performance
o Not clear from contract when performance due
o To establish COA: performance is demanded & reasonable time given for performance, for a COA to
be established
 Demand to give right of cancellation
o Unnecessary to send letter of demand if;
 Clear from contract when performance is due
 No express contract stipulation that specific form of demand required before commencement
of action
o Letter of demand necessary where;
 Performance date not clear
 Agreement doesn’t contain cancellation clause
 Non-compliance: further letter cancelling agreement

Implication of failure to issue demand in circumstances where statute requires it or where it is essential to complete a
COA?

 Where statute requires the demand to be issued, there may be statutory consequences for failure.
 In both situations, the prospective defendant would be able to raise a special plea on the basis of premature
summons. If defendant is successful in raising this special plea of premature summons, the plaintiff’s claim
will be dismissed. May also mean that costs are awarded in the defendant’s favour, in view of the fact that the
plaintiff did not do what was required of him/her to institute legal proceedings, and that is to issue a demand.

5.5 Other consequences of demand: costs & interest

5.5.1 Costs relating to the issue of summons
 Plaintiff issues summons without preceding letter of demand, may incur unnecessary costs in 2 ways
o 1st way: Defendant may have paid on receipt of demand – saving the plaintiff the costs of
issuing/serving summons
o 2nd way: Defendant could argue that he would’ve paid had he received letter of demand prior to
summons – court may refuse the plaintiff recovery of summons costs
 The danger of a cost order against the plaintiff in these circumstances is heightened if the debt was an
unliquidated debt as the defendant could argue that he was not aware of the exact amount payable until a
demand had been received
 Distinction made between liquidated & unliquidated debt
o Liquidated debt  which is due for payment
 An amount of money which has been fixed by agreement, order of court or some other way.
Eg: a claim demanding damages for pain & suffering is unliquidated, but becomes liquidated
(i.e. certain) once the court gives judgment in the matter.
o If the debtor knows the payment is due as well as the amount that he has to pay, the creditor is clearly
well within his rights to proceed directly to the issue of summons without sending a letter demand
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 o Even if the debtor pays the amount due immediately after he receives the summons, the creditor will
probably be entitled to the costs of the summons since the debt was due & payable before the
summons was issued
 Guiding principle: court will consider whether failure to deliver letter of demand reasonable in the
circumstances or not?

5.5.2 Unliquidated debts: delivering demand to start the running of interest

 If your action for recovery of unliquidated debt: delivery of letter of demand to debtor sufficient to start
running of interest
 Letter of demand quicker & easier than summons

5.6 Components to a letter of demand & worked example

(Worked example of letter of demand below)

 5 key components:
(1) Capacity
 If you act on behalf of a client, at the start of the letter you should indicate the capacity in
which the letter is transmitted to the recipient (i.e. in your capacity as legal representative). It
should be clear from reading the first sentence & the signature portion at the end, who the
author of the letter is, what his/her capacity is, and at what firm he/she practices.
 If client is not represented or is represented but prefers to draft letter in his/her
personal capacity then it would commence as follows: “On 20 April 2020, I drove
my Opel…” etc
 If client is represented, you must continuously refer to him/her as “our client”.
 Letter conveys to the recipient, your instructions in relation to the facts, the COA, &
instructions in relation to the demand made in the letter.
(2) COA
 2nd, 3rd & 4th paragraphs (in this letter) set out the COA/ basis of the letter
 The 2nd paragraph speaks to the delictual elements; conduct & wrongfulness
 The 3rd paragraph speaks to the element of fault
 The 4th paragraph speaks to the element of causation & damages
 Ensure that through your conveyance of the facts, which your client provided you, that you
make it clear to the recipient that you have a complete COA which would entitle you to
institute legal proceedings on your clients behalf if your clients demand has not been met.
(3) Demand itself
 Ultimately, what do you want the recipient to do in relation to the COA set out in the letter?
 Demand on your client’s behalf, in this case payment of an amount of money by the
recipient, to your client. In this case you have provided the firm’s banking details. But it is up
to you, and your client, to decide whether payment should be effected directly to your client,
in which case you would provide your client’s details.
(4) Time allowance
 Indicate to recipient how much time you will afford him/her to meet the demand
 “on or before…”
 General rule: the more urgent the demand, the less time you may afford the recipient to meet
the demand.
 Facts & circumstances of specific case should inform what would be reasonable.
 Remember, purpose  avoid formal litigation (costly and takes long) SO sometimes it would
be in your client’s interests to afford the recipient a few more days within which to perform if
it increases chances of payment/performance.
(5) Indication of the consequences of a failure by the recipient to meet the demand
 Threat is typically of the institution of court proceedings & attempted recovery of costs.
 Reason to threaten for the recovery of costs, is because you have afforded the recipient with
the chance to meet the demands, you have explained the COA, you have given the recipient
all the info necessary to assess his/her liability in relation to the COA, if they refuse to meet
the demands & your client succeeds in the proceedings = likely that an award of costs will
follow your client in his/her favour.
 Ancillary components:
(1) NB point to remember: ensure you address the letter to a specific person.
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  The person’s particulars need to be indicated on the letter.
 If the letter is being emailed. The recipient’s name will be placed at the top left corner, &
immediately underneath it will say Transmitted via email; and the recipient’s email
address.
 If letter is to be sent via registered post, then it must state “per registered post” & include a
postal address.
 If letter is to be sent via facsimile, then the fax number must be listed immediately below the
recipient’s name.
(2) Common errors
 When drafting, ensure your dates on your letter of demand, are all aligned. For eg: if the date
on the letter is 23 April 2020, the method of delivery is via registered post, and you request a
response on or before 25 April 2020, it is unlikely that the recipient will respond in time
because the time frame is unreasonable.
 Full details of the recipient needs to be provided. For eg: don’t write Mr. Smith, it must be
Mr. Nathan Smith. Don’t write only “per email”, make sure to include the full email address.
 When drafting the demand paragraph, be as specific as possible. Cannot simply demand
payment of an amount of money without indicating to the recipient how he/she can effect the
demand.
 Ensure the day, month & year is indicated. In addition, you could write out how many days
the recipient has within which to perform, for eg: 10 days. The problem with this approach is
that it often results in ambiguity & uncertainty, for eg: the letter doesn’t indicate whether it is
10 calendar days or 10 business days.
 When drafting a letter of demand: Don’t indicate “applicant”, “respondent” = you are not yet
in court
(3) Take note that your letter of demand refers to an attached quotation
 When your COA is based in contract, and you’re claiming an amount indicated in the
contract, it would be unnecessary for you to attach a quotation of some sort.
 BUT the reason we have attached a quotation in this (below) letter of demand, is because the
COA is based in delict. Thus the extent of the damages suffered need to be verified by an
independent expert.
 It is possible to attach more than 1 quotation.
 The abbreviation “Encl” at the end of the letter, refers to documentation enclosed to the letter
of demand, i.e. the quotation.

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[Mr. XY]

[Transmitted via email; XY@gmail.com]

_________________________

Our ref
Your ref

“URGENT”

23 April 2020

Dear Mr. XY

RECOVERY OF COST OF CAR REPAIRS

We [XYZ ATTORNEYS INC] act for Mrs Z.

Our client informs us that on 20 April 2020, she was driving her Opel Kadett 1.4 with registration number CM2221 along
Merriman street in the direction of the R44. When our client stopped at the traffic light at the intersection of Merriman street and
Bird street, which traffic light had turned red, a white Jetta with registration number PF3334, driven by yourself, drove into the
back of and collided with our client’s vehicle.

Our instructions are that you were negligent in that you failed to apply the brakes of your motor vehicle timeously, adequately, or
at all, and that you failed to avoid the collision when by the exercise of reasonable care, you could and should have done so.

As a result of your negligent conduct our client has suffered damage to her vehicle in the amount of R40 500,00 which amount
comprises of the following:

Parts replaced on the vehicle: R20 250. 00

Labour: R20 250. 00

Total: R40 500. 00

In this regard, we enclose a copy of a quotation obtained from ____which details the expense involved in repairing our client’s vehicle.

We have been instructed to demand payment in the amount of R40 500,00. Payment may be made to our offices on or before close
of business on 12 May 2020, the trust account details of which are as follows:

Should you fail to effect payment as demanded above, we have been instructed to institute legal proceedings against you for
payment of the amount of R40 500,00 and for the costs incurred by our client in instituting such legal proceedings.

If you are insured for this event, then we suggest that you immediately submit this letter to your insurers so that they may deal further with
this claim.

We look forward to hearing from you as soon as possible.

Yours faithfully

Per:
[THEO BROODRYK
SENIOR ASSOCIATE AT XYZ ATTORNEYS INC]

Encl.

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STUDY UNIT 6: CALCULATION OF TIME LIMITS
STAGE 1: BEFORE LITIGATION

Part A: Preliminary questions

1. Cause of action
o Does the client have a valid claim?
2. Locus standi
o Do they have capacity?
3. Jurisdiction
o Is the court able to hear the matter?

Part B: Pre-litigation issues

1. Demand
2. Calculation of time limits
3. Service of legal documents
4. Action or application

6.1 Introduction
 Example:
o If a lecturer asks a student to submit a 20 page essay within 5 days, what does that mean?
 What constitutes those 5 days?
o Similar issues arise in the High Court & Magistrates’ Courts Acts and Rules

6.2 Time periods within a certain period

6.2.1 FOLI: First out last in
 FOLI method – you exclude the first day and include the last day
o Eg: If the student is told today to hand the essay within 5 days – the 5 day period begins tomorrow
and ends at the end of the day of the 5 day period.
o Eg: in terms of rule 13 of Magistrates' Court rules (“MCR”) provides 10 days, you would exclude the
first day and include the last day in your calculations.

 S4 Interpretation Act
o “When any particular number of days is prescribed for the doing of any act, or for any other purpose,
the same shall be reckoned exclusively of the first & inclusively of the last day, unless the last day
happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned
exclusively of the first day & exclusively also of every such Sunday or public holiday.”
 Keep in mind: FOLI in itself is insufficient. Need to establish if dealing with court days or calendar days.
o MCA & SCA = calendar days
o MCR & Uniform Court Rules (“UCR”) = court days

6.2.2 Court days & calendar days

 But sometimes certain days must be excluded from the 5 day period
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  Which specific day(s) are is/are excluded depends on whether you are dealing with a period stipulated in the
Acts or rules
o High Court & MC Act = calendar days
 When the Acts refer to ‘days’ = normal calendar days
 Include Saturdays, Sundays & public holidays BUT if the last day of a period of calendar
days falls on a Sunday or public holiday then it is not counted as part of the period and the
period will end on the next day.
o High Court & MC rules = court days
 When the rules refer to ‘days’ = court days
 They do not include Saturdays, Sundays or public holidays
 Thus the 5 day period will only end after 5 full working days
o (High Court dies non: 16/12 – 15/1)
 In terms of Rule 19 of the High Court: “the days between 16 Dec & 15 Jan, both inclusive,
shall not be counted in the time allowed within which to deliver a notice of intention to
defend”
 In terms of Rule 13 MCR
o Provides that a notice of intention to defend must be filed within 10 days after service of the
summons on the defendant.
o Assume: service of summons took place on 19 May 2020.

Service
of Day 1 Day 2 Day 3
summons

Day 4 Day 5 Day 6 Day 7 Day 8

Day 9 Day 10
 In terms of FOLI we exclude the 1st & include the last.
 Dealing with court days.
 Thus, exclude 19th of May and count from the 20th of May.
 Will exclude weekends and public holidays.
 Thus the final day for the defendant, by which the notice of intention to defend must be filed,
is Tuesday, 2nd June 2020 (the 10th day is the final day).

6.3 Time periods after a certain period

 FOLO method
o Sometimes something may only be done after the lapse of a certain period
o Eg. If you were told to hand your essay in after 5 days had lapsed – you would exclude both the first
& last days of the 5-day period. Essentially you would hand it in on the 7th day.
 Whether you exclude Saturdays, Sundays &/or public holidays is dependent if you are dealing with court days
(rules) or calendar days (acts)

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6.4 Practical note: service of court process
 Particular time period expires at midnight on final day
 Time periods relate to time within which legal documents are to be served
 Have documents ready in time to serve document on time!
 Although a particular time period only expires at midnight on the final day, sometimes a document must be
served by the close of business hours.

Notice of intention to defend

 Uniform Rules of Court

o High Court Rule 19 & Magistrates’ Court Rule 13 (almost identical)
 Purpose:
 “the defendant in every civil action shall be allowed…”
 When:
 “…10 days after service of summons on him within which to deliver
a notice of intention to defend…”
o ‘Days’ in Rules refer to court days – therefore Saturdays,
Sundays & public holidays are excluded
 If not:
 Default judgment will be granted

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 STAGE 1: BEFORE LITIGATION

Part A: Preliminary questions

1) Cause of action
2) Locus standi
3) Jurisdiction

Part B: Pre-litigation issues

1) Demand
2) Calculation of time limits
3) Service of legal documents
4) Action or application

STUDY UNIT 7: SERVICE OF LEGAL DOCUMENTS

Relevant legislation/ court rules:

 S44 of the Interpretation Act

 Rules 1, 4 & 5 of the High Court Rules
 Rules 2(2), 3, 9 & 10 of the Magistrates’ Court Rules
 S107 of the MCA.

7.1 Introduction
 Legal proceedings start with delivery of court documents = ‘service’
 Court must be satisfied the defendant/respondent has received the documents, & he/she is therefore aware of
legal proceedings
 An NB legal principle  Audi alteram partem
1 You must always hear the other side
2 Other side has right to be heard whenever there is a dispute between two parties
 Need to be informed of it
 Particular rules that are set out
 Sometimes you do not have to inform the party
o E.g. you as a bank sold client vehicle on hire purchase – want to reclaim vehicle – company has it on
good authority that the client is going to sell the vehicle tonight – need to stop it – how do you deal
with that  cant service documents because he will just get rid of the vehicle sooner s
o Don’t tell them you are going to do it because otherwise it’s pointless
 Vis a vis jurisdiction (jurisdiction vs service)
o Clear distinction between jurisdiction and service of documents
o Court can have jurisdiction in a matter, but a completely different court can be where service is
affected
 Service vs delivery
o Only initiating documentation are served by sheriff
o Action – summons
o Application – notice of motion
o Only these are served through the sheriff – not the further documentation
 Documents served by sheriff of court (Magistrates' Court/High Court)
o S3 Sheriffs Act provides that sheriffs are appointed to effect service of legal documents within
particular areas & may not effect service outside of those areas

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7.2 The issue of process & duties of the sheriff
 Court documents must be issued before they can be serviced
 Issuing procedure:
1. Legal document is taken to court (a court that has jurisdiction in the matter)
2. Clerk/registrar of the court will sign the document &
3. allocate a case number &
4. open a court file
 After issuance following documents sent to sheriff for service:
1. Original document (returned to court file); plus
2. Number of copies to be served (3 defendants = 3 copies); plus
3. Extra copy of document (returned to your office file).
 Sheriff’s duties when serving court process (new rule 3 & 4)
1. Explain document’s nature & contents to person
being served
2. Provide a hard copy to the person being served
 Warn the defendant/ respondent of
consequences of failure to defend/ oppose
the action/ application
 If requested, show the original/ certified
copy
3. Return extra copy to attorney who requested service
& sheriff’s return of service
 ‘Return of service’ (proof of service):
sheriff’s written report stating when, where,
& how the document was served.
 If the sheriff is unable to successfully effect
service, a return of non-service is issued
 Not all court processes need to be served by sheriff/ deputies
o Notice of intention to defend a plea or a replication, all documents that need to be served during the
action or application process, need NOT be served by the sheriff. It is possible to deliver these
documents to the service address indicated in the summons/ notice of motion.
 These are documents NOT commencing legal proceedings.
 What practically happens;
1. an original of the document & 2 copies of the document, are delivered to the defendant/ respondent,
2. who then stamps the original, acknowledging that those copies were received without prejudice
3. The firm then retains 1 copy & returns the original & another copy.
4. The original is then filed with the registrar/clerk of the court &
5. Firm who effected service, on behalf of his/her client, retains the remaining copy on file.
 Keep in mind, court documents which initiate interlocutory applications (part of proceedings already pending
before the court), need NOT be served by the sheriff.

7.3 Methods of Service

7.3.1 Normal/usual method of service
 The different methods of service in the High Court & Magistrates’ Courts are set out in HCR 4(1)(a) & MCR
9, respectively
1 Personal service
 Ideal situation, but this is not always possible
 Other methods of service (as listed below) should only be used when the person is
untraceable.
 Personal service means that the court process is delivered personally, i.e. through the sheriff
in the defendant’s/ respondent’s presence & the document is handed to him/her personally.
 If person being served is a child/ is under a form of legal disability, the process must be
delivered to the guardian or the curator.
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 2 Leave a copy at place of residence or business
 Entails that the court process is left with the person at the place of residence or business of the
defendant/ respondent
 You may, put it under the door, give it to a person who is there (16 years or older).
 If person resides in a block of flats, insufficient to serve to a caretaker of the premises, MUST
be served on an occupant in the flat
 Cohen v Lench 2007
 Process served by fixing it to outside of townhouse complex or block of flats
 Can sheriff affect service by simply putting it outside townhouse complex  NO, has
to be affixed to the specific unit/flat of that person!
3 Place of employment of person served
 Delivery of document must take place upon a person who is apparently in authority over the
person to be served & is apparently not younger than 16 years old
4 Domicilium citandi et executandi
 Address chosen by person who is to be served, specify in contract that this will be the address
where service will be affected
 Acceptable even if person no longer resides there, or if it is a vacant piece of land
 Purpose of this form of service is because parties should not have to search for one another in
order to effect service
 This has been abused in the past
 For eg: Certain commercial enterprises used to include their own addresses in
standard form contracts as being the domicilium citandi of the other contracting party.
If the other person ends up being sued following an alleged breach of contract, the
summons on the defendant would be delivered to the plaintiff’s address, & the first
time the defendant would hear about the legal proceedings against him, would be
after default judgment occurred.
 Courts now have looked at this fact  they do not accept this  must be reasonably
expected for the person to receive it
5 Legal entities (CC or company)
 Serve documents to registered office or place of principal business
 Done by handing court document to a responsible (someone who would know what to do with
the document) employee
 May also affix the document to the main door of the office or principal place of business.
 Principal place of business means something different in terms of jurisdiction vs. in terms of
service.
 In terms of service, principal place of business refers to chief place of business that is situated
within the jurisdiction of the court
6 Agent duly authorised in writing to accept service
 Must be able to provide evidence that he/she certified to accept documents being served
7 Partnerships, firms, or voluntary associations
 Possible to leave document at place of business of partnership/ firm/ voluntary association
with a person who is apparently in charge of the premises & apparently not under 16 years of
age.
 If no place of business, can serve on any of the members/ partners.
8 2/more persons being sued in joint representative capacity
 Must take place on each person individually
9 Legal proceedings against local authority (municipality) or state
 Local authority, serve it on the town clerk or city manager or even the mayor
 State, serve document by giving to clerk of court  Serve to states attorney’s office to be safe
10 Prisoners
11 Foreign diplomats
 Times for service
o Service needs to occur between 7am and 7pm  HCR 4(1)(b)
o Monday to Saturday (NOT Sunday unless judge gives permission)  HCR 4(1)(c)
o Unless warrant of arrest which can be served at any time.
 MCA s107
o It Is a criminal offense to interfere with the conduct of the sheriff
o Can’t obstruct a sheriff in doing their duties
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 o Can’t make false declarations

7.4 Substituted service & edictal citation

7.4.1 Substituted service in general
 Relevant rules: HCR 4(2); MCR 9(10)
 Extraordinary manners  When it is not possible to do it normally.
 Circumstances: when they are overseas or don’t know where the defendant is (can’t serve it normally)
 Courts have a discretion to authorize alternative arrangements to affect service
 MCR 9(10)  when the court is satisfied that the document cannot be served in any other way, & that the
action is within the court’s jurisdiction, the court may make an order allowing service to be effected by the
person, and in a manner as specified in such an order
 Used when the location of the defendant is unknown or when the defendant’s whereabouts are known but the
defendant avoids service in some other way (like refusing to open the door)
 As plaintiff/applicant, need to come to court and give a common-sense suggestion as to which is the best way
to serve the documents in this case
 Bring an ex parte application, apply that you want court to allow you to affect service by not giving it to the
defendant but by publishing it in a newspaper or gov. gazette etc. (An ex parte application can be brought for:
substituted service in RSA & an edictal citation outside of RSA)
 Must prove that that you have looked for the defendant/respondent everywhere etc., inquired as to where they
are

7.4.2 Service of legal process outside the country

High Court, Regional & District MC: application for edictal citation
 In terms of HCR 5 & MCR 10 – to serve documents instituting proceedings outside the Republic, you must
first make an application for leave to institute proceedings by means of edictal citation.
o Only need to apply to sue by edictal citation for service of documents instituting legal proceedings in
another country
o If you know where they are overseas – serve it through the consul in that country
o If you don’t know exactly where they are overseas, you ask for leave to proceed by edictal citation as
well as ask for leave to use a method of substituted service.
 Edictal citation
o It is a special type of summons, similar to normal summons
o It is addressed to the defendant directly & not to the sheriff
 Service of any other document in another country – MCR 10(3) & HCR 5(3) applies – not obligatory to apply
to court
 Fiction: court works with the evidence; the respondent would have read that specific newspaper & it’s come
to his attention and so the court can proceed.
 Allegations you would have to include in the affidavits supporting your application: HCR 5(2) & MCR 10(2)
(a)
1) the nature & extent of the claim
2) grounds upon which the claim is based
3) grounds upon which the court has jurisdiction to hear the claim
4) the method of service you are asking the court to authorise
5) last known whereabouts of the person to be served
6) enquiries that have been made to find out where that person currently is; and
7) any other information which may assist the court to make a decision
 Manner of service which the court is being asked to authorise
o Affidavit must set out a proposal for service & motivation as to why this method of service is being
proposed
 Application for substituted service & application to serve by edictal citation are brought ex parte
o Applicant approaches court alone

Substituted service via electronic media

 Issue of electronic service of documents
o Perhaps on Facebook, LinkedIn etc
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  IT influence
o MKM Capital v Corbo & Poyser (AUS) 2008
 International consideration.
 First Australian case wherein the court said you may serve via a person’s Facebook profile.
o CMC Woodworking Machinery v Pieter Odendaal Kitches 2012
 Can you serve legal documents by posting on a person’s business page?
 Court said yes, but (conservative approach) they also want there to be a newspaper
publication.
 Court discussed risks
 Privacy issues (if on FB)
 The accuracy of the Facebook profile
 Proof of service? How will you convince the court that it came to the attention of the
person?
o Firstrand Bank v Manikkam (unreported)
 Court said yes service can be effected by informing the person on his LinkedIn profile.

7.5 Jurisdiction & service distinguished

 HCR’s & MCR’s that regulate the service of court process cannot be interpreted as conferring jurisdiction on
a court
 Eg: the domicilium addresses in a contract only indicate physical addresses for the purpose of the service of
documents. The contract cannot be interpreted to hold that the court having jurisdiction over the area in which
the Domicilium address is situated will have jurisdiction in any dispute arising out of the contract

After completion of this unit, you should be able to:

1. Explain what the purpose of service is.

2. Distinguish between service and delivery of a document.
3. Distinguish between various methods of service.
4. Fully explain the duties of the sheriff when effecting service and to apply such knowledge to a practical
situation.
5. Distinguish between substituted service and edictal citation and to apply such knowledge to a practical
situation.

END OF SEMESTER 1

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