Steps to prepare for trial

- NB part of pre-trial phase – crucial since trial is continuous phase

o No opportunity to gather further evidence / research law etc.
o There aren’t as a rule – interruptions
- Prep stage begins after close of pleadings (litis contestation)
- Most steps during this stage are directed at providing parties with sufficient info to be
prepared for trial; but some steps are for simplifying / expediting trial
o Discovery of documents
o Expert witness
o Presentation of plans
o Medical examination of person
o Inspection of property & things
o Further particulars for trial
o Subpoena
o Pre-trial conference
o Latter in context of judicial case management

Discovery of documents
 Discovery of documents
- Typical feature of common law trial today – crucial role in preparing for trial
o Origin in Chancery Court in England, perpetuated w/ merger of Chancery & common
law courts in about 1875 under judicature Acts
o Also spread in USA & developed there into expansive procedure, unknown in other
common law countries
- Relevance of documents – applicable to case
- Nature of discovery = procedure that allows party to have access to documentary evidence
in possession of opposing party
o Disclosure of document – give opposing party documents
o Broadly party requesting discovery is entitled to
 Be informed of the nature of the relevant documents
 To inspect such documents
 To make copies of such document & to request originals at trial
- What is documentary evidence?
- Purpose of discovery = enable parties to prepare for trial properly – wrt documentary
evidence in possession of opponents
o Element of surprise regarding relevant document is eliminated & possible delay of
proceedings is prevented
o NB for cross-examination – can prepare
o Element of surprise is still present regarding oral evidence = witness statements,
being subject to legal professional privilege, are not required to be exchanged
between the parties prior to trial ; lawyer will lead questioning with witness
statement
 Contrary to other common law systems – England & Australia
 o USA deposition process – disclose witness statements & can question witnesses prior
to trial – meeting of lawyers with clients & witnesses w/o judge presiding – lawyers
entitled to question witnesses of other side -> parties case may be so damaged that
they may abandon idea of going to trial
- Discovery is mainly applicable in action proceedings but where appropriate in application
proceedings – where matter referred to trial, court may give directions as regards discovery
of documents
- Procedures in HC & MC similar – focus on HC

- Discovery stage = as a rule, discovery may only be requested after close of pleadings. In
exceptional circumstances a judge may give leave for discovery before close of pleadings
o Textbook 354 for exceptions
o Nampak Glass case – re obtaining info from 3rd party to identify a would be
defendant – court developed common law to make such order
 In Australia court rule provide for this power
o If defendant clear but evidence not sufficient- can request this

 What documents must be discovered? Relevant documents

- Rule 35 (1) HCR – document relating to any matter in question in possession or under
control of party required to discovered = all relevant documents
- But courts (English approach) gave duty a restrictive meaning -> only obligation to make
discovery of documents which may – not must – either directly / indirectly enable the party
requiring discovery either to advance his/her own case or to damage the case of his
adversary; documents which tend to advance only the case of the party making the
discovery need not be disclosed (test laid down in Peruvian Guano case 1882 QB)
- Example: defendant requests discovery from plaintiff – what is plaintiff’s duty
o Perspective of party who is obliged to discover document – must discover document
that can advance the case of the defendant / damage his own case
o Documents that only advance plaintiff’s case need not be discovered – NB
qualification in Carpede v Koen = provided that party does not intend to use that
document at the trial
 Qualification & rationale?

- Privileged documents = need not be disclosed -> witness statements; communication

between client & attorney (legal professional privilege) – such documents still need to be
listed - law governing privilege is covered by evidence

 Discovery Procedure
- Nature of documents = party wishing to obtain discovery must serve written notice
requiring discovery on oath of all relevant documents now in their possession , or before
w/in 20 days of notice
- Party required to make discovery on affidavit in accordance w/ wording of HCR From 11 &
MCR Form 13 (affidavit & schedules)
o Party confirms that all relevant documents are set out in 1st & 2nd parts of first
schedule to affidavit & object to produce documents in 2nd part
 1st part = all documents that party discloses will be stated / mentioned
  2nd part = object to documents not disclosing = document subject to
privilege & state grounds
o Second Schedule = Confirms documents that were in their possession are set out in
2nd schedule – listed & state in who’s possession those documents are now
o Documents are affidavit – 1st schedule with 1st & 2nd part & 2nd schedule

- In this way party requiring discovery can identify the relevant documents and is apprised of
nature of said documents.
- Inspection of documents: After service of affidavit & schedules on party requiring discovery
the latter may request party making discovery by way of notice to produce documents
specified in notice (see form 13 HCR) for inspection & making of copies
o Latter responds by notice advising when inspection can take place HCR 14
- Party requiring discovery may also request opponent by way of notice to produce at trial the
original of any document discovered
- If party wants to present a document as evidence at trial its authenticity must be proved
o Witness called to verify – say they recognised it
o HCR 35(9) provides a shortcut – party may request opponent by notice to admit
authenticity of document = don’t have to call evidence, but admit prior to trial
o What happens if opponent admits authenticity ? document is then proved & can
simply be produced at trial
o If opponent fails to respond w/in prescribed time – document admitted
o If opponent object to authenticity of document = must provide evidence proving
authenticity
o If opponent refuses to admit authenticity = part who wants to use document must
prove it -> call a witness to testify ; court may order party who refuse to pay cost s
involved in that part of process

 Sanctions for failing to discover - if party fails to comply with request to discover / make
documents available for inspections - sanctions apply
o Opponent may bring application to court compelling other party to discover or allow
inspection of relevant documents
o Party who failed to disclose document subject to discovery may not use such
document at the trial (unless court allows it) but opponent may use it
o If party is prejudiced & unable properly to prepare for trial because of opponent’s
failure to discover timeously / properly -> may apply for a postponement of the trial
& opponent would usually be ordered to pay wasted costs; court has a wide
discretion to deviate from general rule
- What if destroys evidence / only discover afterwards
o Bad faith? Serious consequences
o Litigation not commenced but foreseeable & party concerned is aware of damaging
documents - & then destroys those doc’s ->
- If party willingly destroys documents = Inherent jurisdiction -HC may
o Rule does not deal with that
o Before proceedings instituted? With aim of weakening case
  Attorney’s duty to explain discovery obligation to client & to review all documents for
relevancy
o Ethical duty on attorney to explain discovery documents to client & what happens if
fail to do so
 Consider millions of electronic documents being generated in commercial and governmental
spheres. Could discovery be conducted electronically? SA position? Australia is far advanced
in this field (cf case involving 60,000 electronic documents discovered)

Expert evidence
- opinion = inference someone makes from observing certain facts
- Procedures in HC and MC are similar.

- Rule: opinion of a witness is inadmissible (rule covered in evidence).

o A lay witness is only required to testify about their observations of a relevant event.
- Expert witness = opinion rule does not apply
o expert is a person who has specialised knowledge & experience in a specific field =
better qualified than the court to express an opinion on the facts in issue
o expert’s role = assist the court to decide the issues - court makes ultimate decision

- Party not allowed to be apprised before trial of oral evidence opponent will present at trial
o Party not entitled to have insight in opponent’s witness statements
o Subject to legal professional privilege (contrary to position in other common law
countries (England, Australia)
o Expert evidence = exception to rule -> party wishing to call expert is required to
 give notice to opponent at prescribed time after close of pleadings of
intention to call such witness
 deliver a summary of the expert’s opinions and the reasons therefor at a
prescribed time after close of pleadings
 show that the witness is in fact an expert and that his/her opinions will be
relevant to the issues. How does a party show expertise of witness?
o Purpose of exception = specialised nature of expert nature
 w/out insight in expert’s opinion before trial opponent’s counsel would not
be able to prepare cross-exam of expert & prepare own expert evidence to
counter
o usually opposing parties call their own expert witness but provision made for
agreement among parties to call joint expert
o if party wishing to call expert fails to comply w/ requirement – such party may not
call witness except where leave of the court / consent of opponent

 Presentation of a plan, diagram, model or photo

- Except for time limits, procedure similar in HC & MC
- Procedural requirements to present – mainly aimed at dispensing wit formal proof of such
evidence at the trial & thus expediting the proceedings
- Party who intends to tender plan, diagram, model / photo as evidence must at prescribed
time before trial notify the opponent of such intention
 o & offer intended evidential material for inspection & request opponent to admit
authenticity of such material
o If fail to make admission = material will be received as evidence at trial by its mere
production & if opponent refuses to admit – party may then prove but order to pay
costs

 Medical examination of person

- Except for time limits procedure same in HC & MC
- Purpose of procedural requirements = enable party claim for damages iro bodily injuries
sustained by plaintiff to prepare for trial -> presentation of evidence & cross-exam
- If plaintiff’s state of health is relevant to to quantum of damages – opponent may require
plaintiff by notice to undergo medical exam by medical practitioner appointed by opponent
o Notice state’s doctor’s name, date & place of exam & that plaintiff may have own
doctor present
- Plaintiff may by notice of objection to any aspect of exam - opponent may apply to court to
resolve this
- Opponent must, upon request of plaintiff, obtain a report of results of exam from doctor &
furnish plaintiff w/ copy thereof
- Opponent may also by notice request plaintiff to provide them with copies of medical
reports, hospital records, x-ray photographs / other cos info relevant to determination of
damages
- Procedure extended to plaintiff claiming for damages flowing from death of another person
– opponent may require plaintiff to undergo medical exam if plaintiff’s own state of health is
relevant to determination of damages
o Plaintiff’s state of health does not relate to injury sustained by them in this case
o When plaintiff’s state of health relevant – can’t work?

 Inspection / examination of property or things

- Procedure in MC & HC mostly similar – time limits differ & HCR refers to property while MCR
deals with things
- Purpose = enable opponent of party in control of certain relevant property to have access to
such property & examine it to prepare for trial
- Procedure = if condition of any movable / immovable property in possession or under
control of a party appears to be relevant to issues in case, opponent may give notice to said
party requiring them to make such property available for inspection / examination
o party will not be compelled to do so if they will be materially prejudiced by reason of
effect of examination on property
o if dispute arises between parties in this regard any party can apply to court to
resolve the issue
o opponent who requested exam must obtain report & upon request furnish party
with copy of a report
- in what factual scenario will this produce become appropriate?
 Further particulars
- Requesting further particulars for purposes of pleading form the opposing from the
opposing party = has existed for many years in HC & MC – but often led to abuse by
practitioners = abolished in HC (1987) & MC (2010)
o Further particulars may only be requested for purposes of preparing for trial
o Procedure in HC & MC identical
- Purpose = inform party seeking particulars w/ greater precision of what the opponent is
going to prove at trial – enabling them to prepare for trial & prevent surprises
- Only entitled for further particulars regarding relevance of facts that opponent intends to
prove at trial & not evidence to be presented as proof thereof
o Distinction betw facts & evidence = not always clear & rule is not absolute
o Textbook 369
- Procedure = party seeking particulars, must, after close of pleadings, deliver notice
requesting relevant particulars
o Rule = only entitled to particulars that are strictly necessary to prepare for trial
o Opponent then obliged to deliver requested particulars w/in time prescribed
- If fails to deliver particulars timeously / sufficiently = may apply to court compelling
opponent to furnish particulars / apt relief

 Subpoena
- HC & MC procedure similar
- 1st step = party’s attorney consults with supporting witness & obtains a statement from
them
- 2nd step = ensure witness will appear at trial – informal request to witness may be made but
formal steps having lega; force is to use subpoena
o Document issued by registrar & served upon witness by sheriff
o Subpoena instruct witness to appear at court on given date & certain time
o If witness fails to appear court may issue warrant for arrest – authorising sheriff to
bring witness to court
o In absence of reasonable excuse court may impose an apt sentence
- If party wishes to use document / object as evidence at trial which is in possession of person
who is not party to action = may have subpoena issued & served upon witness ordering
them to bring document / object to court on given day
o Before witness must hand it to registrar all parties may inspect it & may make copies
thereof = subpoena duces tecum

 Pre-trial conference & judicial case management

- Procedures relating to pre-trial conferences in HC & MC are similar, except that such
conferences is compulsory in HC, but optional in MC - magistrate has discretion whether to
hold conference / not
- Purpose = facilitate agreement among parties on any issue before trial – curtailing trial
o Initially conference was mainly in hands of legal rep & judges’ involvement was
limited
o Provision now made for increased judicial involvement HCR 37A
 - Notion of holding 1/more conferences prior to trial in which lawyers participate & judge
presides, with view to settling the matter through mediation / at least curtailing trial is part
of drastic reforms in common law system over the past 30 yrs
o Goes together with judicial case management, which has significantly curtailed party
control, especially during pre-trial but also to some extent at the trial
o England & Australia have advanced far on this path of reform, leaving little room for
party control
o Part of reform movement is also drive of cases away from trial to mediation aimed at
settling cases
- HC in SA = distinction between cases subject to judicial case management & those that are
not
o Cases not subject to case management
 Notice of plaintiff calling for pre-trial conference after receiving trial date;
 Each party must provide other party with list containing matters for
discussion – admission of certain facts & any prep steps for trial
 Minutes recording what was discussed & agreed upon signed by legal rep &
filed w/ registrar
 Judge may mero motu / upon request from party direct that a conference be
held before a judge in chambers
o Cases subject to case management
 Before case management conference, parties must hold pre-trial meeting
where range of issues must be discussed with view to curtailing the trial
 Recording matters discussed & agreed upon must be filed at court
 At case management conference judge presiding must deal with certain
matters, including a possible settlement & may deal with other relevant
matters
 When all matters have been dealt with to the satisfaction of the judge they
will certify that case is ready for trial
 Record of case management conference must be included in court file; case
management judge will not preside at trial unless parties agree otherwise
- Judicial involvement in controlling the pre-trial stage is still limited in SA, compared to English
& Australia’s jurisdictions
o SA is mainly concentrated on pre-trial conference & only some cases are subject to
judicial case management at this conference
o In England & Australia states a judge is firmly in control of the pre-trial & regular
meetings take place between the judge & lawyers to monitor the progress of a case
o This development prompted Neil Andres an eminent English proceduralist to remark
 Party control is gone

Trial & Judgement

 General nature of trial process
- Clear distinction between pre-trial & trial – trial is dramatic climax of proceedings, where
parties present their respective cases
- Main features of trial process
 o Continuous, concentrated process, characterised by direct presentation of mainly
oral evidence.
o Party control governs proceedings; counsel decides which witnesses to call, & in
what sequence & counsel conducts questioning of witnesses – exam in chief, cross-
exam & re-exam; judge plays passive role – keeps counsel to the rules & may ask
questions to counsel & witnesses to get clarity in something
o Large body of rules governs admissibility & evaluation of evidence – they play
dominant tole throughout the proceedings
o Note NB influence of jury in England on character of trial process especially as
regards continuity & orality of proceedings & rules governing admissibility &
evaluation of evidence
o Rule – trial conducted in open (public) court
o Rule – single judge / magistrate presides in civil matters in SA
overlap betw civil procedure & law of evidence - burden of proof; evidentiary
burden; duty to begin & scope of exam in chief; cross-exam & re-exam
o Trial process in HC & MC is very similar

 Broad overview of trial process

- Plaintiff’s counsel will usually commence with opening address stating nature of dispute &
what facts they intend to prove
- Thereafter plaintiff’s counsel will usually proceed to call plaintiff to witness box to testify
under oath / affirmation
o Plaintiff then goes through examination in chief conducted by counsel & cross-exam
by opposing counsel & re-exam by counsel
o Purpose of exam in chief = put party’s version before the court
o Cross-exam to elicit any favourable facts from witness; test reliability of witness /
credibility & puts own party’s version to witness
o Re-exam = limit damage doen during cross
o each plaintiff’s witnesses goes separately through the same process
- plaintiff’s counsel closes their case
- After closure of plaintiff’s case defendant’s counsel may apply for absolution form the
instance, if no prima Facie case was established by plaintiff
- What if application dismissed? / absolution granted? / is the principle of res judicata
applicable if absolution is granted?
- If absolution refused / defendant doesn’t apply for it = defendant’s counsel may the give
opening address – outlining facts intended to prove – HCR39(7) –(textbook wrong)
o Defendant’s counsel goes through same process as plaintiff
- Afte closing defendant’s case = counsel will get opportunity to deliver their closing
arguments = persuade court to find in their favour – facts & applicable law
o Plaintiff’s counsel usually first, then respondent & the plaintiff get’s opportunity to
deliver reply
o Judge may ask probing questions to counsel which may result in a debate
- NB ethical role of counsel in common law trial – both facts & law = counsel may never
mislead court
o Distinction between principle of judicial unpreparedness , applicable In common law
systems & principle of iura novit curia in continental system
o Judicial unpreparedness = principle derived from English law
  Based on notion that judges is unprepared wrt law applicable to the case
 Counsel’s duty to bring relevant law to attention of the judge
 Counsel must appraise judge of all relevant authorities – even if it doesn’t
support their case
 Counsel cannot remain silent re authority & mislead judge
 Once judge heard both counsel – duty to decide what relevant law is & apply
it to the facts
o Iura novit curia = ‘court knows the law’ -principle is generally applied in continental
systems, holds that it is mainly the duty of the judge to ascertain the relevant law &
apply it to the facts.
 The lawyers may make submissions in this regard but they play a lesser role
than their common law counterparts
 The principle also allows a judge to attach other legal consequences to the
proven facts than those advanced by the parties

- Upon conclusion of their arguments, counsel will submit that the court should grant relief
they prayed for
o Plaintiffs counsel would ask judge to grant judgment in favour of plaintiff (uphold
plaintiffs claim) with costs & defendant would ask judge to dismiss with costs
o Both judgments would have final effect & principle of res judicate applies
o Court could grant absolution from the instance against the plaintiff
o When would this be apt – textbook 392

Judgement
- Time of judgement
o deliver oral judgement immediately upon conclusion of the trial = ex tempore
judgment
 doesn’t happen often because most civil cases are complex
o reserve judgement until later date – in written from
- Reasons for judgement
o Rules require courts’ judgements to be recorder, but don’t expressly require court to
give reason for judgement
o Practice of courts to provide reasons for factual findings & application of law
o w/o reasons – appellant would have difficulty formulating grounds for appeal
o = problematic
- Style of common law oriented judgement compared to continental judgements
o Kaplan, American lawyer observing proceedings in English courts 50 yrs ago
described the judgment of English law as finishing touches to a total performance
 Still description of judgment in common law oriented trials today
o Continental judgments are brief & cast in a formal, impersonal mould, English
judgments are too elaborate, eloquent speeches in which the judge expresses their
personal view to justify their decision
- Finality of judgment = as a rule can only be set aside by appeal to higher court – but
exceptions
o Variation of judgment to correct an error
 o Recission of judgment – granted by default / where judgment was obtained by fraud
o Exceptions are governed by court rules; common law & HC”s inherent jurisdiction

Appeal & Review

- Principle of higher recourse
o Party who feels aggrieved as a result of the judgment od the court of 1st instance
(trial court) is entitled to present dispute to higher court for reconsideration
 Right forms part of broader right to fair trial
 Not an absolute right – subject to some limits
o The right limits the principle of finality – if higher court upholds party’s higher
recourse request it will usually set aside court of first instance’s judgment & replace
it with its own judgment
 1st court’s judgment then loses finality & is replaced

- Distinguish between 2 forms of higher recourse in civil cases

o Only decisions by MC are subject to review by HC ; decisions of HCs cannot be
reviewed – they can only be taken on appeal to higher court
o Concept of judicial review also includes the power of the HC to review acts of public
administration (organs of state)
 Falls under administrative law & thus outside ambit of civil procedure
o Although review of MC proceedings & acts of state administration is regulated by
legislation it is founded on HC’s innate / general jurisdiction which includes inherent
jurisdiction to regulate its own process
 Chunguete v Minister of Home Affairs
o Judicial review also includes review of the content of legislation under the
Constitution, exercised by the superior courts (s 172)

- Distinction between appeal & review in civil cases

o If aggrieved party contends that court a quo came to wrong finding wrt the facts /
law – appeal would be apt procedure
o If party of view that proceedings in court a quo were marred by some irregularity –
apt remedy would be review – objection = method used in making a finding
o Material before higher court – in case of appeal, as rule - only record of proceedings
in court a quo placed before CA & parties are confined to it
 Oral arguments are allowed
 In case of review the record of court a quo is also placed before HC but in
addition the applicant may present extrinsic evidence by way of affidavit to
prove irregularity
o Procedure = in case of appeal at HC level – leave to appeal must first be obtained;
followed by delivery of notice of appeal setting out grounds of appeal & thereafter
the record of proceedings of the court a quo
 AC adjudicates the case on basis of this record & the oral arguments of
counsel
 Review is brought by way of notice of motion, supported by affidavit setting
out the facts upon which the application is based
 The HC adjudicates the matter like an application – ie on papers & counsel’s
oral arguments
 o Time limits = the noting & prosecution of an appeal is subject to specific time limits,
which is not the case with review
 Application for review must be brough w/in a reasonable time
 Review proceedings
- Division of HC has power to review proceedings of all the MC’s w/in its area of jurisdiction
o Application for review is lodged against the magistrate who presided at the trial & is
heard in the HC by a bench consisting of 2 judges
- Grounds for review – s 22(1) SCA
o Absence of jurisdiction on part of MC
o Interest in the case, bias, malice / corruption
o Gross irregularity in the proceedings
o The admission of inadmissible / incompetent evidence or the rejection of admissible
/ competent evidence – this may also serve as ground of appeal
- Focus on bias & irregularity as ground of review
o It must be a gross irregularity likely to cause prejudice to the applicant
o Examples of bias & gross irregularity
- Review procedure
o Applicant delivers notice of motion to presiding magistrate, requesting them to give
reason why decision should not be review & to forward record of trial to registrar
together w/ their reasons in support of decision
o Notice of motion is accompanied by affidavit setting out grounds, facts &
circumstances upon which applicant relies
o If magistrate intends to oppose application they must deliver notice of intention to
oppose followed by an answering affidavit w/in prescribed time
o Applicant must thereafter deliver replying affidavit if necessary
o Application is thereafter set down for hearing & is adjudicated in the normal way as
an application
- Powers of review court
o HC reviewing proceedings of MC may confirm latter’s decision or set it aside
o In apt circumstance HC may also remit the matter to the MC to finalise in accordance
with the correct procedure. Or HC may make other apt order – replacing MC’s
decision with its own cost

 Appeal proceedings
- Different levels of appeal
o From decision of MC to HC w/in whose are of jurisdiction MC falls
o From decision of single judge
o From decision of HC sitting as a CA, consisting of 2 judges, hearing an appeal from
the MC to SCA
o Forma decision of the HC sitting is a full court (3) of first instance to SCA
o From a decision of the HC sitting as a CA, consisting of 3 judges, hearing an appeal
from a single judge to the SCA.
o From a decision of the SCA to the CC or directly to the CC from a decision of any
court. A direct appeal to the CC from a decision of any court other than the SCA
would be exceptional, and if that court is the MC it is hardly imaginable
- Levels of appeal where leave to appeal is required
 o Only in case of appeal from MC to HC = unqualified right to appeal; no leave
necessary - appellant may proceed to prosecute the appeal ito prescribed procedure
o Appeal from decision of single judge in HC to a full court of that HC or directly to SCA
 Essence of process: Presiding judge must decide if there’s reasonable
prospects of success on appeal - if judge had erred in making finding
(difficult decision – judge must be objective)
 If answer is affirmative judge must direct that appeal be heard by full court
of that division, unless the decision in question involves & important
question of law or administration of justice requires that appeal be heard by
SCA, in which case judge must direct appeal to SCA. If presiding judge
refuses leave to appeal appellant may apply to SCA to grant such leave.
o Appeal from decision of HC consisting of two judges who dismissed an appeal from
the MC. Appellant must obtain special leave to appeal from SCA to appeal to the
SCA. Where a full court of the HC, consisting of three judges, dismissed an appeal
from a decision of a single judge of that HC the appellant must also obtain special
leave to appeal from SCA to appeal to the SCA. Meaning of “special leave” –
Westinghouse Brake & Equipment v Bilger Eng 1986 (2) SA 555 (A): In addition to
reasonable prospects of success, appellant must show “special circumstances” -
These would include inter alia:
 Where appeal raises a substantial point of law
 Where matter is of very great importance to the parties or of great public
importance
 Where the prospects of success are so strong that refusal of leave to appeal
would probably result in a manifest denial of justice
o Appeal from a decision of a full court of the HC, consisting of three judges, sitting as
a court of first instance. Leave must be obtained from the full court to appeal to the
SCA. If leave is refused the appellant may apply to SCA for leave to appeal to the
SCA.
o Appeal from a decision of any court to the CC, either via the SCA or directly to the CC
– only if it is in the interests of justice and with leave to appeal from the CC.
- Constitutionality of requirement of leave to appeal – esserglik v Minister of Trade, Industry
and Tourism 1996 (6) BCLR 745 (CC). Issue – whether requirement of leave to appeal from a
decision of the HC infringed guarantee of access to a court under the Interim Constitution.
CC ruled that this requirement is not in breach of such guarantee since appellant whose
application for leave was dismissed by HC can apply to the SCA (2 judges) to consider if there
are reasonable prospects of success on appeal. Doors not closed.
- Procedure applicable in appeals – It will suffice to deal briefly with this aspect.
Note that, as a rule, only judgments that have a final effect are subject to appeal.
o Appeals from MC to HC – note the flowing;
 Requesting magistrate’s reasons for judgment
 Notice of appeal to opponent and MC setting out grounds of appeal
 Requesting hearing date from registrar of HC
 Filing power of attorney
 Furnishing copies of MC record to all concerned
 Delivering heads of argument setting out main points to be argued and list of
authorities relied upon. Note preparation by opponent & court
  Hearing – as a rule only oral arguments of counsel are presented and court
adjudicates appeal on record of court a quo and counsels’ arguments.
o Appeals from a single judge’s decision to full court of HC
 Procedure broadly similar to MC – HC appeals - Note the following:
 Leave to appeal – as said, this does not apply in MC – HC appeals
 Notice of appeal setting out grounds & delivered to all parties & court
 Appellant must provide security for respondent’s costs of appeal.
 Application to registrar for a hearing date
 Filing power of attorney.
 Copies of record of proceedings in court a quo.
 Set-down of appeal
 Heads of argument
 Hearing takes the same form as MC – HC appeals.
o Appeals from a single judge’s decision to the SCA – the main features of this
procedure accord with that of appeals to a full court, ie leave to appeal; notice of
appeal; record of court a quo; heads of argument; setting down and hearing In case
of an appeal from a full court’s decision, where it sat as a CA, special leave must be
obtained from the SCA.
o Appeals to the CC – only if in the interest of justice and with leave from the CC.
Appellant must apply for such leave. Heads of argument must also be filed and
hearing takes the form of appeals generally, ie only oral arguments of counsel. At
least 8 CC judges must hear appeal
- Powers of courts of appeal generally –
o HC sitting as CA, with 2 judges, hearing an appeal from MC, full HC sitting as CA, with
3 judges, hearing an appeal from a single judge, SCA hearing an appeal from a
decision of a single judge of HC or of a full court and CC sitting as CA = all have wide
powers in deciding the outcome of an appeal.
o Most common i= uphold appeal, set aside decision of court a quo & replace it with
its own decision / dismiss the appeal & confirm the decision of the court a quo.
o Exceptionally, CA may also remit matter to the court a quo to finalise in accordance
with directions from CA
o Contrast appeals in jury trials.
o Most common in criminal cases in common law jurisdictions (England, states in
Australia, New Zealand, USA) But civil jury trials still exist in most of these
jurisdictions, although in a more limited framework.
o Juries only give verdict w/o reasons – CA only has presiding judge’s directions to jury
before deliberation
 jury trial systems are based on notion that cases must be finalised, as far as
possible, by way of a jury’s verdict
 when appeal in jury trial succeeds - CA would, as a rule, remit the case to the
court a quo for a new trial before a new judge and & jury
-
Execution & debt collection
 EXECUTION
- If party against whom judgement was given (judgment debtor) does not comply with order
issued by court, the party in whose favour judgement was given (judgment creditor) would
want to enforce judgment
o Provision made by legislation & court rules for procedural methods to enforce such
judgement = execution
- Purpose of execution = ensure effectiveness of court orders & integrity of the courts
- For purpose of execution distinction must be drawn between judgment for payment of sum
of money (ad pecuniam solvendam) & judgment for performance of act / refrain from doing
something / deliver something (ad factum praestandum)
o Difference in execution process of 2 judgments
- Sum of money = 2 possibilities
o Attachment – issuing warrant of execution
 Sheriff is authorised to attach property of judgment debtor & sell it at public
auction to cover judgment debt & cost accompanying that
o Court order = debtor pays for judgment debt by way of instalments
 Debt collection process
 Only in MC not HC
 HC payment for some of money can be enforced in MC

 Enforcement of orders for payment of money by way of writ of execution

- Property that may be attached & sold in execution in HC & MC
o Movable; immovable & incorporeal property (shares, promissory notes)
- Certain property exempt = personal items that debtor needs to survive
o Bedding, furniture, clothes, food
- Procedure ito writ (warrant) of execution in HC & MC – broadly
o There must be a judgment against the debtor before the execution can be initiated
o Writ in HC / warrant in MC of execution is issued by the judgment creditor at office
of registrar of HC / clerk of MC & handed to the Sheriff for execution
 Sherrif = officer involved in issuing all orders of MC & HC
 It authorisees sheriff to attach judgment debtor’s assets & seel them at
public auction
o RULE = sheriff will first attach movable & if it’s not sufficient then attach immovable
 If insufficient movable – issue return of service stating that = nulla bona
 Writ is the re-issued against immovable property
o Alternative procedure to avoid first attaching movable property
 If execution creditor know that there is not sufficient movable = creditor may
the ask court to declare that property executable
 Then creditor can move directly to attach immovable property
 NB restriction by legislation – if immovable property is primary residence of
debtor – in past could be attached w/o judicial officer assessing situation;
 but current position is that it can only happen after careful judicial scrutiny if
they should proceed with attaching property
o Once sheriff attached property – proceed to arrange public auction to cover
judgment debt

 Enforcing od orders for payment of money by way of other means – including court-
sanctioned instalments
- Garnishee orders = attach funds / money in possession of garnishee
o Garnishee = attachment of debt owed by a third party to the judgment debtor on
initiative of judgment creditor to discharge judgment debt & costs
o Garnishee is supposed to pay that to debtor but hasn’t done that yet
o HC – judgment creditor issues writ at registrar’s office & sheriff serves it on 3rd party
o MC – judgment creditor brings ex-parte application asking for order directing 3rd
party to pay debt to judgment creditor
o Should be paid not to debtor but creditor
- Order for instalments = involves debt collection process, which is applied w/in the
framework of the MC
o Confined to MC

 Enforcement of judgement for performance of an act

- Attachment of property not feasible
- Wilful & mala fide refusal / failure by a party to comply with an order to perform an act /
refrain from doing an act = contempt of court
o Enforced by committal to prison
- Can be done in HC & MC
o In HC approach by application – notice of motion & affidavit setting out defendant
failed to do & ask for order to committal of prison
o In MC = criminal offence under s 106 of MCA – criminally prosecuted

 DEBT COLLECTION
- If execution against the property of the judgment debtor fails the judgment creditor can
initiate a debt collection procedure ito which the judgment debtor can be discharge by way
of periodic payments, such as monthly instalments – it will suffice to refer briefly to the
procedure under s 65 of MCA
- This debt collection procedure is confided to the MC but note that the HC judgment for
payment of sum of money can be enforces in the MC by judgment creditor
- Prior to the adoption of the new constitutional dispensation a judgment debtor who failed to
pay a judgment debt could be committed to jail (civil imprisonment)
o This remedy was found unconstitutional & abolished in the C 1995 decision in
Coetzee’s case
- A debtor who is summonsed to attend financial enquiry ito s 65 to determine their ability to
pay the judgment debt by way of periodical payments & wilfully fails to do so may be found
guilty of the offence of contempt of court & sentences to fine / imprisonment
- Procedure under s 65 MCA – financial enquiry
o The s 65A(1) notice – summons judgment debtor to appear before court in camera
(behind closed doors) on specific date to allow the court to enquire into their
financial position with a view of determining what would be a just & equitable order
 Periodic payment of monthly instalments?
o Notice is drawn up by creditor’s attorney, issued by clerk of court & served upon
debtor by sheriff – notice is accompanied by an affidavit setting out the facts
supporting the process
o The s 65 hearing – debtors appears in camera before court – is sworn in & testifies
about heir financial position
 Judgment creditor’s attorney has opportunity to cross-examine debtor about
relevant issues
o Court may make any suitable order, including order for payment of monthly
instalments
o Failure of debtor to appear at hearing – court may upon request by judgment
creditor’s attorney issue a warrant for debtor’s arrest, which will authorise the sheriff
to bring the debtor to court
o Appearance of debtor when brought to court by way of warrant – court may enquire
into reason for debtor’s absence at the hearing; if court is satisfies that thee debtor
wilfully failed to attend the hearing the court may found them guilty of contempt of
court & impose a fine / commit them to jail for a period not exceeding 3 months
o Debtor’s constitutional rights as an accused person must be heeded by the court
enquiring unto their failure
- Procedure under s 65 – emoluments attachment order
o Under this procedure a judgment credito may apply to the court for an amoluments
attachment order ito which the judgment debtor’s employer (emoluments
attachment debtor / garnishee) is directed to pay a specified sum of money of the
judgments debtor’s income on a regular basis to the judgment creditor to satisfy the
judgment debt
o Judgment creditor must notify the employer & the judgment debtor of their
intention to apply for such an order – the latter 2 have opportunity to oppose the
granting of such an order & for this purpose they must deliver a notice of intention
to oppose the granting of the order, setting out the grounds on which they oppose
the issuing of the order
o Thereafter the judgment creditor’s attorney may set the matter down for hearing in
court & the court would consider if it would be just & equitable to grant the
emoluments attachment order
- What is the difference between an emoluments attachment order & garnishee order?
o Garnishee = 3rd party owes debtor money
o Emolument = debtor is employed & has salary – employee deduct from salary
- Administration order placing debtor’s estate under administration under supervision of an
administrator

 Legal costs
- Legal costs in civil proceedings broadly comprise expenses incurred by an attorney acting for
a party in handling their case & fees payable by client to their legal representatives for
professional services rendered to the client
o Expenses = port charges – fee for summons; all charges paid to sheriff
 Court charges payable to registrar / clerk
 Generally low in compared to fees of attorneys (HCR 67 & 68)
o Fees = remuneration paid to attorneys for the work done
 Usually high; especially advocates
 Impact on access to courts
- High legal costs, especially lawyers’ fees & specially in relation to litigation in the superior
courts, are the main factor inhibiting access to the courts (justice)
o Billing is at heart of law firm; it has been a problem in common law jurisdiction for a
long time & it remains a problem for which there is no real solution; there are
however a few measure to address the issue

- Purpose of an award of costs

o In civil matter when court gives decision on the merits, it must also make an order re
cost – determining which party must pay the costs
 Purpose of award of costs = to indemnify successful litigants for expenses
they have been put through to either prosecute a claim / defend it - however
due to rule regarding party & party costs & taxation – such an award is
usually not complete indemnity
- Party & party costs = cost set out in the rules that may be charged wrt whatever steps were
charged & it may be taxed
o When praty gets cost order in their favour = unsuccessful party must pay that cost
o When such an order has been made – costs unsuccessful party has to pay -> party &
party cost
o It never covers all the cost that the party incurred in the course of legislation
 Attorney & client cost

- Factors hampering access to juctice

o As said, the high cost of litigation, especially in form of lawyers’ fees is the main
factor impeding access to justice – civil litigation also generate expenses such as
 Court charges; advocate is briefed
 = attorney usually requires deposit from clients – may be substantial
depending on the nature of litigation which impedes clients access to justice
o Measure to counter this dilemma
 Legal aid – provided by state legal aid scheme – very limited relief
 Law clinics – US law clinic – provide meaningful assistance to indigent
people, but impact is still limited
 Contingency agreement – measure introduced into SA law by Contingency
Fee Act 66/1997 – which came into operation on 23 April 1999 – prior to
that date is was prohibited by common law
 Essence = attorney & client agree that the client will only be liable to
pay attorney’s fee if the outcome of their case is successful; if they
are unsuccessful the client would not have to pay the attorney’s fees
but would usually be liable for costs of the successful party
  Under this agreement the attorney will be entitled to charge a
higher fee than usual = success fee – but it’s not unlimited
 Wording of s2 of the act seems to indicate that contingency
agreement only covers the attorney’s fees & not expenses;
agreement may stipulate how disbursement are to be dealt with
 Measure goes some way to limit a client’s liability for payment of
costs in case they are unsuccessful & thus promote access to justice
– given general rule re costs = measures are limited
o More general in USA and each party usually pays own costs
 Litigation funders – for interest sake – companies in Australia fund & run
litigation on behalf of plaintiffs – usually only big cases & take a percentage
of damages awarded
- Categories of costs
o Party & party costs = costs incurred by party to litigation, which are payable usually
by unsuccessful party ito court order / agreement of settlement & in accordance
with rate laid down in rules
o Attorney & client costs = costs an attorney may recover from client for professional
services
 Based on agreement & recoverable regardless outcome of the case
 In exceptional cases unsuccessful party may also be ordered to pay the
successful party’s costs on attorney-client basis
o Attorney & own client costs = remuneration payable by client to attorney ito
agreement between them
 Covers more costs than attorney-client; case law has called this distinction
into question
 Attorney & own client cost misnomer & there are no difference between 2
concepts re taxation

- Award costs & general rule regarding costs

o Court has wide discretion regarding costs but must exercise it in judicial manner,
taking all relevant circumstances into account, such as conduct of parties & rules of
governing costs
o General rule = successful party entitled to their costs = unsuccessful party must pay
own & successful party’s cost
o A party is successful if their case succeeds substantially – whether that is the case is
up to the court
o If there are good reasons a court may deviate from the general rule & make any
other appropriates order as to cost
o A costs award usually entails party-&-party costs, which does not cover all costs
 If there are good reasons – improper conduct by unsuccessful party – court
may order such a party to pay the successful party’s costs on attorney- client
scale

- Exceptions
 o Deviation form general rule – successful part denied their costs (or part thereof) /
ordered to pay unsuccessful party’s costs -> grounds for deviation where successful
party:
 Made excessive demands / claim
 Caused litigation unnecessarily
 Failed to curtail the proceedings & limit costs
 Was guilty of misconduct regarding the transaction leading to the action /
regarding the litigation itself
 Achieved only technical success
o Deviation from general rile where unsuccessful party pays costs on attorney-client
scale:
 More extensive than party-party cost = enables successful parties to recover
all reasonable cost they have incurred -> ensures that successful party will
not be out of pocket iro expenses caused by litigation
 that the [unsuccessful] party has been guilty of dishonesty or fraud or had
vexatious, reckless and malicious, or frivolous motives; or committed grave
misconduct either in the transaction under inquiry or in the conduct of the
case”. They add that such an award would also be justified where a party
abused the process of the court. There are many examples of such improper
conduct but one example will suffice, viz where a party, who has been
requested to discover documents by the opponent deliberately destroys
relevant documents favouring the opponent to harm the latter’s case.

- Determination of amount for costs

o Agreement between parties - the parties may mutually agree on the amount of
costs payable by (usually) the unsuccessful party
 The attorney of the party entitled to the costs usually prepares a detailed bill
of costs in accordance with the prescribed rate in the rules & sends that to
the other party’s attorney
 Discussion may follow & adjustments may be made but once the parties
agree on the amount of costs payable it becomes due
o Taxation – where the parties do not reach agreement on the amount of costs it must
be determined by way of taxation
 The attorney acting for the party entitled to costs prepares a detailed bill of
costs in accordance with the prescribed rate in the rule, obtains a date for
taxation from rhe taxing master (HC) / clerk (MC) & gives notice to the
opponent of the date of taxation
 Both parties may be present at the taxation hearing to present arguments
 The raxing master has discretion to allow such costs that are
“necessary or proper for the attainment of justice”
 HCR 70(3) / MCR 33(16)
 Once the bill has been taxed it become payable
 Review of taxation = rules of HC & MC provide for procedure to review that
taxation of the taxing master & clerk respectively
  HC – party dissatisfied with the ruling may w.in prescribed time
require taxing master to present stated case for decision by judge
HCR 48
 MC – dissatisfied party with ruling of clerk may w.in prescribed time
bring matter before a judicial officer for review – if the party is still
dissatisfied – may require magistrate to state case for decision by
judge
- Some cost terms
o Costs of appeal = cost incurred by noting an appeal & its continuance
o Cost in the cause = where a court makes an order in a preliminary or interlocutory
proceedings that the costs in that matter will be costs in the cause it means that the
party ordered to pay the costs of the opponent in the main case will have to pay the
costs of prelim / interlocutory process
o Wasted costs – costs are wasted when the service in respect of those costs are of no
more use to the parties involved in the case – if party seeks to amend plea
substantially on the day of the trial, which necessitates a postponement of the trial
the costs of the legal rep relating to the trial will be a waste
o Costs reserved = costs relating to particular process (interlocutory) will be decided at
a later stage, usually at the end of the trial
o No order as to costs – where the court gives such a ruling it means that each party
pays its own costs
o Costs de bonis propriis = as a rule costs are payable by the parties to the suit
 In exceptional circumstances a person acting in a representative capacity,
such as an attorney / advocate / executor of deceased estate / trustee of
insolvent estate, may be ordered to pay costs in their personal capacity
(from their own pocket) – if there’s a good reason for such ruling
 Includes instances where representative acted unreasonably, improperly,
negligently or in a mala fide manner in performing their task

70 marks

- 2 hours
- 10 minutes reading
- His section = 40 marks
- Problem solving questions
- Set of facts – draw up document / identify & prescribe procedure
- Read the questions properly
-