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TOPIC 1
2020
INTRODUCTION THE LAW OF CIVIL PROCEDURE
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A Practical Scenario

Y collides with X at an intersection

What type of claim will X have against Y?
(Delictual Claim)

X wants to institute a claim against Y for damages

How do you (X’s attorney) know whether Y will be willing to pay for the damages or not?
[Letter of demand]

How do you cite [refer to] Y, and must only Y be held liable for the damages suffered by X?
[Parties]

If Y refuses to pay the damages which court must X approach for relief?
[Jurisdiction]

How do you get Y to appear in court i.e. which procedures must X use?
[Action, Application]

What must Y, as defendant do once the summons has been served on him? [Notice
of intention to defend, Pleadings etc]

How do you place the facts before the court?

[Pleadings & Witnesses or Affidavits]

Does the matter proceed as a trial or a hearing?

[Depends on the procedure used]

How is the matter resolved?

[Judgment, Settlement etc]

Who must pay for the legal costs incurred?

[Costs]

What if a party is unhappy with the judgment?

[Appeal / Review / Rescission]

How are court orders enforced?

[Execution / Debt collecting]
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What is the Law of Civil Procedure?

A basic distinction must be made between substantive and procedural law

Substantive law
Describes what a person’s rights, duties and remedies are in a given situation.
Therefore, it determines the content and scope of natural and juristic persons’
rights.
Examples: determining when a person has a legal claim.
The Law of Delict describes a person’s rights, duties and remedies in terms of the Law
of Delict.
Other examples are Constitutional Law and the Law of Contract.
Civil Procedure does not primarily focus on substantive law, but makes use of it
in order to enforce the parties’ rights in terms of procedural law.

Procedural law
Describes how a person’s rights, duties, and remedies may be enforced.
Therefore, it provides the procedure for enforcement of rights and duties.
It is therefore an enforcement of substantive law via the courts.
These courts include the district and regional magistrates courts, The High
Court, The Supreme Court of Appeal (SCA) and the Constitutional Court
(CC).

Examples: prescribes procedure for claiming damages.

Examples of Procedural Law include the Law of Civil Procedure and the Law of
Criminal Procedure.
Civil procedure is conducted in civil courts and criminal procedure is
conducted in criminal courts.

This module focuses on the Law of Civil Procedure

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What are the main differences between the Laws of Civil Procedure and Criminal Procedure?

Civil Procedure – Enables parties to take action to enforce rights and claim remedies.

In terms of Civil Procedure, parties are not referred to as ‘guilty’ or ‘not guilty’.
These terms are used in Criminal Procedure and Criminal Law.
The parties are referred to as ‘liable’ or ‘not liable’. i.e are you liable to pay damages or not liable
to pay damages.
As mentioned before, in civil procedure matters are heard in civil courts.
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The parties in the civil court are referred to as ‘plaintiff’ vs ‘defendant’, ‘applicant’ vs
‘respondent’ and the ‘appellant’ vs the ‘respondent’.
The final two names are mentioned when a matter is on appeal.

Civil proceedings and procedure occurs in Civil courts – the proceedings are voluntary.

Criminal Procedure
In terms of Criminal Procedure, matters are dealt with in criminal courts and the party
who institutes the proceedings is not the ‘plaintiff’ or ‘applicant’, he/she is referred to
as the ‘complainant ‘and the State later on in the matter, steps into the shoes of the
complainant by representing him/her.
Names of parties are then referred to as the ‘State’ vs the ‘Accused’.
Example:
Y collides with X at an intersection, as Y had driven when the robot was red.
What can be done in terms of the Law of Criminal Procedure and what can be done in
terms of the Law of Civil Procedure? For the same matter, in terms of civil procedure,
the plaintiff can get a quote from the panel beater and the mechanic. He/she can also
get a letter of demand. However at the scene of the incident, if SAPS had made an
appearance. SAPS will then institute proceedings into an investigation. Y will then
become a suspect, and eventually be referred to as the ‘accused’.

The complainant will then lay a charge of negligent/reckless driving. In terms of Criminal Procedure,
there will be a plea of ‘guilty’ or ‘not guilty’, as well as present witnesses. However,
this process does not happen in Civil Procedure. There are however pleas, but not
with the aforementioned terms. The pleas in civil procedure, involve the response of
the defendant directed at the summons of the plaintiff and the particulars of the claim.
A plea in civil procedure therefore, is not the same as one in criminal procedure.

8 Principles Underlying the Law of Civil Procedure

The right to equal and effective access to an independent and impartial judiciary
o This includes that the costs and duration of the litigation must be reasonable.

For example, when X wants to institute a claim against Y, in the High Court for instance. X
can have the summons issued and served on Y in court. However, costs of
litigation must be reasonable. Eg the advocate cannot charge R20 000 per day, as
this is not effective access. Advocates today, cannot demand such a sum of
money. There has been a change in the legal profession regarding advocates. In
the past, the Law society use to govern attorneys and Bar councils use to govern
advocates. Two years ago however, a new council was established, the Legal
Practitioners Council. This council now governs both attorneys and advocates. As
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a result, the council is permitted to limit the amount of legal fees that attorneys
and advocates charge.

• The right to present your case to court (audi alteram partem) - It ensures 3 things:
In application proceedings, it includes the rights of both the applicant and the respondent.
It ensures 3 things:
1) The defendant is notified of the proceedings. Eg if X wants to institute a claim
against Y of R50 000 and then Y receives a letter of demand but refuses to pay
the stipulated amount, X’s attorney can draft a document and have it issued as
a summons by the court. The court can then give this document to the sheriff
of the court, who then serves the document on the defendant. The defendant
will then be well aware of this document that has been issued.

2.) Both parties are notified of the nature of the opposing parties’ respective cases
and the grounds on which those cases are based. Eg. In the summons it will be
stated on which specific date the incident had occurred at the intersection, and
proof (the quotes) that the total amount in damages owed to the plaintiff is
R50 000. Y will also have the opportunity to reply to this. Therefore, the
nature of how these types of proceedings are conducted in civil courts, leaves
no room for surprises.

3.) Those parties are afforded the opportunity to present their respective cases to
the court.

• The decision to institute or defend an action (and to determine the scope of the dispute)
rests with the parties, and the parties decide on the evidentiary material to be presented
as proof of their cases (party control)

• Provision must be made for direct oral communication between the parties (or their
agents) and the court

• The main proceedings (trial for or the argument) must in principle take place in public
Ie proceedings must take place in open courts. The door at the back of the
court cannot be locked during proceedings. This allows for the public to walk
in during proceedings. Note that when it comes to the trial or the hearing, proceedings must
take place in an open court.

• The court must consider the evidentiary material on objective and rational grounds
How do you know that the court has done this on rational grounds? This is
done by looking at the cases. Ie the ratio decidendi, the obiter dictum (remarks
made in passing by the judicial officer). Based on the Doctrine of stare decisis,
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the lower courts are bound by the decision of the high courts. You can however, simply just look at
the ratio decidendi (the reasoning of the court for its judgement) and see whether it is based on
reasonable grounds.
If you are unhappy with the overall judgement of the court, you can appeal the matter to
a higher court if you so wish to get a better outcome for your case.

• The court must give a reasoned and legally motivated judgment and give it expeditiously
Ie justice must not only be done, but must also be seen with the naked eye that it has indeed
been done. You must see the judgement for yourself and if you are unhappy with it, you can
then appeal the matter.

• The decision of the court is final and binding, but provision exists for appeal, review or
rescission
Ie the judgement can be appealed, reviewed, or an application for rescission
can be made.
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Sources of the Law of Civil Procedure in South Africa

The most important sources of the law of civil procedure

• The Constitution of South Africa
• The Constitutional Court Complimentary Act 13 of 1995 and the Rules of the Constitutional
Court
• The Superior Courts Act 10 of 2013
• The Rules of the Supreme Court of Appeal
• The Uniform Rules of Court in the High Court (High Court Rules)
• The Magistrates’ Court Act 32 of 1944
• The Magistrates’ Court Rules
• The Small Claims Court Act 61 of 1984
• The common law underlying the rules of procedure and jurisdiction in the High Court
• Other legislation and regulations to specialised courts
• The practice arrangements and directives applicable in the respective divisions of the
High Court
• Case law –

1.) The Constitution of South

How does the Constitution impact on procedural matters?

The Constitution has impacted on the current Law of Civil Procedure, therefore the current
Law of Civil Procedure can also be challenged.
Before going to a court with a matter, a court must firstly have jurisdiction over that matter.
Eg Y assaults X. Y stays in Belville, therefore the Belville Magistrates/High
Court will have jurisdiction of the matter. If however, Y resides in another
country, the court does not have jurisdiction. This becomes problematic. In
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the past Y could be arrested regardless, but today it is considered an

infringement on the right of a person’s freedom of movement.

2.) The Constitutional Court Complimentary Act 13 of 1995 and the Rules of the Constitutional
Court

Ie what time can you go to the Constitutional Court, What time the court closes, Who should
stamp the relevant documents, where the judge’s chambers are, etc. The Constitutional Court is
the highest court in the country. Initially, this court could only hear constitutional matters, as the
Supreme Court of Appeal at the time, was the highest court that could hear non-constitutional
matters. The Constitution has since been amended, and the CC can now hear any matter where
certain requirements are needed (non- constitutional and constitutional). Such as matters of
national concern.

3.) The Superior Courts Act 10 of 2013

This piece of legislation, replaced the old Supreme Courts Act.

4.) The Rules of the Supreme Court of Appeal

Wont be discussed in much detail in this module.

5.) The Uniform Rules of Court in the High Court (High Court Rules)

This will be discussed in much greater detail.

6.) The Magistrates’ Court Act 32 of 1944

7.) The Magistrates’ Court Rules

Note that in the magistrates court, we look at these two pieces of legislation and in the High
Court, we look at the legislation at point 5.).

8.) The Small Claims Court Act 61 of 1984

This court hears civil matters that do not exceed more than R20 000 in costs. In the Law of
Evidence, this court will be discussed in greater detail.

9.) The common law underlying the rules of procedure and jurisdiction in the High Court

The High Court has innate jurisdiction. High Court’s authority is found in the Superior
Courts Act as well as the High Court Rules. The Magistrates Court is a lower court,
finding its authority in the Magistrates Court Act and in the Magistrates Court Rules.
However, the High Court has something called innate jurisdiction which is something extra.
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Innate jurisdiction is the unfettered power of a court to deal with any unlawful
interference of rights. This is a Common Law power. However, the Superior Courts Act
limits this common law power. A sub branch of this power (innate jurisdiction), is referred to
as inherent jurisdiction. The Magistrates Court is a creature of statute, as it can only do
what a statute says. However, the high Court can do more because it has innate
jurisdiction. Inherent jurisdiction, refers to the power of the court to regulate its own
processes.

10.) Other legislation and regulations to specialised courts

Specialised Courts include the Equality Court and a number of other specialised courts found in
South Africa.

11.) The practice arrangements and directives applicable in the respective divisions of the High
Court

These arrangements are also referred to as ‘practice notes’. Eg. in the High Court, Judge
Hlope issued certain directives saying that in this High Court division, if one wants to issue
summons it must be in ‘Times New Roman’ and in font 12. These are directives for a
specific division of the High Court.

12.) Case Law:

Case law has an impact on the law of civil procedure as far as changing the law is concerned.
Certain provisions of the Law of Civil Procedure, have been found to be unconstitutional. In this
module we will focus on the procedures of the High Court, as well as those in the Magistrates
Court.
FOCUS OF THIS COURSE IS THE PROCEDURES IN THE HIGH COURT AND
MAGISTRATE’S COURT

High Court
The procedures in the High Court are primarily set out in the Superior Courts Act which must be
read together with the Uniform Rules of Court = High Court Rules (HCR)

The Act provides for the court’s power. If there is a conflict between the Act and the Rules,
the Act takes preference.

Magistrates’ Court
The procedures in the Magistrates’ Court are primarily set out in the Magistrates’ Court Act
which must be read together with the Magistrates’ Courts Rules (MCR)

Note: legislation is made in parliament. The Act no. refers to the number of that Act of that particular
year. In order for an Act to be changed it must be sent back to parliament. As far as the Rules are
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concerned, these Rules are drafted by a body referred to as the Rules Board of Courts of
Law. If the Rules need to be changed, this board has the authority to change it.

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Structure of the South African Courts, and Specialised Courts

Hierarchy of South African Courts and the Doctrine of Stare Decisis:

Constitutional Court
o It is the highest court concerning all matters. It is found in Randfontein in
Johannesburg. This court has original, exclusive and appeal jurisdiction, as far as
the constitutionality of the Constitution has to be technically confirmed by the
Constitutional Court. It can however, act as a court of first instance, one can go
directly to this court to challenge something, or a matter can go from the High
court to the Constitutional court.

Supreme Court of Appeal

o The SCA however, does not have original jurisdiction. A matter has to first be
appealed from the High Court, thereafter the SCA hears the matter. This court is
found in Bloemfontein.
High Court of South Africa
o There is only one High Court in SA, but it consists of different divisions. In the past,
there use to be several high courts in SA, eg Cape Town High Court, Western Cape High
Court. The position has since changed, now there is only one High Court with different
divisions. It is divided geographically and administratively into each province. The
High Court has local and main seats. Each province has a main seat, but some
have both local and main seats. There are 9 divisions of the High Court. Some only
have main seats, while others have both types.
Magistrates’ Courts
o There are 2 types, namely district and regional magistrates courts. The difference
between the two in terms of the Law of Civil Procedure, is that the monetary
jurisdiction differs. Eg legal costs amount to R50 000, can be heard by district
magistrates court. However R500 000, this type of magistrates court will not have
jurisdiction.
Any other court established in terms of an Act of Parliament
o Eg. small Claims Court

Stare Decisis: ‘to stand by decisions previously taken’ – lower ranking courts bound by the
decisions of higher ranking courts. Applies within the hierarchy or superior courts.
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As mentioned earlier there is one High Court with a number of divisions. This impacts on the
Doctrine of Stare Decisis, in that the High Court’s decision is binding on all of the divisions.

Introduction to the various courts in the Republic of South Africa

The Constitutional Court (s167 of the Constitution)

Presiding officers:
Chief Justice
Deputy Chief
Justice
9 other justices.
(matter must be
heard by at least 8
justices).
• Seat: Randfontein, Johannesburg
• Where procedure found: Constitutional Court Complimentary Act and CC rules.
• Jurisdiction: s167(3) of Constitution – highest court in all matters with original, appeal and
exclusive jurisdiction. ie matters can be taken on appeal from the High Court and a matter
concerning constitutionality affecting the general public can be taken directly to the CC,
respectively. Note that it is the highest court in SA concerning all matters (non-
constitutional and constitutional matters).
• Precedent: ito Stare decisis, decisions are binding on whole country.

The Supreme Court of Appeal

Presiding officers:
the President,
the Deputy President
and a number of judges
of appeal.
• Seat: Bloemfontein
• Where is the procedure found: The Superior Courts Act and the Rules of the SCA.
• Jurisdiction: Court does not have original, only appeal jurisdiction.
• Precedent: All provinces bound by SCA’s decision.

The High Court

Single High Court in South Africa with a number of divisions with main seats and local seats
Divisions are further divided up into local seats and main seats. Some divisions only have a
main seat, while some have both a main and a local seat (refer to table in slides).
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Note: Section 7 of the Superior Courts Act also allows for the establishment of circuit courts at a
place designated by the Judge President of that division. Eg in the Western Cape, we have the
Western Cape Division which is based in Cape Town.

Presiding officers:
The Judge President (JP), and a number of other judges.
Eg. Judge Hlope is the JP of the Western Cape Division.

• Seat: Each of the 9 provinces has a division of the High Court, so the seat of the High
Court is found in each of its divisions.

Divisions of the High Court of South Africa

Division Seat and Location Citation

Eastern Cape Division Main Seat, Grahamstown EGG
Local Seat, Bisho ECB
Local Seat, Mthatha ECM
Local Seat, Port Elizabeth ECP
Free State Division Main Seat, Bloemfontein FB
Gauteng Division Main Seat, Pretoria GP
Local Seat, Johannesburg GJ
KwaZulu Natal Division Main Seat, Pietermaritzburg KZP
Local Seat, Durban KZD
Limpopo Division Main Seat, Polokwane LP
Local Seat, Thohoyandou LT
Mpumalanga Division Main Seat, Nelspruit MN
Northern Cape Division Main Seat, Kimberly NCK
North West Division Main Seat, Mahikeng NWM
Western Cape Division Main Seat, Cape Town WCC

NB! In terms of s 50(2) of the Superior Courts Act, the Gauteng Division will also function as
the Limpopo and Mpumalanga Divisions respectively until these divisions are formally
established by the Minister of Justice. This was the case because, Limpopo and Mpumalanga
had no High Court divisions, therefore the Gauteng Division had jurisdiction. This was problematic
in terms of the distances of travel. However, The Limpopo Division opened up on the 29
November 2016 in Polokwane. Gauteng Division is no longer used as from 29 November
2016. The Mpumalanga Division opened its doors on the 13 May 2019 in Nelspruit. So S50(2)
of this Act is no longer applicable to those courts.

Note:
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Section 7 of the Superior Courts Act also allows for the establishment of circuit courts at a
place designated by the Judge President of that division.

Main and Local Seats of a Division

(GAUTENG)
PROVINCIAL DIVISION

MAIN SEAT LOCAL SEAT

Pretoria Johannesburg

High Court of South Africa (Continue)

Procedure:
Superior Courts Act
High Court Rules
• Jurisdiction:
Has original and appeal jurisdiction.

• Appeal from the Magistrates Court: A matter can be taken on appeal from the
magistrates Court to the High Court
• Appeal from the High Court: A matter can be taken on appeal in the same high court ie,
from a single judge to a bench of judges (3 judges constitute a full bench).

• Precedent: The rulings of the court is only binding on the province, but has persuasive
value in other provinces.

Magistrates’ Court
The Magistrates court however, does not have innate jurisdiction.
• Creature of statute: Created by and can only operate within the four corners of the Magistrates’
Court Act 32 of 1944
S 170 of the Constitution of South Africa: No power to rule on the constitutionality of legislation
or rule on the conduct of the President of South Africa. Thus, its authority is limited.
• Procedure: found in the Magistrates Court Act and in the Magistrates Court Rules.
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• Presiding officers: Magistrates - Note that in SA, magistrates are referred to as ‘your
worship’. In the High Court, referred to as ‘my lord’, ‘my lady’ or ‘your lordship’.

• Two levels: Regional and District Court

• Regional Courts:
Jurisdiction: Exercises both civil and criminal
jurisdiction
• District Courts:
Jurisdiction: Exercises both civil and criminal
jurisdiction.
• Amount of District Courts in South Africa:
There are approximately 700 district courts in SA, all
presided over by magistrates.

• Chief Magistrate:
There is also an official referred to as the Chief Magistrate (CM). They are found in areas
where there are more than 10 magistrates
. CM oversees all of these courts in the area.

Small Claims Courts

Specialised type of court:
It is a specialised court, established in terms of the Small Claims Court Act 61 of 1984.

• Purpose:
o To make the judicial system less expensive and more accessible. Ie. If a matter does
not require an attorney.
• Hours:
o This court operates after hours as well.
• Legal representation:
o Note that legal representation is not allowed in this court.

• Language usage:
o All SA’s official languages may be used in this court.

• Presiding Officers: Commissioners

• Court of record: This court is not a court of record, as proceedings are not tape recorded.
• Plaintiff: The plaintiff must be a natural person. Juristic persons cannot make use of this
court.
• Jurisdiction: Claims not exceeding R20 000.

Procedure in Small Claims Court (Example)

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A simple procedure in comparison to other courts such as the magistrates and High Courts. Eg. You institute
a claim of R5000 against X for driving into your car in a parking lot.

• Contact person - Inform X that the panel beater said the damage required R5000 to repair.
• Letter of demand - If X does not respond, send this letter to X. It must state that X has 14 days to
pay the amount (R5000).

• Go to Small Claims Court with documents - You have proof that she has received the
letter of demand. Thereafter, go to the Small Claims Court with the document. If X has
still not paid, go to an official of the court.

• Summons prepared - The official assists you in drafting a summons. The summons is then
served on X, requesting the amount (R5000).

• Court date - On the summons, it will be stated on which date X must appear to defend the
matter. On the date, a hearing takes place.

• Payment - If the Commissioner rules out of X’s favour, X must then pay the amount (R5000).
After the payment, X receives a receipt and the matter has been concluded.

• Failure to comply - If X still refuses to pay, you have an order of the commissioner and
thereafter the matter is referred to the Magistrates Court.

Specialised Courts (self-study)

Labour Courts
Section 151 of the Labour Relations Act 38 establishes a Labour Court having the same
authority, powers and standing as a High Court in relation to matters under its
jurisdiction.
The Labour Court has jurisdiction in all the provinces of South Africa and may perform
its duties at any place within the Republic. It has exclusive jurisdiction in respect of all
matters in terms of the Labour Relations Act or any other law relevant to the Labour
Court. These include matters arising in terms of
the Basic Conditions of Employment Act
the Unemployment Insurance Act
the Skills Development Act
the Employment Equity Act
the Occupational Health and Safety Act
the Compensation for Occupational Injuries and Diseases Act.
However, in terms of section 77(3) of the Basic Conditions of Employment Act, the
Labour Court has “concurrent jurisdiction with the civil courts to hear and determine any
matter concerning a contract of employment”.
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The Labour Court has its own rules of procedure and may, in terms of section 157(4)(a),
refuse to adjudicate on a dispute if it is not satisfied that an attempt has been made to
resolve the dispute through reconciliation.
Section 167 of the Labour Relations Act establishes a Labour Appeal Court as the final
court of appeal in respect of all judgments and orders made by the Labour Court
regarding matters within its exclusive jurisdiction.
The Labour Appeal Court has a status equal to that of the Supreme Court of Appeal in
relation to matters within its jurisdiction.
The Superior Courts Act 47 provides that the Labour Court will have equal standing to
that of the High Court.

Land Claims Court

The Land Claims Court was established in 1996 in terms of section 22 of the Restitution
of Land Rights Act.
It has the same status as a High Court and has exclusive jurisdiction to determine,
inter alia :
a. a right to restitution of any land in accordance with the Act
b. to determine issues of compensation in respect of the appropriation or acquisition of
such land,
c. to determine title to such land
d. to determine whether compensation received at the time of dispossession of land was
just and equitable.
It also has exclusive jurisdiction to determine matters involving the interpretation or
application of the Land Reform (Labour Tenants) Act and the Extension of Security of
Tenure Act.
Appeals from this court lie to the Supreme Court of Appeal and in appropriate cases
to the Constitutional Court.
The President and additional judges of the court were initially appointed for a fixed
term of five years. In 2000 a new section 26A was inserted into the Restitution of Land
Rights Act to provide for the secondment of judges of the High Court and the
appointment of acting judges to the Land Claims Court.
This has enabled the court to continue to function after the expiry of the initial fixed-
term appointments of judicial officers and without the appointment of further judicial
officers fully dedicated to this court.
The Land Claims Court has its own rules. Its procedures are more flexible than those of
the High Court, allowing it to conduct proceedings on an informal or inquisitorial
basis.
It has its seat in Randburg, but may convene in any part of the country to promote
accessibility.
Special Income Tax Court
Sections 116 to 132 of the Tax Administration Act 51 provides for the constitution of a
special court for the hearing of income tax appeals by persons dissatisfied with
decisions made by the commissioner of the South African Revenue Service.
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The court is composed of a judge or acting judge of the High Court, an accountant of
not less than ten years’ standing and a representative of the commercial business
community.
The President of the Republic of South Africa constitutes these courts by
proclamation as the circumstances require.
Proceedings are commenced by a notice of appeal served on the commissioner within
the time period specified in section 83(7) of the Act.
Competition Appeal Court
The Competition Act 52 establishes a Competition Commission which is responsible
for the investigation, control and evaluation of restrictive practices, abuses of
dominant position and mergers. It also establishes a Competition Tribunal, which is
responsible for adjudicating such matters.
Section 36 of the Competition Act further establishes a Competition Appeal Court with
a status similar to that of a High Court and which has jurisdiction throughout the
Republic of South Africa.
This court consists of at least three judges of the High Court, appointed by the President
of the Republic of South Africa on the advice of the Judicial Service Commission.
The Competition Appeal Court may review any decision of the Competition Tribunal or
consider an appeal against a decision of the Tribunal.
There is no appeal from the Competition Appeal Court to the Supreme Court of
Appeal.
Electoral Court
Section 18 of the Electoral Commission Act 54 establishes an Electoral Court for the
Republic of South Africa, with the same status as the High Court.
The court consists of a judge of the Supreme Court of Appeal and two High Court
judges plus two other members who are South African citizens.
The Electoral Court may review any decision of the Electoral Commission relating to an
electoral matter, and it may hear certain appeals against decisions of the Electoral
Commission.
Consumer Court and Related Matters
The former Consumer Affairs (Unfair Business Practices) Act 55 provided for the
prohibition or control of certain business practices considered harmful to the public
interest.
This Act was repealed by the Consumer Protection Act (CPA).
The CPA sets out a regulatory and enforcement framework for the protection of
fundamental consumer rights which exist between a consumer and a supplier.
A consumer may enforce any consumer right set out in a transaction or agreement, or
resolve any dispute with a supplier, by referring the matter to the necessary ombud,
the National Consumer Tribunal, National Consumer Commission, an alternative
dispute resolution agent, or the Consumer Court (i.e. the CPA also envisages that
provincial consumer courts may be introduced in terms of provincial consumer legislation), or
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approach any civil court with the necessary jurisdiction when all other remedies have
been exhausted.
The Act also empowers Equality Courts to adjudicate unreasonable and
discriminatory infringements of fundamental consumer rights set out in Part B of
Chapter 2.

Divorce Court

In 1929 the colonial government of South Africa established a Divorce Court

exclusively for the use of Black persons by way of an amendment to section 10 of the
Native Administration Act of 1927.
The court continued its existence in terms of that amendment until the enactment of
the Divorce Courts Amendment Act 63 in 1997, which extended its jurisdiction to all
race groups.
The provision which established the court was subsequently renamed by section 10
of the Administration Amendment Act.
The former Divorce Court had concurrent jurisdiction with the High Court in respect of
divorce and ancillary matters.
The former Divorce Court has been absorbed into Magistrates’ Courts of a Regional
Division which are currently part of the ordinary structure of Magistrates’ Courts.
Children’s Court
The former Children’s Act first established a specialised Children’s Court to deal with
child welfare issues.
In 1983, the Children’s Act was replaced with the Child Care Act which also provided
for a Children’s Court. Children’s Courts were presided over by commissioners of
child welfare who were District Court magistrates.
The 1983 Child Care Act was replaced with the current Children’s Act.
In terms of section 42 of the current Children’s Act every Magistrates’ Court is deemed
to be a Children’s Court and has jurisdiction over matters arising from the application
of the Act.
Magistrates are therefore empowered by the same section to be the presiding officers
of Children’s Courts.
Maintenance Court
A special Maintenance Court was first established in 1963 by the Maintenance Act,
which provided that every Magistrates’ Court is, within its area of jurisdiction, also a
Maintenance Court for the purposes of the Act.
The present Maintenance Act retains this special court at District Court level and
provides procedures designed to assist applicants to obtain and enforce maintenance
orders.
Ideally, a Maintenance Court should be part of a Family Court structure designed to
deal in a holistic way with divorce, maintenance, domestic violence and issues
concerning the welfare of children.
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Equality Court
Section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 73
provides that every Magistrates’ Court and every High Court is also an Equality Court
in the area of its jurisdiction.
The Equality Court is a specialised court established to deal with complaints of unfair
discrimination.
This is the first direct constitutional jurisdiction to be awarded to the Magistrates’
Courts.
A judge or magistrate must be designated as an Equality Court presiding officer
before he or she may sit in such a court, but this can occur only after he or she has
received special training.
The Act provides for the designation of clerks of the Equality Court. Clerks play an
important role in assisting applicants to prepare applications.
The Act provides a user-friendly application procedure in order to make the court
accessible.
The judicial officer first becomes involved when a directions hearing is held, at which
the judicial officer must give a direction as to the way in which the matter should
proceed.
The hearing on the merits is of an inquisitorial nature, which enables the judicial
officer to control the proceedings effectively.

7
Officers of the South African Courts

Judges
Preside in: Preside in the High Court, SCA and in the CC.
Appointed by: the President of RSA through the advice of the Judicial Service
Commission (JSC). President makes his decision to appoint after receiving such advice
and looking at certain formalities.

Magistrates
Serve in: the regional and district magistrates courts.

Registrars
Serve in: the Regional courts and the High Court.

• Note: The magistrates court is divided into the regional and district magistrates court.
Registrars are made reference to only in the High Court and in regional courts, not in
district courts.

Rank: The rank of these officials are the Chief of the Administrative Court Staff.
 20

Work: Registrars deal with issuing of processes and filing the documents. They are the
administrative staff. Eg. a summons and a notice of motion.

Clerks and Registrars of the Magistrates Courts

• Serve in: the regional and district courts.
Rank: Rank of clerks is the same as the Registrars of the regional courts and the High
Court, however a different name is used.
Work: Also the same as the Registrars of the regional courts and the High Court. In the
past, only a High Court could grant a divorce order, hence registrars are found in the High Court
as well.
However, registrars are also found in the regional courts today because the magistrates
court also has jurisdiction now regarding the granting of divorce orders, but just the
regional courts have such jurisdiction, not the district courts.

The Sheriff
Work: Attends to service of process of courts (serving summons and supboenas) &
plays an NB role in executing court orders.
The person that physically serves a summons on you. He attends to the services of all
the processes of court. Eg. if you wish to issue a summons of R5000 for damages and go to
the court. The person that serves such document to the defendant, is the sheriff.
The sheriff thereafter, writes a ‘return of service’, saying for example that he has gone to the
house of the defendant and at the time he did so, 12:00. You then have proof that the matter
has been served on the defendant, because the sheriff of the court wrote a ‘return of service’.
If a judgement is granted in the magistrates court for instance, then the matter can be executed
by attaching assets from the defendant’s estate to the claim by selling these assets at an
auction.
‘Return of Service’: Is a receipt of how the sheriff has served the summons on the
defendant.
Writes out the Return of Service: this is then given to instructing party and court.

Assigned to a specific geographical area

Independent contractors of the courts

Master of the High Court

• Appointment: A master is appointed in each division of the High Court.
• Work: The master of the High Court deals with wills, trusts, deceased estates and
insolvent estates.
• Eg. if there is a will of a deceased person with no successors, you can lodge the will with the
Master of the High Court. The master has discretion of whether to issue you with the letters
of executorship or not. Such letters will allow you to bequeath assets from the deceased
estate as listed in the will.
 21

Legal Practitioners
Legal Practice Act 28 of 2014: now allows for the advocate to also have a trust
account.
Fit and proper: to practice as an attorney or advocate, one must be fit and proper.
The Jiba case deals with ‘fit and proper’.
What is meant by fit and proper?
If a person makes an accusation that you as a legal practitioner is not fit and
proper, what is required? ( look at Jiba case)

One profession known as the Legal Practice Council

Position before Legal Practice Council:

In the past we used the terms ‘attorney’ and ‘advocate’ to
refer to the two legal practitioners.
Now we use ‘legal practitioners’ to refer to both types.
The Bar Council has since been disband, as well as the
Law Society. The Legal Practice Council has replaced both.

Legal practitioners and candidate legal practitioners

Difference between an attorney and an advocate:
Advocates are specialists. Eg. some only specialise in criminal law, no other
branch of law.
An attorney has an office. Anyone from the public can go to attorney. An attorney
listens to his clients case and suggests whether an advocate, with their expertise in
a specific branch of law, would be helpful for the case.
An advocate is generally very expensive and only appears in court, whereas an
attorney can appear in court, but must primarily be in the office to attend to
clients.

Another difference initially, was that attorneys could not appear in the High Court. An attorney
had to instruct an advocate to appear for him/her in the High Court,
but attorneys could not appear.
The reason is that, after one becomes a practicing attorney, 3 years later an application can be
made to the High Court, stating that under the Law Society, one has been practicing for 3 years
and that now one wishes to have their name as part of the High Court attorneys.
Thereafter, one as an attorney can hear a matter in the office and can also appear in the High
Court.
The main difference is that advocates are only in court, never dealing with matters in office.
Attorneys however, deal with matters in office.
Attorneys with Trust Accounts and Advocates with Trust
Accounts
In terms of money, An attorney possesses a trust account.
 22

The person can either give the money directly to the attorney or
transfer it to his/her trust account.
However, this money does not belong to the attorney.
The attorney cannot transfer this money into his/her business
account, as this constitutes a crime.
One can lose their licence as an attorney and therefore cannot
practice anymore.
The trust account goes through auditing on a yearly basis.
If a sum of money is transferred from the trust account to the
business account, this money is considered stolen, and an
application to the High Court can be made
to have such an attorney removed from the roll.
Advocates however, don’t have a trust account. As stated before,
the clients of the attorney, is also that of the advocate.
Therefore, the attorney pays the advocate from his/her trust
account.

Fit and proper persons

Jiba & another v The General Council of the Bar of South Africa and Mrwebi v The General
Council of the Bar of South Africa (141/17 and 180/17) [2018] ZASCA 103 (10 July 2018)
The Jiba case deals with ‘fit and proper’.
What is meant by fit and proper?
If a person makes an accusation that you as a legal practitioner is not fit and proper, what is
required?
The Jiba case looks at ‘fit and proper’, and reference is made to the case of Jasat.
In Jiba, they referred to the test for ‘fit and proper’, established in the case of Jasat:

If a person is charged with an offence ie. If it is stated that the person is not fit and proper:

1.) The court must decide whether the alleged offending conduct, has been established on a
balance of probabilities which is a factual inquiry.

2.) The court must consider whether the person concerned, in the discretion of the court, is not
a fit and proper person to continue to practice. - This involves a weighing up of the
conduct complained of against the conduct expected of an attorney and, to
this extent, is a value judgment

3.) The court must inquire, whether in all the circumstances, the person in question is to be
removed from the roll of advocates or of attorneys, or whether an order of suspension from
practice would suffice.
 23

8
Main Procedures and Tables
The two main procedures used in the magistrates court and in the High Court
Summons or Action Procedure

The summons is the first document that is issued and served on the defendant, with regards to an action,
therefore this procedure is referred to as the Summons/action procedure.

Parties: the plaintiff (initiates the proceedings) and the defendant (defends against such
proceedings).
Legal document that commences the procedure: the summons.
How is evidence placed before the court: through witnesses ‘viva voce’/oral testimony (no
affidavits)
When is this procedure used:
1.) When it is required in terms of legislation.

2.) When it is required in terms of the Rules.

3.) Where there is a material factual dispute and there is a need to call witnesses.
When is this procedure always used:
This procedure is always used in divorce matters, and this is in terms of legislation.
Another example is for damages, because there will be a material factual dispute.

After a matter has gone to court (Magistrates or High Court), evidence must be shown in court via witnesses.
Such evidence, is also referred to as ‘viva voce’ evidence or oral testimony. No affidavits are used in this
procedure, as these are used in the Application Procedure.

Application or notice of motion procedure

Parties:
the applicant (person who initiates) and the respondent (person that opposes).
NB! In the Application Procedure, it is said that ‘the respondent opposes the
application’, whereas in the Action Procedure, it is said that ‘the defendant
defends against the action’.

Legal document that commences the procedure: the ’notice of motion’

How is evidence placed before the court: by using sworn affidavits, not oral evidence.

When is this procedure used:

1.) It is prescribed in terms of legislation.

2.) It is prescribed in terms of the Rules.

 24

3.) Where there is no factual or a simple factual dispute, and where sworn affidavits
would be sufficient as evidence before the court.

When is the procedure always used?

This procedure is always used in sequestrations, rehabilitations and liquidations (all in
terms of legislation).

4 TABLES ON CIVIL PROCEDURE NB!!!

TABLE 1

COURSE OF A DEFENDED CIVIL ACTION

SUMMONS
NOTICE OF INTENTION TO DEFEND
EXCHANGE OF PLEADINGS
SET-DOWN FOR TRIAL
PREPARATION FOR TRIAL
TRIAL
JUDGMENT
Judge / Magistrate
EXECUTION
If no assets
DEBT COLLECTING PROCEDURES
If plaintiff or defendant dissatisfied with the outcome of the case
APPEAL OR REVIEW

TABLE 2 COURSE OF AN UNDEFENDED CIVIL ACTION

SUMMONS
If no response (no notice of intention to defend or no plea)
APPLICATION FOR DEFAULT JUDGMENT
DEFAULT JUDGMENT
Judge / Magistrate or Registrar / Clerk of the court
EXECUTION
If no assets
 25

DEBT COLLECTING PROCEDURES

If plaintiff or defendant dissatisfied with outcome of the case
APPEAL / REVIEW / RESCISSION

TABLE 3

COURSE OF AN UNOPPOSED OR EX PARTE APPLICATION

NOTICE OF MOTION WITH SUPPORTING AFFIDAVIT(S)

HEARING
JUDGMENT
Usually Rule Nisi
EXECUTION
(If applicable) If
no assets
DEBT COLLECTING PROCEDURES
(Only if applicable)
If applicant or respondent dissatisfied with the outcome of the case
APPEAL OR REVIEW

TABLE 4

COURSE OF AN OPPOSED APPLICATION

NOTICE OF MOTION WITH SUPPORTING AFFIDAVITS

ANSWERING AFFIDAVITS

REPLYING AFFIDAVITS

HEARING

JUDGMENT

Usually Rule Nisi

EXECUTION

If no assets
 26

DEBT COLLECTING PROCEDURES

If applicant or respondent dissatisfied with the outcome of the case

APPEAL OR REVIEW

(i) TOPIC 2
2020

MATTERS WHICH MUST BE CONSIDERED BEFORE PROCEEDINGS ARE

(ii)
INSTITUTED

1
Is the person entitled to relief?

Look at substantive law in order to determine this

Law of Contract: look at whether/ not the contract has been breached
Law of Delict: look at the wrongful conduct that caused the harm

2
Locus Standi

Two questions:
Does the litigating party have interest in the right which is the subject matter of the litigation? Does
the litigating party have the capacity to sue or be sued?

Does the litigating party have interest in the right which is the subject matter of the litigation?
Common Law
Direct and substantial interest in the right which forms the subject matter of the litigation

Constitution of South Africa has broaden the CL position to litigation based on a Bill of
Rights issue

Section 38 of the Constitution of South Africa

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.
 27

The persons who may approach a court are - (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

The BOR has extended the CL position of litigation

Does the litigating party have the capacity to sue or be sued?

Legal capacity to appear in court: Plaintiff / Applicant
Determined by material law: Law of persons
Summons / Notice of motion
Plaintiff / Applicant must establish own legal capacity + that of the other parties
Prima facie proof of legal capacity: Party contesting locus standi must prove lack thereof
At 18, there is prima facie proof of legal capacity, and this can only be disproved by the opposing party

(iii) Rules applicable to legal capacity

Minors
A minor is a child under the age of 18
Infans (0-7): they have no legal capacity
Legal guardian: the guardian will be cited as the applicant/ plaintiff bc minors cant be sued in
their own name

Children older than 7: they have limited legal capacity

No legal guardian? Can be sued in their own name but must be duly assisted by a legal
guardian. Where there’s no legal guardian a curator is appointed i.e. curator ad litem who can
represent or assist the minor
1.) Curator bonis- for managing financial affairs
2.) Curator ad litem- for instituting legal proceedings
3.) Curator persona- for assisting in personal matters

Mentally disordered persons

Person lacks ability to understand legal proceedings- thus do not have locus standi:
Must be certified mentally ill by a medical professional
A curator ad litem is appointed
There is a Presumption in favour of sanity: Therefore one MUST be declared to be of
unsound mind

Prodigals
A person incapable of managing their own financial affairs
 28

Limited legal capacity, thus they can sue or be sued but a Curator bonis/ Curator ad litem
must be appointed
Curator bonis- appointed by the court upon application to manage the prodigal’s estate. Just
because a person can’t manage his/her own financial affairs, this does not mean that he/she is incapable
of instituting their own legal proceedings
Curator ad litem- appointed if prodigal is unable to understand the nature of legal
proceedings

Insolvents

Legal capacity limited: Insolvency Act 24 of 1936

Capacity to institute / defend legal proceedings vests in trustee of insolvent person. The
trustee manages the estate until the individual becomes solvent

S23 Insolvency Act EXCEPTIONS, when an insolvent can litigate in their own capacity:
Status matters,
Claims re own profession,
occupation,
employment arising after sequestration
Claims re trade carried on by insolvent with permission of trustee
Claims for damages for defamation, personal injury,
Insolvent sued in own name for any delict committed
Trustee acts in a representative capacity, as he/she represents the insolvent. Apart from the S23
exceptions, the general rule is that the insolvent must be represented by the trustee.

(iv) Persons with full legal capacity but subject to limitation

Judges

You need permission from relevant court to sue or subpoena a judge, because judges are
protecting our Constitution and our law

Section 47 Superior Courts Act: (Section 25 of Supreme Court Act) To sue

a High Court judge: need permission of the judge President from that specific
division. This is done by an informal request at the chamber of the judge
President (judge) informing him of the circumstances for wanting to institute
proceedings.
Magistrate: permission of the HC falling within the MC jurisdiction. Appeals from the MC to the
HC 2 judges will preside over the matter.

Section 5 of the Constitution Court Complementary Act

To sue a President of the Supreme Court of Appeal: permission of the
Chief Justice (in CC)
To sue a Chief Justice: permission of the SCA President
 29

(v) Soller v President of the Republic of South Africa 2005 (3) SA 567 (7)
Soller an attorney, issued a summons against a judge for defamation arising out of a judgment
handed down for the striking of him from the roll. The court brought attention to s25 of the Supreme
Courts Act which requires one to obtain permission from the judge president to sue a judge. Soller
challenged the constitutionality of this on the grounds that the defamation infringed his right to s10
and the provisions offends citizen’s rights to access to courts and a fair trial. The court held that an
applicant in terms of s25 will only be successful if good cause is shown. Whether good
cause is shown will depend on the facts of each case. To show good cause, the complainant
must prove malice on the part of a judicial officer by considering the nature of the case.
Soller was thus unsuccessful. To determine the relevance of the judge’s remarks, the court
considered the allegations made by the Law Society, the nature of the application and the ruling
made by the judge. To make a finding, the judge was required to look into the character of Soller
and the remarks he complained of were material to determine the case thus there couldn’t be said
to be malice on the part of the judge. The remarks made by the judge were made within his judicial
privilege as his intentions were to resolve the dispute before him. The common law rebuttable
presumption is that a judicial officer who defames someone in the exercise of his authority
does so lawfully. S25(1) purpose is to ensure judicial independence where judges can act
without fear, favour or prejudice. Judges should act without fear of being taken to court
unnecessarily. Judges are also held accountable in that every decision they make must be justified.
Also this section didn’t deprive an individual of their litigation rights except where their claim was
without merit, and if leave to sue is refused they could appeal. Thus, application for declaring s25(1)
unconstitutional was dismissed.

(vi) N v Lukoto 2007 3 SA 569 (T)

In terms of s25(1) Supreme Court Act, an application was made to subpoena a HC judge
(respondent) to a maintenance inquiry for the maintenance of a child. As time went by it was
evident that the respondent was trying to oppose the application as there had been several delays
in proceedings. The court held that good cause had been shown to grant leave to subpoena a
judge because the acts and omissions of the respondent had delayed the matter which was
inconsistent with an intention to bring a speedy resolution. Furthermore, delays in the
matter for the maintenance of a child was inconsistent with the nature and demands of the
office held by the respondent and as an upper guardian of all minor children. Thus justice
required a speedy resolution to avoid the impression that the justice system becomes tardy
when a judge is the litigant. The court also noted that s28(2) of the Constitution provides
that the child’s best interest is of paramount importance and the respondent used the
system to stall his maintenance obligations.

Engelbrecht v Khumalo 2016 AA 564 (GP)

Engelbrecht and a judge were co-directors of a company. Engelbrecht was a surety for the
company in terms of a lease agreement entered into. He then sold his share of the company to the
judge and resigned as a director from the company. Part of the sale agreement, was that the
judge indemnified Engelbrecht from claims arising from the company’s obligations.
Therefore, the judge now stood as surety with regards to the lease agreement. The rent of the
 30

company hadn’t been paid and Engelbrecht was sued by the landlord. Engelbrecht then
requested permission from the Judge President to issue a ‘third party notice’ against the
judge, saying that this judge is also part of these legal proceedings. It was held that good
cause was shown and the judge President consented, because it would be fair, just and equitable
that consent be granted and the application is not vexatious as it is based on facts on which a
justiciable claim is set out. The court noted that s47(1) of the Superior Courts Act seeks to
insulate Judges from unwarranted and ill-conceived legal proceedings aimed at them. Also,
noted was that access to courts was to be protected for bona fide litigants. Thus it would be
in the interests of Engelbrecht that leave is granted.

Diplomats

General rule: diplomats Enjoy immunity. They are not subject to the civil jurisdiction of SA
and cannot be prosecuted

A list of such persons is contained by the Minister of Foreign affairs

Relevant laws:

Diplomatic Immunities and Privileges Act 37 of 2001

Rules of customary international law
Vienna convention on Diplomatic Relations 1961
Vienna convention on consular relations 1963
Any agreement by RSA and a foreign state
President may confer immunity on any person

Fugitives from justice

May not institute legal proceedings, but they may defend legal proceedings if someone sues
them

Alien enemy

Defined as: a person who carries business/ resigns voluntarily in a country that is an enemy
of RSA
May not institute legal proceedings, but may defend legal proceedings if sued in a SA court

(vii) Impediments affecting the request for relief

Potential impediments:
 31

Prescription, Arbitration, Lis pendens, Pending Criminal Proceedings etc

Prescription
Certain obligations may be prescribed/ become unenforceable if not exercised within a
prescribed time limit imposed by legislation
Time limits imposed:

Section 11 of the Prescription Act 68 of 1969

Extinction of debt by prescription

(a) Thirty years: a debt secured by mortgage bond, a judgment debt, any debt of tax levied
in terms of any statute, any debt owing to the State regarding the prospecting for and
mining of minerals or other substances,
(b) Fifteen years: a debt owing to the State arising from a loan of money or the sale or
lease of land, unless a longer period applies under (a) above,
(c) Six years: a debt arising from a bill of exchange or any other negotiable instrument
(for example, a cheque or promissory note), or a notarial contract unless a longer period
applies under (a) or (b) above,
(d) Three years: any other debt, unless specifically provided for by statute

The general period is 3 years, therefore if you do not institute proceedings within this time
period you can’t sue someone.
If you don’t instituted proceedings within the time limit:
Special plea or Mero Motu (meaning of one’s own volition):
Question is, does the person (the defendant) have to raise a special plea of prescription, or does the
court say that it will not hear the matter because the matter has prescribed?
• Special plea must be made, as the court will not take notice of prescription mero motu
(on its own accord)
Interruption of prescription by means of:
• Acknowledgment by the debtor to the creditor of a liability to pay the debt or
• Process is served on the debtor for payment by way of summons i.e. within a 3 yr period

Suspension of prescription: runs for a period of 1 year from the date on which the impediment
ceases to exist
• i.e. When the creditor is a minor, insane, or under curatorship, thus the prescription is halted
until the minor becomes a major.
• If the time for litigation lapses, one can raise prescription and thus you won’t be liable
because the matter has prescribed.

(viii) Arbitration
i.e. an arbitration clause in a contract/ prescribed by legislation means that the plaintiff can’t
issue a summons in court unless the matter goes for arbitration first.
 32

if this contract is breached and the plaintiff goes to court first and summons is served, the
defendant can file a notice of intention to defend. Defendant must then respond to the
allegations against him that is stated in the summons. This response is referred to as a
‘plea’, and the plea is part of the pleadings. Thereafter, exchange of pleadings will occur
between the parties
Arbitration Act 42 of 1965 - one can apply for stay of proceedings

Section 6(1) and 6(2) of the Arbitration Act

Stay of legal proceedings where there is an arbitration agreement
(1) If any party to an arbitration agreement commences any legal proceedings in any court
(including any inferior court) against any other party to the agreement in respect of any matter
agreed to be referred to arbitration, any party to such legal proceedings may at any time after
entering appearance but before delivering any pleadings or taking any other steps in the
proceedings, apply to that court for a stay of such proceedings.
(2) If on any such application the court is satisfied that there is no sufficient reason why the
dispute should not be referred to arbitration in accordance with the agreement, the court may make
an order staying such proceedings subject to such terms and conditions as it may consider just.

(ix) Lis pendens

E.g. the plaintiff live in the Western Cape, but the defendant lives in Gauteng.

The contractual agreement between you and the plaintiff also occurred in Gauteng (the contractual
agreement being the basis for this legal dispute). You then go to the Gauteng Division of the High
Court, and have a summons issued on the defendant. However, the plaintiff returns to the Western
Cape and issues another summons in that division of the High Court, based on the same
contractual claim, which is then served by the sheriff of that court on the defendant as well. The
second summons is referred to as ‘Lis pendens’.
The matter in the Gauteng Division of the High Court has not been finalised yet as it is still
pending in that court, therefore no further proceedings can take place.
‘Lis Pendens’- ‘matter is pending before another court’
This is when there’s a matter pending before another court
Rule: may not institute the same claim in more than one court. If you do, the defendant can
raise a special plea lis pendens

Dilatory Special plea - If the defendant's plea required the court to decide some threshold question not
related to the merits of the plaintiff's case, it was called a dilatory plea

(x) Pending criminal proceedings

The state enters into the shoes of the complainant, and is then required to prove beyond a
reasonable doubt against the perpetrator. Currently, the criminal proceedings are pending
The complainant can institute civil proceedings if damages are incurred, then the
(defendant) can raise a special plea of pending criminal proceedings stating that with
 33

regards to the same matter, criminal proceedings must first be finalised and then can a civil
case proceed.
Special plea- it is used to prevent the civil matter from continuing

(xi) Res judicata

The plaintiff can’t institute a claim against the same defendant in a different court.
If he does, then the defendant can raise a special plea res judicata (this destroys the
summons) stating that a matter has already been finalised in another court.
E.g. if a civil claim for damages was instituted by X against you in the Gauteng Division of the High
Court for R50 000, and the matter has been concluded, whereby the court was not satisfied with the
claim by X. A displeased Mr. X then institutes the claim in the Western Cape Division of the High
Court for the same matter.
Res judicata= a matter has been finalised in another court
Known as a Special plea in abatement (abatement – ending or subsiding)

(xii) Costs regarding prior proceedings

If the plaintiff lost a claim against the defendant with a cost order and later institutes
proceedings against the defendant, the defendant can raise a plea of wasted costs that are
outstanding.
If the court suspects the plaintiff abused court proceedings to cripple the defendant
financially, it will stop the proceedings with a cost order
With regards to the special plea, the plaintiff must first pay their current order costs before
instituting further proceedings otherwise the defendant will incur more legal costs in order
to defend the matter

(xiii) Jurisdiction
If the court doesn’t have jurisdiction, ito s28 you can raise a special plea of jurisdiction in
which the matter will then be referred to the court having jurisdiction
The plea doesn’t destroy the claim, it only delays it until the matter is proceeded in the
correct court
Special plea prevents the plaintiff from instituting a claim in a specific court

(xiv) Joinder of parties- discussed in more detail in topic 3

This must be considered because sometimes a party may have an interest in the matter but
isn’t joined. This is common in application proceedings.
Voluntary joinder- parties need not join but to save time and costs they do. Under the CL, the
was no need to provide for voluntary joinder because it was impossible to join separate
causes of action in 1 summons.
 34

Compulsory joinder- this is regulated under the CL, which established the requirement that
parties must be joined.
Non- joinder- is a special plea that can be raised when a necessary party wasn’t joined

(xv) Joinder of causes of action

Discussed in topic 3

(xvi) Legal representation

The legal practitioner must be an admitted att/ adv
Civil litigation can be complicated
The right to be heard necessarily includes the right to legal representation
Right to legal representation is entrenched in s35(2) + (3) of the Constitution
An attorney deals with all matters of the law whereas an advocate specialises.
When a client instructs an attorney:
General Power of Attorney given to the legal representative: powers are broad. The general
mandate to conduct all legal affairs on behalf of the principle (client)

Special Power of Attorney given to the legal representative: special mandate to institute/
defend a specific legal matter, and to institute/conduct any incidental function with regards
to a specific legal capacity.

(xvii) Prior demand or notice

Some instances, notice isn’t required, but is rather sent to avoid legal costs being incurred
because its prescribed by legislation
Prior demand: i.e. where payment of a specific amount on a specific date is required

Time limit: the time limit must be reasonable based on the circumstances
If the matter below R20k then the matter must go to the small claims court
Formalities:
No formal requirements
Need not be in writing unless: prescribed by legislation/ required in terms of contract
agreement i.e. need a letter of demand in the small claims court

Legislation that requires a letter of demand:

Section 129 of the National Credit Act 34 of 2005

 35

Required procedures before debt enforcement

129 (1) of the National Credit Act

If the consumer is in default under a credit agreement, the credit provider-
(a) may draw the default to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to a debt counsellor, alternative
dispute resolution agent, consumer court or ombud with jurisdiction, with the
intent that the parties resolve any dispute under the agreement or develop and
agree on a plan to bring the payments under the agreement up to date; and
(b) subject to section 130(2), may not commence any legal proceedings to enforce the
agreement before -
(xviii) first providing notice to the consumer, as contemplated in
paragraph (a), or in section 86(10), as the case may be; and
(xix) meeting any further requirements set out in section 130

Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002- notice of
intention must be in writing. Before instituting a legal proceeding against a state institution,
you must send a letter of demand. If you don’t, a special plea can be raised against you
Note that letter of demand must be sent within six months from the date when the debt became
due
Notice of intended legal proceedings to be given to organ of state

3 (1) of the Institution of Legal Proceedings Against Certain Organs of State Act

No legal proceedings for the recovery of a debt may be instituted against an organ of state
unless -
(a) the creditor has given the organ of state in question notice in writing of his
or
(b) the organ of state in question has consented in writing to the institution of that
her or its intention to institute the legal proceedings in question; or
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with all the requirements
set out in subsection (2).

Contractual agreement: a contractual agreement states that a letter of demand must be in

writing before instituting legal proceedings

Purpose of the letter of demand: to inform persons of one’s intention to institute legal
proceedings in terms of a notice

General:
 36

Plaintiff must ensure demand/ notice received, because the issue with an oral demand is
that the defendant can say they’ve never received a demand. Thus, the sheriff must serve a
summons and a Registered post serves as proof
Not required via registered post but can have it alternatively served by the sheriff on the
defendant

Costs of letter of demand:

Section 56 Magistrates’ Court Act:
Will be able to recover the costs of the letter of demand only if sent by registered post

(xx) Instances where a letter of demand would be sent:

To avoid paying for legal costs:

Where the defendant is unaware of liability/ defendant unaware of nature and extent of
liability
If no letter of demand is sent to avoid payment/ wasted legal costs + Debtor pays debt in full
= Plaintiff pays costs in full

To complete the cause of action:

Examples:
Contract stating that an amount is payable on demand
Cause of action based on breach of contract + terms of contract requires a LOD
When no date of performance is agreed upon in terms of a contract
No performance: May issue summons only after notice is given.
No notice: constitutes a breach of contract

Required in terms of legislation:

Examples:
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 Organ of
State sued for damages, prospective plaintiff must give notice of the intended legal
proceedings within six months from the date when the debt became due

If there’s no notice: the Summons is defective

Section 29 of Small Claims Court Act- requires delivery of the LOD before the legal action is
taken
 37

Section (1) (a) of the Small Claims Court Act- summons with a written demand must be delivered
by hand/ registered post

The plaintiff shall deliver a summons as prescribed personally or through his authorized
representative to the clerk of the court, together with a copy of a written demand which was
on a prior occasion delivered to the defendant by the plaintiff by hand or by registered post
and in which the defendant was, notwithstanding anything to the contrary in any law contained,
allowed at least 14 days, calculated from the date of receipt of that demand by the defendant, to
satisfy the plaintiff's claim.

Section 129 of the National Credit Act- required a written LOD

Contents of a proper demand: (Self study) If drafted by the legal representative

It must clearly reference if the attorney is acting on behalf of the client
An explanation of the reason for demand based on the client’s version of alleged facts
(mentioning of dates and the relevant amounts)
It must indicate what is expected from the person receiving the LOD i.e. payments, delivery
of items/ refraining from doing something
It must indicate the time period within which they must comply with the demand
An explanation of consequences for failure to comply with the demand i.e. setting out any
cost implications

*See page 35 of prescribed text book

A clear reference that the attorney is acting on behalf of the client

A clear explanation of the reason for the demand, based on the client’s version of the alleged facts
(mentioning relevant dates and amounts)
A clear indication of what is expected from the person receiving the letter of demand, such as
payment of a specific amount, delivery of an item or refraining from certain conduct,
An indication of the time period (if applicable) within which to comply with the demand,
An explanation of the consequences of failure to comply with the demand (setting out any cost
implications)

8
Jurisdiction

Will be discussed in Topic 4 and 5

9
 38

Choosing the proper procedure

Will be discussed in Topic 6

TOPIC 3 2020 PARTIES AND CITATIONS

1
8 CITATION OF PARTIES

Manner in which a party must be described:

In a summons (ACTION) or
In notice of motion (APPLICATION)

Found in the HCR and MCR

Description of the parties:

Identifies the party - Who the parties to litigation are (Male, Female, Job description)
Illustrates legal capacity of the party - Has legal capacity to sue or be sued (Minor or Major)

Address of the parties:

Identification - Where the parties reside, is domiciled, or carries on business
Jurisdiction - Confirms that the matter is within the court’s jurisdiction

CITATION OF PLAINTIFFS / APPLICANTS

Citation rules applicable to plaintiffs (summons) apply equally to applicants (notice of motion)

9 Citing Plaintiffs and Applicants in the High Court

HCR 17(4)(b) - Plaintiffs and Applicants

Every summons shall set forth:

[T]he full names, gender (if the plaintiff is a natural person) and occupation and the residence or
place of business of the plaintiff, and if the plaintiff sues in a representative capacity, such capacity.

The full names, gender (if person is a natural person, not juristic person) and occupation and the
residence or place of business of the plaintiff, and where he sues in a representative capacity, such
capacity (Example would be minor under age of 6)

Following particulars of Plaintiffs / Applicants must appear:

Full names: [Name and surname as this is known!]
Gender: [Male / female] not sex (What is the difference?) (sex – genitals / gender – how u
identify according to societal norms)
 39

NEDCOR V HENNOP CASE (just read para 7)

The plaintiff brought an application for summary judgment and in the summons and the application the
respondent’s marital status was omitted

The plaintiff was a female and it was not specified that she was married.

The defendant’s legal representative’s then objected claiming that the application for summary judgment was
fatally defective because the marital status was omitted.

The court had to decide whether an application can be fatally defective simply because of non-compliance of
the rules of something so basic.

The court opted for a constitutional argument and held that that marital power has been abolished and
reference to the marital status of a person as well as to the marital status of a woman are anarcrenistic and
outmoded.

It infringes on the right to equality and that it therefore is not on par with the spirit of the constitution.

When we cite plaintiff’s and defendant’s we have a choice to go according to the rules or we can leave our sex
and marital status but then you must refer to the Hennop case.

Occupation: (Lawyer, housewife, plumber)

Residence or place of business: (Home or work address)
If sues in a representative capacity: Must set out in which capacity (Guardian if minor / Curator if
mentally ill or prodigal)

*Stassen v Stassen 1998 (2) (SA) 105 at 108 G - I:

The court objected to the description of parties as ‘volwassenes’ (adults), pointing out that locus
standi is dependent on majority, not adulthood [adult 21 major is 18]

10 Citing Plaintiffs and Applicants in the Magistrates’ Court

MCR 5(4)(b) - Plaintiffs and Applicants

Every summons shall set forth:

(b)
[T]he full names, gender (if the plaintiff is a natural person) and occupation and the residence or
place of business of the plaintiff, and if the plaintiff sues in a representative capacity, such capacity

Following particulars of Plaintiffs / Applicants must appear:

Full Names: Name and surname, as this is known!
Gender: (not sex) There is a difference!
Occupation: Lawyer or housewife!
 40

or domicile
Residence or place of business: Home or work!
Representative capacity: If suing in a representative capacity (guardian of minor of age 3, curator of
prodigal) above 7 years old, can be duly assisted
this is the same as High Court when you sue
someone, you
dont know
CITATION OF DEFENDANTS / RESPONDENTS everything
Citation rules applicable to defendants apply equally to respondents about them,
you can write
the name
11 Citing Defendants and Respondents in the High Court known to you
i
HCR 17(4)(a): - Defendant and Respondents sometimes you
dont know
ocupation and
[T]he surname and first names or initials of the defendant by which the defendant is knownthen
to the
all you
plaintiff, the defendant’s residence or place of business and, where known, the defendant’s
need to say is
occupation and employment address and, if the defendant is sued in any representativethe occupatin
is not known to
capacity, such capacity; you

The surname and first names or initials by which the defendant is known to the plaintiff, the
defendant’s residence or place of business and, where known, the defendant’s occupation and
employment address and, if he is sued in any representative capacity, such capacity

Following particulars of defendant must appear:

Surname and First Name or Initials: By which the defendant is known to the Plaintiff (Boetie)
Residence or place of business: Jurisdiction (Actor sequitor forum rei)
Occupation: If known (Jurisdiction and actor sequitor forum rei)
Capacity in which defendant is sued: If a representative capacity (Curator of prodigal / Guardian of
minor of age 5)

If any of the above information is not known to the plaintiff, then she must state so in the
summons

The occupation of the defendant is unknown!!

Citing Defendants and Respondents in the Magistrates’ Court

MCR 5(4)(a): Defendants and Respondents

12 Every summons shall set forth -

(a)
the surname and first names or initials of the defendant by which the defendant is known to the
plaintiff, the defendant's residence or place of business and, where known, the defendant's
occupation and employment address and, if the defendant is sued in any representative capacity,
such capacity
 41

Following particulars of defendant must appear:

Surname, First names, or initials: By which defendant is known to defendant (Boetie)
Residence or place of business: Jurisdiction
Occupation: If known
Employment address: If known
If in representative capacity: (Curator of prodigal / Legal Guardian of minor of age 5)
If any of the above information is not known to the plaintiff she should state so in her
summons

The occupation of the defendant is unknown!!

13 Proceedings against Partnerships, Firms and Associations

HCR14 / MCR 54
Not juristic persons (No legal personality)
HCR 14: Name of Partnerships, Firms and Associations
HCR 14 (2), (3), and 4(4)
entitled to sue the partnership, the name of the firm
or association, not necessary to know the name of
the individuals in the firm
sometimes partners have property in their own name
that they use for business, to attach property, you
need the name of the partner who's property it is

(2)
A partnership, a firm or an association may sue or be sued in its name.
(3)
A plaintiff suing a partnership need not allege the names of the partners. If he does, any error
of omission or inclusion shall not afford a defence to the partnership. (4)
The previous subrule shall apply mutatis mutandis to a plaintiff suing a firm.

MCR 54: Name of Partnerships, Firms and Associations

(1)
(a) Any two or more persons claiming or being sued as co-partners may sue or be sued in the
name of the firm of which such persons were co-partners at the time of the accruing of the
cause of action.
…
(5) The provisions of this rule shall also mutatis mutandis apply to an unincorporated
company, syndicate or association.

Execution

HCR 14
 42

14 HCR 14(5)(h) and HCR 14(6)

Execution in respect of a judgment against a partnership shall first be levied against the
assets thereof, and, after such excussion, against the private assets of any person held to
be, or held to be estopped from denying his status as, a partner, as if judgment had been
entered against him.
(6) The preceding subrule shall apply mutatis mutandis to a defendant sued by a firm or a
partnership.

MCR 54 explained by Jones and Buckle in 2020

‘…although execution can be levied against partnership property, and although the partnership
estate can even be sequestrated as such, the names of the individual members of the
partnership must first be on record as the judgment debtors; a judgment cannot be entered
against the partnership, which is not a legal persona.’

‘Execution can be levied against the property of individual partners whose names are
disclosed. If the names are not requested and disclosed, a successful plaintiff is not entitled
by virtue of this subrule to execute against the property of individual partners.’

Examples of Citations

15 Citing Natural Persons (Major)

The plaintiff is Hudaa Abduroaf, a major*, female*, teacher, residing at 4 Long Street, Cape
Town

16 Citing Natural Persons (Minors)

If minor is younger than 7: (Infans) - Represented

The plaintiff is Tuqaa Abduroaf, a major,* female,* lawyer residing at 12 Sirius Road, Cape
Town, in her representative capacity as the mother and natural guardian of her minor daughter
Ruqayyah Abduroaf, residing at the same address

If the minor is older than 7: (Impubes) - Assisted

The plaintiff is Hudaa Salie, a minor, female,* scholar, presently residing at 12 Pepper Street,
Highlands Estate duly assisted by her mother and natural guardian, Zainab Salie Abduroaf, residing
at the same address

Citing a Curator Appointment:

 43

The defendant is Tuqaa Abduroaf, a major,* female* advocate practicing at 14 Main Road
Randburg, in her capacity as duly appointed curator ad litem to assist Kauthar Adams, a major
female residing at number 67 John Street, Valkenburg Mental Institute

17 Citing Juristic Persons

Citation usually prescribed by relevant legislation

Citing Companies:

The plaintiff is Abduroaf Traders (Pty) Ltd, a company with limited liability, duly incorporated in
terms of the Companies Act, with its registered address at 16 Way Street, Wellington

Citing Close Corporations:

The plaintiff is Abduroaf Traders CC, a close corporation with limited liability, duly incorporated in
terms of the Close Corporations Act, with its registered address at 16 Way Street, Wellington

Citing the State:

The plaintiff is the Minister of Justice, who sues in his capacity representing the State, in terms of s1
of the State Liability Act 20 of 1957, of 123 Government Street, Pretoria

2
18 JOINDER
Rules applicable to actions equally apply to applications

Joinder refers to
Joinder of more than one party, or
Joinder of more than one cause of action

19 Joinder of parties in the High Court

HCR 10(1) and 10(3) - Joinder of convenience

HCR 10 (1) Many Plaintiffs may be joined
HCR 10 (3) Many Defendants may be joined

HCR 10(1)
 44

‘Any number of persons … may join as plaintiffs in one action against the same defendant …
provided that the right to relief of the persons … depends upon the determination of substantially
the same question of law or fact which …’

HCR 10(3)

‘Several defendants may be sued in one action either jointly, jointly and severally, separately or in
the alternative, whenever the question arising between them or any of them and the plaintiff or any
of the plaintiffs depends upon the determination of substantially the same question of law or
fact which, if such defendants were sued separately, would arise in each separate action.’

The plaintiffs can have claims:

Jointly (both liable each for the full amount)
Jointly and severally (Sue either one party full amount or sue 60% 40%)
Separately (Sue in different actions)
In the alternative (If cannot prove against A then against B)

Requirement for joinder:

If separate actions were lodged the right to relief would depend on substantially the same
question of law or fact

Convenience: Saves time & money

Different defences: Does not preclude joinder
Substantially: Essence of the facts or law must coincide

COMMON LAW - Joinder of necessity

Where an outside party has a ‘direct and substantial interest’ in any order
Example: Landlord sues a sub lessee for ejectment, and the sub lessee relies on a right of
occupation derived from the lessee, the lessee has a direct and substantial interest and must be
joined - Convenience no factor!!!

Party must be joined if:

Direct and substantial interest in any order
Cannot proceed until party joined
Waived right to joinder [Clear evidence of waiver needed]

Direct or substantial interest:

An interest that is directly the subject matter of the case before the court
Mere financial interest does not constitute a direct and substantial interest
The possibility of the interest is enough to necessitate joinder

Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) Test:
Does the third party have locus standi?
 45

If the third party is not joined, will he be able to approach the court concerning the same
matter? The court has no discretion re necessary joinder

In this case the union was in dispute with the Durban City Council about a 5 day working week for
the members of the union.
No settlement could be reached and the union approached the Minister of Labour to appoint an
arbitrator ito S46 of the Industrial Conciliation Act.
The Minister then appointed an arbitrator however the council objected to the appointment on the
basis that in an earlier judgment it was stated that S46 is only applicable where the dispute is
between employees and the city council.
The council argued the dispute in this case was between the union and the city council and not
between the city council and its employees and threatened to take legal action/appointment of
arbitrator not in accordance with law.
The Minister then revoked the appointment of the arbitrator.
**All the above lead to the case

The union then brought an application to court requesting that the minister reinstate the arbitrator or
in the alternative that he appoint another arbitrator.
The court regarded the Council as a necessary party and questioned why the Council was not party
to the proceedings. The proceedings therefore cannot proceed until they are joined or the court
receives proof that they waived the right to be joined. The union argued that they were only acting
in a representative capacity (agent) and that the dispute in fact is between the employees and the
council and that therefore S46 is applicable and the appointment of the arbitrator was correct.
The court held that in order to establish whether the city council has a direct and substantial interest
in the appointment of the arbitrator, the following has to be considered:
(a) does the third party have locus standi to bring the application against Minister of
Labour – is it possible for DDC to make new application against Minister to not appoint an
arbitrator
(b) whether the judgment will be bounding against DCC - res judicata against such a
person if the person is not joined.

With regard to the first test, the court found that the council also partook in the dispute and
therefore had an equal locus standi as the union.
With regard to the second test, the court found that the council would not be bound by the
court’s decision because it was not a party to the proceedings.
If the party has locus standi and the decision will not be rei judicata against the party, that
party will be a necessary party.
If a necessary party has not been joined, the court will raise non-joinder on its own accord
and postpone matter until compliance.

20 Joinder of parties in the Magistrates Court

Section 41 of MCA Many Plaintiffs joined

 46

Section 42 of MCA Many Defendants joined

MCR 28(2) of MCR Many Plaintiffs or Defendants joined

Magistrates’ Court Act section 41 (Joinder of plaintiffs)

(1)
Any number of persons, each of whom has a separate claim against the same defendant, may join
as plaintiffs in one action if their right to relief depends upon the determination of some
question of law or fact which if separate actions were instituted would arise in each action …

Requirements:
Where it can be shown prima facie that each plaintiff has a separate claim against the defendant
and that the determination of each of these separate claims depends upon common question of
law or fact

Some question of law or fact: (Joinder of many plaintiffs)

Jones and Buckle: It is enough if there is one question of law or fact that is common to all
the actions
Vitorakis v Wolf 1973 (3) SA 928 (W) at 931D
Two requirements must be met:
Each would-be plaintiff must have a claim against the same defendant; and
The right to relief of each plaintiff must depend upon the determination of some question of law or
fact which would be common to each action if the actions where brought separately Unless both
factors are present, joinder by a number of plaintiffs will not be possible

Section 42 (Joinder of defendants)

(1)
Several defendants may be sued in the alternative or both in the alternative and jointly in one
action, whenever it is alleged by the plaintiff that he has suffered damages and that it is
uncertain which of the defendants is in law responsible for such damages: Provided that on
the application of any of the defendants the court may in its discretion order that separate
trials be held, or make such other order as it may deem just and expedient.

Requirements:
The plaintiff must establish a bona fide allegation of uncertainty of which defendant is liable in
order to justify joinder of any number of defendants
Examples: In a delict (a) All the defendants deny responsibility, (b) One of the defendants puts the
blame on another; (c) the defendants reciprocally blame one another

MCR 28(2) (Application by any party to the proceedings)

(2)
 47

The court may, on application by any party to any proceedings, order that another person shall be
added either as a plaintiff or applicant or as a defendant or respondent on such terms as it may
deem fit

Application for joinder (applicant, plaintiff, or defendant, respondent) based on such terms that may
be just (even if the party does not have a direct and substantial interest in the matter) Example:
Join driver plus his wife

21 Terminology

Waiver - a person who has established a right of joinder (convenience or necessity) may waive
the right and agree to be bound by the judgment of the court
Non joinder - A necessary part has not been joined
Misjoinder - Joining a party that has no interest in the matter
Special plea (action) or Point in limine (application)

3
22 JOINDER OF CAUSES OF ACTION

HCR 10(2), (3) and 4

A plaintiff may join several causes of action in the same action.

(3)
Several defendants may be sued in one action either jointly, jointly and severally, separately or in
the alternative, whenever the question arising between them or any of them and the plaintiff
or any of the plaintiffs depends upon the determination of substantially the same question of law
or fact which, if such defendants were sued separately, would arise in each separate action.
(4)
In any action in which any causes of action or parties have been joined in accordance with this rule,
the court at the conclusion of the trial shall give such judgment in favour of such of the
parties as shall be entitled to relief or grant absolution from the instance, and shall make such order
as to costs as shall to it seem to be just, provided that without limiting the discretion of the
court in any way -
(a)
the court may order that any plaintiff who is unsuccessful shall be liable to any other party,
whether plaintiff or defendant, for any costs occasioned by his joining in the action as plaintiff;
(b)
if judgment is given in favour of any defendant or if any defendant is absolved from the instance,
the court may order:
(i)
the plaintiff to pay such defendant's costs, or
(ii)
 48

the unsuccessful defendants to pay the costs of the successful defendant jointly and severally, the
one paying the other to be absolved, and that if one of the unsuccessful defendants pays more
than his pro rata share of the costs of the successful defendant, he shall be entitled to
recover from the other unsuccessful defendants their pro rata share of such excess, and the
court may further order that, if the successful defendant is unable to recover the whole or any
part of his costs from the unsuccessful defendants, he shall be entitled to recover from the plaintiff
such part of his costs as he cannot recover from the unsuccessful defendants;
(c)
if judgment is given in favour of the plaintiff against more than one of the defendants, the court
may order those defendants against whom it gives judgment to pay the plaintiff's costs jointly and
severally, the one paying the other to be absolved, and that if one of the unsuccessful
defendants pays more than his pro rata share of the costs of the plaintiff he shall be entitled to
recover from the other unsuccessful defendants their pro rata share of such excess.

A plaintiff may join several causes of action in the same proceedings

Multiple claims in a single summons where each claim based on a separate cause of action
A single claim with two to more causes of action
If the causes of action conflict with one another, it may be pleaded in the alternative
If a plaintiff bases a claim on two causes of action, and decides to take judgment on
one of them, the other cause of action is extinguished
A court has the discretion to separate the causes of action upon application

MCR 28(3) Similar to the position in the High Court (Self study)

(3)
A plaintiff may join several causes of action in the same action and the court may at the conclusion
of the proceedings make such order as to costs as it deems fit.

4
23 INTERVENTION OF PARTIES

General
A person that has not been joined to proceedings but who has an interest in the matter may bring
an application to intervene in order to be joined as co-plaintiff or co-defendant

24 Intervention in the High Court

HCR 12

Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may,
on notice to all parties, at any stage of the proceedings apply for leave to intervene as a
plaintiff or a defendant.
 49

The court may upon such application make such order, including any order as to costs, and give
such directions as to further procedure in the action as to it may seem meet.

Who?
Plaintiff / Defendant

The party must have an interest in the matter:

Erasmus Superior Court Practice B1-103:

Direct or substantial interest [Necessary intervention]
Or
Vitorakis v Wolf 1973 (3) SA 928 (W)
Substantially the same questions of law or fact HCR 10(1) [Voluntary intervention]

Grounds for intervention:

Necessity or convenience

How is this done?

Application
Must prove a prima facie case before court will permit intervention

Does the court have discretion?

Court maintains its discretion
May make any ruling deemed appropriate
If a plea of non-joinder is upheld: Court has no discretion
If the plea of non-joinder was not upheld: Court has discretion

See Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 89B– C
where it is states that:

“In addition, when, as in this matter, the applicants base their claim to intervene on a direct and
substantial interest in the subject-matter of the dispute, the Court has no discretion: it must
allow them to intervene because it should not proceed in the absence of parties having such
legally recognised interests.”

25 Intervention in the Magistrates’ Court

MCR 28(1)

(1)
 50

The court may, on application by a person desiring to intervene in any proceedings and having an
interest therein, grant leave to such person to intervene on such terms as it may deem fit

Position in the Magistrates’ Court is much the same

The party wishing to intervene must bring an application & establish a direct interest in the matter

5
THIRD PARTY JOINDER

HCR 13(1) and MCR 28A

26 Third party joinder in the High Court and Magistrates’ Court

HCR 13(1)

Where a party in any action claims - (a) as against any other person not a party to the action
(in this rule called a ‘third party’) that such party is entitled, in respect of any relief claimed against
him, to a contribution or indemnification from such third party, or
(b) any question or issue in the action is substantially the same as a question or issue which has
arisen or will arise between such party and the third party, and should properly be
determined not only as between any parties to the action but also as between such parties and
the third party or between any of them, such party may issue a notice, hereinafter referred to as a
third party notice, as near as may be in accordance with Form 7 of the First Schedule, which notice
shall be served by the sheriff.

MCR 28A

(1) Where a party in any action claims —

(a)
as against any other person not a party to the action (in this rule called a 'third party') that such
party is entitled, in respect of any relief claimed against him or her, to a contribution or
indemnification from such third party; or
(b)
any question or issue in the action is substantially the same as a question or issue which has
arisen or will arise between such party and the third party, and should properly be determined
not only as between any parties to the action but also as between such parties and the third party
or between any of them,
such party may issue a third party notice, similar to Form 43 of Annexure 1, which notice shall be
served by the sheriff.

Joinder of a party without including him directly in process

 51

27 Scenario

A = Plaintiff
B = Wrongdoer 1
C = Wrongdoer 2

Assume:
A litigates against B
B can inform C of the litigation by serving a notice on C
C can now apply to intervene

If the application to intervene is granted then C becomes a co defendant

C is therefore also a defendant with regard to A

A Plaintiff
B First Defendant
C Second Defendant

Judgement is given against both B & C

28 Problem

C cannot be forced to join

Function of HCR 13 and MCR 28A

Provides relief to wrongdoer 1 if wrongdoer 2 refuses to join (via intervention) - Notice
served on a third party

A second process is created

A Plaintiff
B Defendant (Serves third party notice)
C Third party with regard to B

B & C now exchange legal processes as if B was suing C

29 When this is used

Entitled to a contribution or indemnity, from the third party

Or
The issue between the plaintiff and the defendant in the action is substantially the same as the
issue between defendant and a third party
 52

30 How this is done

Form 7 is used in the High Court and Form 43 is used in the Magistrates’ Court
Sheriff serves notice
Plaintiff may also ‘serve’ a third-party notice on a party
Third party a party to the proceedings, also files pleadings
All documents and notices: must be served on the third party

31 Effect of the Third Party Notice

No lis between third party and plaintiff unless plaintiff also serves a notice on third party
No judgement against the third party (Only the defendant)
Declaratory order specifies degree of fault
Obtain judgment via declaratory order

6
32 CONSOLIDATION OF CAUSES OF ACTIONS

To have issues that are substantially similar tried together so as to avoid the disadvantages of costs
which flow from a multiplicity of actions instituted

HCR 11

Where separate actions have been instituted and it appears to the court convenient to do so, it may
upon the application of any party thereto and after notice to all interested parties, make an
order consolidating such actions, whereupon -
(a)
[T]he said actions shall proceed as one action;
(b)
[T]he provisions of rule 10 [joinder of parties and causes of action] shall mutatis mutandis apply
with regard to the action so consolidated; and
(c)
[T]he court may make any order which to it seems meet with regard to the further procedure,
and may give one judgment disposing of all matters in dispute in the said actions.

MCR 28(3)

(3)
A plaintiff may join several causes of action in the same action and the court may at the
conclusion of the proceedings make such order as to costs as it deems fit

7
 53

33 PARTIES TO A SUIT

Law of contract:
X sells his car to Y for R80 000
X delivers the car but Y does not pay the R80 000.
X would institute a claim against Y in his capacity as a plaintiff, and Y would be the defendant

One Plaintiff and one Defendant

X is the plaintiff and Y is the defendant (as above)

Multiple parties (Multiple plaintiffs and / or multiple defendants)

A and B sell their bed to C and D for R5000
A and B deliver the bed but C and D do not pay the purchase price

Joint liability:
(A and B as plaintiffs can institute the claim against C and D as defendants) as above

Joint and several liable:

(A and B as plaintiffs can institute the claim against C or D as defendants) as per agreement

Cession and delegation

X sells his car to Y for R80 000
X delivers the car but Y does not pay the R80 000
X would institute a claim against Y in his capacity as a plaintiff, and Y would be the defendant

Cession:
X could cede his right to Z and in terms of a cession agreement
Z would then be able to institute an action against Y in terms of the cession agreement
The cession agreement should be in a pleading

Delegation:
X could properly delegate Z in terms of the contract of sale
Z would then be able to institute an action against Y in terms of the delegation

Doctrine of subrogation
Applicable to the law of insurance
X insures the BMW of Y
Z causes damage to the BMW of Y

X can institute a claim against Z if with regard to the damages caused to the BMW of Y if:
X indemnifies Y in terms of a contract of insurance
X can institute an action against Z for delictual damages based on the doctrine of subrogation
The parties to the action would be Y and Z
If X is successful then, X will be reimbursed
 54

8
34 SEPARATION OF TRAILS

Application for separation of:

Causes of action, or
Parties

HCR 10(5)

Where there has been a joinder of causes of action or of parties, the court may on the application
of any party at any time order that separate trials be held either in respect of some or all of the
causes of action or some or all of the parties; and the court may on such application make such
order as to it seems meet

Section 41(1) of MCA

(1)
Any number of persons, each of whom has a separate claim against the same defendant, may join
as plaintiffs in one action if their right to relief depends upon the determination of some question of
law or fact which if separate actions were instituted would arise in each action:
35 Provided that if such joint action be instituted the defendant may apply to court for an order
directing that separate trials be held and the court in its discretion may make such order as it
deems just and expedient

Possibilities:
Voluntary joinder
Necessary joinder
Third Party joinder

Grounds:
Court has discretion
Fairness main consideration

Factors born in mind:

Prejudice to: Plaintiff(s) or Defendant(s)
Potential delays
Costs
Balance of convenience

9
36 CHANGE OF PARTIES
 55

Self-study

HCR 15

(3)
Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor,
curator, trustee or similar legal representative, may by notice to all other parties and to the registrar
intimate that he desires in his capacity as such thereby to be substituted for such
party, and unless the court otherwise orders, he shall thereafter for all purposes be deemed to have
been so substituted

MCR 52 (3) and 4

(3)
If a party dies or becomes incompetent to continue an action the action shall thereby be stayed
until such time as an executor, trustee, guardian or other competent person has been appointed
in his or her place or until such incompetence shall cease to exist
(4)
Where an executor, trustee, guardian or other competent person has been appointed for a party
who has died or has become incompetent, the court may, on application, order that the person
so appointed be substituted in the place of that party

Necessary:
Change of status: Death, insolvency, marriage, incompetence, or any other change of status

37 10
HEADINGS OF PLEADINGS

In the High Court of South Africa

Gauteng Division, Pretoria

In the High Court of South Africa

Gauteng Local Division, Johannesburg

In the Magistrates’ Court for the District of Wynberg

Held at Wynberg
 56

In Regional Court for the Regional Division of Wynberg Held at

Wynberg

TOPIC 4 2020 INTRODUCTION TO JURISDICTION AND JURISDICTION WITH REGARD TO

SUBJECT MATTER

1
38 INTRODUCTION

Defining jurisdiction:

Jurisdiction refers to the competency (authority) of a particular court

1. To hear a matter brought before it and
2. To grant relief in respect of that matter
The questions in this respect would be does the matter fall within the court’s juridisction? Does the
defendant or plaintiff reside there? Did the cause of action arise within the court’s jurisdiction?
Moreover, in respect of relief sought, can the specific court grant such relief? Or should the matter
be taken to the HC or CC or can it be dealt with in the MC?

2
GENERAL PRINCIPLES OF JURISDICTION

39 Principle of convenience
Would it be more convenient to use the Western Cape Division or Gauteng Division of the HC?
Here we look at the cause of action and the evidence.
Cause of action arose within the jurisdiction of the court

If cause of action (i.e motor vehicle accident) arose within Belville, then it would be within the
jurisdiction of the Western Cape Division of the HC.

The second thing we look at is the evidence.

Evidence: (Located within the jurisdiction of the court)
For example, witness who have seen the accident.

HOWEVER, the defendant may also be resident in another jurisdiction of another court.
Based on the principle of convenience, it would make more sense to use the Western Cape
Division of the HC because both the cause of action and evidence took place in that jurisdiction.
Also, it saves costs.
40 Principle of effectiveness
Can the court give effect to the judgement, does it have the power to do so?
Initially: Jurisdiction implied the physical control over a person
 57

Current status: Court will have jurisdiction in a matter if it has the power to adjudicate the matter
because it is within its jurisdiction as well as to enforce judgement (Within its jurisdiction).

This is the reason a court will so readily assume jurisdiction over a defendant or property located within its area of
jurisdiction.
The doctrine of effectiveness led to the development in our law of a general rule that a court will not adjudicate a
matter against a foreigner unless the foreigner has been arrested or the foreigner’s property has been attached to
ensure the effectiveness of its order.
Effectiveness does not, however, require that a court be fully able to enforce its judgment; it simply requires that a
judgment must have the potential to be enforced. The courts will be prepared to allow an attachment of goods
belonging to a foreigner even if the value of the goods is not comparable to the amount claimed. 11 Effectiveness is
also not a decisive criterion. Even where a court is able to enforce its judgment the court may nevertheless decline
jurisdiction

41 Principle of submission

A person may submit / consent to the jurisdiction of a court.

It is possible that a court doesn’t have jurisdiction but one may grant authority to a court, wherein
normal circumstances it wouldn’t, to deal with the matter. (side note: opposing party can raise a
special plea of jurisdiction and the matter will have to be thrown out)
Effect: Granting a court jurisdiction that it would not ordinarily have
subject to all the other rules of jurisdiction and rules, laws and provisions
governing jurisdiction.

IE: Matter should have been instituted in Gauteng Division of HC but plaintiff instituted proceedings
in the Western Cape Division of the HC (if ito action proceedings – def can raise special plea //
if ito application proceedings, court can say they wont adjudicate matter if applicant did not
satisfactorily establish juridsditcion)
IE: District MC has a monetary limitation ito its jurisdiction (matter is above 200 000). Parties
(plaintiff and defendant) may agree and submit to the jurisdiction of the court. In a contract you
agree that the claim or breach of contract is concerned with an amount of 350 000 but parties still
agree to the jurisdiction of the court. (this is referred to express submission)

Submission may be:

Express: For example, a contract in which you agree to a higher amount in the Magistrates’
Court
Tacit: For example, if there is no special plea of jurisdiction raised in a plea

Not tacit submission:

For example, filing a notice of intention to defend (You can still raise special plea in the plea)
For example, appointing an attorney (You can still raise special plea in the plea)
 58

Tacit submission:
Example: the defendant does not raise special plea of jurisdiction. A claim is instituted in Wynberg
Division of MC but it should have been instituted in Belville Regional MC division, defendant may
raise a special plea that court doesn’t have jurisdiction to hear matter.
BUT where the filing of a plea is filed by the defendant without him/her raising the special plea
of jurisdiction, it would be deemed that defendant submitted to the jurisdiction of that court.
This is in terms of s28(1)(f) of MCA

HOWEVER, certain things do not form part of tacit submission.

In terms of Procedure for example, there is a motor vehicle collision and the plaintiff institutes a
claim, he as a summons issues out of the Wynberg Regional MC but court does not have
jurisdiction because cause of action did not arise within the jurisdiction of the MC , the defendant
is not resident in the jurisdiction of the Wynberg Regional MC nor does s/he carry on
business in the jurisdiction of the Wynberg Regional MC. The matter should have been issued
in the jurisdiction of the Belville Regional MC because the defendant is resident in that jurisdiction
and that also where the cause of action took place. Nonetheless, the summons is issued, its been
taken to court and served by the sheriff of the court to the defendant. IN the summons document its
states that the defendant has a certain amount of time to defend the matter, if s/he does not do so,
s/he will be in default and plaintiff can make application for default judgment. In order for this to be
prevented the defendant must file a notice of intention to defend and deliver the notice to the
plaintiff and it is filed in the court file. That, in essence, is not tact submission. All the
defendant is doing I notifying the plaintiff that s/he has the intention to defend the matter.

Another example that is not tacit submission is appointing an attorney who will assist you in drawing
up the notice of intention to defend and also will assist in drafting the plea but all of that does not
mean submitting to the jurisdiction of the Wynberg Regional MC, the court does not have
jurisdiction. The notice of intention need to be delivered and filed and subsequent to that, the
defendant has to respond to the summons by giving you response by either agreeing to what the
plaintiff said or not via a plea (a plea, a response to the summons and particulars of claim in
combined summons). The plea must include and raise the special plea of jurisdiction that the
court doesn’t have jurisdiction to hear the matter. If that did not take place, you would have
tacitly agreed to the jurisdiction of the court.
THEREFORE, MUST RAISE SPECIAL PLEA FOR TACIT SUBMISSION TO TAKE PLACE.
Whether a person has consented to the jurisdiction of a court will depend upon the facts and circumstances of the
case.
It has been held that where a party seeks to infer consent by conduct, the conduct must be of such a nature that
actual acquiescence is present in order to determine whether the conduct is consistent with submission only. The
principle of consent should, however, be treated with caution.
 59

Consent is not sufficient to confer jurisdiction on a court in all cases. Therefore, where a court has no basis to
assume jurisdiction, in other words, where there is no jurisdictional link at all between the court and the matter,
consent, either express or tacit, will not be effective.
42 Actor sequitur forum rei

This principle provides that the general rule is that the plaintiff / applicant follow the court of
defendant / respondent.

The things we look at is where and in which court’s jurisdiction does the
defendant/respondent reside, carry on business or domiciled?
That court will generally, aside from a few exception (ie consent and submission), have
jurisdiction over the matter.

Court of defendant / Respondent: (Residence, place of business, domicile etc)

43 Dominus litis
Who is the person/party that has to institute the proceedings, issue the summons, have the
summons served on the other party? Who is the dominis litus?

It is the Plaintiff (action proceedings) / Applicant (application/notice of motion proceedings)

The plaintiff/ application is required to initiate the proceedings, select the procedure and select the
court.

Sometimes there will be two/three courts with jurisdiction – there will apply principle of convenience
and effectiveness. The choice must be made by the party who is dominis litus
(plaintiff/applicant).

In order to select an appropriate court: Plaintiff / Applicant will apply rules of jurisdiction (ie
Actor sequitur forum rei).
NBNBNB - If Plaintiff / Applicant select wrong court/procedure etc: Legal costs will be incurred
onto him/her by way of a negative cost order because of need to go to a different court,
costs wasted.
If attorney is incompetent, costs order may be ordered against him/her if wrong
procedure/court selected.

44 Subject matter jurisdiction

Subject matter jurisdiction refers to the jurisdiction of specific courts.

High Court
Has jurisdiction ito Common law and statutory jurisdiction (ito the Superior Courts Act)
 60

It has inherent / comprehensive jurisdiction (power to regulate its own procedures and process iro
procedural matters ito S173 of the Constitution – applies to HC, SCA and CC which are superior
courts).
It also has innate jurisdiction – the unfettered power to deal with any matter of unlawfulness
interference of rights.
Inherent jurisdiction is a subbranch of innate jurisdiction.

HOWEVER, both the jurisdiction and competence of the HC may by limited by limitations imposed
by statute.

All other courts jurisdiction is not as wide

Such as creatures of statute.
Example: Magistrates Court is a creature of statute (is governed by the four walls of the
Magistrates’ Court Act) and is different to HC because HC has common law jurisdiction.
The jurisdiction of the MC is also limited and governed by statute and limited by the MCA and
statute.
Thus, in MC, will always refer to section in the MCA or rule in the MCRs.
In the HC however, will refer to enabling Act (Superior Courts Act) and the Uniform Rules of
the HC, precedent and CL.
In MCs they have jurisdiction (but it is not as wide) as provided for by statute
Its jurisdiction therefore limited ito amount of claim that can be heard (district MC – 200 000/
Regional MC – 400 000) but in HC no limitation.
When it comes to subject matter, certain matters cannot be heard in MCs but can only be heard in
HC ie issue concerning interpretation of will – beyond jurisdiction of MCs.

Thus, must look at subject matter iro jurisdiction of a court.

45 Retaining jurisdiction
Retaining jurisdiction is another principle pertaining to jurisdiction.

Once jurisdiction has been established it continues even if the original reason for jurisdiction no
longer exists. Also stated in Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty)
Ltd 1969 (2) SA 295 (A)

Example: if plaintiff institutes proceedings against defendant and defendant resident in Gauteng,
the plaintiff will then institute proceedings in Gauteng bc defendant is resident within the jurisdiction
of the court (principle of Actor sequitur forum rei). However, during the proceedings and after the
summons is issued and served, if defendant no longer resident within the jurisdiction of the
Gauteng court and now resides in the CPT court, the Gauteng Court will retain jurisdiction over the
matter.

46 Concurrent jurisdiction

It is possible that more than one court may have jurisdiction in a matter:
 61

In the Western Cape alone, for example, there are many courts and in terms of monetary
jurisdiction :
Small Claims Court: R0 - R20 000
(deals
specifically
with claims of
money (ie
contracts of
sale)
District Court: R0 - R200 000
Regional Court: R200 000 - R400 000
High Court: R0 - No maximum
(HC any claim can be
taken to it but expensive
bc of legal representative
costs)
Which courts have jurisdiction regarding the matter?

IE. If claim is R10 000 [Small Claims Court, District Court and High Court has jurisdiction]
IE. If claim is R250 000 [Regional Court and High Court has jurisdiction]

NB – plaintiff is dominis litus and has the right to choose where to institute proceedings iro the claim
iow which court.
HC stated that it would be abuse of power if taken matter to HC or higher court where matter
could be taken to a lower court. Thus, we shouldn’t overburden courts, if claim can be taken
to lower courts, should do so.

Concurrent jurisdiction between different divisions of High Court:

IE. Defendant resident within the jurisdiction of one HC division and cause of action within
jurisdiction of another division of HC – plaintiff will have to choose between the courts (principles
of convenience and effectiveness applies)

Concurrent jurisdiction between specific provincial and specific local division (NB)
Example: Main seat can also hear appeals from the local seat

See Thembani Wholesalers (Pty) Ltd v September and Another 2015 (5) SA 21 (ECG)
Position regards local seat and main seat and that main seat has concurrent
jurisdiction in geographical area of local seat in matters of appeal.

47 Moment for determination of jurisdiction

At which point in time must we determine whether the specific court at hand has jurisdiction over
the matter?
 62

Summons and application: at the moment that the summons or notice of motion/application is
served on defendant/respondent.

Ex parte application (where there is no respondent or matter is urgent and notice/summons couldn’t
be served on defendant/respondent) – ie when one wants to be admitted as an attorney to the HC.

In terms of Ex parte applications it is at the moment the application is filed with registrar in HC /
clerk of the court in the MC.
(However, there may be a registrar specifically in MC iro divorce matters.)

Divorce: the jurisdiction of the court must vest on the date that the summons is issued with the
registrar

48 Jurisdiction in ancillary matters

Deals more with MC bc it has limited jurisdiction and can only do as stated in the MCA and
MCR.

If a court has jurisdiction in the main matter it will therefore also have the jurisdiction to deal
with interlocutory applications/ancillary matters.

Example: claim is instituted against X in Western Cape Division of HC (action based on motor
vehicle collision that occurred at UWC in the territorial jurisdiction of the Western Cape Division of
the HC). The plaintiff has the summons issued and served onto defendant. Defendant doesn’t
respond therefore s/he is in default of appearance and thus plaintiff may apply for a default
judgment. If the defendant does defend the matter, s/he can make an application for a summary
judgement. The main action was not for default or summary judgment but for suing that
amount of money for the motor vehicle collision.
BUT court will then also have jurisdiction iro application for default judgment or summary
judgment after summons issued

49 How to decide on a specific court to adjudicate a matter

When determining which court should adjudicate a matter, there are two stages:

Stage 1: Plaintiff must identify the correct and best type of Court (MC - District or Regional, HC,
SCA, CC or Specialised) to hear matter (ito principles of convenience, effectiveness and Actor
sequitur forum rei; monetary jurisdiction)

Stage 2: Plaintiff must select a particular court with regard to territory (HC – Divisions (main or
local) or Local / MC area) – MUST consider subject matter iro jurisdiction of courts as well.
Questions to ask:
1. Is it the subject matter in exclusive jurisdiction of CC, LC etc or can the matter be in a
number of courts ito concurrent jurisdiction?
 63

2. Which particular court? Is there a link between the matter at hand and the court or the
defendant based on the principle of Actor sequitur forum rei?

3
50 COMPETENCE OF AN INSTITUTION TO ACT AS A COURT
In order for a court to act as a court there are basically certain amounts of judges to hear a matter.
General: How many presiding officers hear a matter?

Constitutional Court: At least 8 Judges / S 167 Constitution

Supreme Court of Appeal Generally 5 Judges / S 13(1) Superior CA
High Court (Single Judge) 1 Judge (matter can be appealed from MC –
2/more judges || or be a court of first instance – single judge)
Magistrates’ Court to High Court Usually 2 Judges / S 2 (a)(1) of SCA
High Court 1 judge to High Court (Full bench) 3 Judges (Full bench)
Magistrates’ Court (DC and RC) 1 Magistrate

4
JURISDICTION WITH REGARD TO SUBJECT MATTER

51 Constitutional Court [Subject Matter Jurisdiction]

Section 167(3) of the Constitution

CC is the highest court of SA and regards all matters (Original, exclusive and appeal jurisdiction)

CC may adjudicate on constitutional matters as well as any other matter if the Constitutional Court
grants leave to appeal on the grounds that such other matter raises an arguable point of law of
general public importance which ought to be considered by the Court. CC
also has exclusive jurisdiction in certain subject matters.

Previously SCA was highest court for all non-constitutional matters and CC
was highest court of land for all constitutional matters.

Note: Final decision maker on whether a matter is within its jurisdiction

52 Supreme Court of Appeal [Subject Matter Jurisdiction]

SCA has only appeal jurisdiction (No original jurisdiction thus can’t be court of first instance)
SCA hears appeals from the High Court.
If matter heard by single judge in HC first, matter would first be appealed in HC in front of a full
bench before it goes to the SCA bc it must first go to a court with original jurisdiction (being the HC).
 64

53 High Court of South Africa [Subject Matter Jurisdiction]

One High Court divided jurisdictionally and administratively into a number of divisions iro the nine
provinces.

Previously there was a Cape HC and a number of others but HCs names changed and a long
history of changes.

Currently. HC divisions have main seats and local seats.

HC has both original and appeal jurisdiction (matter can be taken directly to HC or appealed to HC
from the regional MC)
HC can hear all matters and has Inherent and Innate Jurisdiction
Limitations imposed on HC is by statutes.

Thus, HC can generally do anything but there could be a law, act of parliament or statute which
excludes matters from HCs jurisdiction.

Chunguete v Minister of Home Affairs and Others 1990 (2) SA 836 (W)
In this case, distinction was made between inherent and innate jurisdiction.
The court held that-
Innate jurisdiction refers to the unfettered power of a court to adjudicate almost any unlawful.
interference with rights.
Moreover, that inherent jurisdiction refers to the power of a court to regulate its own procedure
A courts inherent jurisdiction is a sub category of innate jurisdiction

Section 21(1) of the Superior Courts Act [Subject matter]

S21(1) of the SCA discusses the subject matter jurisdiction of the HC.

54 A Division has jurisdiction … in relation to all causes arising and all offences triable
within, its area of jurisdiction and all other matters of which it may according to law take
cognisance,
and has the power -
(a)
55 [T]o hear and determine appeals from all Magistrates’ Courts within its area of
jurisdiction; (b) [T]o review the proceedings of all such courts;
(c) [I]n its discretion, and at the instance of any interested person, to enquire into and determine
any existing, future or contingent right or obligation, notwithstanding that such person cannot
claim any relief consequential upon the determination

HC jurisdiction is subject to limitations imposed by statute (NB)

Example: Specialised courts with exclusive jurisdiction to hear the matter, thus HC won’t have
jurisdiction to hear such a matter.
 65

Section 6(4) of the Superior Courts Act [deals with differences between the Main and local
seats]
Here we consider what can be heard by the main and local seats in the province which is
regulated by s6(4) of the SCA.

[NBNBNB – Western Cape, Northern Cape, North West, Bloemfontein and Mpumalanga just
has main seats.]
Main seat has jurisdiction over geographical area within the division including matters over the
local seat (smaller geographical and territorial area and has jurisdiction over such).

If matter heard by local seat by single judge and is appealed, must it go to same local seat or the
main seat? S6(4)(a) of the SCA says that main seat has concurrent appeal jurisdiction over local
seat matters. SO matter could be appeals by local seat or main seat.- very NB

56
If a Division has one or more local seats -
(a)
The main seat of that Division has concurrent appeal jurisdiction over the area of jurisdiction of any
local seat of that Division,
[A]nd the Judge President of the Division may direct that an appeal against a decision of a single
judge or of a Magistrates’ Court within that area of jurisdiction may be heard at the main seat of
the Division…

See Thembani Wholesalers (Pty) Ltd v September and Another 2015 (5) SA 21 (ECG)
Discussion on main and local seat of the High Court – confirmed that main court/seat has
concurrent jurisdiction over local seat

Nedbank v Thebojane (2019) heard in Gauteng division of hc

Court said it is an abuse of process to transfer a matter in event where transferring the matter to a court ie matter in
jurisdiction of local seat, why should matter be taken to main seat? If such is done it would be abuse of power. Judge
may decide out of his own that matter must go to different court with concurrent jurisdiction. The test is whether it
would be in the interest of justice to do so. Consider financial implications and principles of convenience as well. If
those are not considered, judge has discretion to transfer matter to another court more suitable if in the interests
of justice to do so but will have costs implications upon the party that decided to make use of this specific court.
57 Statutory limitations on High Court jurisdiction

HC has wide powers but it has statutory limitations which include, for example, the exclusive
jurisdiction of the Constitutional Court (See ss 167 & 169 of Constitution)

There are other statutes creating specialized courts which may expressly or by clear
implication exclude the powers of the High Court:
• Special Income Tax Courts (S 83 of Income Tax Act 58 of 1962)
• Court of the Commissioner of Patents (S 18 Patents Act 57 of 1978)
• Labour Courts (S 151 Labour relations Act 66 of 1995)
 66

58 Magistrates’ Courts [Subject Matter Jurisdction]

District Courts: (Look at value and type of claim that can be adjudicated)
Has monetary jurisdictions over claims with a monetary value of no more than R200 000.
Thus, if claim is more than R200 000, District MC won’t have jurisdiction.

BUT must also ask if type of claim falls within District MC jurisdiction

Thus, look at the types of matters they may preside over (See ss 29 and 46 of the Magistrates’
Court Act)

Regional Courts: (Look at value and type of claim that can be adjudicated)
Has general jurisdiction of claims with a monetary value of between R200 000 and R400 000.
There are exceptions in instances where consent is given by the parties.
Types of matters they may preside over (See ss 29 and 46 of the Magistrates’ Court Act)

Both District and Regional MC are creatures of state and can only do what statutes indicate they
may do thus have to look at ss 29 and 46 of the Magistrates’ Court Act to determine if they can
adjudicate over the matter.
Provisions in the Magistrates’ Court Act 32 of 1944 granting jurisdiction [Subject Matter
Jurisdiction]

59 Jurisdiction in respect of causes of action Section 29 of the MCA

(Subject to the provisions of Magistrates’ Court Act 44 of 1944 & National Credit Act 34 of 2005
therefore s29 of the MCA can also be impacted by these Acts)

Section 29 specifically provides for the action procedure, which means the relief mentioned in
s29 cannot be obtain through the use of the application procedure unless some other section in
the Act or provision in the rules specifically so provides (NB!)

Example: Vindicatory
proceedings (Return of object)
3 Requirements to be met before
this occurs:
• Ownership vests in plaintiff, still in existence, and defendant in possession of item at time
proceedings are instituted
Normally brought by way of motion in the High Court, it should properly be brought by way of
action in the Magistrates Court as the Act makes no provision for it to be brought by way of
motion proceedings
 67

Section 29(1) Subject to the provisions of this Act and the National Credit Act, 2005 (Act 34
of 2005),

A court, in respect of causes of action (being subject matter jurisdiction), shall have
jurisdiction in -

60 29(1)(a)
Actions in which it is claimed
the delivery or transfer of any property, movable or immovable, not exceeding in value the
amount determined by the Minister from time to time by notice in the Gazette…

R0 - R200 000 for District Court and between R200 000 - R400 000 for Regional Court
Value = refers to the Market value of the property

61 29(1)(b)
Actions of ejectment against the occupier of any premises or land within the district or regional
division: Provided that, where the right of occupation of any such premises or land is in
dispute between the parties, such right does not exceed the amount determined by the Minister
from time to time in the Gazette in clear value to the occupier…

If right of occupation of premises or land is not in dispute THEN THERE IS NO MONETARY

LIMITATION SO DISCTRICT MC AND REGIONAL MC MONETARY LIMITATIONS WONT
APPLY.

R0 - R200 000 for District Court and between R200 000 - R400 000 for Regional Court
Clear value to the occupier of alternative accommodation:
Example 10 months left of lease and alternative accommodation is R10 000, so value to
occupier would be R100 000.

62 29(1)(c)
Actions for the determination of a right of way (ie right of way of a road), notwithstanding the
provisions of section 46…

(The order may be one of specific performance, even though s 46 says no specific
performance can be claimed in MCs without alternative for damages)
Value of right of way is irrelevant THUS NO MONETARY LIMITATION
 68

29(1)(d)
Actions on or arising out of a liquid document or a mortgage bond, where the claim does not exceed
the amount determined by the Minister from time to time by notice in the Gazette…

R0 - R200 000 for District Court and between R200 000 - R400 000 for Regional Court
What is a liquid Document?
It is a written unconditional acknowledgment of indebtedness, for an ascertained amount of money,
the payment of which is due to the creditor, and the identity of the creditor is apparent from the
document
ie cheque is an example of liquid document

63 29(1)(e)
Actions on or arising out of any credit agreement, as defined in section 1 of the National Credit Act,
2005 (Act 34 of 2005)…
NBNB
Monetary Jurisdiction:
Unlimited for District Court (bc minister didn’t stipulate limitation thus can even take a claim
for 2million in District MC and not Regional MC) and between R0 - R300 000 for Regional
Court

64 29(1)(f)
Actions in terms of section 16(1) of the Matrimonial Property Act, 1984 (Act 88 of 1984), where
the claim or value of the property in dispute does not exceed the amount determined by the
Minister
from time to time by notice in the Gazette…

R0 - R200 000 for District Court and between R200 000 - R400 000 for Regional Court

65 29(1)(fA)
Actions, including an application (specifically includes application) for liquidation, in terms of
the Close Corporations Act, 1984 (Act 69 of 1984)… falls within jurisdiction of the MCs.

It should be noted that the High Court has concurrent jurisdiction in any matter relating to
close corporations in which the magistrate's court has jurisdiction – use the Nedbank v
Thebojane case regarding prevent abuse of power if applicable.

66 29(1)(g)
MCs can hear Actions other than those already mentioned in this section where the claim or the
value of the matter in dispute does not exceed the amount determined by the Minister from time to
time by
notice in the Gazette…
Thus, all actions mentioned in and not mentioned in 29 can be heard in MC subject to
MONETARYJURISDICTION AND LIMITATION
 69

R0 - R200 000 for District Court and between R200 000 - R400 000 for Regional Court

67 29(1A)
The Minister may determine different amounts contemplated in subsection (1)(a), (b), (d), (f) and
(g)
in respect of courts for districts and courts for regional divisions… THIS EXCLUDES 29(1)(c)

68 29(1B)
(a)
A court for a regional division, in respect of causes of action, shall, subject to section 28(1A), have
jurisdiction to hear and determine suits relating to the nullity of a marriage or a civil union and
relating to divorce between persons and to decide upon any question arising therefrom, and
to hear any matter and grant any order provided for in terms of the Recognition of
Customary Marriages Act, 1998 (Act 120 of 1998)
[this is an extention of the REGIONAL MC jurisdiction ONLY, wasn’t included previously]
(b)
A court for a regional division hearing a matter referred to in paragraph (a) shall have the same
jurisdiction as any High Court in relation to such a matter
[Thus, Regional MC has concurrent jurisdiction as HC in these matters]
(c)
The presiding officer of a court for a regional division hearing a matter referred to in paragraph (a)
may, in his or her discretion, summon to his or her assistance two persons to sit and act as
assessors in an advisory capacity on questions of fact.
[thus, such persons need not be advocates etc, can be members of community and can only
determine matters of fact bc don’t have LAW degree]
(d)
Any person who has been appointed as a Family Advocate or Family Counsellor under the
Mediation in Certain Divorce Matters Act, 1987 (Act 24 of 1987), shall be deemed to have also
been appointed in respect of any court for a regional division having jurisdiction in the area for
which he
or she has been so appointed…

[Section 28(1A) states that ‘[f]or the purposes of section 29(1B) a court for a regional
division shall have jurisdiction if the parties are or if either of the parties is - (i) domiciled
in the area of jurisdiction of the court on the date on which proceedings are instituted; or
(ii) ordinarily resident in the area of jurisdiction of the court on the said date and has or
have been ordinarily resident in the Republic for a period of not less than one year
immediately prior to that date.]
 70

69 29(1C)
Jurisdiction conferred on a court for a regional division in terms of this section shall be subject to a
notice having been issued under section 2(1)(iA) in respect of the place for the holding, and the
extent of the civil adjudication, of such court.

This has been done thus REG MC do have jurisdiction to hear divorce matters

70 29(2)
In subsection (1) 'action' includes a claim in reconvention (this is also called a counterclaim by a
defendant). (a claim by plaintiff is usually called a claim or claim in convention)

NB!!! S 29 of MCA is subject to the limitations imposed by section 46 of MCA!!!

71 Attachments, Interdicts, Spoliation Orders

Section 30 of MCA

(1)
Subject to the limits of jurisdiction prescribed by this Act [ss 28(deals with jurisdiction iro persons and
territorial jurisdiction), 29(subject matter jurisdiction), and 46(2)(c)?], the court may grant against
persons and things orders for
attachments, interdicts and mandamenten van spolie (aka spoliation orders)

Badenhorst v Theophanous 1988 1 SA 793 (C) - Prescribed case

Court held that court cannot grant an interdict that will have a practical effect
[Cannot therefore grant an interdict for specific performance in terms of a contract]
Ie. The court wants to grant specific performance ito contract (restraint of trade for example), it
cannot be done bc it will have a practical effect. However, a request can be made for this if there is a
claim in the alternative.
The courts may therefore grant prohibitory and mandatory interdicts
Interdicts which may be either final or interlocutory

The monetary value of claims for the above is therefore limited to R200 000 in the District MC and
between R200 000 and R400 000 in the Regional MC

Cannot grant an interdict that will have a practical effect

[Cannot therefore grant specific performance in terms of a contract]

The courts may therefore grant prohibitory and mandatory interdicts

 71

Interdicts may be either final or interlocutory

72 Rescission of judgments
Section 36 of MCA
Will be discussed in Topic 7
Can a court hear a matter regarding the rescission of a judgment?
This can be done either on application of any person affected by the judgement or by the court out
of own accord (mero motu).

Miscellaneous provisions pertaining to jurisdiction

73 Splitting of claims
Section 40 of MCA

40
A substantive claim exceeding the jurisdiction may not be split with the object of recovering the
same in more than one action if the parties to all such actions would be the same and the point at
issue in all such actions would also be the same

Splitting of claims disallowed

Example: R400 000 in 1 action and R200 000 in another action
A claim may not be split to bring it within the court’s jurisdiction –
MC then cannot hear the matter bc the parties, issues and
object of recovery is the same.

74 Cumulative Jurisdiction
Section 43 of MCA

(1)
If two or more claims, each based upon a different cause of action, are combined in one summons,
the court shall have the same jurisdiction to decide each such claim as it would have had if each
claim had formed the sole subject of a separate action.
(2)
If a claim for the confirmation of an interdict or arrest granted pendente lite be joined in the same
summons with a claim for relief of any other character, the court shall have the same jurisdiction to
decide each such claim as it would have had if each claim had formed the sole subject of a
separate action, even though all the claims arise from the same cause of action.

More than one claim based on different causes of action can be combined in one summons
ito subsection 1 of s43 and subsection 2 gives MC jurisdiction to hear such matters
 72

The monetary value of each separate claim may not exceed: R0 - R200 000 for D MC and between
R200 000 - R400 000 R MC (NB!!!)

75 Incidental Jurisdiction
Section 37 of MCA

(1)
In actions wherein the sum claimed, being within the jurisdiction, is the balance of an account, the
court may enquire into and take evidence if necessary upon the whole account, even though such
account contains items and transactions exceeding the amount of the jurisdiction.
(2)
Where the amount claimed or other relief sought is within the jurisdiction, such jurisdiction shall not
be ousted merely because it is necessary for the court, in order to arrive at a decision, to give a
finding upon a matter beyond the jurisdiction.
(3)
In considering whether a claim is or is not within the jurisdiction, no prayer for interest on the
principal sum claimed or for costs or for general or alternative relief shall be taken into account.

Section 37 deals with matters that seem to be beyond the court’s jurisdiction but are
included for reasons of convenience
[Based on principle of convenience]

37(1) applies when claiming for balance to on an account even if original claim is beyond the
monetary jurisdiction of the D MC and R MC
[Hear evidence regards original amount R500 000 in RC]

37(2) Considerations of matters beyond jurisdiction of court - a claim that is beyond court’s
jurisdiction but still needs to be considered for the finding in the jurisdiction of the court, the court
will have jurisdiction over the claim beyond its jurisdiction
[Whole amount of R500 000 in RC is looked at as long as the finding can be made and the amount
claimed falls within the jurisdiction of the MC]

76 Matters excluded from the jurisdiction of the Magistrate’s Court

Section 46 of MCA

46(2)
A Magis. court shall have no jurisdiction in matters -

77 46(2)(a)
in which the validity or interpretation of a will or other testamentary document is in question
[Includes a document containing a donation mortis causa and an anti-nuptial contract containing
succession clauses]
 73

78 46(2)(b)
in which the status of a person in respect of mental capacity is sought to be affected

46(2)(c)
which is sought specific performance without an alternative of payment of damages except in:
(i)
the rendering of an account in respect of which the claim does not exceed the amount
determined by the Minister from time to time by notice in the Gazette R0 - R200 000 DC and
between R200 000 - R400 000
(ii)
the delivery or transfer of property, movable or immovable, not exceeding in value the amount
determined by the Minister from time to time by notice in the Gazette R0 - R200 000 DC and
between R200 000 - R400 000
(iii)
the delivery or transfer of property, movable or immovable, exceeding in value the amount
determined by the Minister from time to time by notice in the Gazette, where the consent of the
parties has been obtained in terms of section 45…
R0 - R200 000 DC and between R200 000 - R400 000

79 ALSO section 29(c) actions determining a right of way [Not specified in section
46(2)(c), BUT PLEASE REMEMBER]
[No monetary limit]
[No alternative of damages]

80 (d)
in which is sought a decree of perpetual silence (if one always states they’re going to sue another,
can go to court to give the person the option to sue but cannot say s/he wants to sue all the time)

What is meant by specific performance in terms of s 46 of the MCA?

Is it a specific performance for performance of an action or payment of a debt or both?

1) Tucker’s Land & Development Corp (Edms) Bpk v Van Zyl 1977 (3) SA 1041 (T) Prescribed case
Specific performance refers to specifically performance of an act (ad factum praestandum)
It does not refer to payment of a debt (ad pecuniam solvendam)
Payment of a debt/damages would therefore be within the MC jurisdiction
In Tuckers the court held that we have to distinguish between specific performance ad factum praestandum
(performance of an action) and specific performance ad percunium solvendam (the payment of money).

The court held that if specific performance is for the payment of money, the limitation imposed by S46 is not applicable
because whether you are asking for payment of R50 000.00 for specific performance or whether you are asking R50
000,00 for damages, it is a liquidated amount
 74

Therefore the court held that the limitation imposed by S46 is only applicable when specific performance is for the
performance of an action.

the court looked at the interpretation of specific performance and held that specific performance
can either mean:
1. the payment of money (specific performance ad pecuniam solvendam)
2. performance of an action (specific performance ad factum praestandum)
(eg where A had to pay R70 000,00 to B for a car – (A has to render specific performance
ad pecuniam solvendam)
B has to deliver the car – therefore specific performance ad factum praestandum)
The court then says that when S46 impose the limitation whereby specific performance cannot be
granted without the alternative of damages, what type of specific performance is meant?
The court held that when a person claims specific performance ad pecuniam solvendam (for eg
for R70 000,00) or in the alternative the person claims damages (for eg for R70 000,00) there
is no difference.
The court concluded in Tuckers by saying that specific performance must not just be interpreted
narrowly to mean specific performance in terms of a contract but must be interpreted more
narrowly to only refer to specific performance ad factum praestandum.

Therefore S46 must be interpreted to mean specific performance in terms of a contract and
specific performance ad factum praestandum. (taking into account exceptions above)
If you do not want damages in the alternative but only want specific performance, then you have
to go to the High Court.
If you apply for an interdict in the magistrates court, you must ask yourself what is the consequence
thereof once enforced. (for eg in the case of contractor not completing a swimming pool)
A Magistrates Court has the jurisdiction to grant an interdict but if the consequence of the interdict
is the same as granting specific performance without the alternative of damages, the
magistrates court cannot grant the interdict and the claim has to go to the High Court. (NB)

Does s 46 refer to all claims of performance of an act or only those in terms of a contract?
1) Olivier v Stoop 1978 (1) SA 196 (T) - Prescribed case
In Olivier v Stoop the court held that when we use the term specific performance in S46, it means specific performance
in terms of a contract only.

Specific Performance Pertains to specific performance arising from a contract (if not in terms of
a contract, court does have jurisdiction)

Example: If there is a restraint of trade agreement in terms of a contract, then damages must be
claimed in the alternative for court to basically have jurisdiction
The same would not apply to a registered servitude over the property as the right
arises from the law of property and not a contract
 75

2) Badenhorst v Theophanous 1988 1 SA 793 (C) - Prescribed case

What is the impact of interdicts with reference to s 30(1) by s46?
Section 30(1) with regard to interdicts, is subject to s 46 with regard to specific performance without
the alternative of damages

3) Zinman v Miller 1956 3 SA 8 (T) - Prescribed case

Does s46 impact on spoliation order with reference to
s30(1)?
Section 30(1) with regard to a spoliation order, is not subject to s 46 with regard to specific
performance without the alternative of damages Thus specific performance can be requested with a
spoliation order.
Applicant asked electrician (respondent) to install electrical paneling with all the electrical
wires but the applicant did not pay the electrician.
0The electrician then removed the electrical wiring and paneling and the applicant applied
for a spoliation order (return of goods in their former state)
The court granted the order and the electrician had to reinstall the wiring and paneling.
The respondent argued that this amounts to specific performance ad factum praestandum
and the magistrates court cannot grant such an order without the alternative of damages.
The court held that S46(2)(c) is not applicable where spoliation orders are concerned.
-
If given a problem question and there is a contract – first check what type of specific
performance, then check whether excluded from S46.
Then see whether she is asking for specific performance ito a contract or for an interdict
that has the consequence of specific performance or for a spoliation order.
If it is a spoliation order then ito Zinman v Miller you can go to the Magistrates Court
But if it is specific performance ito a contract or an interdict that has the consequence of
specific performance then you have to go to the High Court.
In terms of Zinman v Miller S46 is not applicable to spoliation orders because of the nature
of the order, however we are not dealing with spoliation orders in this scenario
LOOK AT BADENHORST AND ZINMAN TO EXPRESS OPINION ON WHAT IS THE POSITION
81 Extension of jurisdiction
Jurisdiction of MC is limited ito S46 but can be extended ito S45 and S38 & S39
This can be done in 3 ways:

By consent of the parties s 45 of MCA

Abandonment by the Plaintiff of part of his claim s 38 MCA

Deduction by the Plaintiff of an admitted debt owing to the defendant s 39 MCA

Section 45 of MCA
Jurisdiction by consent of the parties
 76

(1)
Subject to the provisions of section 46 [limitations], the parties may consent in writing to the
jurisdiction of either the court for the district or the court for the regional division to determine any
action or proceedings otherwise beyond its jurisdiction in terms of section 29(1) [subject matter].
(by written consent of parties ito S45 of MCA, MC jurisdiction can be extended)
(2)
Any provision in a contract existing at the commencement of the Act or thereafter entered into,
whereby a person undertakes that, when proceedings have been or are about to be instituted, he
will give such consent to jurisdiction as is contemplated in the proviso to subsection (1), shall be
null and void.
(if consent given via contract at Acts commencement or before, it will be null and void)
(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 [jurisdiction over persons], is of no force and effect…

Parties may consent to the jurisdiction of the Magistrates’ court subject to:

The limitations imposed by s 46 of MCA [Jurisdiction over subject matter] cannot consent to this
(ie interpretation of will, decree of perpetual silence)
The limitations imposed by s 28 of MCA [territorial Jurisdiction over persons] cannot consent to
this

82 Requirements for s 45 consent regarding amount [s 29 of MCA – subject matter

jurisdiction of MC]
To extend monetary jurisdiction of court
Requirements:
Parties consent must be in writing
All parties must consent (In an action plaintiff and defendant must consent in writing even though
Regional MC had jurisdiction of 400 000 - that court can still hear matter if 450 000)
Tacit consent not enough ito S45 of MCA (It must be in writing)
Consent may be a general consent given in advance (Need not be in regard to a specific
claim)

Examples: Consent is given to increase the monetary jurisdiction of the RC to R500 000 (best to
use in a contract)

83 Requirements for s 45 consent regarding persons [s 28 of MCA – territorial

jurisdiction over persons]

The 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
 77

defendant or judgment debtor in terms of section 28, is of no force and effect - MC MUST
HAVE JURISIDICTION OVER DEFENDENT

57: Admission of liability and undertaking to pay a debt in instalments or otherwise (the
defendant doesn’t pay plaintiff and before instituting the matter, plaintiff send letter of demand to def
/ issue summons in court that’s served on def, def can either use 57 (consent to judgment and
order for payment of judgment debt in instalments) or s58 (plaintiff can get a judgment) –
request can only be made to court that has jurisdiction over defendant
58: Consent to judgment or to judgment and an order for payment of judgment debt in
installments
65: Offer by judgment debtor after judgment (court must be a court that has jurisdiction ito
S28 over judgment debtor)
65J: Emoluments attachment orders

University of Stellenbosch Legal Aid Clinic v Minister of Justice and Others 2016 (6) SA 596
(CC) - Prescribed case look at what is says at s57, s58, s45, s65 read both HC and CC judgments
which also considered judicial oversight. CC did reading in, sections understood differently and lead
to changes of s45.
The High Court declared that certain specified words in section 65J(2) of the Magistrates’ Courts Act 32 of 1944 were
inconsistent with the Constitution and invalid to the extent that they failed to provide for judicial oversight over the
issuing of an emoluments attachment order against a judgment debtor. A further declaration was granted to the
effect that section 45 of the Act does not permit a debtor to consent in writing to the jurisdiction of a magistrates’
court other than that in which that debtor resides or is employed. The declaration of invalidity was submitted to the
Constitutional Court for confirmation as required by the Constitution.

The first applicant was a law clinic established by a university, and the second to sixteenth applicants were individual
clients of the Law Clinic, who all had emoluments attachment orders issued against them by clerks of the court
employed in various Magistrates’ offices, many of which were located far away from where the applicants resided and
worked.

Held that the credit market is currently regulated by the National Credit Act 34 of 2005. Section 129(1) demands
that notice be given to the consumer, drawing her attention to the default and proposing that if the consumer so
wishes, she may refer the matter to a debt counsellor with the intent that the parties may resolve the dispute and
agree on a plan to bring payments up to date. Both sections 129(1)(b) and 130(1) preclude the credit provider from
instituting litigation before satisfying their requirements.

The first majority judgment by Cameron J stated that where an applicant seeks an order to execute against or seize
control of the property of another person, there must be judicial oversight. execution of court orders is part of the
judicial process and requires judicial oversight. When granting an emoluments order, a court will consider various
factors as set out in the judgment. Those considerations are critical, emphasising the constitutional necessity for
judicial supervision over the matter. It was held that section 65J(2) of the Magistrates’ Courts Act could not be
interpreted as providing for judicial oversight. Section 65J(1) envisages simply that the emoluments attachment order
is “issued from the court”. The safest remedy, recognising the plain meaning of the language, and the constitutional
limits it sought to transgress, was to strike the offensive legislation down, as the High Court had.

The second majority judgment, by Zondo J, also concluded that section 65J(2)(a) does not provide for judicial
oversight – to the extent that it allows for the granting of an emoluments attachment order without court authorisation
in instances where a debtor has consented in writing. In deciding on a remedy, the court held that notional severance
as suggested by the High Court was not appropriate. The Court ordered the reading-in, and severance of, certain
words in section 65J(2)(a) and (b) in order to remedy the constitutional defect. It also declared the order made to be
prospective only and not retrospective.
 78

Deduction of an admitted debt Section 39 of MCA

Also deals with extending of jurisdiction in the sense that we can bring matter into monetary
jurisdiction of court and not necessarily extension of jurisdiction.
84 39
In order to bring a claim within the jurisdiction a plaintiff may, in his summons, or at any time after
the issue thereof, deduct from his claim, whether liquidated (an agreed upon amount/amount that
be easily ascertained) or unliquidated, any amount admitted by him to be due by himself to the
defendant…

If the plaintiff owes the defendant money, the plaintiff can subtract this admitted debt from the
amount owned by the defendant to bring the amount within the jurisdiction of the MC (district or
regional MC but district has monetary limitation of up to 200 000 by minister as above and regional
up to 400 000)
Requirements:
The debt that will be deducted must be for an amount of money (thus only applies to monetary
debt)
The Plaintiff can deduct the claim even if the claim is unliquidated or not yet due [Contractual claim
– thus even if due at end of year, can still be deducted]
The deduction can be made at any stage during the proceedings but must be done before final
judgement is granted [Not necessary in summons, can be done after the summons but
before final judgment]
Usually done at summons stage [When summons is issued]
NB TERMS:
Original claim – claim that is above court’s jurisdiction
Admitted debt –
Amount claimed -
Judgment amount -
The Plaintiff must prove the original claim [Claim above the court’s jurisdiction]
If the Plaintiff is successful in his claim the court will give judgement for the amount proved LESS
the amount of the admitted debt (if I can claim an original amount of 450 000, I will admit that
I owe defendant 50 000 so fall within jurisdiction of MC, but must still prove 450 000 and if
successful, the amount claimed would 400 000 and the deducted amount would be 50 000
and the judgment amount would be 400 000)

A Plaintiff in reconvention may also use this procedure to bring the counterclaim within the
jurisdiction of the court

85 Example 1 (Deduction of admitted debt)

Plaintiff claims in RC R 420 000

Debt admitted by Plaintiff as due to Defendant R 22 000 (to bring within jurisdiction of RC)
Amount claimed in prayer by Plaintiff R 398 000
 79

Plaintiff proves the entire original claim of R 420 000

Court will award judgment for R 420 000 - R 22 000 = R 398 000

Example 2 (Deduction of admitted debt)

Original Claim in RC R 430 000

Admitted Debt R 35 000 (to bring within jurisdiction of RC)
Amount Claimed R 395 000

Possibility 1
Amount Proven R 430 000 (amount proven)
Judgment amount R 430 000 - R35 000 = R 395 000

Possibility 2
Amount Proven R 390 000 (amount proven)
Judgment Amount R 390 000 - R 35 000 = R 355 000

Abandonment by the Plaintiff of a portion of his claim Section 38 of MCA

Also deals with extending of jurisdiction in the sense that we can bring matter into monetary
jurisdiction of court and not necessarily extension of jurisdiction – if don’t owe def money, can
abandon to bring it in line w jurisdiction of R MC bc HC costs too expensive

86 38
(1)
In order to bring a claim within the jurisdiction, a plaintiff may in his summons or at any time
thereafter explicitly abandon part of such claim.
(2)
If any part of a claim be so abandoned, it shall thereby be finally extinguished: Provided that, if the
claim be upheld in part only, the abandonment shall be deemed first to take effect upon that
part of the claim which is not upheld…

The Plaintiff can abandon part of the claim to bring it within Magistrates’ Court jurisdiction

Requirements
Only applicable to monetary claims
The plaintiff can abandon part of the claim at any stage of the process but before final judgement
is made
Note: Usually abandon at summons stage [To prevent a special plea of jurisdiction]
The plaintiff must still prove the original claim

Consequences
The part of the claim that is abandoned is finally extinguished
 80

The amount cannot be claimed in any other proceedings [Another action]

The amount cannot be added back if the jurisdiction of the court is increased before the end of the
proceedings
If claim upheld (proven) in part only, the abandonment shall be deemed first to take effect upon
that part of the claim which is not upheld [Part not proven] (so basically the abandonment
will also apply to the amount not proven in conjunction with the amount/claim proven// so if
abandonment will apply to whole claim)
Section 38(2) does not apply to counterclaims (NB) as it only applies to the abandoned
amount

87 Example 1 (Abandonment)

Original Claim in RC R 430 000

Amount Abandoned R 30 000
Amount Claimed R 400 000

Possibility 1
Amount Proven R 430 000
Judgment Amount R 400 000

Possibility 2
Amount Proven R 400 000
Judgment Amount R 400 000

Golden rule regards s 38 abandonment

The plaintiff would get judgment for the amount proven as long as it is within the jurisdiction
of court

Section 38(2) does not apply to counterclaims (Example)

The plaintiff claims R465 000 in his summons (in RC) but abandons R65 000 in terms of s 38
Thereafter the defendant files his plea, and counterclaims for R65 000
The plaintiff succeeds in his claim and the defendant succeeds in his claim in the counterclaim
The judgment amount would be R335 000 (bc plaintiff would owe defen. 65 000 as well that’s
why its deducted twice basically from plaintiff’s award)
If the plaintiff in his summons admits the defendant’s claim for R65 000, and deducts it from his
claim for R465 000 in terms of s 39, instead of abandoning R65 000, the judgment amount would
be R400 000

88 Combination of Abandonment and Deduction

Deduction to bring a claim within Magistrates’ Court jurisdiction is preferable to

abandonment
 81

Why?

It is possible that despite a deduction in terms of s 39, the amount is still above Regional
Magistrates’ Court jurisdiction (R400 000)

The plaintiff will then have no option but to abandon part of the claim or … take matter to HC

89 Method (NB)

The Court will first deduct the amount of the admitted debt, from the amount proven.
If the balance still exceeds the jurisdiction of the Court, then only will the abandoned amount
be deducted (in part or full) to bring the claim within jurisdiction of the Court

90 Example 1 (Deduction and Abandonment)

Original Claim in RC R 430 000

Admitted Debt R 10 000
Abandonment R 20 000 (To bring within jurisdiction)
Amount Claimed R 400 000

91 Possibility 1
Amount Proven R 430 000
Judgment Amount R 400 000
[R430 000 (proven) - R10 000 (admitted debt) - R 20 000 (abandonment) = R 400 000]

Possibility 2 Amount Proven R 390 000

Judgment Amount R 380 000
Abandoned amount deducted from the amount not proven

92 EXAMPLE 2 (Deduction and Abandonment)

Original Claim in RC R 440 000

Admitted Debt R 10 000

Therefore:

Original Claim R 440 000

Admitted Debt Deducted R 10 000
Abandonment in terms of s 38 R 30 000 (To bring within jurisdiction)
Amount Claimed R 400 000
 82

93 Possibility 1 Amount Proven R 440 000

94 Judgment Amount R 400 000

[Claim upheld in full]

R440 000 (proven) - R10 000 (from amount proven) - R30 000 (from amount proven) = R400 000

95 Possibility 2 Amount Proven R 370 000

96 Judgement Amount R 360 000

[Claim upheld in part]

R370 000 (proven) - R10 000 (from amount proven)

Abandoned amount deducted from the amount not proven

What constitutes a whole cause of action? [Dusheiko and Thusi]

In order to determine whether the whole cause of action arose within the courts jurisdiction, we have to distinguish
between two things namely facta probabnda (material facts) and facta probantia (evidence used to prove the material
facts). Material facts are the essential elements that must be established for you to have a cause of action. Thus, only
the elements of the cause of action must be stated, not the evidence proving the facts.

Dusheiko

D rented property in Jozi from M. M was in Port Elizabeth. Upon entering into the agreement, she did not sign the
agreement, M’s agent signed on her behalf in Jozi. The rent was paid monthly in Jozi. According to D, M was in breach
of this agreement because the property did not comply with the facts of the contract and as a result he suffered
damages. He thus sued for breach of contract and sued for contractual damages. In his summons he stated that
jurisdiction is in Jozi because the whole cause of action arose in Jozi. M’s attorney stated Jozi doesn’t have jurisdiction
as the whole cause of action never arose in the courts jurisdiction as there was an agency agreement between M and
her agents. This agreement was concluded in Port Elizabeth orally. As such, a part of the material facts are within the
territory of the Port Elizabeth MC. However, the agreement serves as only proof of a valid contract and is thus facta
probantia and not essential to the cause of action.

MINISTER OF LAW AND ORDER V THUSI: (Must know facts of case)

In this case a mother instituted action against the Minister of Law and Order for the unlawful arrest and detention of
her minor child.

The child was arrested in Inanda, in Kwazula Natal and taken to prison in Westville where he was detained and
eventually the charges were withdrawn in the Durban Magistrates Court.
 83

This was a legal aid case and the ordinary rule is if you sue the state, the state is deemed to be resident in Pretoria.

Therefore, had the mother used residence as a ground for jurisdiction, she would have had to travel from Durban to
Pretoria and she did not have the finances to do this.

She thus instituted action in the Magistrates Court Durban and the magistrate accepted the plaintiff’s argument
that when we are dealing with wrongful arrest and detention, you only know that the arrest and detention is wrongful
once the prosecutor refuses to prosecute and once the charges are withdrawn.

Therefore all the elements of the cause of action arose within the territory of the Durban Magistrates Court.

On appeal the court held that in order to ascertain what constitutes the whole cause of action, you have to
distinguish between facta probanda which are the material facts to establish a cause of action and facta probantia
which are the evidence needed to prove the facts.

In this case we are dealing with a delictual claim and the elements of a delict are an act or omission, wrongfulness,
fault, damages and causality.

Thusi thus had to prove that all these elements of a delict together with the ending of the letter of demand occured
within the district of the Durban Magistrates Court.

All the facta probanda thus have to occur within the court’s jurisdiction

However it is not necessary for all the facta probantia (the evidence that proves the facta probanda) to occur within
the court’s territory

The court held that where the child was arrested, where he was detained and where he was released, were all part
of the elements of the cause of action for wrongful arrest and detention.

The child was arrested in Inanda, he was detained in Westville and he was released in Durban, so the cause of action
was distributed over 3 areas.

The whole cause of action did not arise within the jurisdiction of the Durban Magistrates Court and therefore Thusi
could not use cause of action as a ground for jurisdiction in this court.

TOPIC 5
2019
JURISDICTION WITH REGARD TO TERRITORY
[TERRITORIAL JURISDICTION]

1
INTRODUCTION
When looking at territorial jurisdiction, you look at specific courts that have specific jurisdiction in a
territory.
Some courts have a smaller jurisdictional area in the Republic, some have a larger jurisdictional
area in the Republic and some have jurisdiction over the entire Republic.
Main courts looked at in this topic
 84

1) Constitutional Court
2) Supreme Court of Appeal
3) High Court (Various divisions)
4) Magistrates Court (District and Regional)

With regards to district and regional magistrates courts, it is important to take note of the
subject matter of jurisdiction which was discussed in topic 4. ie S29 of the Magistrates
Courts Act
2
JURISDICTION WITH REGARD TO TERRITORY
[Territorial Jurisdiction]

2.1
Constitutional Court Territorial Jurisdiction

Constitutional Court
Based in Johannesburg
[Territorial jurisdiction: whole country]
As far as subject matter is concerned, this court is the highest court in the land for both
constitutional matters, and in certain instances non-constitutional matters. if certain
requirements are met.
In the past, The CC was the highest court for all constitutional matters, and the Supreme
Court of Appeal (SCA) for all non-constitutional matters.

CC is based in Johannesburg and has territorial jurisdiction over the whole country.
It also has exclusive jurisdiction.
For certain matters, the CC and the High Court has concurrent jurisdiction, but basically the
CC has territorial jurisdiction over the whole country, as long as it can hear the matter.
2.2
Supreme Court of Appeal Territorial Jurisdiction

Supreme Court of Appeal

Based in Bloemfontein
[Territorial jurisdiction: whole country]

SCA is based in Bloemfontein.

The appellate division was the old name for the SCA.
Court has territorial jurisdiction over the whole country.

2.3
High Court Territorial Jurisdiction
One High Court this administratively and jurisdictionally broken up into the 9 provinces
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[Territory jurisdiction: specific province with main and local]

One High Court that is administratively and jurisdictionally broken up into the 9 provinces.
Some provinces have local and main seats of a High Court division, therefore more than one
division in the province eg. Gauteng.

Each division has jurisdiction over its respective province.

The main seat of a division has jurisdiction over the whole province.
The local seat only has jurisdiction over a certain area within the province.

GENERAL CONCEPTS NEEDED TO BE KNOWN FOR TERRITORIAL JURISDICTION

Residence

Residence:
The residence would be the link between the specific division of the High Court and the
defendant/respondent – is defend resident in the jurisdiction of this court?.
When a plaintiff wants to institute legal proceedings, he/she must find out where the
defendant is resident, as the court there will have jurisdiction.
This is in accordance with the Common Law Maxim ‘Actor Sequitur Forum Rei’,

For jurisdiction purposes:

Residence of the Defendant / Respondent is usually important [actor sequitur forum re] which
means that the plaintiff must follow the place/residence of the defendant.

No definition of the concept ‘residence’ therefore we look at case law.

De Villiers CJ made the following attempt in Beedle & Co v Bowley (1895) 12 SC 401 at
469E: When it is said of an individual that he resides at a place it is obviously meant that it
is his home, his place of abode, the place where he generally sleeps after the work of the
day is done
This is the general understanding of residence.

Principles referred to in order to determine residence:

Residence must be distinguished from domicile - Domiciles are governed by the Domicile Act.
A person may be domiciled in one placed and resident in another

A person can have more than one residence

The court of the area where the person is resident at the time that the summons is served will
then have jurisdiction
Residence would imply a certain degree of permanence
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When a summons is issued at a court, it is thereafter served by the Sheriff (officer of the
court) onto the defendant.
From the moment of service by the sheriff of that court onto the defendant, it is deemed that
the defendant is resident in that area.
However, residence would imply a certain degree of permanence.
For a natural person, it is easy to determine where they are resident.

Juristic persons deemed to reside: (Domicile does not apply here to juristic person bc it is a
choice in operation of law)
To determine where a juristic person would be resident for purposes of civil procedure, one must
look at:

Where its registered office is situated, or

At the place of its main business, or
Where its general administration is located
Note that confirming just one of these factors is sufficient for establishing jurisdiction of the
court.

Mayne v Main 2001 2 SA 1239 (SCA)

Defendant residence not certain, court held he was not a vagabundus ( a person with no home or
job).
Had many wives and many romantic affairs
Court held that Jem Mayne was resident in Johannesburg (Peripatetic businessman)
therefore the court did have the requisite jurisdiction
What was the reasoning of the court?
KNOW REASONING OF COURT
Facts: (short summary)
The plaintiff lived in America and married an American woman.
He then lived in England and fell in love with an English woman.
Later he came to SA and fell in love with a SA woman
The court had to determine where his place of residence was.

In Mayne v Main the SCA confirmed that SA courts do not accept the concept of a vagabundus
and the respondent thus had to have been residing somewhere when the summons was served on
him.
The court held that in determining whether a person is resident is a matter of common sense and
that one has to take modern living circumstances into consideration.
There must also be some sort of permanence to satisfy the requirement of residence.
Furthermore, the court confirmed that we have to adapt our notion of permanence because in
modern society a nomadic lifestyle has again been introduced due to the fact that business takes
people all over the world.
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The court also confirmed that it is possible for a person to have more than one residence and that
jurisdiction is determined according to where the person is resident at the moment the summons
is served.
Therefore, even though it was possible that the respondent had a residence in England, the fact that
he was in Johannesburg for 269 days of the year clearly indicates that Johannesburg was his
place of residence for that period of time.
This was the place where he slept after the days at work and where he acted like a perfect host
as the man of the house.
The court furthermore confirmed that as long as the summons was served on him while he was
residing in Johannesburg, the Witwatersrand local division would have jurisdiction.

Facts (long summary)

Mr Mayne, the plaintiff, instituted action against the defendant for payment of a sum of money
The plaintiff issued summons out of the Witwatersrand local division and the defendant raised
the special plea of jurisdiction, in other words that he is not resident within the court’s territory.
The court a quo granted the special plea and the plaintiff then appealed.
The full bench then upheld the special plea that the defendant is not resident in Johannesburg.
The SCA however disagreed and held that the defendant was in fact resident in Johannesburg.
The defendant was born in the UK and came to SA with his parents when he was a child and lived
in Natal.
He then immigrated with his parents to the USA and here he joined a business where he had a lot
of international clients.
He provided people with financial advice world wide and travelled extensively and spent most of his
time working in London
He then married and they resided in the USA.
Eventually he started registering consulting companies all over the world in which he had
business interests. (he was not the owner of these companies)
The companies had off shore registered addresses, his entire business system was thus nomadic.
He operated his businesses from a laptop and his cellphone.
He then divorced his wife and moved in and resided with a lady in London.
He then started developing business interests in SA and spent more and more time in SA.
His business interests in SA grew to such an extent that one of the companies registered an office
in Johannesburg.
He eventually left the lady in London and moved in with his client’s wife.
He started renting an office in Joburg and purchased a car.
At the time of the summons, he lived in Joburg.
He argued that non of the above were his residential addresses but only places where he
visited/stayed over when in SA.
He claimed his residence in London was his actual residence.
The SCA confirmed that SA courts do not accept the concept of a vagabundus and the
respondent thus had to have been residing somewhere when the summons was served on him.
Also, there must be some sort of permanence to satisfy the requirement of residence.
Divorce requires one to be a resident in the jurisdiction of the court at the time the summons is issued.
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Residence requires some sort of permanence and therefore a holiday home would not be a
residence.
Juristic persons are deemed to reside where its registered office is situated, or at the place of
its main business or where its general administration is located.

Domicile:

Term is used in the High Court

Defined by the Domicile Act 3 of 1992

The Act provides that there is a ‘domicile of choice’ and a ‘domicile by operation of law’.
1.
Domicile of choice
(1)
Every person who is of or over the age of 18 years, and every person under the age of 18 years who
by law has the status of a major, excluding any person who does not have the mental capacity
to make a rational choice, shall be competent to acquire a domicile of choice, regardless of such a
person's sex or marital status (2)
A domicile of choice shall be acquired by a person when he is lawfully present at a particular
place and has the intention to settle there for an indefinite period

2.
Domicile of person who cannot acquire domicile of choice
(1)
A person not capable of acquiring a domicile of choice as contemplated in section 1 (mentally
ill/not a major) shall be
domiciled at the place with which he is most closely connected to
(2)
If, in the normal course of events, a child has his home with his parents or with one of them, it shall
be presumed, unless the contrary is shown, that the parental home concerned is the child's
domicile (Such a place would be the domicile by operation of law )
(3)
In this section - “child” means any person under the age of 18 years, excluding such a person who
by law has the status of a major; "parents" includes the adoptive parents of a child and the parents
of a child who are not married to each other

A person only has one domicile (because intention is involved) but may have a number of
residences (residence where you present when summons was served)

Incola / Peregrinus:
[Must understand residence and domicile before looking at the following]
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An incola of a particular court:

A person who is resident or domiciled within the territory of the court

Example:
Person is resident (or domiciled) in Bellville
Domiciled within the territorial jurisdiction of the Western Cape Division of the High Court
Person is an incola of the Western Cape Division of the High Court

For instance, if we’re referring to a Western Cape Divison of the High Court, an incola ought to be a
person who is domiciled or reside/is a resident within the territory of that court. So let’s say the
Western Cape Divisions has its specific territorial borders and the person is within residence or
resident within that territorial border or is domiciled (can be either of the two) then that person is
referred to as an Incola of the Western Cape Division of the High Court.
i.e if the person is resident or domiciled within the geographical area over which the court has
jurisdiction, then that person is referred to an Incola of that specific court. He/she would not be an
Incola of for example, the Gauteng Division of the High Court but he/she would however, be an
Incola of the Western Cape Division if resident or domiciled within geographical area.
For example, a person who is resident or domiciled in Bellville, bear in mind…when looking at
residence, we look at the case of mayne v main

If we look at domicile, we look at the Domicile Act 3 of 1992. It can be either of the two (residence
or domicile) if any one of the two can be met, i.e. if you can fulfil any one the two requirements then
the person is deemed to be an Incola.
Therefore, if the person who is domiciled or resides in Bellville and choose to fulfil either the
residence factor by using mayne v main or the domicile factor by way of the Domicile Act
then he/she is deemed an Incola of the Western Cape Division of the High Court.
Another example, say the person is resident in Surrey Estate, in Athlone Cape Town (Dr Abduraof
stays there if you wanna visit) it means that the person is a resident and thus an Incola of the
Western Cape Division of the High Court. If the person is an Incola as well as domiciled in Surrey
Estate, then he/she would also be an Incola of the Western Cape Division of the HC.

A local peregrinus:
A stranger to the court
Not an Incola of the court nor a resident nor
domiciled in territory of court
Example:
Person is resident and domiciled in Gauteng
Domiciled and resident within the territorial jurisdiction of the Gauteng Division of the High Court
Person is a local peregrinus of the Western Cape Division of the High Court

Is a stranger to the court, meaning the person is not an Incola of that specific court which means
that you are not resident nor domiciled within the geographical area over which that court has
jurisdiction. E.g. the Western Cape Division of the HC, the person is not resident anywhere within
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the WC geographical jurisdiction as well as the person is not domiciled within that same jurisdiction.
This person is then referred to as a local peregrinus.
However, the person must be resident or be domiciled within the Republic of South Africa, which
means that you are not necessarily within the geographical area over which the Western Cape
Division of the HC have jurisdiction or territorial jurisdiction. But let’s say you are in Johannesburg
or Port Elizabeth or Durban and is resident or domiciled in one of these geographical areas over
which one of the divisions of the HC have jurisdiction but you are not located or residence or
domiciled in the Western Cape Divison of the HC. Very important for local peregrinus, you
MUST be in the country but not necessarily the geographical area of that specific division of
the High Court. (Later, we’ll explain why this is important to know because if there’s no link
between the defendant and the court insofar as residence and domicile is concerned, then
you must use a different link OR go to a court where the defendant is resident or domiciled,
meaning now we have to go all the way to Johannesburg if for example, the defendant is
resident or domiciled there).

Example; the person is resident and domiciled in Gauteng within the territorial jurisdiction of the
Gauteng Division of the HC, he is an Incola by that specific division. But, as far as the Western
Cape Division is concerned, he is a local peregrinus. Thus his status regarding the other divisions
in the country, he would be referred to as a local peregrinus.

A foreign peregrinus:
A stranger to the country
Not resident nor domiciled in territory of the country
Example:
Person is resident and domiciled in New York
Not domiciled nor resident within the territorial jurisdiction of any Division of the High Court
Person is a foreign peregrinus of the Western Cape Division of the High Court and other divisions

Is a stranger to the country, meaning that the person is a stranger to the court AND also a stranger
to the country. A stranger to the court means that the person is not resident nor domiciled to the
court or the territorial jurisdiction of the court. However, a stranger to the country is where you are
not resident nor domiciled within the jurisdiction or territorial jurisdiction of the country.
Example; a person is resident and domiciled in New York (boujee) and therefore the person cannot
be domiciled or resident within the territorial jurisdiction of any division of the High Courts in South
Africa because if you are resident at the time that a summons will be served and you are also
domiciled at that time in New York City, it means you are neither resident nor domiciled within any
of the divisions of the HC. Therefore, the person is referred to as a foreign peregrinus of the
Western Cape Division of the HC and any other division in RSA.

These are the 3 main (NB) concepts you have to understand before we continue; RESIDENCE,
DOMICILE, INCOLA OF COURT, LOCAL PERIGRINUS (aka incola of SA) AND FOREIGN
PERIGRINUS.
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GROUNDS ESTABLISHING JURISDICTION IN THE HIGH COURT

[Territorial Jurisdiction]
We looking at the High Court so we going to establish the grounds in the jurisdiction of the High
Court. The ground that will establish jurisdiction in the High Court. Previously we just looked at
definitions/concepts of residence, domicile, incola, local and foreign peregrinus etc. this lured to the
issue of actor sequitur forum rei.
There are certain grounds that will establish jurisdiction in the High Court;
First ground: Rationes Jurisdictionis (aka ratio domicilii)

1) Ratio domicilii:
states that person is an incola of the court
The ground on which we establish jurisdiction of a specific court. So the ratio domicilii of the
defendant is where the person is resident or domiciled.

So the defendant or Respondent in the Notice of Motion should be an Incola of the court as is
resident or domiciled within the territory of that specific court and that the person is resident or
domiciled here in Cape Town for example.

Let’s say the Defendant resident and domiciled in Bellville, he/she would then be an incola of the
Western Cape Division of the High Court. However, if the Defendant is resident in Bellville and
domiciled in Johannesburg, he or she is then an incola of the Western Cape Division of the High
Court, AND an incola of the Gauteng Division Local Seat in Johannesburg or Main Seat in
Pretoria.
By looking at the above scenario, we can deduce that its possible for person to be resident within
one province within a territorial jurisdiction of a specific division of the HC AND will be domiciled
within a different province.
In this instance, the WC would have jurisdiction as well as the Gauteng Division of the HC. This is
based on ratio domicilii and the common law

Ratio domicilii is thus a ground that establishes the jurisdiction serving as the link.

In terms of the principle actor sequitur forum rei:

Defendant or Respondent is an incola of the court
Defendant or Respondent is resident or domiciled within the territory of the court
Example:
Defendant resident and domiciled in Bellville
He or she is an incola of the Western Cape Division of the High Court
Defendant resident in Bellville and domiciled in Johannesburg
He or she is an incola of the Western Cape Division of the High Court, and an incola of the Gauteng
Division Main Local Seat in Johannesburg or Main Seat in Pretoria
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Ratio rei gestae (when the cause of action contract or delict arose within the territory)
It is a ground that establishes the jurisdiction
Bear in mind, the position in the High Court and the Magistrates court is quite different as
far as this is concerned!!! But we dealing currently with the High Court position.
There are 2 Types
a) Ratio contractus: (based on a contractual cause of action)
A contractual cause of action.
The conclusion or performance of a contract
The contract must be concluded, performed wholly or partly or breached within the area of
jurisdiction of a court
This is NB that the contract can either be concluded, performed or breached within the
jurisdiction of the court. Then the court (the high court) would then have jurisdiction over
the matter as far as ratio rei gestae, specifically ratio contractus is concerned.

Contractual COA has two possibilities

Example, The Contract was concluded in WC but the performance took place in Johannesburg and
the breach took place in another province, thus there are various grounds on which they can
assume jurisdiction within the various provinces.
Later you’ll see the that position in the Magistrates court is not the same, the Mag court requires the
whole cause of action; conclusion, performance and breach to have taken place within the territorial
jurisdiction of a specific district or regional court.
Example: Contract to build a house

b) Ratio delicti: (where there is a delictual cause of action)

It is not necessary that all the elements of a delict occurred in the area of the court for the court to
exercise jurisdiction
The reason why we’re highlighting this is because it is different to the position of the
Magistrates Court. The Mag Court does require that the whole COA should have risen in the
jurisdiction of the court.
Example: Motor vehicle collision
Thomas v BMW South Africa (Pty) Ltd 1996 (2) SA 106 (C) 1996 (2) SA p106 at 125
G
This case deals with a Motor Vehicle Collision
It was stated that not all of the elements of a delict are needed to be present with
regard to the territory of the court.
So not all the elements of a delict took place within the jurisdiction of the
court/territorial jurisdiction of the court. The court can, however, still assume
jurisdiction.

c) Ratio rei sitae (Subject matter of the litigation must be situated within the territory)
It is a ground that establishes the jurisdiction.
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The property in dispute must be situated within the territory of the court

Example, the property in dispute must be situated within the territory of the court
and this ground will then establish jurisdiction.
EXAMPLES:
Title of immovable property: Claims for ownership
Transfer of immovable property: Registrar of deeds needs to come in and
make the change.
Title of movable property of a Motor vehicle, traffic department has to
make the change in ownership.
Delivery of movable property such as the Motor vehicle within the territory
of the court.

So, in the aforementioned instances, the court can assume jurisdiction based on
ratio rei sitae.

Statutes governing High Court territorial jurisdiction

Before this we looked at common law, now we going to look at it in terms of statutory law.
We stated that the HC has powers, it has common law jurisdiction and statutory jurisdiction.
Section 21 of the SCA
[Territorial Jurisdiction]

S21 of the Superior Courts Act - Persons over whom and matters in relation to which
Divisions have jurisdiction

(1)
A Division has jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within, its area of jurisdiction …
(2)
A Division also has jurisdiction over any person residing or being outside its area of jurisdiction
who is joined as a party to any cause in relation to which such court has jurisdiction or who in terms
of a third party notice becomes a party to such a cause, if the said person resides or is within
the area of jurisdiction of any other Division – therefore has to be local peregrinus
(3)
Subject to section 28 and the powers granted under section 4 of the Admiralty
Jurisdiction Regulation Act, 1983 (Act No. 105 of 1983), any Division may issue an order for
attachment of property to confirm jurisdiction
Concepts relevant to s 21 of the SCA

Section 21(1) of SCA

Persons:
Refers to Natural and juristic persons
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Residing:
Dealt with already pertaining to persons (See Mayne v Mayne and the vagabundus issue)
Juristic persons deemed to reside:
Where its registered office is situated, or
At the place of its main business, or
Where its general administration is located
Being in… and in relation to all causes arising: Causes of action (Contractual or delictual)

Section 21(2) of SCA

Court gains jurisdiction over a person joined to the proceedings via Voluntary, Necessary, and 3rd
party joinder: See topic 3

Section 21(3) of SCA

Court can establish jurisdiction by attaching property but it is subject to s 28 of SCA and s 4 of
Admiralty Jurisdiction Regulation Act

Section 21(3) is subject to s 28 of SCA

Section 28
No attachment of property to found jurisdiction shall be ordered by a Division against a person
who is resident in the Republic

Prohibits the attachment of property to found jurisdiction if the owner of property is an incola of
South Africa
(Incola of a specific court or local peregrinus regards another court)
(found jurisdiction basically means there’s no other ground to assume jurisdiction)
In short, If the person is not resident in WC for example but is resident in Gauteng, he can’t
attach his property here in WC in order to found jurisdiction.
(Incola of a specific court or local peregrinus with regards another court) example, if a
person is an Incola of Johannesburg HC but is a local peregrinus as far as the WC division
of the HC is concerned, he cannot attach the property in the WC to found jurisdiction.

Section 21(3) is subject to s 4 of the Admiralty Jurisdiction Regulation Act

Admiralty action example: Enforcement of a maritime claim, claim regarding ownership of a ship

(4)(a)
Notwithstanding anything to the contrary in any law relating to attachment to found or confirm
jurisdiction, a court in the exercise of its admiralty jurisdiction may make an order for the
attachment of the property concerned although the claimant is not an incola either of the area of
jurisdiction of that court or of the Republic. ( a claimaint who is a Local or foreign peregrinus)

Section 42(2) of SCA

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The civil process of a Division runs throughout the Republic and may be served or executed within
the jurisdiction of any Division

So even though the summons was issued in WC, it may be served on the defendant or executed
within the jurisdiction of any other divisions.

The civil process of one division of High Court runs throughout the country (Service or Execution)
Ewing McDonald v M & M Products 1991 1 SA 252 (A)
In the case the basic rules regarding jurisdiction as well as the circumstances when it is necessary
to attach property of the defendant is discussed by AJA Nienaber

Other statutes governing High Court territorial jurisdiction

[Territorial Jurisdiction]

Maritime Zones Act 15 of 1994

Jurisdiction of divisions situated on the Coast (ie Western Cape Coastline – WC HC division)
extends 12 nautical miles into the ocean from the low water mark (lowest mark of the water) – if
within that radius, specific division will have jurisdiction over the matter.

See: Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 4 SA 682 (C)

The South African Citizens in Antarctica Act 55 of 1962

Section 2 of the Antarctica ACT deemed that Antarctica situated within specifically the territorial
jurisdiction of Magisterial District of Cape of Good Hope and the WC division of the HC.

The Prince Edward Island Act 43 of 1948

Section 1(2) of the Act - Prince Edward Islands deemed situated within territory of the Cape of
Good Hope and the WC division of the HC.

Divorce Act 70 of 1979

Section 2(1) of Divorce Act 70 of 1979

A court shall have jurisdiction in a divorce action if the parties are or either of the parties is –
[Exception to the actor sequitur forum rei principle]
(a)
Domiciled in the area of jurisdiction of the court on the date on which the action is instituted
[domicle act finds application herein]; or
(b)
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Ordinarily resident in the area of jurisdiction of the court on the said date and have or has been
ordinarily resident in the RSA for a period of not less than one year immediately prior to that date
– [also applies in MC but ‘ordinarily’ amounts to a somewhat position in the MC]
[makes use of action procedure]

PROPERTY CLAIMS
[Territorial Jurisdiction]

General rule:
Court where property situated (forum rei sitae) has jurisdiction
because property situated there.

But does the forum rei sitae (court) have exclusive jurisdiction?
Here we look at immovable and movable property

Immovable Property:
The forum rei sitae will have exclusive jurisdiction in respect of the following 3 claims:
1) Claims to determine the title property
If the claim is to determine who has title over the property, then that division of the HC who had
territorial jurisdiction where the property is situated will have exclusive jurisdiction.

2) Claims for the granting of a declaratory order that property is free from an alleged real
right or that a real right is held
If a claim is for Obtaining a declaratory order that property is free from an alleged real right or that a
real right is held, you would have to institute the claim within the territorial jurisdiction where that
immovable property is located because the declaratory order is to claim that the property is free
from an alleged real right or that a real right is held and that there is no ownership to other party.

3) Claims pertaining to handing over of occupation of property or handing over of

possession of property
If a claim is for handing over of occupation of a house, then the court where the property is located
‘forum rei sitae’ will have exclusive jurisdiction.

For all other claims the grounds for jurisdiction could be one or more of the
following:
Ratio rei sitae, or
Ratio domicilii, or
Ratio rei gestae

Examples of where: [Concurrent jurisdiction]

1) Claims for transfer or partition of immovable property
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The Forum rei sitae of the immovable property or the court where defendant is an incola [as the
court has the power to compel him or her to execute a deed of transfer] has jurisdiction over the
matter to compel such.

See Hugo v Wessels 1987 3 SA 837

Registrar of the court was given the authority to sign the documents necessary to effect transfer

2) Claim for the rescission of a contract for the sale of immovable property
The Form rei sitae would have jurisdiction to deal with such a claim [But it is not clear whether it
has exclusive jurisdiction]

3) Declaration that immovable property is executable

Example, mortgagee is suing on a debt secured by a mortgage bond and asks for such an
order
There are two lines of authority:
Some says only forum rei sitae has jurisdiction
Others say that the court hearing the main money claim can declare property situated outside area
of jurisdiction executable

Section 42(2) of SCA must be noted here

Civil Process runs throughout RSA and may be served or executed in any other division. Thus if an
order is grant/ judgement handed down, the order can be executed in any other division.

4) Sale of minor’s immovable property

Usually brought before the court where minor is domiciled - here domicile by operation of law takes
place.
It’s not clear if forum rei sitae has exclusive jurisdiction.

Movable Property:
Movable property is usually found where the owner resides, but this is not always
a ground for vesting jurisdiction bc might live in cpt but have a car in jhb.
The grounds for vesting jurisdiction:
This would be Ratio rei sitae does have jurisdiction because the matter is located within the
jurisdiction.
It is not clear whether the court where the property is situated has exclusive jurisdiction

[It is also not clear if a court would be prepared to assume jurisdiction based on the
defendant’s residence if the property is located with the jurisdiction of another division
in the republic]

Doctrine of effectiveness must be noted – can court give effected to judgment if property
situated in another division of the HC.

Incorporeal property (IP):

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IP cannot have an actual locality but law attributes to it a fictional locality

The fictional locality would have jurisdiction to determine claims regarding such property
The fictional locality would have exclusive jurisdiction in almost all cases {ie in respect of debt,
look at where debtor is resident}

2) Ordinary debts
Place where debtor is resident, that court will have jurisdiction to hear matter.

3) Shares
Place where it is registered or where the certificates are located for the time being, that court will
have jurisdiction to hear matter.

4) Trademarks
Place where they are registered, but an application for cancellation or variation of a trademark can
only be heard in the Gauteng Division Pretoria, as the national register of trademarks are kept in
that courts area of jurisdiction.

5) Copyright
It is not registered but situated in the place where it comes into existence

6) Negotiable instruments
Same as ordinary debt, place where debtor (drawer) of the instrument is resident

MONEY CLAIMS
[Territorial Jurisdiction]

Money claims are usually based on a contract (contractual claim) or delict (delictual claim).
(Note in HC contract can be completed, performed, breach wholly or in part for HC to have
jurisdiction)

If claim is against an incola of South Africa, then jurisdiction may be grounded on ratio domicilii,
ratio rei gestae or ratio rei sitae
Incola of SA – person is not incola of the specific court but rather of another court in SA aka a
local perigrinus.
Ratio domicilii
Resident (Mayne v Maine)
Domiciled (Domicile Act)

Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) at
488 Obiter dictum:
A company resides where its seat of central management and control (principal/central place of
business) is situated (Juristic person)
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The instance where the claim is against a foreign peregrinus is looked at later

OTHER CLAIMS
[Territorial Jurisdiction]

In terms of the common law, the forum domicilii of the person whose status will be affected had
exclusive jurisdiction

This position has been altered by various statutes

Insolvency:
Section 149 of the Insolvency Act 24 of 1936:
Look at where the person is domiciled or the assets situated

The court in whose area the person is resident or carries on business for at least 12 months
prior to the sequestration that court will have jurisdiction on the matter.

Jurisdiction must be established when the application is lodged with registrar

Application for rehabilitation

Neither the common law nor statute law provide for the position regarding rehabilitation
However, it can be accepted that the court that sequestrated a person may rehabilitate him

Divorce:
ITO Common law - The forum domicilii has exclusive jurisdiction
Initially a wife followed the domicile of her husband

The Divorce Act 70 of 1979 provides for certain courts to enjoy jurisdiction regards divorce
The court where one or both parties are domiciled at the time the divorce is instituted has
jurisdiction

The court where one or both parties are (ordinarily) resident at the time of the divorce is instituted
has jurisdiction [also applies to MCs]

At least one of the parties had to be resident within South Africa for one year prior to the
institution of the divorce, and a divorce action commences at the issuing of summons

Principle of convenience

If more than one court share concurrent jurisdiction then matters of convenience may govern the
plaintiff’s choice in court
Convenience does not however confer jurisdiction
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2.4
Magistrates’ Court
[Territorial Jurisdiction]
The primary source of jurisdiction for MC is s28 of the MCA.
In MCA, there is a regional and district MC.

[Territorial jurisdiction: specific district or specific region]

Do NOT use Incola of court/ SA, incola/foreign perigrinus bc terms used in the HC , except
for Regional Court bc jurisdiction extended regarding divorce matters where incola is used.

Instead, we use the terms as specified in s 28 of MCA:

Section 28 (1)
Jurisdiction in respect of persons (1)
Saving any other jurisdiction assigned to a court by this Act or by any other law, the persons in
respect of whom the court shall, subject to subsection (1A), have jurisdiction shall be the
following and no other:

Section 28(1)(a)
any person who resides, carries on business or is employed within the district or regional division
…

Person: includes natural persons and juristic persons

Residence:
There must be a certain degree of permanence for residence (person must kinda be there
permanently)
But its possible one has more than one residence:
In this instance, at the time when the summons has been served, the place
where the defendant is resident at that time, the court who has jurisdiction in that
area will have jurisdiction over that matter.

Distinguish between domicile & residence – generally in MC, make use of

domicile and not residence ito S28(1A) of the MCA. – domicile only in
relation to divorce matters in regional MC.

Carries on business:
Not really defined by the case law BUT Companies and corporations carry on business where
their principle place of business or chief office is situated
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Thus have to consider if person is self-employed or director of a company example. Thus, we have
to look at where the company resides, it is where their principle place of business or chief office is
situated. Court in that area will have jurisdiction. Some continuity or regularity

Is employed within:
Or where person is employed, have to consider a certain degree of permanence. Is person working
there on permanent basis? If so, it is sufficient.

Again there must be some degree of permanence

Section 28(1)(b)
any partnership which has business premises situated or any member whereof resides within the
district or regional division … {court that is situated in the area of the business premises or
where any member resides, the MC will have territorial jurisdiction}

Section 28(1)(c) [Incidental jurisdiction]

any person whatever, in respect of any proceedings incidental to any action or proceeding
instituted in the court by such person himself or herself … [where there is a main action and
then there is an incidental proceeding instituted bc of the main action by a person, the
court will have jurisdiction over the incidental action bc it has jurisdiction over the main
claim]

[Thus, Plaintiff cannot raise special plea of jurisdiction regarding proceedings incidental to
main proceedings]

Section 28(1)(d)
any person, whether or not he or she resides, carries on business or is employed within the
district or regional division, if the cause of action arose wholly within the district or regional
division … {where cause of action arose wholly in regional/district division, court will have
jurisdiction over matter even if person residing or carries on busines or not in that
territorial jurisdiction]

What constitutes ‘cause of action wholly arising’ is a matter of interpretation

Eckard [p22] defines the concept ‘cause of action’ by means of reference to a distinction between
facta probanda and the facta probantia of the case:

Facta probanda are the facts (which must be proved) which form the basis of the cause of action
The facta probantia (facts which prove the facta probanda) are facts used in order to prove
the facts in dispute.
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Per Watermeyer J Abrahams & Sons v SAR&H 1933 CPD 626 637: The proper legal meaning
of the expression ‘cause of action’ is the entire set of facts which give rise to an enforceable
claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in
his claim
In HC, cause of action can arise wholly or in part when it comes to the contracts
performance, conclusion and breaching.
But in MC, the breaching and performance and conclusion of contract must be wholly
performed in jurisdiction of MC

Dusheiko v Milburn 1964 4 SA 648 (A) [Contractual matter- lease agreement]

Look at lease agreement that took place in one area and via agency as well. There was
performance and breach of lease in another area. Issue: where did the facta probanda take place
or the facts needed to be proven take place? – look at facta probanda and facta probantia. What it
was, did it take place in the courts jurisdiction (facta probatntia didn’t take place in courts jurisdiction
but rather facta probanda took place wholly in territorial jurisdiction of the Court]

Minister of Law and Order v Thusi 1994 2 SA 224 (N) [Delictual matter]
Certain elements to be proven to successfully claim in delict.
This case was to do with person being detained unlawfully and person found to be not guilty.
Then there was a delictual claim instituted.
Issue iro delict: where did the facta probanda take place?
Look at same things to be focused in milburn case, but focus on the delictual nature of the claim to
law of delict.

– can ask to discuss facta probanda and probandia in these cases

[Interpleader proceedings]
(An example would be where a Sherriff would have to hand over property that s/he is in possession
of but parties arguing who lawful owner is)

Section 28(1)(e)
any party to interpleader proceedings, if -
(i)
the execution creditor and every claimant to the subject-matter of the proceedings reside, carry
on
business, or are employed within the district or regional division; [all parties must reside/carry on
business in jurisdiction] or
(ii)
the subject-matter of the proceedings has been attached by process of the court; or
(iii)
such proceedings are taken under section 69(2) and the person therein referred to as the ‘third
party’ resides, carries on business, or is employed within the district or regional division; or
(iv)
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all the parties consent to the jurisdiction of the court …

Section 69(2) of MCA

Where two or more persons make adverse claims to any property in the custody or
possession of a third party such claims shall be adjudicated upon after issue of a
summons in the manner provided by the rules

Section 28(1)(f) [territorial jurisdiction of MC]

any defendant (whether in convention or reconvention) who appears and takes no objection to the
jurisdiction of the court …

Section 28(1)(g)
any person who owns immovable property within the district or regional division in actions in
respect of such property or in respect of mortgage bonds thereon.

Section 28(1A)
For the purposes of section 29(1B) a court for a regional division shall have jurisdiction if the
parties
are or if either of the parties is -
(i)
domiciled in the area of jurisdiction of the court on the date on which proceedings are instituted; or
(ii)
ordinarily resident in the area of jurisdiction of the court on the said date and has or have been
ordinarily resident in the Republic for a period of not less than one year immediately prior to that
date.

Section 28(2)
‘Person’ and ‘defendant’ in this section include the State [as far as suing the state is
concerned]

2.5
Arrestio
High Court and Magistrates’ Court [Territorial Jurisdiction]

When a plaintiff institutes certain claims against a foreign peregrinus, the jurisdiction depends on
attachment (arrestio) to found or confirm jurisdiction

This forms part of the doctrine of effectiveness

If the defendant is foreign perigrinus (stranger to SA), property must be attached and plaintiff can
sell property if successful.
2.5.1
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High Court Arrestio

General principles pertaining to arrestio in High Court

Note:
Arrestio is never used against an incola of SA (confirmed in Section 28 of the SCA) because we
can just go to the court where the defendant is.
Arrestio may not be used against a foreign state (We have no authority to do so over foreign
states)
Arrestio may only be used regarding claims sounding in money or relating to property – this
is a General principle.
Movable, immovable and incorporeal property may be attached by arrestio (Type of claims)

Types of arrestio:
Arrestio ad fundandam jurisdictionem [attachment to Found jurisdiction]
Arrestio ad confirmandam jurisdictionem [attachment to Reaffirm jurisdiction]

Arrestio ad fundandam jurisdictionem

(Arrestio (attachment) is used to found or establish jurisdiction – thus no other ground
for attachment of property)

Requirements:
Plaintiff must be an incola of the specific court (This is different to an incola of South Africa)
No other ground of jurisdiction present besides arrestio (Example: no ratio rei
gestae action arisen / cause of action shouldn’t have arisen in courts
jurisdiction )
Defendant is a foreign peregrinus (General rule regards attachment)

Example one
Plaintiff resides in Cape Town and no other ground present (example: ratio rei gestae) and the
defendant is a foreign peregrinus, and the matter intended to be heard at Western Cape Division,
Cape Town – then arrestio ad fundandam jurisdictionem can apply and be used to found
jurisdiction.

Example two
Plaintiff resides in Johannesburg and no other ground present (example: ratio rei gestae) and the
defendant is a foreign peregrinus (Matter intended to be heard at Gauteng Division, Johannesburg)

Submission / consent to jurisdiction by defendant can replace arrestio ad fundandam

jurisdictionem
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Veneta Mineraria Spa v Carolina Collieriers Pty Ltd (in Liquidation) 1987 4 SA 883 (A)
Neither plaintiff nor defendant was an incola of the court
The court found that submission by foreign perigrinus cannot replace attachment (arrestio) if neither
party is an incola of court

American Flag Plc v Great African T-shirt Corporation CC 2000(1) SA 356(W) Full bench
The court held that consent is sufficient to replace arrestio if the plaintiff is an incola of the court
An example would be where the plaintiff resides in Athlone and defendant is a foreign
peregrinus, and the Western Cape High Court is approached

Arrestio ad confirmandam jurisdictionem (Arrestio is used to reaffirm

jurisdiction)

Requirements:
Plaintiff may be an incola of court, local peregrinus or foreign peregrinus
But one or more of the traditional grounds of jurisdiction must exist (Example: Ratio re gestae)
Defendant must be foreign peregrinus (which is a general rule regards attachment)

Submission / consent to jurisdiction can replace arrestio

Jamieson v Sabingo 2002 3 All SA 392 (A)
If some other ground of jurisdiction does exist and the arrest / attachment is to confirm jurisdiction,
then consent may actually be given to avoid such attachment

Example one
Plaintiff (local perigrinus) and defendant (foreign perigrinus) are peregrini of the Western Cape
Division of the High Court, and the cause of action arose within Athlone

Effect of consent / submission on arrestio

Two peregrini cannot give a South African court jurisdiction via consent – general rule (Veneta
case)
Some other ground of jurisdiction must exist

Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 4 SA 682 (C)

If there is no other ground of jurisdiction short of arrestio ad fundandam, consent / submission
can only replace the arrest / attachment if plaintiff is an incola of the court (also stated in Hay
Management case)

Veneta Mineraria Spa v Carolina Collieriers Pty Ltd (in Liquidation) 1987 4 SA 883 (A)
Neither plaintiff nor defendant was an incola of the court; the court found that submission cannot
replace attachment

American Flag Plc v Great African T-shirt Corporation CC 2000(1) SA 356(W)

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The court held that consent is sufficient to replace arrestio if the plaintiff is an incola of the court
Example: Plaintiff resides in Athlone and defendant is a foreign peregrinus

Jamieson v Sabingo 2002 3 All SA 392 (A)

If some other ground of jurisdiction does exist and the arrest / attachment is to confirm jurisdiction
(ad confirdandum) , then consent may actually be given to avoid such attachment or arrest

Cases dealing with consent and its impact on arrestio

Veneta Mineraria Spa v Carolina Collieriers Pty Ltd (in Liquidation) 1987 4 SA 883 (A) - Both
parties were peregrinus of the court thus consent cannot replace arrestio.

Briscoe v Marais 1992 2 SA 413 (W) Incorrect judgment regards above, as plaintiff was incola.
Consent is not sufficient. Problem here is that in veneta, neither parties were incola but in Briscoe,
plaintiff was incola and thus consent/submission should have been accepted.

American Flag Plc v Great African T-shirt Corporation CC 2000(1) SA 356(W)-Fixed above in
Briscoe and said if plaintiff is incola of court then consent is sufficient.

Jamieson v Sabingo 2002 3 All SA 392 (A)] Said consent possible if another ground present and
will replace arrestio

Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 2 SA
522 (SCA) Confirmed American Flag decision.

Release of property of peregrinus

For example if property of Peregrinus attached and peregrinus wants property released, this is
possible if peregrinus provides sufficient security for the payment of claimed amount (bc areestio
only takes place with monetary amounts)

Bid Industrial Holdings v Strang 2007 RSA 144 (SCA)

If defendant can prove that he cannot make payment and consents to the jurisdiction of the court,
this would also be sufficient to release perirgrinus property.

Consent on the following instances is not possible

Divorce
Forum rei sitae has exclusive jurisdiction
Person consenting lacks the legal capacity to do so

2.5.2
Magistrates’ Court Arrestio

Governed by Section 30bis of MCA Attachment to found or confirm jurisdiction

30bis of MCA
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The court may order attachment of property to found or confirm jurisdiction against any
person who does not reside in the Republic, in respect of an action within its jurisdiction,
where the claim or the
value of the matter in dispute amounts to at least R2500, exclusive of any costs in respect of
the recovery thereof…

Requirements for the attachment:

The person should not reside in the Republic of SA
The claim or value of the matter in issue must amount to at least R2500, exclusive of cost in
recovery thereof
The value of the property must not exceed the monetary jurisdiction of the Magistrates’ Court

Note:
It has been stated that section 30bis does not impose any limitations on the manner in
which the court may make an order for attachment to found or confirm jurisdiction. It has
also been submitted that the principles applied by the High Court in applications for
attachment to found or confirm jurisdiction should be followed. (Jones and Buckle)

Topic 6: Instituting Proceedings

Podcast 1 (Tuesday 28 July): from 1 – 3
Podcast 2 (Thursday 30 July) from 4 – 6

1. The Different Forms of Procedure

1.1 Identifying and explaining the two main forms of Procedure
1.2 Overview of the Action Procedure
1.3 Overview of the Application Procedure

2. Choosing the correct Procedure

2.1 Statute or Rule prescribing the use of an Action or Application Procedure
2.2 No specific Procedure prescribed

3. Commencement of Proceedings
3.1 Issue of the process: Action or Application
3.2 Effect of issue
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4. The Action and Application Procedure in the High Court

4.1 High Court Action Procedure
4.1.1 Illiquid Summons
i. Simple Summons

` 4.2 High Court Application Procedure

4.2.1 Ex Parte Application and Urgent Applications
4.2.2 Application on Notice

5. The Action and Application Procedure in the Magistrates’ Court

5.1 Magistrates’ Court Action Procedure
5.1.1 Illiquid Summons
i. Simple Summons
ii. Combined Summons
iii. Content of the Summons
5.2 Magistrates’ Court Application Procedure
5.2.1 Ex Parte Application
5.2.2 Applications on Notice
5.2.3 Requests for judgment in terms of ss 57 (2) & 58 (1) MCA
i. Admission of Liability & Undertaking to Pay Debt Procedure
ii. Consent to Judgment Procedure
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6. Service of Process
6.1 Manners of Formal Service
6.2 Extraordinary Manners of Service
6.2.1 Substituted Service
6.2.2 Edictal Citation
6.3 Effect of Service
6.4 Dies Induciae
6.5 Calculation of Days

1. The Different Forms of Procedure

(these procedures apply in the high court and magistrate court – but you have to choose the correct one)

• Action / Summons procedure

• Application / Motion procedure
• Provisional sentence summons / Hybrid procedure – it is commenced using a summons
but argued using affidavits. (will be covered in topic 11)

Application and Action procedures are the main procedures used in the HC and MC
Sometimes legislation/rules of court will prescribe which procedure to use, thus no confusion thereto
Where there is no prescribing of procedures, up to person initiating procedures on which one to use.
1.1 Identifying and explaining the two main forms of Procedure

Action procedure
There must be a difficult material factual dispute (actual factual despute, ie in delictual claim it would be you claim
your ex bf drove you over with a car, he claims you jumped in front of it – this is an actual material factual dispute –
will use action procedure in delictual claim.

• Used when material factual dispute or prescribed by legislation/rules of court

o A material factual dispute would be where something ACTUALLY ‘happens’, but there’s dispute
over it. He said v she said.
• Requires witness testimony (viva voce evidence)
• the advantage of an action procedure is the use of witnesses, especially from the perspective of cross-examination
because you can discredit a witness through cross-examination.
• The disadvantage of this procedure is that it is costly and it takes long.
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Application/Motion procedure
There is a little or no factual dispute (i.e make an application to be admitted to the HC as attorney, there is no dispute
there – it’s just a procedure, an application that needs to take place)

In most instances there’s no plaintiff or defendant/respondent required

• Used when no or minor factual dispute or when prescribed by legislation/rules of court

o Think of procedural actions, where a procedure needs to be followed, and their sometimes no
defendant (or sometimes there is). For instance, applying to be an advocate.
• Affidavits are sufficient to place evidence before the court.
• The advantage of the application procedure is that it is fast and less expensive.
• The disadvantage is that there are not witnesses.

1.2 Overview of the Action Procedure

Proceedings before trial - this is divided into the pleading stage, preparation for trial stage and the trial stage.
PLEADING STAGE

• Summons served (Initiates the action procedure)

o - The summons sets out the cause of action and/or in the case of a plea, it will set out a defence. It must
contain one of the two. If your summons does not include a cause of action then an exception will be
raised.
• Exchange of Pleadings (Documents exchanged between parties)

[Pleadings]
- Printed (written) statements that:
- Set out briefly (summary form) all material facts relevant to the case
- NO evidence – Facts only (Facta probanda) Evidence led at trial
- Your pleading will contain all the facta probanda necessary to constitute a cause of action or a defence.
- Not affirmed under oath bc no evidence in pleading
- Pleadings Signed by the legal representatives of the parties (lawyers) - only where the party is unrepresented
will he sign it himself.
- Pleadings Briefly outline the factual dispute between the parties entails
- Parties are bound by the content of their pleadings - The function of the pleadings is to inform the opponent
what your factual and legal arguments are going to be. In civil litigation you are bound by your pleadings,
you cannot introduce an alternative defence or claim at the trial which is not in your pleadings.

Preparation for trial

• Discovery (Documents)
• Expert witnesses
• Medical examinations
• Further particulars (Requested)
• Subpoena (Persons)
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• Pre-trial conference (Limit issues)

• Set Down (Request trial date)

Trial

• Opening Address
• Witnesses (Evidence led)
• The leading of evidence and the examination in chief of witnesses
• Cross-examination of witnesses
• Presenting exhibits (photos, maps, diagrams etc)
• Delivery of arguments
• Judgement
• Costs

1.3 Overview of the Application Procedure

Procedure is based on the exchange of affidavits

Party bringing application – applicant

Party opposing application – respondent (if any)

Proceedings before hearing

• Applicant issues notice of motion which is served onto respondent to notify him/her of the applicant’s claim
and relief sought (issuing of notice of motion initiates the application procedure)
• Notice of motion includes founding affidavit (and any other supporting affidavits and relevant documentation)
• Respondent who wants to oppose application must deliver an opposing affidavit (aka answering affidavit) with
any supporting affidavits or relevant documentation attached – respondent answers the allegations of fact in
founding affidavit
• Applicant can respond, via a replying affidavit, to any allegations contained in answering affidavit (exchanged
between parties and filed)
o matter will then be set down either on opposed/unopposed roll – representatives then argue on affidavits.

THERE’S USUALLY THREE TYPES OF AFFIDAVITS EXCHANGED – EXCEPT IN APPLICATION OF

SUMMARY JUDGEMENTS/ APPLICATION ITO HCR 43

FOUNDING (INITIAL) AFFIDAVIT

OPPOSING/ANSWERING AFFIDAVIT
REPLYING AFFIDAVIT
Affidavits and annexed documentation sets out the evidence and facts upon which the claims and defenses are
brought by the applicant and respondent
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The Hearing
application procedure culminates in the hearing of the matter in the motion court
On the Date of the Hearing:

• Arguments on paper are made and led by the legal representatives of parties
o GENERAL RULE: ORAL EVIDENCE NOT HEARD
o Arguments are limited to submissions based on allegations contained in affidavits and legal
submissions
o Exceptional circumstances may lead to the matter being referred to hearing of oral evidence in the
HC and MC – but circumstances more limited in MC
• Judgment or for Urgent applications (rule nisi + return date)
• Final Judgment

Evidence Stage

• Affidavits:
o Contain all the relevant facts (evidence) to prove a case
o Documentary evidence attached as well
o Are signed by the parties and witnesses themselves
o They formulate the legal dispute and supply supporting evidence (facta probantia)

2 Choosing the correct Procedure

2.1 Statute or Rule (MC / HC rules) prescribing the use of an Action or Application Procedure

Application Procedure:
Examples of where it is prescribed by statute

• Sequestrations – insolvency act

• Rehabilitations – insolvent act
• Liquidations – insolvency and companies act
• Placing of an company under judicial management
• Admission as attorney / advocate
• Liquidation of a Close Corporation
• Application for a final interdict in the Magistrates’ Court
• Application for an administration order ito s 74 of the MCA
• Application to have a decision of the registrar of Trade Marks set aside

• Examples of where it is prescribed by rules

• Application for review of lower court ruling - HCR 53
• Application for appointment of curator or to have a person declared of unsound mind - HCR 57
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Action Procedure:
Example of where it is prescribed by statute

• Magistrates’ Court Act: Summons usually commences proceedings (that’s how you know action procedure is
prescribed)
• Exceptions: liquidation of CC, Application for an administration order s74

• Example of where it is prescribed by rules

• HCR 17(2) read with HCR 6(5)(g): All claims that are not for a “debt or a liquidated demand” must be
instituted by way of a combined summons

2.2 No specific Procedure prescribed

Thus, must choose which procedure to use.

If no specific procedure is prescribed by statute or rule then your choice in process will be depend on whether
there is a difficult dispute of fact or not.

If there is a bona fidei factual dispute – if yes, will use action procedure

- If no, use application procedure

Read case: Room Hire Company v Jeppe Street Mansions (Pty) Ltd 1949 3 SA 1155
This case is important, because it tells you about when to use a certain procedure. Note the question to be asked
when answering the aforementioned question. **READ THE FACTS OF THE CASE**

Room Hire Company v Jeppe Street Mansions (Pty) Ltd 1949 3 SA 1155 – case explains
how factual disputes can arise.

• In the case an urgent application was brought by J to evict R from their premises.
• The application procedure was used because the applicant wanted a speedy relief, he wanted the tenants evicted
and also wanted to save costs.
• J rented several rooms to R and the tenants started complaining that R was using the rooms as a brothel.
• In the affidavits they indicated that these rooms were rented out on an hourly basis and that a lot of men came
here every hour.
• Attached to the application were the affidavits made by the people living in the J as well as the director of the
company.
• In their opposing affidavit, the respondent denied all the allegation made in the affidavits and also put the
applicant to the proof thereof.
• The respondent also alleged that the deponents were not truthful in their affidavits.
• The respondent concluded by saying that the deponents were untruthful, bias and generally unreliable.
• There were two conflicting versions in the affidavits and this necessitated the calling of witnesses to come and
testify.
• In the application a factual dispute arose and the court set out the instances when a factual dispute can arise:
1. When the respondent denies all material allegations made by the deponents on the applicant’s behalf and produces
evidence to the contrary.
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2. When the respondent admits evidence in applicant’s affidavit but allege other facts which the applicant disputes.
3. When the respondent allege that he has no knowledge of the facts stated by the applicant and denies it and puts
the applicant to the proof thereof. He then also provided evidence to prove that the applicant and deponents in
the affidavits are biased , untruthful and unreliable.
4. When the respondent can lead no evidence to dispute the truth of the applicant’s statements, but puts the applicant
to the proof thereof by oral evidence subject to cross-examination

The application procedure will be used when

• There is no real dispute regarding the material facts, or

• If there is a minor dispute that can easily be solved with documents or without hearing oral evidence, or
• The issue in dispute is so simple that minor oral evidence can solve it [HCR 6(5)(g)]; LHR 55 (2)(a))
- Read para 26: National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
- ‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on
common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because
they are not designed to determine probabilities’
- How can a dispute in fact arise in an application procedure? - if this happens, application procedure gets more
complicated
- In Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 3 SA 1155 (T) the court found that a
party (defendant/respondent) can ‘create’ a factual dispute by doing the following:
- Denies having any knowledge re: facts alleged by the applicant,
- Requires proof by the applicant re these allegations,
- Alleges that certain facts upon which the applicant or his deponents rely on, are untrue,
- Produces or undertakes to produce evidence proving the applicant and his deponents are lying, bias or
otherwise unreliable.

- If a factual dispute arises during an application the court can:

o 1) Dismiss the application: Plascon-Evans-rule must be applied
- National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at par 26
- ‘It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact
arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr
Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with the facts
alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or an
uncreditworthy denial, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them merely on the papers.’
o 2) Order that oral evidence may be heard: MUST BE A bona fide factual dispute; or the
dispute is there and it was actually not forseen by applicant that there would have been a
dispute - HCR 6(5)(g)
o evidence (most favarable option – available in MC and HC)
The court will exercise this discretion by determining whether the factual dispute is a bona fide factual dispute.

- Read case: Cullen v Haupt 1988 4 SA 39 (C) –

- Applicant instituted application proceeding to increase maintenance for minor children from respondent.
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- When the respondent filed the answering affidavit, there was evidence that there would be a serious dispute
of facts, regarding the children’s needs, and the income of the respondent.
- The respondent argued that the applicant shouldn’t be granted relief, because applicant should have
foreseen that a serious factual dispute will arise i.e. she picked the wrong procedure.
- The court held, not all factual disputes are affected by the rule of Foreseeability. Thus meaning that the
applicant sometimes cannot foresee all the disputes of fact, when the proceedings are instituted.
- The respondents argument, thus, only applies to facts that CANNOT be resolved by paper [this is the
general rule regarding application proceedings].
- Also, the court outlined that its very rare for an applicant to foresee a dispute regarding respondent’s
income (reason: employee holds record of income and is usually always documented (payslip by HR,
business or treasury, bank statements etc – all are easily ascertainable - do you see how the applicant
could not have foreseen the factual dispute – was no reasonable foreseeability).
- Court noted that in applicant’s replying affidavit, that applicant thought once respondent had to go
to oath, that he wouldn’t give false information which she believed he gave her and she didn’t expect
there to be any false info given under oath. Thus, there was a genuine belief in respondents
information given to her re affidavit.
- This case deals with what a bona fide factual dispute is, it is a dispute that could not reasonably have been
foreseen.
- We look at the mental state of the attorneys of the applicants.
- Whether they, when choosing the application procedure, in good faith, believed that the dispute can be
resolved through the use of affidavits.
- If the court finds that the factual dispute is not bona fide, in other words, the applicant and his attorney knew
there was going to be a factual dispute but still took a chance.
- The court will dismiss the application.
- Background: the wife brought an applicant for the increase of maintenance with supporting affidavits setting
out her husband’s income and the needs of the children. The respondent then asked for the dismissal of the
application based on the ground that she should have used a summons. The respondent’s argument was that
there was a difficult factual dispute pertaining to his income and that his income can only be proved by
witnesses. The court had to decide whether this was a bona fide factual dispute. The court held that
determining income is not complicated, you simply ask for a salary slip or bank statements. The court found
that it was not far-fetched for the applicant’s attorney’s to assume that the income can be proved using
affidavits and documentary evidence. Regarding the respondent’s argument that witnesses were needed to
determine the needs of the children, the court held that the needs of the children were a question of common
sense rather than actual proof. The court found it interesting that the respondent asked outright for the
dismissal of the application because he was hoping this would financially cripple the applicant. The court
held that it was a bona fide factual dispute, that the application had to proceed and that witnesses be
called to testify.
-
- Room Hire Company v Jeppe Street Mansions (Pty) Ltd 1949 3 SA 1156
o 3) Order that the hearing be converted to a trial can also be given (there is a bona fide dispute,
but the application procedure is not suitable for the case) - cost implications involved here
but not as severe as when the application is dismissed.

• Summary: In essence, three things can happen when an application procedure is instituted, and a dispute
arises-
o The Court dismisses the application, and the Plascon-Evans Rule is applied.
o The Court orders that it is still an application proceeding, but oral evidence is heard.
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o The application proceedings hearing are converted to a trial (can only happen where there is a
bona fidei dispute and application procedure is not suitable for the case).

2. Consequences of using the wrong procedure

• The court may refuse to adjudicate the matter.
• The court may adjudicate the matter and may penalise the party that instituted the process via the incorrect
procedure with a cost order, especially if mala fide intentions were found (wants respondent to incur more
costs).
• Party would lose the special advantages attributed to each procedure: speedy trial, effective examination of
witnesses (minimal examination of witnesses) etc.

3. Commencement of Proceedings

3.1 Issue of the process: Action or Application

ACTION PROCEDURE:

• The summons drafted by the attorney

• A copy of the summons is served on every party + one for the court file
• The summons is signed by plaintiff or his or her attorney
• The (particulars of claim) document in the (combined summons) is signed by an advocate or an attorney with
right of appearance in the High Court
• The plaintiff issues the document with:
• HC: Registrar of the court
• MC: Clerk (DC) or registrar (RC) of the court
• The registrar / clerk of the court: Method of issue
o Signs the summons
o Allocates a case number & opens a court file
o Impresses court stamp containing date.
o The attorney now takes the summons to the sheriff who serves it on the defendant.

APPLICATION PROCEDURE:

• The notice of motion is drafted by the attorney

• A copy of the notice of motion (and affidavits) is served on every party + one filed in the court file
• The notice of motion is signed by applicant or his or her attorney
• The affidavits are signed by the deponents
• Application issued same as summons
• An application on notice is served by sheriff
• An interlocutory notice of motion uses the same case number as the original case
• Exception: rule 43 is issued with its own case number (Interim Maintenance Application)
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3.2 Effect of issue

• The proceedings commence

• The same process cannot be issued in another court
• The documents can no longer be amended unilaterally
• All documents that are amended after issue, but before service must be initialled by the registrar or clerk of
the court
• The summons must be served within 12 months of issue otherwise it lapses (MC)
• In the (HC), the court has discretion in this regard
• If the plaintiff (action) / applicant (application) dies after issue / commencement of the proceedings, but before
judgement has been granted, his or her heirs would inherit the claim
- Note on last bullet point above
- Aquilian actions can be inherited after the issue of summons
- Claims under actio iniuriarum or for personal injury can only be ‘inherited’ if the party died after litis contestatio
close of pleadings
- Personal actions are not inheritable

4 The Action and Application Procedure in the High Court

**Note: The only difference between both courts’ procedures: when it can be used, and for what claims it can be
used (think amounts, type of claim, etc). The rules ito the actual procedures itself stays the same.

4.1 High Court Action Procedure

The 3 main procedures to initiate proceedings in the High Court are:
1. Summons procedure
2. Application procedure
3. Warrant for arrest tanquam suspectus de fuga

The two main categories of summons in the High Court:

• Illiquid summons
• Liquid summons (this will be covered in topic 11)

4.1.1 Illiquid Summons

There are 2 (i.e. Simple summons and Combined Summons)

ii. Simple Summons

Used in claims for a debt or a liquidated demand (i.e. it is usually straightforward and undefended).
- HCR 17(2)(b) and Form 9 of the First Schedule
- Refer to HCR 31(2) & 32(1) for explanation of concept ‘debt or liquidated demand’
- See page 391 of text book for example
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A claim for a “debt or liquidated demand”

• “The term ‘debt or liquidated demand’ can be equated with a claim for a fixed, certain or ascertainable amount
or thing, and includes a liquidated claim as known in the common law”
• A claim of which the money value is certain or can be easily and speedily determined
• Not limited to a claim for payment of a sum of money
• Also includes the concept but is not equivalent to “liquidated amount in money” required by HCR 32(1)(b),
necessary to obtain summary judgement
Fatti’s Engineering Co Ltd v Vendick Spares Ltd 1962 (1) SA 736 (T) [NB case to understand liquidated demand]
– The court states that a debt is liquid in that it is based on a liquid document; or that its money value is
ascertained; or that it is capable of prompt ascertainment (this last one is to be decided on a case by case basis).
Example, if I loan you a mug, via contract, that is R50, and you don’t give it back, the cost of the mug is easily
ascertained by the contract of loan.

Fatti’s Engeneering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T) – deals
with a liquidated claim (claim for an amount of money) important in this case is the discussion about what constitutes a
liquidated demand and the fact that damages cannot be a liquidated amount or a liquidated claim or a liquidated
demand.
Damages is unliquidated and can only become liquidated if there is a judgement.
NOTE: contractual damages however is an exception, specifically when dealing with contractual damages for a
purchase price because this is easily ascertainable. Contractual damages, specifically for a purchase price can thus
be a liquidated demand which means that we can use a simple summons. This was confirmed in the Pick n Pay
case.

Examples of debt or liquidated demand claims are claims for

- Goods sold and delivered ito contract
- Arrear rent
- Ejectment
- Payment for work done and materials supplied
- Delivery of movable or immovable things in terms of a contract
- Money outstanding in terms of a bill
- Rendering and debatement of an account

NOTE:

• Liquid claim: is a claim based on a liquid document. (a liquid document is an unconditional acknowledgement
of debt in writing for a specific sum of money, it must be in writing and the names of the debtor and creditor
must be on the document)
• Liquidated claim: (or amount ) – a liquidated claim is a claim for a sum of money that is fixed, certain or
ascertainable.
• Liquidated demand: is a claim for a fixed, certain or ascertainable amount or thing.
• Unliquidated claim: will become liquidated if the debtor admits to the debt or if the debt is confirmed in a court
judgement.
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➢ Example 1: your client wants you to take back a cow which has been delivered to someone’s house but has not
yet been paid for in terms of a contract – this is a liquidated demand (cow is fixed, certain and ascertinable).
➢ Example 2: If a person owes you R200 000 plus interest @ 15% per annum in terms of a contract – it is a
liquidated demand because it is ascertainable and easy to work out.
➢ Example 3: Is a cow and his offspring (future offspring) in terms of a contract a liquidated demand? No because
we have no idea how many offspring the cow is going to produce. If the cow has an offspring and this offspring
is part of contract then it is a liquidated demand.

Form of the simple summons – contains no material facts

• It is only a statement of the cause of action in concise terms contained in body of the summons, doesn’t set out
the claim in detail, but is ambiguous as to the claim.
• It informs the defendant of the claim against him or her
• It is clear enough to enable the registrar of the court to determine whether default judgment should be granted
or not, if no notice of intention to defend was lodged
• It is much shorter in format than a combined summons (2 documents)
• Claim for a debt or liquidated demand (simple summons) usually not defended
• If a notice of intention to defend is lodged: the plaintiff must then deliver a “full particulars of claim”
[declaration]. HCR 20(1)
• There is however not enough in the summons for the defendant to file a plea. Therefore once a notice of intention
to defend is filed, the plaintiff must deliver a declaration with full particulars of the claim.
When dealing with a simple summons, the first step is a simple summons, followed by a notice of intention to defend,
then declaration by plaintiff followed by the plea of the defendant.

iii. Combined Summons

HCR 17(1) form 10 of the First Schedule
Defined in HCR 1 as: “a summons with a statement of claim annexed thereto”
If your claim is not for a debt or a liquidated demand then you must use a combined summons. (r17(1) form 10 of the
First Schedule)
Examples: divorce, damages, compensation and enrichment, are thus instituted using a combined summons.
When you are dealing with an initial maintenance claim, you will also use a combined summons.
When dealing with an increase of maintenance, we use the application procedure (as seen in Cullen v Haupt).
A combined summons consists of the summons document and attached to the summons is a pleading known as the
plaintiff’s particulars of claim. The particulars of claim contains all the material facts on which the claim is based.
It must comply with form 10 of the first Schedule. Once a combined summons is served on the defendant, the
defendant will file a notice of intention to defend ad because it is a full particulars of claim, the next pleading is the
defendant’s plea. There is enough information in the combined summons to enable the defendant to file a plea.

Used for

• Claims that are more likely to be defended.

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Combined summons includes

• A summons; and
• Annexed to it, a “Particulars of claim” (contains all the material facts on which the claim is based), much more
detailed.
• See form 10 of the First Schedule + HCR 18
• A combined summons is used for all unliquidated claims
• Examples of unliquidated claims would be claims for
- Divorce
- Damages
- Compensation
- Enrichment

` 4.2 High Court Application Procedure

HCR 6
Two types of applications

• Ex parte applications
• Application on notice
4.2.1 Ex Parte Application and Urgent Applications

HCR 6 & Form 2 First Schedule to the rules

• Notice of motion & supporting affidavit(s) containing all the relevant facts on which the applicant’s
claim is based
• Only one party (ex parte)
• The application is issued at court
• Notice is given to the registrar
• If the court is of opinion that the judgement given in an ex parte application may affect another party: rule nisi
served on all potential interested parties
• Sometimes there is an opposing party, but they don’t know. They however, aren’t told, because it defeats
the purpose. Note the audi alterrram partem principle, and the seriousness of an urgent application.
Urgent applications
Luna Meubel Vervaardigers v Makin 1977 4 SA 135 (W) [p135-140] MUST READ – Attorney for the Luna
Meubel’s sought urgent application aka interdict to stop business’s direct competition from selling the same
product. Note when a court will push an urgent application forward, and what the courts are willing to do.
Luna Meubal CASE
The requirement in HCR 6(12)(a) that the procedure for an urgent application must, as far as is practicable, comply
with the rules was highlighted.
It was held that HCR 6(12) does not permit practitioners to select any day of the week and any time of the day (or
night) to demand a hearing.
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Urgency primarily involves the abridgement of time periods prescribed by the rules and, secondarily, the
departure from established filing and sitting times of the court.
The court held that the following factors, listed in ascending order of urgency, must be borne in mind:
o When the matter is too urgent for the respondent to be allowed the usual 10 court days prescribed by HCR
6(5)(b) from the date of the service of notice of the application to the date of the hearing, the 10-day period may
be ignored, but the application must still be set down for hearing on a motion day and the papers must
still be filed with the registrar of the court sufficiently early for the matter to come on to the following
week’s motion roll.

o Only if the matter is so urgent that the applicant cannot set the matter down for hearing on the court’s weekly
motion day and give the registrar the prescribed period of notice of the hearing, may the applicant set the
matter down for hearing on the next motion day while giving the registrar a shorter period of notice.

o Only if the urgency is such that the applicant dare not wait even for the next motion day, may the matter be set
down for hearing on the next court day at the normal time of 10h00, or for the same day if the court has not yet
adjourned.

o Once the court has adjourned for the day, only if the applicant cannot possibly wait for the hearing until the
next court day at the normal time when the court sits, may the matter be set down forthwith for hearing at any
reasonably convenient time, in consultation with the registrar, even if that is at night or during a weekend. If
necessary, even the submission of written documents may be dispensed with.
The court explained that practitioners should carefully analyse the facts of each case to determine, for the purposes of
setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules is required.
The degree of relaxation should not be greater than the exigency of the case demands and must be
commensurate therewith.
An applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the
norm.
It is important to note that the rule allows a deviation not only in respect of the time periods but also in respect of
other rules, such as the rules relating to the service of affidavits and the manner in which service is to be
affected.
However, in either event, the applicant must make out a case for such deviation in the affidavit

4.2.2 Application on Notice

HCR6 & Form 2 in the First Schedule to the HCR
Difference with this and ex parte application is that in ex parte application, there is a respondent but respondent doesn’t
know the application is taken out on them bc it defeats the purpose of the ex parte application. And in an application on
notice, respondent is made aware.
General rule is that the person against whom the action is taken against must always know what is happened so as to
have an opportunity to defend themselves – the ex parte application is the exception to this because prevents respondent
from knowing what is going to happen to them in order to ascertain justice
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• Filed and initiated by Notice of motion & supporting affidavit(s) containing all the relevant facts on
which the applicant’s claim is based (known as founding affidavit)
• Respondent is notified: notice of motion served on respondent

5 The Action and Application Procedure in the Magistrates’ Court

Rule of procedures remain the same as HC, only thing different is when it can be used.

5.1 Magistrates’ Court Action Procedure

Two types of summons

• Illiquid Summons
• Liquid Summons (will be covered in topic 11)
5.1.1 Illiquid Summons

MCR 5(2)(a) & 5(2)(b)

Two types of illiquid summons:

• Simple summons
• Combined summons
iv. Simple Summons

MCR 5(2)(b) & Form 2 of Annexure 1

A claim for a “debt or liquidated demand” – easily ascertainable, basic
The claim is not likely to be defended bc claim is clear
A simple summons is only a statement of the cause of action, it doesn’t set out the claim in detail. Just tells defendant
that this is why I am initiated the proceedings against you, it doesn’t explain exactly what the claim is (much shorter
than a combined summons)

• “The term ‘debt or liquidated demand’ can be equated with a claim for a fixed, certain or ascertainable amount
or thing, and includes a liquidated claim as known in the common law”
• A claim of which the money value is certain or can be easily and speedily determined
• Not limited to a claim for payment of a sum of money
• Also includes the concept but is not equivalent to “liquidated amount in money” required by R 32(1)(b),
necessary to obtain summary judgement
• Nothing else is sent with the simple summons
• When summons served onto defendant, defendant has ten days to respond with notice of intention to defend
(applies to a combined summons as well)
• Declaration of claims is then filed
• Defendant then has an opportunity to file a plea [in response to allegations] (in terms of the simple summons)
ONLY AFTER declaration is filed
• Defendant can also file a counterclaim to state that applicant was wrong on some of allegations made
• WHERE there is a plea and counterclaim filed, applicant has opportunity to file a replication.
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• Replication – plaintiff delivers a plea to the defendants counterclaim

Exchange of so many pre-trial documents (action of application procedure is only to limit the amount of issues
that must be dealt with at the hearing or trial)
Fatti’s Engineering Co Ltd v Vendick Spares Ltd 1962 (1) SA 736 (T) [NB case to understand liquidated
demand] – The court states that a debt is liquid in that it is based on a liquid document; or that its money value
is ascertained; or that it is capable of prompt ascertainment (this last one is to be decided on a case by case
basis). Example, if I loan you a mug, via contract, that is R50, and you don’t give it back, the cost of the mug is
easily ascertained by the contract of loan.

An ordinary/simple summons is less impressive than a summons in the HC and the cause of action is in the body of the
document in concise terms as possible. The rule is that if the cause of action takes up more than 100 words, the
cause of action will be set out in an annexure which will be attached to the summons. At the back of the summons
the defendant can sign an acknowledgment of receipt and he can also sign an acceptance of debt.

Examples of debt or liquidated demand claims

• Goods sold and delivered ito contract

• Arrear rent
• Ejectment
• Payment for work done and materials supplied
• Delivery of movable or immovable things in terms of a contract
• Money outstanding in terms of a bill, and
• Rendering and debatement of an account
An unliquidated claim ( a claim not based on a liquid document) will become liquidated if the debtor admits to debt or
debt confirmed in a court judgment

v. Combined Summons
Can only be used damages ad enrichment

MCR 5(2)(a) & Form 2B of Annexure 1

• All claims that are not for a debt or liquidated demand

• Claims that are most likely to be defended – ie divorce or claim for compensation
• Particulars of claim is also filed and sent with combined summons and served onto defendant – defendant then
has ten days to respond with notice of intention
• After notice of intention to defend, defendant can send plea after a couple of days
• HCR 1 – used when claim is likely to be defended
MCR 5(2)(a)
In every case where the claim is not for a debt or liquidated demand the summons shall be similar to Form 2B of
Annexure 1, to which summons shall be annexed a statement of the material facts relied upon by the plaintiff in
support of plaintiff’s claim, and which statement shall, amongst others, comply with rule 6
[Remember s 29 of MCA & limitations imposed by s 46 of MCA]
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Examples where combined summons used

• Damages, (used to say exactly what claim is )

• Enrichment,
• Divorce REGIONAL COURT ONLY NB! Cannot use for DISTRICT COURT.
vi. Content of the Summons [read through and understand]
MCR 5
(5) Every summons shall include-
a. a form of consent to judgment;
b. a form of appearance to defend;
c. a notice drawing the defendant’s attention to the provisions of section 109 of the Act (re change of address); and
d. a notice in which the defendant’s attention is directed to the provisions of sections 57, 58, (consent to judgment)
65A and 65D of the Act in cases where the action is based on a debt referred to in section 55 of the Act (liquidated some
of money due)
(6) A summons shall also-
a. where the defendant is cited under the jurisdiction conferred upon the court by section 28(1)(d) of the Act (cause
of action), contain an averment that the whole cause of action arose within the district or region, and set out the particulars
in support of such averment;
b. where the defendant is cited under the jurisdiction conferred upon the court by section 28(1)(g) of the Act
(immovable property), contain an averment that the property concerned is situated within the district or region; and
c. show any abandonment of part of the claim under section 38 of the Act and any set-off (admitted debt) under
section 39 of the Act.
(7) Where the plaintiff issues a simple summons in respect of a claim regulated by legislation the summons may contain
a bare allegation of compliance with the legislation, but the declaration (if defended), if any, must allege full particulars
of such compliance.
(8) A summons for rent under section 31 of the Act shall be in the form prescribed in Annexure 1, Form 3.
(9) Where the plaintiff sues as cessionary the plaintiff shall indicate the name, address and description of the cedent
(person who cedes) at the date of cession as well as the date of the cession.
(10) A summons in which an order is sought to declare executable immovable property which is the home of the defendant
shall contain a notice in the following form:
“The defendant’s attention is drawn to section 26(1) of the Constitution of the Republic of South Africa which accords
to everyone the right to have access to adequate housing. Should the defendant claim that the order for eviction will
infringe that right it is incumbent on the defendant to place information supporting that claim before the Court”.
(11) If a party fails to comply with any of the provisions of this rule, such summons shall be deemed to be an irregular
step and the opposite party shall be entitled to act in accordance with rule 60A”.
(Application to set it aside)
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5.2 Magistrates’ Court Application Procedure

This procedure may only be used where specifically provided for in the MCA or the rules to the MCA (MCR 55)

Two types of applications

• Ex parte applications
• Application on notice

Application procedure PRESCRIBED by statute

S 31(4) Setting aside an automatic rent interdicts
S 32(1) Attaching property in security of rent
S 32(2) Setting aside an order attaching property in security of rent
Form 21 s 34 Appointing of an assessor
S 35 Transfer of an action or other proceeding to another lower court
S 36 Rescission of judgement
S 41 Separation of trials where plaintiffs have joined
S 42 Separation of trials where defendants have joined
S47 Dismissal of a counterclaim exceeding the jurisdiction of the Magistrates’ Court
where the defendant failed to institute proceedings in the High Court

S50 Removing a case to the High Court

S52 Approval of interrogatories (Questions)
S63 Revival of a superannuated judgement
S73 Paying debts by instalments
S74 Administration order: debtor unable to meet financial commitments
S111 Amendment of proceedings
MCR 14(1) & Form 7 Application for summary judgement
S47 & MCR 20(4) Stay of action
THERE ARE THREE GENERAL TYPES OF APPLICATION – CAN BE USED IN BOTH HC AND MC SUBJECT
TO THE COURTS’ RULES.

• EX PARTE
• APPLICATION ON NOTICE
• INTERIM/INTERLOCUTORY APPLICATIONS
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5.2.1 Ex Parte Application/UNILATERAL APPLICATION

In both HC and MC – ie used to be apply to be admitted as attorney

• No respondent or a respondent but no notice needed OR GIVEN TO RESPONDENT

• Only applicant BEFORE THE COURT and court aware of the application
• APPLICANT ADRESSES APPLICATION DIRECTLY TO REGISTRAR/CLERK (WHO MUST BE GIVEN
PRIOR NOTICE TO PROPOSED APPLICATION)
• Ex Parte applications are not that usual in the Magistrates’ Court
• Can also be used as an urgent application where you want speedy relief and is normally a rule nisi with a return
date.
• An Ex parte application is made in terms of Rule 6 and must follow form 2 of the First Schedule
•
• Look at Luna Meubels case

Rules and Act provide for instances when the ex parte application MAY be used:

• Review of the refusal by the clerk of the court to do any act which he is by law empowered to do - s13
• Attaching property in security of rent - MCR 32(1)
• Garnishee orders (paid to creditor) - MCR 47 & Form 38
• Arrests
• Attachments
• Interdicts - S 30 & MCR 56, 57 & 55(9)
• Spoliation orders - S 30 & MCR 56, 57 & 55(9)
The applicant has a choice between an ex parte application and an application on notice

Circumstances may necessitate the use of an ex parte application, examples would include

• Urgency
• Applicant fears potential harm
The applicant must

• State why the application should not be served on the respondent

• Illustrate good faith as to why he or she thinks that the application is urgent and that harm is eminent
• Above must be set out in affidavit

Powers of the court regarding ex parte applications

• It is an exception to the audi alteram partem rule

• The court will therefore grant an interim order / rule nisi
• Applicant before going to court will draft a draft order
• If the relief is obtained the court will make the draft order the interim order granted
• The Interim order signed by the clerk of the court
• The interim order together with the affidavit on which the relief is based served on the respondent
• Respondent may contest interim order at the return date
• The magistrate may request security from the applicant
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the court now has an option of dismissing the application or the court may grant the application but it will be a rule nisi
judgement.
The rule nisi is now served on the respondent by the sheriff and he is then informed that there will be a return date and
that he can oppose the interim judgement and therefore making sure that it does not become a final judgement.
If the respondent wants to oppose he will file opposing Affidavits and on the return date the matter will be dealt with as
an opposed matter.
Before the applicant goes to the court with an ex parte application he will draft a concept order.
This is done to save time, because the moment the judgement is granted, the judge signs the order and you then take it to
the clerk/registrar of the court who notes the order and it is then given to the sheriff to serve on the defendant.
The magistrate or judge may grant the whole concept order or he can amend it.
On the return date we will then have a final judgement.

Discharge of the order granted ex parte: by the respondent

• The respondent or any other party affected by the court order may bring an application for the discharge of an
interim order
• The party must give at least 12 hours notice of his intention to bring an application for discharge [MCR
55(7) & MCR 56(6)]
• The notice must be in writing
• The respondent will then come to court with opposing Affidavits contesting the interim order.
• If the court finds in the respondent’s favour then the interim order will be lifted.
5.2.2 Applications on Notice TO OTHER PARTY/ BILATERAL APPLICATION

General applications must be drafted according to Form 1

Application for administration order [Form 44 & s74]

Application procedure may only be used to initiate proceedings when:

• Review of the refusal by the clerk of the court to do any act which he is by law empowered to do s13
• Final Interdicts - S30 & MCR 56, 57 & 55(9)
• Mandament van spolie - S30 & MCR 56, 57 & 55(9)
• An administrative order - S74
• Liquidation of a closed corporation - S29(1)(A)

Process of application on notice

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Brought when it is clear from outset that another person’s rights will be affected and therefore that person must receive
prior notice of proceedings
Nature of matter must provide that prior notice to other party will not defeat the object of the application
Application is directed to registrar/clerk and respondent and BOTH NOTIFIED/INFORMED OF PROCEEDINGS

• Applicant serves the notice of motion on the respondent (Affidavits optional)

• Respondent files a notice of intention to oppose the application
• Once the notice to oppose has been served, the matter is then dealt with on an opposed basis
• Legal representatives submit legal arguments in court
• Judgment is granted
• If there is no notice to oppose usually a rule nisi granted in the absence of a respondent
• here you have an applicant and a respondent.
• However, it need not be opposed simply because there is a defendant. (Example: a person who is so badly in
debt that asks someone else to apply for his sequestration)

3. INTERLOCUTORY/INTERIM APPLICATIONS
Provisional/interim application brought to obtain ancillary relief incidental to certain main proceedings pending
between parties.

It’s an intervening step that may be used after commencement of action or application proceedings which decides a
procedural point

Where respondent is obliged to take a procedural step/conform with a procedural rule AND DOES NOT DO SO,
applicant can use interlocutory application to force respondent to take the step or conform to the rule

Applicant can bring an interim application seeking a court order compelling the respondent to comply with one of the
rules re: delivery of documents aka, application to compel discovery

Examples of interlocutory applications

• Interim application where party is compelled to furnish security for costs

• Application to strike out or take an irregular step
5.2.3 Requests for judgment in terms of ss 57 (2) & 58 (1) MCA [self-study]
Legal proceedings may be commenced with by a request for judgement
Section 59 of MCA

• If no summons is issued in an action the written request referred to in ss 57(2) and 58(1) shall constitute the
first document to be filed in the action and shall contain the particulars prescribed in the rules.
• The effect of ss 57 & 58 is that judgement can be obtained without first issuing a summons
• The sections are only used if claim is for a liquidated sum of money in terms of s 55 of MCA
• these two proceedings can be commenced either through the use of letter of demand or a letter of demand
and summons.
• Mostly you send a letter of demand and no summons is issued.
• The function of S57 and S58 is to get judgement against a person as cheaply and as quickly as possible.
• You cannot use a request in terms of S57 and S58 if you did not send a letter of demand.
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S59: “If no summons is issued in an action the written request referred to in ss57(2) and 58(1) shall constitute the
first document to be filed in the action and shall contain the particulars prescribed in the rules.”

The “request” must have a revenue stamp to the value of R20-00. [Item 1, table E, annexure 2 to the Rules.
Effect of ss 57 & 58: judgement obtained without first issuing a summons.
Only used if claim is for liquidated sum of money. S55

iii. Admission of Liability & Undertaking to Pay Debt Procedure (a Section 57 Request)

• Letter of demand (must comply with MCR 4B); or

• Summons served on the defendant

Upon receipt of the above, the defendant can: (Offer)

• Admit liability, and

• Undertake to pay (instalments or once-off payment), and
• Agree that should he or she be in default, that plaintiff may request judgment without further notice

The plaintiff must upon receipt of above: (Acceptance)

• Accept offer, and

• Send letter per registered post (in writing) to defendant stating that offer was accepted

If defendant defaults on payment: s 57(2)

• Plaintiff can lodge the request for judgment (s59) with clerk of the court
• Request must have attached:
- A letter of demand / summons, and
- The offer (by the defendant) to the plaintiff, and
- An affidavit setting out how defendant defaulted and what amount is still owing
- Request must explain how the balance is to be worked out
• Clerk of court:
- Must grant judgment for judgment debt + costs
- Plaintiff:
- Must notify defendant per registered post of judgment if defendant was not present when the judgment was
made [S57 (3)]
- Judgment has the same effect as a default judgment [S57 (4)]

- If a defendant does not pay an instalment in terms of a debt, the defendant will receive a letter of demand and
attached to the letter of demand will be the admission of liability and consent to judgment form.

- If the defendant signs the admission of liability and consents to judgement form, he admits that he owes the
money as specified in the form.
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- He also undertakes to pay the money back and furthermore consents to judgement against him should he
default on the undertaking without any further notice.

- The plaintiff must upon receipt of the admission of liability and consent to judgement form accept the offer. He
must then send a letter per registered post to the defendant stating that the offer was accepted.

- If the defendant then defaults on payment the plaintiff’s attorney will take the original letter of demand, then
signed admission of liability and consent to judgment form together with a copy of the letter stating that the
offer was accepted and registered slip to the clerk of the court who will immediately grant judgement.

- This judgement has the same effect as any other judgement, it is served on the defendant by the sheriff who will
then attach your property.

- If the defendant’s property is not of sufficient value, he will be taken to the 65 Court (debtor’s court).

iv. Consent to Judgment Procedure

• Letter of demand (comply with MCR 4B); or

• Summons served on the defendant.

Upon receipt of the above the defendant can:

• Consent to judgment (for amount claimed or any amount agreed upon)

• The clerk of court must grant judgment upon request (S 59) from plaintiff

• Request (from plaintiff) must contain: S 58(1)(a)

- The letter of demand or Summons, and
- The written consent to judgment

• The clerk of court must grant judgment

- Must notify defendant per registered post of judgment if defendant was not present when the judgment was
made
- S 57(3) Judgment has the same effect as a default judgment [S 57(4)]

- The defendant receives a letter of demand and attached to the letter is an admission of liability and an
undertaking to pay and consent to judgement.
- If the defendant consents to judgment the plaintiff’s attorney will accept the offer and send a letter by registered
post to the defendant stating that the offer was accepted.
- The clerk of the court must then grant judgement upon the request by the plaintiff.
- The plaintiff must notify the defendant (if he was not present when judgement was granted) by registered post
of judgement.
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6 Service of Process [Self-study]

FORMAL AND INFORMAL SERVICE OF DOCUMENTS

• All ‘process of court’ must be served in a formal manner - It must be served by the sheriff

• All documents signed by the registrar / clerk of the court, must be served by sheriff
• This includes:
o Summonses
o Warrants
o Court orders

• HCR 4(1) states that a notice of motion must be served formally by sheriff
• MCR 9(10) states that the service of a supoena need not be effected by a sheriff
• All other documents (not process) may be served on the other party by the attorney himself or herself (informal
service)

• In the HC the documents must be delivered in person - The documents may not be served on a Sunday, unless
the court directs so
• In the MC documents may not be served on Sundays or public holidays
• In the MC documents may also be served through registered post
• The registered post slip serves as proof of service and must be filed with the clerk (or registrar) of the court on
the court file
• When the attorney serves the document his copy and that of the court must be signed as proof of service

6.1 Manners of Formal Service

HCR 4 / MCR 8 & 9

• Sheriffs for the High Court as well as the Magistrates’ Court are appointed for each Magisterial District in terms
of the Sheriffs Act 90 of 1986
• They serve documents (formal service) and execute court orders
• The sheriff ‘serves’ a document by delivering a copy of the document it to the relevant person
• The sheriff drafts a return of service
• The return of service together with the original court document is then returned to the person who requested
service thereof

• Service of process can take place anywhere in the country and not only within the area of the court where it was
issued
• Service must be effected however by the sheriff of the area where service must take place
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• A person may not obstruct a sheriff in the performance of his duties

• If there are no sheriffs appointed in an area, the police may then serve Magistrates’ Court processes in terms of s
15 of the Magistrates’ Court Act
• The process can be given personally to the relevant party
• The sheriff can also leave it at the premises

MANNER OF SERVICE

6.2 Extraordinary Manners of Service

6.2.1 Substituted Service

HCR 4(2) / MCR 9(12) Form 4 Annexure 1

• Used when
o The person that is to be served is known or believed to be in South Africa
o The service cannot be affected in the ordinary manner
• The court must have jurisdiction in the main action

• Application asking for direction as to how service must be affected from court
• Service will then take place using as guideline the provisions of R5 [Edictal citation]
• Used in High- as well as Magistrates’ Court

This procedure usually followed if

• Person continuously moves about in order to avoid service

• It is too dangerous to serve the documents on him
• His whereabouts are unknown

The Court must order on the following:

• How service will take place

• May direct that the summons be served by someone other than a sheriff
• Must also specify the time limits to be used
6.2.2 Edictal Citation [self-study] NB
• HCR 5 / MCR 9(12) and s 30 bis

6.3 Effect of Service

• The proceedings commences with issuing of the court process
• The other party is only ‘joined’ to the process, once the process itself is served by the sheriff upon such the party
• The defended / respondent has limited time within which to respond to summons / notice of motion
Dies induciae
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• The dies induciae starts running on the first court day after service
• Once a plaintiff / applicant commences legal proceedings against a party, they must see it through
• MC: The process lapses if no further steps were taken by plaintiff / applicant within 12 months from date of
issue
• HC: Time limit falls within the discretion of the court (Reasonable)
• Time of service is the time (moment) at which the court should have jurisdiction
• The Amendment of proceedings or documents after service can only be effected after an application to the court
• Service interrupts prescription
6.4 Dies Induciae

• Time limits are placed on both parties within which they must lodge the necessary documents in court
• This has two functions
o It ensures that reasonable time is given to prepare and answer the other parties documents, and
o It places a time limit on the “right to answer”
• The time allowed will depend on
o The type of proceedings instated
o The place where service takes place, and
o Whether any special time periods are prescribed, either by the court or by statute
6.5 Calculation of Days

HCR and MCR

Meaning of a Court day

• HC: Refers to any day except Saturday, Sunday & public holidays - HCR1
• MC: Refers to any day except Saturday, Sunday & public holidays - MCR 2(2)
S4 of the Interpretation Act is also used

• First day excluded and the last day included

• Sundays, Saturdays, public holidays and days on which the court is not in session are excluded
SCA and MCA

• When dealing with the Acts [HC & MC]

• Again use s 4 of the Interpretation Act
• First day out, last day in (FOLI)
• Concept “days” not defined in the Acts so all days must be calculated
• [Calculate all days not only the court days]

4. TOPIC 7
COURSE OF AN ACTION COMMENCED WITH A SUMMONS

- The defendant in every civil action within the court’s area of jurisdiction is allowed 10 court days after
service of the summons to deliver a notice of intention to defend.
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- When the action is instituted against the State or any state official, the time allowed for delivery of intention
to defend is at least 20 court days after service of summons, unless the court especially authorizes a shorter
period.

- The days referred to in the rules above are court days. The days referred to are calendar days. Calendar
days are calculated by excluding the first day (e.g. the day of the service of the summons) and including the
last day (e.g. the last day of the prescribed number of days for entry of intention to defend). Weekends and
public holidays are included in the calculation, but should the last day fall on a Saturday, Sunday or
public holiday it must be excluded from the calculation.

Default judgment:

- When summons is issued AND the defendant does not respond to the summons within the time limit (dies
induciae) either because;
• He did not receive it, or
• He received it but was unsure what to do or
• He ignored it,
Then the opposing party may in some instances immediately, and in other instances after following certain
steps, request default judgment.

- Essentially a default judgment is a judgment which is granted without hearing the version of the party against
whom it is granted. This means that the pleading stage is cut short and that no preparation-for-trial stage or trial
stage takes place.
• There is one exception namely divorce, you cannot get default judgment in a divorce. (90% of divorces
are undefended)

- The plaintiff can apply for default judgment when;

• The time period to enter a notice of intention to defend has expired (default of appearance) and
• The time period to deliver a plea and after service of a notice of bar has expired (default of plea)

- The plaintiff can apply for default judgment when there is no defence (the defendant does not show an
interest to defend)
This is thus a judgment where the defendant/respondent is not present

Summary judgment

- With summary judgment there is a defence, but it is not bona fide. There is always a defence at the
action/summons stage.
- If the plaintiff apply for summary judgment and the respondent does not show up, the plaintiff can apply for
summary judgment by default (judgment in the absence of the respondent).

- The defendant may not respond to the summons in the following instances:
1. When he did not receive the summons
2. When he received it but is unsure what to do ( for eg language problem)
3. When he ignores the summons
The plaintiff can then apply for default judgment
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- The defendant can default when the summons is served on him and then does not lodge a notice of intention
to defend. (default of appearance)

Default of appearance means that when summons was issued, the defendant did not file a notice of intention
to defend. The defendant is then in default of appearance.

Default of plea means that the defendant filed the notice of intention to defend, however he failed to file
his plea within the required time period. (5 or ten days depending on which court).

The method of obtaining default judgment differs when dealing with default of appearance as opposed to
default of plea.
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HIGH COURT:

HCR 31(5) - Application for Default Judgment based on a simple summons (claim is for a debt or liquidated
demand)

- If you initiate proceedings with a simple summons / summons for a debt or liquidated demand, you obtain
default judgment from the Registrar.
- The procedure is as follows:

• If the defendant is in Default Of Appearance, in other words he did not file his notice of intention
to defend within 10 days (High Court),
OR
• If the defendant is in Default Of Plea, in other words the plaintiff filed a declaration which was
served on the defendant, and the defendant does not file his plea,
• The plaintiff must send him a notice advising him that he is out of time with his plea and then the
plaintiff must give him a minimum of 5 days to file the plea.
• If the defendant does not file his plea within 5 days, the plaintiff will send a notice of bar confirming
that notice was sent and that the defendant is now barred from filing his plea.

• The plaintiff can without prior notice to the defendant, draft an application for default judgment
and the request for default judgment is lodged in duplicate and accompanied by the original
summons and original sheriff’s return of service
• Lodge this with the Registrar who will sign the application and note the judgment.
(The registrar must administratively assess the application in chambers and without the plaintiff
or the plaintiff’s attorney being present)
(The purpose of HCR 31(5)(a) is to relieve the workload resting on judges and to allow the registrar
to assume the burden of deciding on uncomplicated default requests which involve no more than
checking that all the formal steps have been taken to justify the judgment)

The registrar has 3 options:

1.* He may grant the judgment as requested / grant it partially or on amended terms
2.* He may refuse the judgment completely / partially
3. He may postpone judgment on such terms as is deemed reasonable
4. He may request or receive oral or written submissions
5. He may grant judgment for costs
6.* He may refer the matter to an open court for a hearing
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Why would be refer the matter to open court?

➢ In the simple summons there must be enough to establish a cause of action so that the registrar
can grant default judgment.
➢ Default judgment is not granted simply because of the technical fact that the defendant is not
defending the matter. The plaintiff must have a prima facie case, there must be enough to
substantiate that the plaintiff is entitled to judgment.
➢ It could however be that there is no cause of action and the registrar will the refuse judgment.

➢ It could also be that there is not enough in the summons and that the registrar is not sure and
then the matter will be referred to open court.
➢ The plaintiff will then have to lodge a formal application which will be heard by a judge and
there will have to be Affidavits and the judge will direct how evidence must be presented.
➢ The judge will then decide whether the plaintiff established a strong enough case to warrant a
judgment.

• The registrar must place any judgment or direction decided upon on record and this is a final
judgment. (thus susceptible to recission)
• Any party not satisfied with a judgment granted by or a direction given by the registrar may, within
20 days after receipt of notice of such judgment or direction, approach the court to request that the
matter be set down for reconsideration. (HCR 31(5))
• It is an administrative process if the judgment is granted by the registrar/clerk of the court.
• The plaintiff will only become aware of the result when the request is returned, whether endorsed with
the judgment or not.

5. Case: Buckle v Kotze

In this case 2 notices was sent and a final letter to say there was no response to the notices and that the plaintiff
will proceed with default judgment unless the defendant contacts the plaintiff’s attorney urgently.

HCR 31(2) - Application for Default Judgment based on a combined summons (claim is not for a debt or
liquidated amount)

- When we institute proceedings with a combined summons, the proceedings is exactly the same.
- The plaintiff sets action down for hearing based on:

• If the defendant is in Default Of Appearance, in other words he did not file his notice of
intention to defend within 10 days, (No notice of set-down need be given to the defendant)
OR
• If the defendant is in Default Of Plea, in other words the plaintiff filed a declaration which
was served on the defendant, and the defendant does not file his plea,
• The plaintiff must send him a notice advising him that he is out of time with his plea and then
the plaintiff must give him a minimum of 5 days to file the plea.
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• If the defendant does not file his plea within 5 days, the plaintiff will send a notice of bar
confirming that notice was sent and that the defendant is now barred from filing his plea.

• The plaintiff can without prior notice to the defendant, set action down for a hearing (default
judgment)
• The only difference when dealing with a combined summons is that the plaintiff has to apply
to court for default judgment.
• The plaintiff will have to submit Affidavits in support of the application and the judge can also
direct that witnesses be present. (Evidence must be lead during the application to prove the
plaintiff’s cause of action or quantum of damages)
• After the hearing, the judge will decide whether to grant default judgment.

• If default judgment is granted, execution takes place against movable/immovable property

• The judgment is a final judgment but because it is a judgment by default, rescission is possible.

- Although default judgment is a consequence of an action procedure, the application for default judgment
is heard in motion court.
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MAGISTRATES COURT

- The Magistrates’ Court procedure for default judgment is similar to the High Court procedure.
• If the defendant fails to lodge a notice of intention to defend: MCR 12(1)(a)
The plaintiff’s attorney lodges request with the clerk of the court / or registrar of regional
court for default judgement.

• If the defendant fails to deliver a plea within the time limited afforded by MCR 19: MCR
12(1)(b)(i) & (ii)
The plaintiff must serve a notice of bar informing the defendant that he must file his plea within
5 days of receipt of such notice. If the defendant fails to deliver within the five days, he or she
is barred ipso facto ("by the fact itself")

The plaintiff may then in terms of MCR 12(b)(ii) file a request for default judgment in same
manner as MCR 12(1)(i), where the defendant failed to file a notice of intention to defend.

6. Santam Ltd and Others v Bamber 2005 (1) SA 868 (C) at 870H–J
The defendant served the plea on the plaintiff’s attorney on the last day allowed in terms of a notice of bar but
filed at the Magistrates’ Court only on the following day. The plaintiff’s attorney applied for default judgment
despite knowing of the service of the plea. The court held that the application was an abuse of process of court
and that the plaintiff’s attorney could have been in no doubt that the defendant intended to defend the action.
The plaintiff’s attorney should have disclosed the fact of the service of plea in the request for default
judgment.

The clerk of the court or (registrar) may:

1. Grant judgment for;
• Payment of the original sum requested in the summons or what other relief was claimed
• Costs
• Interest as specified in the summons to the date of payment or as provided for in s1(2) the
Prescribed rate of Interest Act 55 of 1975
• If the claim is based on a liquid document the original must also be filed at court.
2. May refer the request to the court
3. Claims arising out of credit agreements in terms of the Credit Agreement Act 75 of 1980 / National
Credit Act 34 of 2005 as well as a claim for an unliquidated amount must always be referred to
the court for judgment (combined summons) In this case the plaintiff must lead evidence either via
affidavit or viva voce evidence.
• Amendment: MCR 12(4): ‘The registrar or clerk of the court shall refer to court’ all
requests for default judgment if the request is for an unliquidated amount.
• Amendment: MCR 12(5): If claim based on National Credit Act or Credit Agreements
Act 75 of 1980 shall be referred to court.
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(If a plaintiff wants to apply for default judgment in the Magistrates Court, he must apply to the
clerk of the court - in terms of MCR 12(1)(b)(ii), (c), (d) and (e), HOWEVER if the claim is based on
the Credit Agreements Act (old or new), the matter must be referred to court and only a magistrate
can thus grant default judgment – in terms of MCR12(4))

If the claim is for an illiquid amount (Unliquidated claim: damages, enrichment), then the matter must
be referred to the magistrate.

If judgment is granted:
1. The defendant may also request a rescission of the judgment in terms of s 36 of the Magistrates’ Courts Act
to be read MCR 49 .
2. Once judgment has been granted the same as any other judgment.
3. If the defendant satisfies the judgment execution will not be necessary

RESCISSION:

- In order to be successful with an application for rescission, whether in the High Court or the Magistrates
Court, you have to establish good cause.
- An application for rescission of default judgment must be made within 20 days after the judgment was
made.

HIGH COURT:

- Recession of Judgments

- HCR 31(2)(b): If default judgment was granted by a court in terms of HCR 31(2)(a).
- HCR 31(5)(d): If default judgment granted by registrar in terms of HCR 31(2)(a).
- HCR 42: If default judgment not granted in terms of HCR 31(2)(a).
- COMMON LAW: If default judgment not granted in terms of HCR 31(2)(a).

- HCR 31(2)(b)
Order requesting that judgment granted by court should be reconsidered where:
- Party failed to file notice of intention to defend
- File plea
- Application must be brought within 20 days after judgment debtor has gained knowledge of the
judgment. (Not within 20 days of the judgment itself.)

- HCR 31(5)(d):
Order requesting that judgment granted by registrar should be reconsidered where:
- Party failed to file notice of intention to defend
- File plea
Application must be brought within 20 days after judgment debtor has gained knowledge of the judgment. (Not
within 20 days of the judgment itself.)
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Requirements:
Under HCR 31(2)(b) & 31(5)(d) the court has a discretion to grant rescission / reconsideration if the defendant
/ applicant shows: “good cause”

Good cause consists of the following elements:

1. Must provide a reasonable explanation for his default
2. Must establish that a bona fide defence exists
3. The application must be brought bona fide

(In test/exam you will have to explain each of these)

1. Must provide a reasonable explanation for default

The applicant must convince the court that there was no maliciousness on his part that led to
the granting of the default judgment.
The default will not be malicious if:
(a) He had no knowledge of the summons/that the action was instituted
(b) He did not deliberately refrain from entering a notice of intention to
defend
(c) The court will also look at the mental attitude of the plaintiff towards
consequences of default (court will look at whether it is something you
planned, whether it is a delay tactic or just negligence)

3 cases (NB)
BUCKLE V KOTZE (complied with element 1)
- In this case the plaintiff issued summons against the defendant and the defendant instructed his attorneys
to defend the matter and to take the matter to trial.
The defendant’s attorney filed a notice of intention to defend but then he failed to file the plea
- The plaintiff’s attorneys sent a notice of bar but the notice of bar was defective and the defendant’s
attorney just ignored it.
The plaintiff’s attorney realised he made a mistake and sent a new correct notice of bar.
- However, the secretary of the defendant’s attorney did not hand the attorney the correct notice of
bar. The plaintiff’s attorney then sent a second notice of bar and again the secretary of the defendant’s
attorney did not give the notice of bar to the attorney.
- The plaintiff’s attorney then sent a letter advising the defendant’s attorney that he has been barred
twice and that he is applying for default judgment.
The defendant’s attorney never received the letter and default judgment was granted.
- The defendant’s attorney then brought an application for rescission of default judgment however the
court a quo refused the application.

- On appeal the court held that there was substantial negligence in the offices of the defendant’s
attorney and that the reasons provided by him was unacceptable.
However the granting of the default judgment was not due to the maliciousness of the client.
- The explanation provided illustrated negligence in the attorney’s office and clearly indicated that the
client was not willful
- The court accepted this as a reasonable explanation for the default.
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7. MNANDI PROPERTY DEV CC / BEIMORE DEV CC

- This case illustrates how the court also looks at the mindset of the applicant to determine
maliciousness.
- The members of Mnandi Property Dev CC used their accounting officer’s address as their service
address. The accounting officer then passed away, but Mnandi Prop Dev CC did not notify everyone
that they have contracts with that their accounting officer passed away and that his practice has been
taken over by someone else.
- The new accounting officer then immigrated to Australia and Mnandi failed to notify everyone that
they were between accounting officers and that their old service address was no longer in use.
- A summons was served on this address and there was no one to respond to the summons and default
judgment was granted.
- When the members of Mnandi became aware of the default judgment, they approached their attorney
to apply for rescission of the default judgment.
- The court found that were potentially negligent with their administration but that they were not
wilful, they were not deliberately trying to be deceitful and it was not through their actions per se that
default judgment was granted.
- The court accepted this as a reasonable explanation for the default and rescission was granted.

8. ABRAHAMS V CITY OF CAPE TOWN

- Mr Abrahams overtook a vehicle in an intersection on the left and collided with a fire truck. The City
wanted damages and issued summons and the attorneys of Mr Abrahams filed a notice of intention to
defend.
- The attorneys told Mr Abrahams that they needed to file a plea and that he had to consult with them
to finalise this.
- Mr Abrahams advised his attorneys that he does not have money and his attorney advised him that
they have to file a plea otherwise default judgment will be granted against him.
- Mr Abrahams then disappeared and his attorneys were unable to get hold of him by telephone at his
work or home or by way of letters.
- Eventually default judgment was granted and Mr Abrahams then approached his attorney to apply
for rescission of the default judgment. He gave various reasons for his default namely that he was
staying with family at the time and that he was uncertain as to his address, also that he off from work
often and people could not find him to give him the messages and furthermore that he did not think
there would be any litigation during the festive season.
- The court found that the explanation for his default was not reasonable and he failed to succeed on
the first leg of illustrating good cause.

2. Must establish that a bona fide defence exists

If it is clear to the court at the application for rescission stage that the applicant is going to
loose when going to trial, they will not grant rescission.
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In the applicant’s Affidavits there must be a defence with evidence verifying the defence but it must
only establish a prima facie case, which means that the applicant does not have to prove that he will be
successful at trial, there must only be a possibility that he will be successful.

3. The application must be brought bona fide

The applicant must convince the court that the application is bona fide.
This means that he must convince the court that the application is not a tactical move on his part to
waste time or to delay the matter, but that he wants his day in court.
If the applicant proves 1 & 2, then 3 is automatic

In the application for default judgment the plaintiff becomes the applicant and the defendant
becomes the respondent.
If the application is successful default judgment will be granted.

The defendant then brings an application for rescission of default judgment

The applicant is the respondent in the application for default judgment who was originally the
defendant in the summons.
The applicant is now the original defendant/respondent and the respondent is now the original
plaintiff/applicant.

Before 1997, to succeed had to establish:

‘Good cause’ (Not wilful in default + existence of a bona fide defence)
After 1997
Now provide for two different types of applicant
• Applicants that intend to defend action
• Applicants that wants to avoid judgment (pay what was claimed in full), but do not intend to defend
judgment.

Judgment by Confession/ Consent

- In the High Court in terms of HCR 31(1)(a) and (b) a defendant may at any stage of the proceedings
confess in part or in whole to the plaintiff’s claim (except in actions based on the Divorce Act49 or for
the nullity of a marriage).
- Similarly, a defendant in a Magistrates’ Court action may in terms of MCR 11(1) consent to judgment
before entering an appearance to defend and in terms of MCR 11(4) consent to judgment after
entering an appearance to defend, thereby avoiding costs likely to be incurred when the plaintiff
is preparing to take default judgment against the defendant.
(An analysis of these types of consent is found in chapter 15 paragraph 15.6.1.)
- Several alternative procedures that serve to shorten civil proceedings against the Magistrates’ Court
defendant are also available. These include admission of liability and an undertaking to pay a debt in
instalments in terms of section 57 of the Magistrates’ Courts Act, (as discussed in chapter 15 paragraph
15.6.2,) and consent to judgment and an order for the payment of a judgment debt in instalments in
terms of section 58, (as discussed in chapter 15 paragraph 15.6.3)
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Judgment by Confession – High Court

HCR 31(1)
“Save in actions for relief in terms of the Divorce, 1979 (Act 70 of 1979), or nullity of marriage, a
defendant may at any time confess in whole or part the claim contained in the summons.”
1. Must be in writing
2. Must be signed by the defendant.
3. Made at any time, up and until judgement.
4. The signed confession is delivered to the plaintiff.
5. Plaintiff then applies for judgement in writing. Application for judgement is made through the registrar, to
a judge in chambers. Judgement therefore not granted in an open court.

Judgment by Consent – Magistrate Court

MCR 11
1. Defendant signs the consent at the back of the summons, or submitting his own consent form in writing and
signed by two witnesses.
2. Files the consent with the clerk of the court, who issues judgement per the request form.
3. The defendant must then inform the plaintiff hereof.
4. The magistrates’ Court also provides for consent to judgement in terms of ss 57 & 58 of the MCA.
(Summons not needed in this case).

Steps if a Defendant wants to Defend a Claim

(Notice of intention to defend)

1. Action can be defended on:

• Merit:
• Technical ground
2. Must be delivered within the prescribed dies induciae.
3. Must be in writing + served informally on the plaintiff.
4. A signed copy of the ‘Notice of Intention to Defend’ filed on the court file.
5. The residential or business address of the defendant must appear on the notice together with an address
within 8km of the court.
6. Filing a notice to defend indicates that the matter will proceed as a defended action.
7. Plaintiff may apply for:

SUMMARY JUDGMENT:
- The summary judgment procedure is designed to give the plaintiff speedy judgment without the delay and
expense of a trial.

- In the High Court the summary judgment procedure is set out in HCR 32, and in the Magistrates’ Courts the
procedure is set out in MCR 14.
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(The procedure for summary judgment in the High Court and in the Magistrates’ Courts is essentially the
same)

- The summary judgment procedure is essentially an application procedure. This means that it is initiated by
the plaintiff on notice of application accompanied by a founding affidavit. The allegations set out in the
plaintiff’s founding affidavit must be answered by the defendant in an opposing affidavit

- Shortened process
Summary judgement may however only be used in certain types of claims.
Used if: (2 Requirements)
• The defendant lacks a bona fide defence
• Only wants to waste time.

- In order to succeed with an application for summary judgment, the applicant must attach an Affidavit to the
application and in the Affidavit he must set out his cause of action.
- The applicant must allege in the Affidavit that the defendant/respondent has no bona fide defence. (no prima
facie case)
- He must also allege in the Affidavit that the defendant is defending the matter in order to waste time.

- The summary judgment procedure is advantageous to the plaintiff for two reasons:

1. The granting of a summary judgment in favour of the plaintiff results in a final judgment at a very
early stage in the litigation.

2. Even if the plaintiff is not successful, the procedure forces the defendant to deliver an answering
affidavit in order to avoid summary judgment and in order to do so the defendant must place a
defence on record at an early stage

9. Arend v Astra Furnishers (Pty) Ltd,

The court emphasized that the summary judgment procedure is an extraordinary and stringent remedy because
it permits a final judgment to be given against the defendant without a trial. It is perhaps for this reason that the
Rules of the High Court and the Magistrates’ Courts allow a plaintiff to apply for summary judgment only in
limited circumstances, namely where the plaintiff’s claim falls into one of the categories specified in the rules
and discussed below. Furthermore, the courts will grant the plaintiff summary judgment only when there has
been strict compliance with the rules.

Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
The court considered the introduction of this procedure into South African law and concluded that the rationale
for summary judgment is faultless. The procedure is not intended to deprive a defendant with a triable issue or
sustainable defence of his or her day in court; it is intended to prevent sham defences from defeating the rights
of parties by means of delaying tactics and causing loss to plaintiffs.7 The court held that after almost a century
of successful application in our courts, the summary judgment procedure could not continue to be described as
 146

extraordinary and that the time had come to discard this label and concentrate on the proper application of the
rule

10. Summary judgment may only be granted in the following types of

claims:
1. A claim based on a liquid document
2. A claim for a liquidated amount
3. A claim for the delivery of specific movable property
4. A claim for ejectment
You may claim interest and costs in each of the above instances.

NB - A plaintiff whose summons contains more than one claim may apply for summary judgment in regard to
any one of the claims which fall into any of the above categories. The remaining claims which do not fall
within the above categories will then proceed to trial in the ordinary way

Summary Judgment
HCR 32 + MCR 14

Procedure for application for Summary Judgment:

1. An application for summary judgment may be brought by the plaintiff only after the defendant has
delivered a notice of intention to defend.
2. Notice of the application must be served within 15 days of the delivery of the notice of intention to
defend. If the application is not made within that period the plaintiff may not proceed with a summary
judgment application.
In the HC: 15 Days HCR 32(2).
In the MC/RC 15 Days MCR 14(2)
3. The defendant must have at least 10 days’ notice of the application. The defendant may file a plea
within the time allowed for the plaintiff to apply for summary judgment
4. Application for summary judgement supported with an affidavit.
5. In the Magistrates Court: If the claim is based on a liquid document, it is enough to only attach the
document itself. No affidavit is needed.
6. In the High court if the claim is based on a liquid document: affidavit still needed. Document attached to
the affidavit.
7. The deponent in the affidavit must state the following:
• That the deponent has personal knowledge regarding the facts concerned
• He or she must verify the cause of action [why he is claiming] and set out the amount of the claim
• State that in his opinion the defendant has:
• No bona fide defence to the claim
• That the defendant is defending the matter with the sole aim of delaying the matter.
8. In the case of a summary judgement application the affidavit does not contain facts pertaining to the merit of
the plaintiff’s case
• The notice of motion must set out the date on which the application will be heard
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• The plaintiff may file only the affidavit supporting the notice of motion
• If the plaintiff proceeds with any other steps regarding trial he or she then loses his or her remedy to
summary judgement
• Summary judgement cannot be obtained regarding a counterclaim.

What can the defendant do when plaintiff applies for summary judgment?
2 OPTIONS available to defendant:

1 The defendant can GIVE SECURITY TO PLAINTIFF for any judgement and costs:
(District &, Regional Magistrates’ Court and High Court).
• The defendant can only do this if the claim is for a sum of money
• The security is given to the plaintiff
• In the Magistrates Court: MCR 2(1)(b) defines “give security” as giving a security bond by the defendant
with someone else or several other people acting as his surety
• The defendant may initially defend the application for summary judgement with an affidavit (3rd option),
and then change to giving security.

2 The defendant may convince the court that he has a bona fide defence:
(District &, Regional Magistrates’ Court and High Court).
• This can be done via affidavit (opposing affidavits) or with special leave from the court via viva voce
evidence (options)
• A special plea or an exception would constitute a valid defence preventing summary judgement
• The affidavit lodged by the defendant must disclose the grounds of the defendant’s defence
• The affidavit must contain enough particulars in order to illustrate a bona fide defence to the court
• The defendant can allege a counterclaim
• Opposing affidavits (to the application) must be filed on the court and the opposing party before the
hearing
• Plaintiff may not file an answering affidavit.
Bona Fide defence of the defendant: see Nyingwa v Moolman 1993 2 SA 508 (Tk)

Powers of the Court

1. If the defendant:
• Sets security (Option 1)
• Submits a convincing affidavit (Option 2)
• Then the court will not grant summary judgments and grant leave to defend to the defendant.
2. If the only defence is that of a counterclaim, then summary judgment should be granted regarding
that part of the claim that is not affected by the counterclaim (of the defendant).
3. An exception can also prevent summary judgement.

Costs
- A court will grant such order for the costs of a summary judgment application as it deems fit and just.

- Ordinary situation In terms of HCR 32(9) and MCR 14(10), when an application for summary judgment is
successful the court will grant an order for costs in favour of the plaintiff
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- However, an order for costs may be given against the plaintiff when he or she has made an unsuccessful
application not falling within the categories set out in HCR 32(1) and MCR 14(1)
or is aware that the defendant has a bona fide defence or would be entitled to leave to defend

1. If summary judgement is granted: (in favour of the plaintiff)

The court would usually award costs in favour of plaintiff.
2. If summary judgement refused: (not in favour of plaintiff)
Usually it would be “cost in the cause”. This means a cost order will be made at the end of the process.

- In terms of HCR 32(9)(a) and MCR 14(10)(a) the court may halt proceedings until the plaintiff has paid the
defendant’s costs and may further penalise the plaintiff by ordering that such costs be taxed as between attorney
and client.
- The reason for this is to prevent unnecessary summary judgment applications when the plaintiff is aware that
the defendant has a bona fide defence but nevertheless commences with summary judgment for the tactical
purpose of obtaining sight of the bona fide defence at an early stage of the proceedings.

Exceptional circumstances
HCR 32(9)
1. If the claim is of such a nature that summary judgment should not have been requested, the court
would grant a cost order against the plaintiff and stay all proceedings until the costs have been paid.
2. In exceptional circumstances the court would award costs on an attorney client base.
3. The same applies if the court is of opinion the plaintiff knew the defendant had a good defence.
4. If the plaintiff however succeeds with the case, the court will rule that the defendant carries all costs
including that of the summary judgment.

1.1.1 Recission of Summary Judgment

• Nyingwa v Moolman 1993 2 SA 508 (Tk)
• Common Law
• ‘Sufficient cause’
o Reasonable explanation
o Bona fide defence

If the court decides not to grant summary judgment, the cost of summary judgment will stand down as
cost in the cause until after the trial and whoever looses will carry all the costs.
However, applying for summary judgment could be a tactical move because the plaintiff can now see in the
Affidavits what the witnesses are going to say at the trial.
When arguing costs, the defendant can argue that the plaintiff knew the defendant had a bona fide defence
and despite this, he applied for summary judgment to deplete the defendant’s financial resources and thereby
forcing the defendant to play his full hand by seeing from the Affidavits what the witnesses are going to say at
the trial.
If the court finds that it was a tactical move, the court will grant a costs order against the plaintiff and the
cost order becomes payable immediately.
The plaintiff must pay the costs before he can proceed with the trial.
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If at the hearing for the application for summary judgment, there is no respondent, the applicant can apply for
default summary judgment.

The court in Nyingwa v Moolman had to deal with the issue of whether summary judgment can be rescinded
in the High Court. In the High Court you cannot rescind a summary judgment granted in the absence of a
respondent.

In the case of NYINGWA V MOOLMAN, Nyingwa was a director of a company and the company
mismanaged the company finances to the point where it was grossly negligent and bordering on fraud.
The company was then liquidated and at the first creditor’s meeting it became clear that there was gross
negligence and that funds disappeared, thus the directors were personally liable.
The directors agreed to co-operate and that they would each pay R60 000,00 of the debt and this was contained
in an Acknowledgement of Debt.
Mr Nyingwa did not pay his portion and the liquidator, Mr Moolman issued summons and immediately
applied for summary judgment.
His cause of action was based on the liquid document.
At the day of the hearing Mr Nyingwa’s attorney filed a notice to oppose and asked for a postponement to
file opposing Affidavits.
The court granted the postponement and then Mr Nyingwa disappeared.
The applicant’s attorney took summary judgment but there was no respondent present.
As soon as the judgment was served on the defendant/respondent he instructed his attorneys to make
application for rescission of the summary judgment.
The issue was whether the court can grant rescission of summary judgment in the High Court because the
High Court Rules only deal with default judgment proper
The problem was overcome by using the common law because S19 of the High Court Act provides that the
common law stands irrespective of the provisions of the Act or Rules unless specifically provoked.
High Court Rule 31 does not provoke the common law.

To be successful with the application for rescission, the applicant had to establish good cause, which consist
of 3 elements:
1. The applicant must provide a reasonable explanation for his default
2. The applicant must establish that a bona fide defence exists
3. The application must be brought bona fide
Mr Nyingwa did not have a reasonable explanation for his default.
He argued that he was coerced into signing the Acknowledgement of Debt and was told that he would go to
jail if he does not sign the document.
The other directors however did not interpret this as coercion and the court found that he had no bona fide
defence.
Because he did not give a reasonable explanation for the default and because he did not have a bona fide
defence, it could only be concluded that he was applying for rescission of the summary judgment to waste
time, he was not interested in his day in court.
The application for rescission was not granted and the summary judgment was held to be a full and final
judgment with execution and debt collecting.

TOPIC 8
FURTHER STEPS IN A DEFENDED ACTION
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(EXCHANGE OF PLEADINGS)

1
INTRODUCTION
2 EXCHANGE OF GR
What are pleadings? / Rules of pleadings / Different pleadings HC and MC / Close of pleadings
3 INCIDENTS THAT MAY OCCUR IN THE COURSE OF EXCHANGE OF PLEADINGS
Anton pillar orders / Request for further particulars / Failure to plea / Failure to file replication /
Security for costs / Amendments of pleadings / Interim payments / Stay of proceedings / Offer to
settle
4 DEFECTIVE PLEADINGS
Remedies against defective pleadings / Exceptions / Motion to strike out / Irregular step

• 2
• EXCHANGE OF PLEADINGS

2.1
What are pleadings?

• Eg: declaration and plea

• Pleadings are written statements that contain all the material facts necessary in order to
establish either a cause of action or a defence
• Material facts are the facta probanda as confirmed in the Thusi case.
• Pleadings thus contain all the facta probanda and it doesn’t constitute evidence because it
isn’t made under oath.
• Pleadings are divided into numbered paragraphs
• Pleadings means all the potential pleadings that can be exchanged (pleadings of plaintiff and
defendant)
• The term plea refers to a specific pleading namely the pleading that contains the
defendant’s defence
• Main features: sets out material facts & specifies relief sought by party in a prayer
• 2.2
• Function of pleadings

• To formulate the legal dispute and in doing so you inform your opponents of what you
are basing either your claim or your defence on.
• By setting out the cause of action in fact and law, you enable the defendant to reply with a
proper defence.
• When the parties come to court they know what they are dealing with and through this
you save time and legal costs.
• Pleadings are part of the structure that we use to keep things in court as organized as
possible.
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• Because of the important function of pleadings, you are bound by your pleadings. Therefore
if a defence is not set out in the pleading, you cannot at trial rely on the defence.
• Also, if a cause of action is not set out in your summons, you cannot at trial try to
incorporate this cause of action through the use of witnesses.
• If you do not have a defence or cause of action set out in your pleadings and you want
to rely on the cause of action or defence, you will have to bring a formal application to
amend your pleadings.
• The pleading stage is therefore very important, because if a cause of action or defence is
not in your pleading, then you cannot introduce it at trial.
• Purpose: define issues in dispute; define limits of an action; est whether the issues are good
in law; place issues on record; establish onus of proof

2.3
Rules of pleadings

• A party is bound to his pleadings

• Evidence: vocal + exhibit must support pleadings (facta probanda must support facta probantia)
• Pleadings must be drawn in accordance with the rules of the common law and rules of court
• All material facts supporting the claim must be stated
• Must have a heading- indicating court, litigating parties, registrar/ clerks assigns case number
• Material: those required to establish claim
• Facts: those that are relevant to the case
• Facts must be stated clearly, concisely and in summary form

HIGH COURT PROVISIONS

• HCR18 deals with Pleadings in general

• HCR17 (2), (3), & (4) deals with Summonses
• HCR 20 deals with Declarations
• HCR 22 deals with Pleas
• HCR 24 deals with Counterclaims
• HCR 25 deals with Replication / Plea to the counterclaim / Further pleadings

MAGISTRATES’ COURT PROVISIONS

• MCR 5(2) & (3), 6(2)(a), (b), (c) & 6(3)(a),(b),(c)&(d); 6(5)(a),(b),(f),&(g) 6(6) deals with
Summonses
• MCR 19 deals with Pleas
• MCR 20 deals with Counterclaims
• MCR 21 deals with Replies or Replications
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2.4
Different pleadings in the courts

HIGH COURT
Pleading Documents

I
Particulars of claim
(Combined summons)
Pleading document
HCR 17

• Plaintiff (Party who serves and files the document)

• We only find this in the Magistrates Court.
• In the Magistrates Court the summons is usually very simple and short and therefore in
order for the defendant to plea, he will have to request further particulars from the plaintiff
• In the High Court the pleadings must be complete.
• The Declaration must contain all the material facts necessary to enable the defendant to file
a plea.
• The particulars of claim attached to the combined summons must contain all the material
facts necessary to enable the defendant to file a plea.
• If the combined summons or the Declaration does not contain enough information to
enable the defendant to plea in the High Court, the defendant will raise an exception on
the ground that there are either no cause of action or the pleadings are vague and
embarrassing.

II
Declaration
(Simple summons)
(Pleading document)
HCR 20

• Plaintiff (party who serves and files the document)

• Plaintiff’s particulars of claim

• 15 days after receipt of notice of intention to defend (other option available to plaintiff?) SJ?
• Comply with HCR 18
• May not introduce a new cause of action, not set out in the summons (in the body of simple summons)

III
Plea
(Pleading document)
HCR 22
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• Defendant (party who files and delivers the document)

• Defendant’s reply (to the particulars of claim or declaration)

• 20 days after filing of notice of intention to defend (when a combined summons was served)
• 20 days after service of the plaintiff’s declaration (when simple summons)
• Extension of time limits possible (permission may be granted by opponent or court)
• Application for summary judgement (interrupts running of time) 15 days after NOITD
• In the plea, the defendant can do three things:
• Raise a special plea (prescription, jurisdiction) and / or
• Reply to the merit (he has a defence) and / or
• Institute a counterclaim (plaintiff owes him money) Claim in reconvention

III
Special plea
(Part of plea document)

• Defendant (party who raises the special plea in this instance)

• Defendant’s reply (to the particulars of claim or declaration)

• The effect of a special plea may be:

• To dispose of the claim (plea in abatement) or
• To delay the matter (dilatory plea)
• A special plea delivered together with the plea on merit (response by the defendant POC or D)
• Plaintiff cannot raise a special plea to a counterclaim (claim of the defendant) same as summary
judgment
• Examples of special pleas:
Prescription (service interrupts prescription) PLEA IN ABATEMENT (destroys cause of action)
Arbitration (the matter should not be at the court) DILATORY PLEA
Jurisdiction (court cannot deal with the matter) DILATORY PLEA (delays cause of action)
Misjoinder or Non-joinder (party must be removed or added) DILATORY PLEA (delays cause of
action)
Res judicata (matter has already been finalised by a court) PLEA IN ABATEMENT
Lis pendens (matter is pending at another court) PLEA IN ABATEMENT
A special plea is not an attack on the merits of the case (not an attack on the cause of action)
A special plea contains a defence outside the merits of the case
If a defence is upheld, the special plea can destroy the cause of action for eg a special plea in
abatement (res iudicata, lis pendens, prescription) or it could simply delay the matter (for eg
jurisdiction, misjoinder, non-joinder, arbitration, outstanding costs etc).
We call special pleas points in liminae because it is our starting point
A special plea contains special defences which means the onus is on the defendant to prove
his special defences.

Both the High Court Rules and the Magistrates Court Rules provides that we can deal with points
in liminae in separate hearings.
 154

Therefore we can have a hearing before the trial to deal with points in liminae which can save
legal costs.

III
Plea on merit
(Part of plea document)

• Defendant (party who pleas in this instance)

• In the plea all allegations must be addressed by

• Admitting
• Denying
• Confessing and avoiding [admits but justifies]
• No knowledge / Non-admission
• If a defendant does not deny or otherwise deal with an allegation in her plea it is deemed to be admitted
• Silence (by the defendant) constitutes admission NBNBNBNBNBNBNB!!!!!
• Both Special Plea and Plea on Merit must be contained in one document
• David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 (W)
• Sibeko v Minister of Police 1985 (1) SA 151 (W)
• A plea on merit is an attack/defence by the defendant on the plaintiff’s cause of action.
• In the defendant’s plea on merit he has to respond to each and every factual allegation
made in the Declaration or Particulars of claim.
• The defendant may react to these facts in one of 4 ways:
• 1. The defendant may admit a fact
• If the defendant admits a fact, it is placed beyond dispute
• The fact is thus deemed proven and the plaintiff has to produce no proof in this
regard
• 2. The defendant may deny a fact
• When denying a fact, the fact is now placed in dispute and the plaintiff will
have to prove this fact in court
• 3. The defendant may confess and avoid
• The defendant may confess to the allegations but avoid the legal
consequences by putting it in a different context.
• 4. The defendant may say he has no knowledge
• If the defendant has no knowledge of any facts in the cause of action, he must
state in the plea on merit that he has no knowledge of this fact, for eg when he is
not sure of the occupation of the plaintiff.
•
• If the defendant does not address a fact in a plea, it is deemed to be admitted.
• This means that the plaintiff does not have to prove the fact, it is accepted as proved
• The defendant cannot have a bare denial because he runs the risk that it does not contain
a defence which means the plea is excipiable.
 155

• The plaintiff can raise an exception against the plea on the ground that it does not contain a
defence or it is vague and embarrassing.
• A plea is still a pleading, which means it can be amended, the problem is that it is difficult
to withdraw an admission.
• The courts are reluctant to allow this.

III
Counterclaim
(Part of plea document)
HCR 24

• Defendant (party who institutes the counterclaim in this instance)

• Defendant has a claim against plaintiff

• Summons contains the claim in convention
• Plea contains the claim in reconvention (counterclaim)
• Counterclaim dealt with same as claim set out in the summons
• A counterclaim is also known as a claim in reconvention.
• In the summons you will have a plaintiff and defendant and in the counterclaim, the defendant
will now become your plaintiff in reconvention and the plaintiff will become the defendant in
reconvention.
• All the pleadings that can be exchanged in the claim in convention (original claim) can also
be exchanged in the claim in reconvention.
• material facts necessary to enable the defendant to file a plea.

V
Replication
(Pleading document)
HCR25

• Plaintiff (party who institutes the replication in this instance)

• Plaintiff’s reply to the defendant’s plea

• 15 days after the plea has been served on plaintiff
• Only necessary if new issues introduced in plea that has to be addressed by plaintiff
• If the plaintiff does not deal with something in the defendant’s plea, the plaintiff is deemed to have
placed it in dispute
• Silence (by the plaintiff) constitutes denial NBNBNBNBNBNBNB!!!!!
• When the plaintiff wishes to deny all the allegations made in the plea NO Replication is necessary
• The replication is an optional pleading.
• The plaintiff only files a replication if there is something specific that he wants to address in
the plea.
• If the plaintiff does not file a replication he is deemed to have denied everything as set out
in the plea.
 156

• If he does file a replication but he does not address an aspect in the plea, he is deemed
to have denied it.
•
• The further pleadings that we get in the High Court, we find in Rule 25
• The defendant can reply to the replication by filing a rejoinder, to which the plaintiff can
answer by filing a surrejoinder, to which the defendant can answer by filing a rebutter, to
which the plaintiff can answer by filing a surrebutter.
• These further pleadings are all optional, so if the plaintiff does not answer by filing a
surrejoinder, he is assumed to have denied everything set out in the rejoinder etc

VI
Plea to the counterclaim

• Plaintiff
• Same as plea in convention (look at notes on pleas)
• Discuss claim in convention and claim in reconvention

VII
Further pleadings
(Other pleading documents)
HCR 25(5)

• The defendant can answer to the Replication in a Rejoinder

• The plaintiff can answer to the Rejoinder in a Surrejoinder
• The defendant can answer to the Surrejoinder in a Rebutter
• The plaintiff can answer to the Rebutter in a Surrebutter
• The above are not necessary if they will only contain bare denials
• Works the same as in a counterclaim
• SILENCE CONSTITUTES DENIAL
• KNOW THESE PLEADINGS!!!!

MAGISTRATES’ COURT
(PLEADINGS)
Pleading Documents

DISCRICT & REGIONAL COURTS

I
Particulars of claim
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(Pleading document when combined summons)

• Plaintiff (party who institutes the proceeding)

II
Declaration
(Pleading document when simple summons)
MCR 15

• Plaintiff (party who serves and files)

• Simple summons
• Precise summation of material facts was in the simple summons
• Delivered 15 days after receipt of notice of intention to defend

III
Plea
(Pleading document)
MCR19

• Defendant (party who files and serves)

• Response to the plaintiff’s claim (particulars of claim or declaration)

• The defendant shall within 10 days after

Entry of appearance to defend (when combined summons as already has particulars of claim)
After delivery of declaration (when simple summons)
After the dismissal of an application for summary judgement if such application was made (main action)
After a dismissal of an exception or application to strike out if such application was made
After the amendment of the summons after an application to amend or strike out as allowed by the court
File and serve the plea
• In the plea all allegations must be addressed by
Admitting
Denying
Confessing and avoiding (admits but justifies)
No knowledge
• The rest of the plea in the Magistrates’ Court is the same as in the High Court
• The next pleading is the plea and whether you are in the High Court or the Magistrates
Court, the plea will have the same format, first the special plea, then the plea on merit
and then the counterclaim.
• If the defendant does not file his special pleas first, he is deemed to have waived
his right to the special pleas.
• The defendant’s plea on merit must address every allegation as set out in the further
particulars and in the summons.
• If the defendant does not, he is deemed to have admitted the allegations
• The defendant must address the allegations in one of 4 ways:
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• 1. The defendant may admit a fact

• 2. The defendant may deny a fact
• 3. The defendant may confess and avoid
• 4. The defendant may say he has no knowledge (non admission, no
knowledge)

IV
Special Plea
(Part of the plea)

• Filed together with the plea on merit (prescription, arbitration)

V
Counterclaim
(Part of the plea)
MCR 20

• Same as High Court (Read previous part of the notes)

VI
Reply
(Pleading document)
MCR 21

• Plaintiff’s response to defendant’s plea

VII
Further pleadings
(Pleading documents)
MCR 21 (5)

Further pleadings
(a)
May, subject to the provisions mutatis mutandis of sub rule (2), be delivered by the respective parties within
10 days after the previous pleading delivered by the opposite party; and
(b)
Shall be designated by the names by which they are customarily known.

2.5
Close of pleadings
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Litis contestation
(When does this happen?)
In the High Court and the Magistrates Court, once pleadings are closed (once we reached litis
contestation), it becomes more difficult to get permission to amend your pleadings.
The court will not allow you to change your pleadings after the close of pleadings because there will
be substantial prejudice and if you want to amend your pleadings at this stage the court will award
costs at a higher scale against you.
Litis contestation has an impact on personal claims (being claims for pain and suffering, loss of
amenities of life).
If the plaintiff passes away before litis contestation, in other words during the exchange of pleading
stage, the personal claims will disappear.
However if the plaintiff passes away after litis contestation, then the personal claims are
transmitted to the deceased estate.

HIGH COURT
HCR 29
When are pleadings closed?

• Pleadings are closed

• If either party has ‘joined issue’ (denied anything stated in the pleadings, and now challenges the
opponent to prove it), without alleging anything new, nor adding anything else to the pleadings
• If the last day of filing subsequent pleadings has lapsed and nobody filed anything
• If the parties agree in writing that the pleadings and such notice is filed with the registrar
• If the parties argue re the close of pleadings a party or both may bring an application to court requesting
that the court to declare the pleadings closed

MAGISTRATES’ COURT
When are pleadings closed?

• MCR 21A
• Pleadings are deemed closed
• If either party has ‘joined issue’ without alleging any new matter, and without adding any further
pleading;
• If the last day allowed for filing a replication or subsequent pleading has elapsed and it has not been
filed;
• If the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar
or clerk of the court; or
• If the parties are unable to agree as to the close of pleadings, and the court upon the application of a
party declares them closed’

3
INCIDENTS THAT MAY OCCUR IN THE COURSE OF EXCHANGE OF PLEADINGS

3.1
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Anton Pillar Orders

(HC Only)

• Only in the High Court

• Order made to preserve evidence
• Fear that evidence that may be significant at trial will disappear or be destroyed
• Developed in England and incorporated into our law via the case of Anton Pillar KG v Manufacturing
Processes Ltd and others [1979] All ER 779 (CA)
• Initially only obtained in immaterial property cases, but the use of such order was extended in 1995 in
the case of Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam; Mphanga v
Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg 1995 4 SA 1
(A)
• Urgent application on an ex parte basis (one party only informed as evidence might be destroyed)
• Result: must allow the sheriff to search premises and allow for certain relevant items to be attached and
removed
• The court has discretion
• Balance test is used
• Anton Pillar Orders can only be obtained in the High Court.
• The plaintiff can apply for an Anton Pillar Order if he is of the opinion that the defendant is in
possession or has under his control vital evidence and there is a real apprehension or fear
that this evidence is going to be destroyed
• The plaintiff can now bring an application for the granting an Anton Pillar Order.
• Anton Pillar Orders were developed in England and were incorporated into our law via the
Anton Pillar case.
• Initially the granting of Anton Pillar Orders were restricted to intellectual property cases and
then in the Shoba case the use of Anton Pillar Orders were extended to all civil litigation.
• If the order is granted, then the plaintiff now has the right to search the property as specified
in the order where the evidence is allegedly kept and he is also entitled to seize the evidence
as specified in the order
• An Anton Pillar Order can be obtained through an ex-parte application and the plaintiff therefore
does not have to give prior notice to the respondent.
• The application is heard in camera (closed proceedings – especially when dealing with
whistleblowers or when inside information if given)
• The applicant must only establish prima facie that he has a cause of action and that there is
a real fear that the evidence will be destroyed.
• If the order is granted, the applicant together with the Sheriff or a policeman will then have a
right to go to the premises as specified in the order and seize the evidence as specified in
the order.
• This is not an open warrant to search, the applicant can only search the premises as
specified and seize the evidence as specified in the order because Anton Pillar Orders
infringe on the right to privacy.
• Anton Pillar Orders can be used against any natural or juristic person, any other entities
(firms or associations) and can also be used against government bodies.
• Anton Pillar Orders are not interdicts, it is a sui generis order and therefore the plaintiff does
not have to give prior notice to the respondent
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• There is however a return date on which the respondent can contest the Anton Pillar Order
and if the order is lifted, the plaintiff has to return the evidence to the defendant.
• If the Anton Pillar Order is defended by the defendant on the return date, the burden of proof
is a balance of probabilities.
3.2
Failure to plea

• HCR26 & MCR 12(1)(b):

• Notice requesting plea within 5 days (notice of bar)
• Application for default judgment (default of plea)

3.3
Failure to file a replication
By plaintiff

• Assume to deny all allegations contained in the plea (silence is denial)

• The admissions made in the plea are assumed to be accepted
• Only necessary if new allegation(s) in plea and the defendant wishes to reply thereto
• If not filed within the time period provided automatically barred from doing so at a later stage
• Same applies to all other pleadings after plea, not filed within the provided time limit
• The above also applies to claims in reconvention

3.4
Security for costs
Security for costs is different from setting security in order to prevent summary judgment. (setting
security to prevent summary judgment is set by the defendant for the judgment debt plus cost)
In an application for security for costs, it is the defendant who is applying for security for costs
from the plaintiff.
The defendant thinks that he is going to be successful which means he is entitled to costs in his
favour and also that the defendant may not be able to pay the costs
In terms of the common law, security may be requested from the following plaintiffs in the High
Court in terms of High Court Rule 47:

1. Foreign peregrine
2. Insolvent persons
3. Persons acting in an official capacity
4. Companies and Closed Corporations
5. Persons instituting potentially vexatious proceedings

In the Magistrates Court security may be requested from the following plaintiffs in terms of
Magistrates Court Rule 62:

1. A plaintiff that is neither resident nor works in SA

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2. An insolvent person
3. Companies and Close Corporations
4. A plaintiff that does not have a substantial interest in the action
5. A plaintiff whose estate is under administration ito S74 of the Magistrates Court Act
6. A plaintiff enjoying assistance ito the Agricultural Credit Act 28 of 1966

Procedure for requesting security for costs:

1. The defendant requests security in an informal way from the plaintiff
2. If security is not given within 10 days, the defendant may apply to court for an
order compelling the plaintiff to furnish security

The court may:

1. Stay the proceedings until security is given
2. Order that security need to be given
3. Dismiss the plaintiff’s claim
4. Make any other fitting order (Magida v Minister of Police)

HIGH COURT
HCR 47(1) - (6)

• Grounds
• In terms of the common law security may be requested (by defendants) from the following plaintiffs:
Foreign peregrine (explain person resides and domiciled in Mexico)
Insolvent Persons
Persons acting in an official capacity [executor, etc]
Companies and Closed Corporations
Persons instituting potentially vexatious proceedings
• Procedure:
Application filed requesting that security be provided
Failure to adhere:
Application made to compel & stay proceedings until so provided

MAGISTRATES’ COURT
MCR 62(1) - (5)

• Grounds
• Stipulated in MCR 62 and may be requested from:
A plaintiff that is neither resident nor works in South Africa
An insolvent person
Companies and Closed Corporations
A plaintiff that does not have a substantial interest in the action
A plaintiff whose estate is under administration in terms of s 74 of the Magistrates’ Court Act
A plaintiff enjoying assistance in terms of Agricultural Credit Act 28 of 1966
• May not require security form:
A plaintiff granted permission to sue as a pauper
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A plaintiff in reconvention (defendant has a counterclaim)

• Procedure:
Defendant requires security in an informal basis form the plaintiff
If security is not given within 10 days, the defendant may apply to court for an order compelling the
plaintiff to furnish security
• The court may:
Stay the proceedings until security is given
Order that security need not be given
Dismiss the plaintiff’s claim
Make any other fitting order

Security for costs case

See Magida v Minister of Police 1987 1 SA 593 (A)

Magida instituted a civil claim against the police for assault
Mr Magida lived in the Ciskei and worked in East London and had a permanent income and a fixed
address in Ciskei.
A few months after he instated action Ciskei became independent and Mr Magida thus became a
foreign peregrine.
The defendant then requested security for costs from Mr Magida who was unable to set security
for costs as this was a legal aid matter.
The court held that security for costs was applied by the Roman Dutch authorities who viewed
security for costs as a procedural mechanism and not a material law right.
The presiding officer thus has a discretion to enforce the mechanism or not.
The court held that was going to exercise its discretion based on principles of equity and fairness
as was done by the Roman Dutch authorities.
The court acknowledged, as was done by the Roman Dutch authorities, that setting security for
costs protects an incola defendant, however a plaintiff should not be deprived of this right of
access to court simply because he was financially unable to set security.
The court held that Mr Magida was resident in the same area for a long period of time, he had a
fixed address and permanent job, and even though Ciskei was now an independent country, SA
court orders could still be enforced in Ciskei.
The court held that based on the Affidavits by his employers he was an honourable person and
therefore it can be accepted that the claim was bona fide.
He was thus absolved from furnishing security

3.5
Amendment of pleadings and documents

• Parties bound to pleadings:

May not lead evidence to prove material facts not averred in pleadings (facta probantia)
Evidence may not contradict averments made in pleadings (facta probantia)
Not absolutely bound
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Requirements: Bona fides NB (amend pleadings)

Prejudice suffered rectified by appropriate cost order
Affidavits: Supplementary affidavit

• What is permissible: (as far as amendments are concerned)

Withdrawal of an admission (done by defendant)
Creation / inclusion of a new cause of action (done by plaintiff)
Amendment of parties (done by plaintiff)

• An amendment will be refused:

If it is made male fide
If it will harm the other side and a cost order cannot remedy the harm suffered

• The court always has discretion as to whether to allow an amendment or not

The following amendments are usually not allowed:
Amendments making the pleadings excipiable (party can raise an exception as to no cause of action)
An amendment that will introduce a prescribed claim
Introducing a claim over which the court has no jurisdiction

PROCEDURE FOR AMENDMENT OF PLEADINGS AND DOCUMENTS

• HIGH COURT HCR 28

• MAGISTRATES COURT MCR 55A

• The High Court and the Magistrates’ Court both provide for the same procedure regards the amendment
of proceedings

• Procedure
• Must notify all other parties concerned
• Provide particulars of the intended amendment
• Notice of intention to amend must state that unless objection is noted within 10 days of receipt hereof, the
amendment will be deemed effective

• If no objection is received
All the parties are deemed to consent to the amendment

• If a written objection was received

• Application to court
• The court can make any appropriate order

• Consequences of the amendment

• The other parties affected by the amendment may:
• Amend their own pleadings as is necessary because of the amendments
• Cost order granted
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3.7
Interim payments
(HC only)

• HCR 34A

• Plaintiff may request an interim payment from the defendant

• Only if plaintiff is suing for:
• Damages re personal injuries suffered, or
• Damages for the death of a person

• Function: cover medical expenses and / or loses of income because of personal injury or death of a
person [breadwinner]

• The court will only grant an order for interim payment if at the hearing:
• The defendant in writing admits liability for the plaintiff’s damages [HCR 34A(4)(a)] and
• The plaintiff has obtained judgment against the defendant for damages to be determined
• Dispute regarding quantum not damages (NB)

3.8
Stay of Proceedings

• Court may under certain circumstances stay proceedings

• Proceedings may be stayed:

• Before the commencement thereof
• Temporarily or permanently
• By the court or automatically
• With regard to specific proceedings or in general
• Re the plaintiff’s claim or the defendant’s defence
• Proceedings can be stayed in both the High Court and the Magistrates’ Court

HIGH COURT
Stay of Proceedings
Stay because of the inherent jurisdiction of the High Court

Vexations
[in terms of the common law]
(Stay of proceedings in HC)

• Frivolous or oppressive
• So unfounded that failure is inevitable
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• An abuse of the court process

• The stay may be temporary or indefinite
• Vexations Proceedings Act 3 of 1956

Order of perpetual silence

(Stay of proceedings in HC)

• If a plaintiff threatens to sue, but delays to do so indefinitely, the “defendant” can request for the
granting of a perpetual silence order

Death of a Party
(Stay of proceedings in HC)

• When a party to proceedings dies, the process will be stayed until such time as an executor has been
appointed for the estate of the deceased

Insanity
(Stay of proceedings in HC)

• If a person is declared insane during proceedings, it will be stayed until a curator has been appointed

Insolvency
(Stay of proceedings in HC)

• Proceedings stayed until a trustee is appointed

Liquidation of a company
(Stay of proceedings in HC)

• Proceedings stayed until final liquidator appointed

Arbitration
(Stay of proceedings in HC)

• If a party issues summons, but should have revered it to arbitration first, the SPECIAL PLEA should
be raised at pleading stage
• If the special plea is not raised the process will not be stayed

Counterclaim extinguishes plaintiff’s claim

(Stay of proceedings in HC)

• It may be that the counterclaim raised if successful will eliminate the whole or a part of the original
claim
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• The defendant may state this in his counterclaim and request that the original claim be stayed until
the counterclaim is finalized

Criminal Proceedings
(Stay of proceedings in HC)

• An accused may bring an application to court requesting that civil proceedings be stayed until the
criminal trial is finalised

Failure to give security for costs

(Stay of proceedings in HC)

• Dealt with already (Request that civil proceedings stayed until security for costs set)

Lis Pendens
(Stay of proceedings in HC)

• Matter pending in another court (Special plea)

Unpaid costs of previous proceedings

(Stay of proceedings in HC)

• Unpaid costs
• (Request that unpaid costs paid before proceeding)

MAGISTRATES’ COURT
Stay of Proceedings

• The following are grounds to apply for the stay of proceedings:

• Death of a party MCR 52(3) - Trustee

• Insanity MCR 52(3) - Curator
• Insolvency - Trustee
• Liquidation of a company - Liquidator
• Arbitration - Special plea
• Criminal Proceedings - Request
• Failure to give security for costs MCR 62(2) - Request
• Lis Pendens - Special Plea
• Unpaid costs of previous proceedings - Request

• No Jurisdiction to stay proceedings:

• Vexatious: application to HC
• Magistrates’ court no jurisdiction to grant an order for perpetual silence (Jurisdiction)
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• Additional grounds to stay proceedings in the Magistrates’ Court:

Counterclaim exceeding the court’s jurisdiction MCR 47
Removal of the proceedings from the Magistrates’ Court to the High Court MCR 50

3.9
Offer to settle

18 (1) (a)
In any action in which a sum of money is claimed, either alone or with any other relief, the defendant may at
any time unconditionally or without prejudice make an offer in writing to settle the plaintiff's claim
(b)
An offer to settle the plaintiff's claim shall be signed either by the defendant himself or herself or by his or her
attorney if the latter has been authorised thereto in writing.

The defendant(?) can settle at any stage even after judgment on his own terms.
Costs must always be included in the settlement
The settlement must be made an order of court and if the defendant does not comply with the
settlement he will be in breach of the court order and execution and debt collecting will follow

4
DEFECTIVE PLEADINGS
There has been remedial procedures targeting defects in pleadings:
• Exceptions
• Motions to strike out
• Steps re irregular proceedings

4.1ntroduction
• A defendant may defend a matter BASED ON MERIT or NOT BASED ON MERIT:

• Defences based on Merit:

• Based on material / substantive law- focus is on the substantive side of law and whether there’s a cause
of action
• The defendant disputes the facts and / or law that the plaintiff relies on

• Defences not based on merit: (formal defect)

• With regard to procedural aspects i.e. is it defective because there is a misjoinder/ prescription/ form
and substance of the pleading being used
• Special plea: based on substantive law: prescription or formal law: misjoinder
• (No numerus clausus of special pleas)
• Formal defect: relied upon (pertaining in the procedure)
• Rules set out: how formal defects that may be objected to, and the procedure (how to object)

• Important points:
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The plaintiff may not raise a special plea in his replication

May however raise an exception, or apply for striking out or aver that the plea amounts to an irregular
step (defective pleadings)
In the High Court any party (even a 3rd party) may resort to these formal objections regards the process
In the Magistrates’ Court only the plaintiff and defendant (not 3rd party) may raise formal objections

4.2
Remedies against defective proceedings

4.2.1
Exceptions
Dealt with ito MCR 19 + HCR 23. It is used where a pleading is incapable of revealing a cause of action i.e.
the plaintiff didn’t specifically state a type of cause of action or a defence is raised that isn’t recognised in
court of law.
The legal objection to a formal + material defect appears on the face of the pleadings therefore no facts
outside of the pleading may be raised. The notice of exception may not contain any additional allegations, nor
may any evidence be adduced at the hearing. If you raise an exception it’s only within the 4 corners of the
documents and everything at the pleadings is what you use.
• Exceptions: Are raised concerning the pleadings (No cause of action)

• When exceptions are raised:

The whole of a pleading document
Part of the pleading only but must be self-contained and must constitute a separate claim or defence
Usual remedy if objection raised to a part of the pleading only: a motion to strike out
The court retains its discretion regarding costs

• The party raising an exception is the excipient, who excepts to the opposing party’s pleading i.e. the
person finds and issue with the pleading. The pleading against which the exception may validly be taken,
is the excipiable. The excipient excepts to the excipiable document. The opposing party’s whose pleading
is being excipiated against is the respondent.
• Applicant= excipient; respondent= respondent; document being excepted against= excipiable
• If the court uploads the exception, the respondent is given the opportunity amend the defective pleading.
Defects where an amendment can’t cure i.e. disposing of a matter be4 trial.

HIGH COURT
(Exceptions raised)
HCR 23

• Grounds for exception in the High Court:

• HCR 23(1)

• Grounds for raising an exception:

That the pleading is vague and embarrassing, or lacks averments necessary to sustain an action/
defence
That the pleading does not reveal a cause of an action or defence- lacks avernments
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• Requirement for upholding an exception:

Will only be upheld if the party raising the exception can show that the defect in the pleading will
prejudice his or her case

Vague and embarrassing

HC
A party entitled to know what the cause of action is so the defence can prepare a case. Applicant needs to
know what defence is being taken to the cause of action. If not clear thus pleading unclear.
• Examples of vague and embarrassing pleadings:
Contradicting averments are not put in the alternative
A bare denial
Pleadings can be interpreted in several equally possible ways and it is therefore unclear what is
averred- if you have to ask whether someone is being sued ito contract/ delict thus vague and
embarrassing
Inconsistencies between the summons and the documents relied on to support the claim
If in the case of a summons, it is unclear whether the plaintiff’s claim is based on a contract or on a
delict
Substantial embarrassment can be caused where the defendant fails to plea in a specified way set out
in HCR 22(2) and MCR 17(2). Either you have to admit, not admit, deny or confess.
Where lacks particularity and doesn’t include particular allegations, and contains bare reference to a
statute without specifying the particular section/ regulation.

The pleading does not reveal a cause of action / defence

HC

• This will happen when the facts necessary to prove in order to set forth a cause of action / defence
(facta probanda) is not contained in the pleading

• Examples of pleadings that do not reveal cause of action / defence:

The cause of action did not exist at the time the summons was issued
Non-joinder, lack of locus standi injudicio, or lack of jurisdiction
In these circumstances exception can only be raised if the defect is apparent form the pleadings
themselves
No extrinsic evidence in order to prove the exception is permissible
Not writing a letter of demand in certain instances

Procedure for raising an Exception

HC 23(1)
Within 10days need deliver a notice calling on the opposing party to remove the cause of complaint within 15
days on the date of the notice. The excipient has 10 days from the date on which the reply from the
respondent that notice is received/ from the date where the reply was due, to deliver the exception. If the
respondent belie there is merit in the exception, then may within 15day period amend the pleadings in the
prescribed manner.
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Except a pleading be4, within the time is allowed be4 the other pleading is filed. Failure to remove/ rectify
the pleading allows the excipient to except by delivering notice of exception, delivers the notice within 10
days of the date which the respondent reply/ reply due.
• An exception is raised via a notice that is set down for hearing same as an application
• The notice must be filed within the period of time allowed for the filing of the next pleading
• The grounds on which the exception is based must be set out clearly (V& E or NCA)
• The notice must include the prayer for dismissal of the plaintiff’s claim with costs if the objection is
against the pleadings of the plaintiff

• Exception is raised because the pleading is vague and embarrassing:

Notice to the other party of the defect who must be given at least 15 days opportunity to remedy the
defect
If the excepting party is unhappy with the amendment, he or she must raise the exception via notice
and serve it on the other party within 10 days
Need only file subsequent pleadings once exception has been dealt with

Exception to a pleading not disclosing the cause of action, the excipient deliver the exception within 15 days
and within time be4 other pleading filed. No obligations on the excipient to give the opposing party ad
opportunity to remedy a defect.
Notice of exception must set out in clear + concise terms the grounds upon which the exception is founded
and must end in a prayer for the relief sought.

• Orders the court may make:

The court may decide to only make a decision regarding the exception at trial stage
Dismiss the exception
Uphold the exception.
The party at fault must then immediately apply for the amendment of her pleading. [HCR 28]
If this is not done, judgement may be granted against the party at fault
If the exception is upheld the party at fault would usually pay for the costs of the exception hearing

MAGISTRATES COURT
MCR 17(1) - (7); MCR 19(13) - (15), (18) & (19)

• MCR 17(2)
• Grounds for Exceptions in the Magistrates Court

• Exception can be raised by the defendant regarding the plaintiffs summons if:
The summons does not disclose a cause of action NB: ‘Whole cause of action’ requirement
The summons is vague and embarrassing
That the summons does not comply with the requirements of MCR 5 & 6
That the summons was not properly served
That the copy of the summons serves on the defendants is materially different from the original copy
on the court file

• MCR 19(4)
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• Exception can be raised by the plaintiff regarding the defendants plea:

The plea does not disclose a defence
Plea is vague and embarrassing
Does not comply with the requirements of MCR 17
Some kind of prejudice

MCR 19(1)

Exceptions and applications to strike out:

Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or
defence, as the case may be,
The opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception
thereto and may set it down for hearing in terms of rule 55(1)(j):
Provided that where a party intends to take an exception that a pleading is vague and embarrassing such party
shall within the period allowed as aforesaid by notice afford such party’s opponent an opportunity of
removing the cause of complaint within 15 days:
Provided further that the party excepting shall within 10 days from the date on which a reply to such notice is
received or from the date on which such reply is due, deliver the exception.”

MCR5
Summons requirements

(6)
‘A summons shall also-
(a)
where the defendant is cited under the jurisdiction conferred upon the court by section 28(1)(d) of the Act,
contain an averment that the whole cause of action arose within the district or region, and set out the
particulars in support of such averment;
(b)
where the defendant is cited under the jurisdiction conferred upon the court by section 28(1)(g) of the Act,
contain an averment that the property concerned is situated within the district or region; and…’
(11)
‘If a party fails to comply with any of the provisions of this rule, such summons shall be deemed to be
an irregular step and the opposite party shall be entitled to act in accordance with rule 60A’.

Procedure for raising an Exception

• The same as in the High Court:

Vague and embarrassing: party at fault must be granted the opportunity of remedying the problem
Notice and particulars regarding an exception should be given

• Orders the court may make:

Same as High Court
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If the exception is raised against the plea: Defendant must apply immediately for permission to amend
his plea
If he does not do this or if the court refuses permission to amend the court may grant judgment in
favour of the plaintiff

4.2.2
Motions to strike out
Exception is the objection of substance which affects the opposing party’s cause of action. Striking out is
where a party objects to a word/ sentence in the opposing party’s pleading/affidavit on the basis that it’s
irrelevant/ fictitious.
• Motions to strike out aimed at a specific section of the pleading only
• Usually because:
Prejudice to a party
Irrelevant, therefore taxing the proceedings unnecessarily
• Effect: Destroys section objected to or sometimes may destroy an entire pleading

HIGH COURT
HCR 23(2)
Raising a motion to strike out

• Grounds for raising a motion to strike out in the High Court

• Claims made are either:

Scandalous
Vexatious
Irrelevant
Prejudice
Thus the opposing may apply for the striking out of a n objectionable matter ito HCR 23(2)- matters
contained in a pleading and ito HCR 6(15)- matters contained din a affidavit.
Ito MCR 19(2)- matters ito pleadings and MCR 55(9)(a)+(b)- ito affidavits
Both these rules expressly provide that court will not grant the application unless satisfied that the
applicant will be prejudiced in the claim/defence.
Beinish v Wixley- court emphasised that there are 2 req that must be satisfied before an application to
strike out can succeed. The matter must be scandalous, vexatious/ irrelevant and the court must be
satisfied if such a matter isn’t struck out the party seeking relief would be prejudiced.

Terms scandalous, etc isn’t defined ito the rules but are ito case law. Scandalous- allegations which
may or may not be relevant, but are worded to be abusive/ defamatory I.e. allegations attacking
persons character, creating gossip/ rumour. Vexatious- words convey an intention to harass/annoy i.e.
words that contradict, vague and embarrassing. Irrelevant- allegations which don’t apply and
contribute to the matter at hand, i.e. argumentative allegations, hearsay

• Costs and time wasted in order to rebut allegations not relevant to the dispute
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Procedure
HC 23(2)
Notice of application served on the opposing party within the time allowed for the filing of any further
pleadings. Application set down ito HCR 6(5)(f) and in MCR 55(1)(j). The application is interlocutory thus
must be done in the short form of the notice of motion. Prejudice is to be set out in an affidavit that
accompanies the notice of the application, the court must be satisfied that the applicant will be prejudiced if
the application isn’t heard. The affidavit will then be disposed and the respondent will hen respond to the
allegations. Whenever the application to strike out is and there may be no plea, replication or other pleading
over which will be necessary.
• Interlocutory application:
Application set down for hearing as with ordinary application [HCR 6(5)(f)]

• Orders by the court:

Approved: Section struck out
Dismissed: Applicant will probably pay costs

MAGISTRATES’ and REGIONAL COURT

• MCR 19(2)
• Grounds for raising a motion to strike out in the Magistrates Court:

• Claims made are either:

Scandalous
Vexatious
Irrelevant
Procedure

• Application procedure: Same as HC

• Orders by the court: Same as High Court

4.3.3
Irregular steps

• Deponent has not signed affidavit (application)

• Legal representative omits to sign particulars (action)
• HCR 30
• MCR 60A
• Rules don’t define irregularity, but it’s general a step which infringes HCR 18 + MCR 6- which are the
broader rules governing pleading or goes against HCR 22 + MCR17 which are specific rules governing
the content of pleas. (read p250).
• A party to a cause may set aside an irregular step taken by an opponent.

HIGH COURT
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IRREGULAR STEPS

• Applicable to actions and applications

• Any steps/proceeding not in compliance/ proper with court procedure can be set aside

• Irregular proceedings are defined in the rules:

Discretion of court
Mere “technical irregularities” not necessarily an irregular step
Gardiner v Survey Engineering 1993 3 SA 549 551 F-G
Substantial prejudice
Gardiner v Survey Engineering 1993 3 SA 549 551 C
The use of an application to set aside an irregular step may overlap with the use of the exception
procedure

A party to a cause where there is an irregular step may apply to court to set it aside, provided that the
applicant didn’t take a further step in the cause while having knowledge of the irregularity. Where the
applicant does take a further step while knowing of the irregularity, then he loses the right to have it set aside.
• A party objecting to irregular proceeding may not continue with process
• He or she may however:
Enter appearance to defend
Receive a declaration
Request security for cost

• Procedure:
10 days to give notice of defect
10 days to fix defect
If not fixed after 10 days, 15 days to bring application to set irregular step / proceeding aside
• Granting of the application is discretionary thus the court has the power to decide whether/not there has
been an irregular step taken. The court doesn’t grant an application unless its satisfied that the
applicant will be prejudiced (this component is NB).
• Court orders:
Dismiss application: costs against applicant
Condonation
• If step irregular + prejudice then court may rule that step be set aside as a whole or only in part
• The procedure for a striking out, the applicant must not have taken a further step while knowing of the
irregularity within 10 days of becoming aware of the irregular step. The applicant must deliver a notice
affording the opposing party the opportunity to remove the cause of complaint within 10 days. If the
opposing party fails to remove this then applicant will deliver the application within 15 days after the
expiry of the 2cnd period mention (the 10 day period within which the opposing party may have removed
the cause of complaint). Notice of the application and affidavit sets out the prejudice that may ensue.
• Application then set down for hearing. If at the hearing, the court is of the opinion that the procedure step
is irregular may set aside in whole/part either against all/some the parties and grant leave to amend/ make
any order as it seems fit.

MAGISTRATES’ COURT
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IRREGULAR STEPS

MCR 60A
(1)
A party to a cause in which an irregular step has been taken by any other party may apply to court to set it
aside.
(2)
An application in terms of subrule (1) shall be on notice to all parties specifying particulars of the irregularity
or impropriety alleged, and may be made only if-
(a)
The applicant has not himself or herself taken a further step in the cause with knowledge of the irregularity;
(b)
The applicant has, within 10 days of becoming aware of the step, by written notice afforded his or her
opponent an opportunity of removing the cause of complaint within 10 days; and
(c)
The application is delivered within 15 days after the expiry of the second period mentioned in sub rule (2)(b).
(3)
If at the hearing of an application in terms of subrule (1) the court is of opinion that the proceeding or step is
irregular or improper, it may set it aside in whole or in part, either as against all the parties or as against some
of them, and grant leave to amend or make any such order as it deems fit.
(4)
Until a party has complied with any order of court made against him or her in terms of this rule, he or
she shall not take any further step in the cause, save to apply for an extension of time within which to
comply with such order’.

• TOPIC 9 2020 PREPARATION FOR TRIAL

• Here the proceedings have been instituted already either via action//application procedure.
• The defendant has decided to defend the claim (because if s/he didn’t, there would be no need for a
preparation for trial but rather an application for a default judgment would be instituted)
• The pleadings have also been exchanged, thus the preparation for trial.
Here we consider the following:
1. STEPS THAT MAY BE TAKEN AT ANY STAGE OF THE PROCEEDINGS
2. STEPS THAT MAY BE TAKEN AFTER CLOSE OF PLEADINGS

1
STEPS THAT MAY BE TAKEN AT ANY STAGE OF THE PROCEEDINGS
Here we look at the trial, the action proceedings, the plaintiff and the defendant.
It concerns nine steps that we can take at any time during the proceedings.
1.1
• Request for Medical examinations to be undertaken
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• HCR 36(1)-(5A) and MCR 24(1) & (5)

• You can request for a party to undergo medical examination.
• It can be done in both the HC and MC depending on where the proceedings have been
instituted.
• If request is made in the HC, must follow HCR 36; and in the MC – MCR 24.
• The defendant may request that the plaintiff undergoes medical examination
• The Doctor would be of defendant’s choice and the defendant will pay for the doctor’s cost.
• If health of any other party is at stake, may request examination be done on that person as well, I.e.
plaintiff makes averment he cannot work and then a request would be made that the plaintiff must
undergo a medical examination.
• Once the medical examination takes place, a full medical report must be drafted and the copies of the
report must be made available to all parties UPON REQUEST – so that they can prepare for trial and
know exactly what is for what.

1.2
• A request for Medical reports, hospital records and x-rays to be provided

• HCR 36(4) and MCR 24(4)

This is in the instance where either the plaintiff or the defendant seeks those documents.
This request can be made at any time during the proceedings in both the HC (where HCR 36(4) will have to
be followed) and the MC (where MCR 24(4) will have to be followed).
• Where the request is made, it must be provided in order to substantiate the claim.

1.3
• Request for the Examination of things

• HCR 36(6) and MCR 24(6)

• Applies in both HC (HCR 36(6) to be followed) and the MC (MCR 24(6) to be followed).
• This request is made in order to ascertain if state / condition of property is relevant to the claim.
I.E – a car was damaged to 50 000 damages and the party seeks 50 000. The other party may want to examine the
thing (being the car).
There is one requirement: the request is only possible if the condition/state of the property/thing is relevant to the
claim.

1.4
• Request for the inspection of documents and tape recordings referred to in pleadings

HCR 35(12) – thus this request can only be made in the HC.

Requirement: Only if reference is made in pleadings / affidavits to above , can one make the request for
inspection of the documents or tape recordings.
 178

If during the exchange of pleadings reference is made to either documents or tape recordings (ie in the
particulars of claim or the pleading), a party can make a request for the inspection of such documents and tape
recordings

1.5
• Making use of Evidence of expert

• HCR 26(9) and MCR 24(9)

Applies in both HC (HCR 26(9) to be followed) and the MC (MCR 24(9) to be followed).
Expert will give his or her evidence via testament.

• Requirements:
• Must give notice of intention to use expert at least 15 days before trial & MUST provide expert
report, that is required to given by expert, at least 10 days before trial.
1.6
Making Use of a plan, model or photograph in evidence:

• HCR 36(10)(a) + (b) and MCR 24(10)(a),(b),(c) + (d)

Applies in both HC (HCR 36(10)(a) + (b) to be followed) and the MC (MCR 24(10)(a),(b),(c) + (d)to be
followed).
In order to make use of a plan, model / photograph in evidence.
• Requirements:
o MUST give notice of intention to use the plan, model / photograph in evidence.
o MUST make it available for inspection.
Thus if opposite party wants to see the model, plan or photograph, can do so.
1.7
Pre-trial procedure for formulating issues

• Applies in HC - HCR37 to be followed

• Applies in MC - MCA S54 + MCR 25 to be followed
Also referred to as a pre-trial conference.
After the exchange of pleadings, documents etc, the function of the pre-trial procedure for formulating issues
is below. This occurs because there may be certain issues that have not been crystallised or yet eliminated.
• Function:
Identify and eliminate issues that are not in dispute and thus wont be argued in court
Shortening of process (which also serves as a benefit)
Saving of costs (which also serves as a benefit)

1.8
• Brief to advocate/Briefing and Advocate
There is no difference/divide in respect of the professions in relation to an advocate and attorney.
Previously, the Bar Council was for Advocates and the Law Societies were for Attorneys.
 179

Only Advocates could be in HC and could not be briefed by the public.

Attorney’s could be briefed by the public and could apply for admission into the HC.
Now there is a Legal Practice Council regulating the now amalgamated body of attorneys and advocates.

Only if one appointed

Ie if matter referred to court and the attorney is busy or does not want to take on the trial, s/he could brief
an advocated. If the attorney also does not have right of appearance in the HC, attorney should brief an
advocate as to what is required, background of case. [MUST BE DONE BEFORE TRIAL] advocate will
then appear for the client.
1.9
• Check the court file
• The file that will be looked at by the magistrate or judge must be in order.
• One must ensure that there is an index, that it has been paginated, the numbers are all there.
• Index and paginate
• Ensure everything and all documents are there
• Duty of plaintiff because s/he has instituted proceedings and is dominis litis.
• It is to the interest of defendant because the documents will be in order.
• It is important because problems may arise if the court file is not in order.

2
STEPS THAT MAY BE TAKEN AFTER CLOSE OF PLEADINGS

2.1
• Set down for trial / Request for a trial date

• Applies in the HC: HCR43: Registrar provides trial date

• Applies in the MC: MCR22: Clerk provides trial date
NB – MC also has jurisdiction regarding divorce matters and proceedings and here the registrar in the MC
will provide the trial date.
Plaintiff is required to give a notice of set-down within 15 days of the closing of the pleadings.
• If plaintiff fails (as dominis litus) to give notice of set-down within 15 days of close of pleadings,
defendant may apply for a date.

2.2
• Discovery of documents (between the parties)

• Aim of Discovery of documents (between the parties) is: Proper trial preparation because must
know the documents of the opposing party.
• Affidavits of own client are not discovered as it is protected by attorney client privilege (certain
requirements to be met, advise given, requirements met, such affidavits will be protected).
• Details in HC and MC hereunder
 180

• HIGH COURT DISCOVERY HCR35

• When does discovery take place? After close of pleadings but Must
be before trial because the parties must prepare for trial with these
documents which are to be used.

• Which documents must be discovered (discovered means

informing the other party of what documents you have and will be
used for trial)? All documents relevant to the trial
Documents include: tape recordings (you get CD, cell phone and computer-generated recordings but
HCR 35 wording just speaks on tape recordings)
HCR 35(15) Defines ‘document’ for purposes of discovery (only those documents for purposes of
discovery and trial).
In the HC, discovery MUST take place.
• Discovery HC
Format of discovery in the HC is done by affidavit. An affidavit is sworn before a commissioner of oath.
• Affidavit:
Form 11 of First Schedule HCR
• Attached to affidavit:
2 Schedules

• Schedule 1 content
HC Which documents?

• In schedule one, all the documents that will/must be listed are all documents that are:
Relevant to the dispute, and In the possession or under the control of a party to the dispute or his
legal representative, and That he intends to use at the trial.

• All documents listed must be separately identified (ie – 1, 2, 3, 4, 5)

• Only relevant documents:

Do not need to discover that which will only advance your own case unless you intend to use such
documents at the trial. [Robinson v Farrar 1907 TS 740]
Must discover documents that will aid opponent (advance his or her case) but is in your possession or
under your control.
If you do not discover a document and don’t list the document, you cannot use it at trial, but
opponent can!
NB- this is all about justice and fairness.
 181

• Schedule 2 content HC

• All documents that must be listed in schedule two are those that
are:
• Privileged
• Marked “without prejudice”
• Already on court file (pleadings and notices)

• Party (plaintiff or defendant) omits to discover? Application can

be made to compel the party to discover these documents.

• Party still does not discover? Claim (iro plaintiff) or defence (iro
defendant) can be dismissed

• Late discovery by party?

If the opponent is prejudiced: postponement + appropriate adverse cost order may be ordered against the
party who causes the prejudice.

MAGISTRATES’ COURT DISCOVERY MCR 23

• Discovery MC

• Same as High Court procedure - looks at MCR 23

• Only difference is that in MC it is not compulsory to discover
• BUT you must however discover if the opposite party requested the party to do so

2.3
• Request for further particulars in order to prepare for trial

• HCR 21 (2) – (5)

• Only possible in High Court

• When?
Request can only be made after close of pleadings and not less than 20 days prior to trial.

2.4
Procuring Evidence

• Applies when witnesses are vital to success of case in instances where documents are insufficient
for trial.
 182

• Attendance at Court:
• How do you ensure they will attend?
1. May be done by an informal request. However, there is no formal sanction against witness if she
fails to attend trial.
2. Thus, it may be done by subpoena as well. Here one will be in contempt of court if s/he does not
show up for court and a warrant of arrest will be issued for such an individual.

• Are witnesses paid for the time to attend court (because have to take off from work etc)?
• In the HC - A42 SCA Remuneration of basic expenses ito schedule E1 is given to witnesses.
• In the MC - R26 & S51bis of the MCA compensation concerning expenses incurred will be given to
witnesses. (must be money that was spent thus its different from the HC).

Can request the person/witness to be there physically and/or to bring certain documents as well.
• Subpoena duces tecum:
Refers to where the testimony focuses on specific documents and the witness is required to bring those
documents to trial

• HCR 38
• Evidence on commission Fernandes case
PRESCRIBED CASE
• Fernandez v Fittinghoff & Fihrer 1993 (2) SA 704 (W)

This is used when a witness cannot come to court for eg because he is ill, old or overseas.

A commissioner is then appointed and the commission together with the plaintiff and defendant and their legal
representatives will then go to the witness.

The witness will then be examined as if he was in court, there will be examination in chief and cross-examination, re-
examination etc.

The commissioner will keep a record of the proceedings and this record will be read into the court record and
provided to the presiding officer.

There will then be an application for the evidence to be taken on commission and the court has to decide whether to
allow the evidence to be taken in this manner.

The court exercises its discretion by using the following test:

1. whether it is convenient

2. whether it is necessary for the purpose of justice

FERNANDEZ V FITTINGHOFF
 183

This case explains all the elements that the court will consider when deciding whether it is convenient and necessary
for the purpose of justice.

These elements are:

1. How material is the evidence

2. Is there any guarantees that the witness will testify what we think he is going to testify.

3. Are there any alternatives available that may be more convenient or cheaper that will produce the same
result

4. Is the application for evidence to be taken on commission bona fide, in other words does the applicant really
believe he needs the evidence or is this just a stalling tactic on his part.

5. How convenient and how expensive is this exercise

6. What prejudice will the applicant suffer if evidence on commission is not allowed

7. How vital or important is it for the court to get feedback on this evidence.

The question is thus whether there will be absolution from the instance if the evidence is not allowed or
whether there is enough evidence for the court to make a judgment.

In Fernandes v Fittinghoff, Reo Construction borrowed money from Fittinghoff

Fittinghoff then requested surety and the surety was signed by Fernandes as director of Reo Construction

Reo Construction then failed to pay its debt and a summons was issued, the plaintiff being Fittinghoff and
the defendant was Fernandes as surety.

The plea was filed by Fernandes and he then amended his plea to include a second defence namely that
the surety was signed by Fernandes but there was no initials and that it was in fact signed by a V Fernandes and not
him, M Fernandes.

He also argued that V Fernandes had no authority from the company to sign the authority and that he was
also a minor at the time.

The surety was thus null and void.

V Fernandes was however in Portugal and M Fernandes brought an application that evidence be taken on
commission.

The court had to determine the following:

1. How material is the evidence

The court held that the evidence was material because if V Fernandes signed the surety, then the
surety would be null and void.

2. What guarantees does the court have that the evidence will be forthcoming
 184

In this regard the court was hesitant in accepting that the witness
would admit to all the allegations as it would have consequences against him.

3. Are there any alternatives available that may be more convenient or cheaper that will produce the
same result.

The court held that there were alternatives available to determine

whether the signature of the surety was that of M Fernandes namely to call in a handwriting expert.

4. Is the application for evidence to be taken on commission bona fide, in other words does the applicant really
believe he needs the evidence or is this just a stalling tactic on his part.

The court held that V Fernandes was still in the country at the time when the defendant amended his plea,
yet no effort was made to obtain an Affidavit from him to secure the evidence.

This casted doubt on the question whether the application was bona fide

5. How convenient and how expensive is this exercise

The court held that it would be very expensive and inconvenient foreverybody to go to the witness in
Portugal.

6. What prejudice will the applicant suffer if evidence on commission is not allowed

The court held that the potential prejudice could be lessened because there were alternative options.

7. How vital or important is it for the court to get feedback on this evidence

The court held that the evidence was not needed in order for the court to decide whether M Fernandes was
bound by the surety or not.

The application was accordingly turned down

97[TOPIC 10
2020
TRIAL AND JUDGMENT
 185

1. WITHDRAWAL
2. SETTLEMENT
3. PLACE OF THE TRIAL
4. DATE OF THE TRIAL
5. THE PROCEEDINGS CARRIED OUT IN OPEN COURT
6. RECORD OF PROCEEDINGS
7. PRESENCE OF PARTIES AT THE TRIAL
8. THE TRIAL
9. THE JUDGMENT

Sections and Rules:

HC: S 16 & HCR 19
MC: S5 of MCA& MCR 29-32

1
WITHDRAWAL

1.1
HIGH COURT WITDRAWAL

• HCR 41
When can a person
withdrawal and what are
the consequences?

If the withdrawal is
before the set-down of the
matter to trial: The
plaintiff may withdraw the
matter unilaterally
If the withdrawal is after
or at the set down of the
matter to trial:
Consent of other parties or leave from court must be granted.

If parties were prejudiced as a result of the proceedings until this point in time, costs must be tendered by
the party who is making the application to withdraw from the proceedings.

1.2
MAGISTRATES COURT WITHDRAWAL

• MCR 27
 186

• Certain scenarios to be considered:

1. Summons not served: notice must be given to clerk of the court only if notice has not been served.

2. Summons served, but no notice of intention to defend by the defendant: notice must be given to
both all defendants and the clerk of the court (because defendant will then file his or her plea if it was
a combined summons. If it was a simple summons, you have to wait for the declaration before the
plea is then entered. The cost should be tendered by the withdrawing party.

3. Summons served, + notice of intention to defend was filed by the defendent: notice to all
defendants and clerk of the court. The cost would probably be tendered by the withdrawing party.
Has different consequences that the second point where notice of intention was not filed.

• COSTS TO BE TENDERED BY WITHDRAWING PARTY

2
SETTLEMENT
Where parties agree to settle.
• Allowed in the HC - HCR 41(3) & (4)
• Allowed in the MC - MCR 27(6) - (10)

• When may the parties settle a claim?

Parties may settle at any time and they may settle on their own terms after judgment

• The Settlement reached during the course of the proceedings? Attorney of plaintiff must notify
clerk of the court and/or registrar regarding the settlement reached during the course of the
proceedings.

• Settlement can be made by a court order which is then legal binding, and a party who doesn’t abide
can be in contempt of court

• Read over in textbook for MC procedure

3
PLACE OF TRIAL

• Where does the trial take place?

The trial takes place at the court where summons was issued (the court which has jurisdiction in the
area where the defendant is domiciled or residing).

• HCR 39(22)
A matter may however be transferred from the HC to the MC within the jurisdiction of the court only if
trial not yet begun.
The application is made to judge in chambers to transfer. (cheaper and saves costs)
 187

• S50 MCA
Allows for the removal of an action from MC to HC (could be in instances where the jurisdiction has
been exceeded)

• S9 SCA
Allows for the transfer of a matter from One Main / Local Seat to another.

• S35 MCA
Allows for the transfer of a matter from one MC to another with consent of parties

4
DATE OF THE TRIAL

• When there is a trial taking place the date of set down, the notification given to the parties
• If however there is a need for postponement, the matter can be postponed if necessary
THIS IS ALLOWED IN THE COURTS OF SOUTH AFRICA
5
PROCEEDINGS CARRIED OUT IN OPEN COURT

• SCA S16 – applicable to the HC

• MCA S5

• The court may in special circumstances or in terms of legislation so prescribed, direct that the matter
be heard in camera (ie where the victim is a minor in cases of rape)
Generally, in an open court anyone from the public is allowed to go inside but requirements must be met
(etiquette in the court is required, thus no shouting etc)

6
RECORD OF PROCEEDINGS

• SCA S15(1) – applicable to the HC

• MCA S5(1) & MCR30
Are the proceedings recorded?
• All proceedings must be recorded
• This is NB in so far as knowing what happened and documents being transcribed, thus should be a
recording.

7
PRESENCE OF PARTIES AT TRIAL

• HCR 39
 188

• MCR 32
Here we look at the plaintiff, defendant and the trial. Should the parties attend and be present at the trial?
• All parties must attend ito HCR 39 & MCR 32

• Parties Failure to attend: Possibilities?

Plaintiff scenarios:
1. If plaintiff is absent but legal representative is present = an application
may be made for the postponement of proceedings + there might be a
costs order attached to that.
2. If plaintiff and legal representative are absent = defendant can apply for
a dismissal because none of the parties who instituted the proceedings
are present.
Defendant scenarios:
1. If the defendant is absent but legal representative is present = postponement + costs (same as
above) .
2. If the defendant and the legal representative is absent = plaintiff may request judgment

8
TRIAL
This is where the procedure was already chosen by the parties, pleadings have been exchanged, documents
discovered and its ascertained what the issues are.

• Plaintiff must be present represented by a legal practitioner

• Defendant must be present

• Procedure consists of:

• Open statements,

• Examination in chief,

• Cross examination,

• Re-examination etc

9
VARIOUS JUDGMENTS THAT A COURT CAN MAKE

• Judgment: REFERS TO THE ORDER AND REASONS

9.1
Judgments during the course of the trial
What can the court do during the course of the trial?
 189

9.1.1
Judgments concerning interlocutory applications (first possibility)

• Example: applications for a summary judgment, default judgment etc.

9.1.2
Absolution from the instance Standard
of Proof (second possibility)

• HCR 39(6)
• MCA S 48(c)

• Question: Did plaintiff (as dominis litus) meet the onus of proof?
• Test:
Is there enough evidence before the court so that a reasonable person can find in favour of the plaintiff?
Or
Did the plaintiff establish a prima facie case?

• If unsuccessful in the test:

The claim would be dismissed, however this is not res judicata.

9.2
Judgments after close of defendant’s case (trial)

High Court position

• Judgments that can be granted by the court:

For plaintiff in whole or (in part) partially (ie. Might be claiming 5000 and then you have successful for
the 5000 claim or in part).
For defendant in whole or partially
Absolution of the instance (case not yet proven, can’t expect defendant to come with evidence)
If plaintiff failed to meet burden of proof
If defendant failed to meet burden of proof: judgment in favour of plaintiff

Magistrate’s Court position

• MCA S48
• Judgments that can be made in court:
For plaintiff in whole or partially of claim
For defendant in whole or partially of
Absolution of the instance
 190

• Costs order can be made by court as deemed fit by court:

Court can make an order subject to condition
Court can make an order for payment in instalments

98 TOPIC 11
2020
PROVISIONAL SENTENCE PROCEDURE
(also referred to as a LIQUID SUMMONS)

I
INTRODUCTION
• Hybrid: action procedure & application procedure
• This is a mixture of the action and application procedure.

• Must distinguish between:

The principal case: reason for litigation, and
The provisional sentence / preliminary stage

Thus, NB - We have to distinguish between the principal case that is the reason for the litigation and the
provisional sentence which is the preliminary stage that is now the application basically made for provisional
sentence.

• Advantages:
Speedy and cost effective relieve (cheap relief)

• Onus on defendant to prove why defendant should not pay and that the plaintiff would probably not
be successful in principal case.

II
REQUIREMENTS

Requirement 1
Claim based on a liquid document

• The claim should be based on a liquid claim – don’t confuse this procedure with the procedure for a
summary judgment. The summary judgment procedure can be used for four types of claims. This is now
the provisional sentence procedure which can be based on claim that is ONLY based on a liquid
document.
• Thus, can only use this procedure if your claim is based on a liquid document
 191

• What is a liquid document?

A liquid document can be defined as a Document (which is a written instrument) that contains:
An unconditional acknowledgement of liability, for a fixed or determinate sum of money, where the
amount must be payable and the liability for the amount must appear ex facie (on the face of the
document) the document. It must be signed by debtor per Inter-Union Finance Ltd v Franskraalstrand
(Edms) Bpk 1965 4 SA 180 (W). An example of this would be a cheque.
Read the case!

• Evidentiary value of liquid document?

The document on the face of it creates a presumption of indebtedness against the defendant . So it’s a
claim that the plaintiff has against the defendant and there is a presumption of indebtness.

• Examples of liquid documents:

Cheques
Bills of exchange
Promissory notes
Letters of written acknowledgment of debt
Contracts of purchase and sale
Lease contracts/ agreements
Mortgage bonds
Judgements of other and foreign courts
Taxed bills of costs
Covering bond securing future advances
Surety bonds
Guarantees

Requirement 2
There is a probability of success in principal case

• Probability that the plaintiff will succeed in the principal case

• Liquid document creates presumption of liability

The liquid document creates presumption of liability because it presumes that because the
defendant’s name and signature being on the document shows indebtedness and thus should be
liable.

• Defendant must rebut presumption via defence raised in opposing affidavit

The defendant must rebut the presumption by a defence raised in an opposing affidavit.
This is something between an action and application

• Defendant carries onus to prove to court that plaintiff will not succeed in principal case
 192

• If court not convinced by either party [meaning that the probabilities favour neither plaintiff nor
defendant] provisional sentence must be granted, which is basically in favour of the plaintiff.

Provisional sentence procedure

• HC - Summons: Form 3 of First Schedule to the HCR + HCR 17 (3) & (4)
• MCR - Summons: Form 2A of Annexure 1 to MCR + MCR 6
This is where we find the actual procedures.
Procedure:

• The plaintiff should issue a summons and true copies of liquid document attached
Dies induciae: at least10 days
What is interesting to note is that there is a summons and an opposing affidavit and that is why we call it a
HC procedure or something between the two.
• Summons must contain the following:
Statement requesting payment of amount or in the alternative defendant must appear in court to
admit or deny liability
You allow for defendant to file an affidavit setting out a defence (the summons procedure
normally doesn’t have an affidavit; it has a plea and so on but HERE we are looking at an affidavit
setting out the defence.
Statement contains the date of appearance in court
Cause of action is stated in the statement as well
There is also a request that defendant can deny the signature and that s/he is the author of the
signature
Inform defendant of the consequences if no payment and to inform him of security de restituendo
if defendant pays full amount claimed.

• DEFENDANT CAN DO 1 OF THREE THINGS:

1- Acknowledge liability:
If the person/defendant acknowledges the liability
then s/he must then pay entire debt before date of
hearing that is stated in the summons.

If he or she does not make payment: The court

can grant the judgement on the date of the hearing
and this would then be a final judgement.

When there is a final judgement:

An execution would follow.

2- Deny liability and enters appearance to defend:

 193

The person argues against granting provisional

sentence that is based on the liquid document and
an example would be a cheque.

The person then files an affidavit setting out his or

her defence
The denial can be based on:
1. He or she disputes validity of liquid document:
He or she disputes the signature (ie its fraudulent, its not his or signature)
He or she alleges that plaintiff did not fulfil a simple condition and the onus would then be on the plaintiff
to prove the condition was fulfilled.

2. He or she argues that the plaintiff will not succeed in the principal case.
(defendant argues that s/he has a valid defence in principal case)
The facts that are outside the document (ie a cheque being the document) would be established via
evidence and should establish a valid defence. – iow defendant can look at the facts outside of the
evidence and prove there is a valid defence by way of evidence.

The onus is on the defendant to prove he or she has a valid

defence

3- Defendant ignores provisional sentence summons:

The court in this instance will grant the provisional sentence
summons.

Thus, in light of the three possibilities: If you acknowledge or

ignore liability, it is granted. However, if you deny liability, you
may enter into a defence and a number of factors must be taken
into consideration.

• Conclusion:
If the defendant files opposing affidavit, the plaintiff may reply (as is in the application procedure)

The plaintiff sets provisional sentence down for hearing

• NB - No oral evidence is allowed except oral evidence concerning:

The authenticity of defendant’s signature

If the parties’ consent (court can refuse nevertheless) – in other words, even if the parties consent to oral
evidence concerning the authenticity of the defendant’s signature, the court can say yes or no.

POTENTIAL ORDERS that the court can hand down

 194

Order 1
Provisional sentence is granted

• Judgement granted is provisional only

o If the provisional sentence is granted it is a provisional sentence only and is thus granted
provisionally.

• If plaintiff wants to EXECUTE the provisional sentence judgment:

The plaintiff must set security by way of payment of the full amount should the provisional sentence
judgement be set aside because the defendant may make an application to have the provisional sentence
set aside.

The defendant has 2 months to apply for setting the provisional sentence aside, thus the security must be
said.

• If defendant wants to set the provisional sentence judgment aside:

The defendant can apply (within 2 months) for setting aside the provisional sentence judgment only if:
He or she satisfies the judgement debt + paid taxed costs (she or he has to pay taxed costs)

• If plaintiff fails to set security:

The defendant may then file a notice to defend the principal case
The defendant must then enter a defence regarding the principal case within 2
months – this is then where the defendant proceeds via action procedure.

• If the defendant does not enter a defence within the time limit: The provisional sentence becomes
a final sentence. Thus, there are time periods involved.

Order 2
Provisional sentence is not granted

• Provisional sentence summons procedure is then converted to a trial which is an action procedure. It
would be as if one instituted proceedings via a summons.
• Provisional sentence summons is converted into combined summons. After the combined summons,
there would be a notion of intention to defend, the plea, replication etc.
 195

• TOPIC 12 2020 COSTS

1. LEGAL COSTS
2. DIFFERENT TYPES OF COSTS
Attorney Client Costs / Party Party Costs
3. AWARDING OF COSTS
Costs in accordance with the success of the case
4. COST ORDERS TO PENALIZE A PARTY

1
• LEGAL COSTS

• As a legal practitioner, you are required to do your

work and you will need to get paid otherwise you will not
generally be doing the work because you have to earn a
living.
• What does costs entail and as a legal practitioner, how
does costs work?

• Legal fees
✓ The costs that a legal practitioner would charge
and receive for doing work.
Example: Hourly rate for consultation - charging someone 1000 a hour or day or even charging a tariff
instead.

It is important to distinguish between legal fees and disbursements. Legal fees are costs that you charge and
receive, for example, in relation to consultation and for going to court and so forth. But you may also have had
to pay sheriffs and to pay for telephone calls or you had to pay to have photocopies done. These expenses
(telephone calls, payment to sheriffs, payment for photocopies) are not your legal fees, that is disbursements.

• Disbursements (Expenses):
✓ Telephone calls
✓ Photocopies
✓ Payments to the sheriff

• Legal practitioner must inform client beforehand of

rate at which legal costs will be charged - Thus an
agreement between the LP and client is required and in
absent of an agreement, there will be a tariff
NB – legal costs include both legal fees and disbursements.

• Terms need to be known in this section:

 196

o Reasonable – as a candidate LP or LP you

cannot charge R10 000 per hour, that would be
unreasonable as it could probably be charged by
a senior advocate but not necessarily a junior or
candidate attorney. Thus, when it comes to
what is reasonable, one must look at the LP’s
experience, and expertise etc.
o Overreaching - where you are overcharging,
charging more than what you would be due.
o Undercutting - where you are charging a bit too little, can’t charge R10 per hour, rather make it
pro bono / pro dio (no charge)

2
DIFFERENT TYPES OF LEGAL COSTS (know the difference)

• Attorney and client costs proper

• This is basically based on the tariff.

• We looking at the tariff for all cost, aka the ordinary tariff as prescribed by the rules.
o IE, if you draft a summons, the rules will state basically how much you can charge for that
drafting of summons.
• ITO the Attorney and client costs proper, you can basically charge for the fees for all work done and
all expenses incurred because the tariff is basically a very low amount, its not what would have been
agreed upon ito fees, if an agreement was made. Here whether the fees are reasonable or unreasonable is
not considered, as long as it was an expense incurred or work done, you can claim it in terms of this
legal cost.
• More items will be allowed and this is where there is a taxing master who will be more lenient in what
he allows
o IE, you have a bill of costs and the client is not happy with it and the matter is taken to the taxing
master. The taxing master, if this is what you have been awarded will allow these expenses for all
work done and all expenses incurred.

• Attorney and own client cost

• This is where the attorney and client enters into a contract and ito of the contract, they decide how
this (costs) will be governed.

• The Attorney and client negotiate a tariff in excess / different from the tariff provided for in the
rules.
o If the rules basically state that you are entitled to whatever amount for drafting a summons,
the attorney then says I am charging you per hour, it took me three hours to draft the summons
and therefore this would be the tariff. This amount would not be as low as the tariff.
• The payment would be according to an agreement or mandate
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o Ie where client comes to your office and you say I charge per hour for consultation, for
any work that I do, conversations on the telephone and that is what I charge and this is
what your bill of cost might be about.

• Can be an hourly/daily fee based on the event.

• Party and Party Costs

• This is also based on tariff but needs to be reasonable.

• Costs are determined by tariff but only the costs that are reasonable and necessary to institute or
defend a claim either by plaintiff or defendant. THUS, its not all costs or incurred expenses but it is
those that were reasonable.

• Costs reasonable incurred to defend the rights of the client

o This type of cost order is the normal cost order awarded by courts

• Contingency fees

• Applicable in instances where you have a client who has a very good case but cannot afford you. You
see that you can make a couple millions and enter into an agreement with the client.
• Agreement: Attorney works for free but if they win the case he can take a percentage of the amount
awarded (this occurs by way of agreement between attorney and client)

• This is governed by Contingency Fees Act 66 of 1997 (CFA)

• CFA says that this is not applicable in criminal and family law matters so cannot enter into such
agreements in those instances.
• CFA Act specifies the content of contract between client and attorney – thus must ensure as a LP
that your contract is in conformity with the Act.
• CFA and its provisions also allow for a cooling off-period because a client may, and is allowed to do
so in terms of the CFA, reconsider and cancel the contract if s/he so wishes.
• The provisions state that the attorney and client may negotiate double of the standard of the tariff
or up to 25% of amount received
• This contract (wherein the agreement is contained) is then registered at Law Society of province
and they may review contract.

3
• AWARDING OF COSTS

• Costs awarded in favour of plaintiff and defendant

• The Courts have a discretion when awarding cost
• Thus, we have to look at COST ORDERS

3.1
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• Cost orders in accordance with success in the case

• Successful:
What is meant by a successful party? The party will be successful even if the whole amount is not
awarded.
The claim and plaintiff is substantially successful so even if whole amount claimed is not awarded still
deemed successful
Ie - Claimed R150 000 but proved R120 000
Costs order usually awarded against unsuccessful party but in favour of the party.
Cost order may include an amount as well because that is the amount of money that was used to
institute the legal proceedings.

• Interlocutory order:
If an interlocutory application was made, the costs are usually the costs in the cause

The court will at the end of the matter award the costs for the interlocutory order together with the
other costs against the party that was unsuccessful – court will basically say wait until the end of the
matter, whoever the unsuccessful party is must also pay for the interlocutory application

• The court may however reserve the question of costs

concerning an interlocutory application until the end of
proceedings.

4
Cost orders to penalize a party

• Successful party pays costs of unsuccessful party (to

penalise successful party) – occurs when the Successful
party withheld information that was detrimental to the
case and s/he won the case OR the successful party is
guilty of misleading conduct which caused costs to be
incurred

[Nxumalo v Mavundla and Another 2000 4 SA 349 (D)] – where an example is made of where a
successful party was ordered to pay the costs of the unsuccessful party

• Unsuccessful party must pay attorney and client

costs: This could occur where there are Vexations
proceedings OR abuse of court process (commonly
where the instituting party does so)
• OR Gross failure to put essential fact(s) before
court
• OR Dishonesty / fraud / grave misconduct
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• De Bonis Propriis
This is where the LP/attorney is fined.
A Cost order is then given against the attorney / legal representative

[Clemson v Clemson [2000] 1 All SA 622 (W)] – this case deals with a LP who had to pay the costs
order. This is normally where the LP is problematic/didn’t advise his client correctly and it was
basically totally unreasonable.

The Applicant and Respondent were engaged in divorce proceedings. The Respondent had moved out of the matrimonial
home, taking the two children and certain goods. The Applicant brought an application for the return of the goods as a
matter of urgency in terms of Rule 6 (12) of the Uniform Rules of the Supreme Court.
Held – Rule 6(12)(b) requires an applicant for urgent relief to furnish reasons why he claims that he will not be afforded
substantial redress at a hearing in due course. The fact that someone has taken the law into their own hands can not
be classified as a good reason. The Court found that the Applicant’s claim for urgent relief was without any merit
whatsoever.

The Court found that the only rational explanation for the application being brought as a matter of urgency was to
harass the Respondent in order to intimidate her as part of a wilful, deliberate strategy.

The Court held further that the conduct of the Applicant’s attorney was of a wilful and deliberate nature and the attorney
should therefore be liable for the costs incurred in bringing the application. The attorney was ordered to pay the
Respondent’s costs de bonis propriis and was precluded from collecting any fee from his client in regard to the
application.

TOPIC 13
2020
EXECUTION

1
GENERAL

• Imagine we have gone through the whole action procedure, in which the summons has been
issued…. after the trial has taken place you have judgement.
• however, in the instance that one of the parties intend to execute the judgement. It must be
noted that there are 2 types of judgements.
• The question you would have to answer as an attorney is whether to institute the execution of
judgement in terms of which type of judgement
• Types of judgments:
Payment of money (Ad pecuniam solvendam) – This is where execution applies as well as
debt collection
Performance of an action (Ad factum praestandum) – ito specific performance without the
alternative of damages then one looks at imprisonment (this is based on the fact that such
person is in contempt of court)
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• Payment of money:
Execution
Debt collecting

• Performance of an action:
Imprisonment for contempt of court

2
PAYMENT OF MONEY
Judgments ad pecuniam
solvendam
2.1
Warrant for execution

• In the instance in which a defendant has been served with a summons, and the defendant
defended the action however, the defence was unsuccessful i.o.w there was a judgement
handed down in favour of the plaintiff and the defendant has to pay a sum of money in this
disregard.
• In order to execute the judgement the first step would be to institute a warrant of
execution. This warrant is firstly directed against either;
- Movable and immovable property OR
- Material and immaterial property

• There are certain property exempt from execution such as your pyjamas, and toothbrush
over and beyond these property can be attached.

2.2
Debt Collecting

• It is also possible for debt collecting procedures to also apply.

• In the Magistrates’ Courts there are Emolument orders and Garnishee orders

2.3
Emoluments / Garnishee orders
University of Stellenbosch Legal Aid Clinic v Minister of Justice and Others 2015 (5) SA 221 (WCC)

• Section 65J(2)(b)(i) and section 65J(2)(b)(ii) of the MCA are in the circumstances
constitutionally invalid to the extent that they allow for EAOs to be issued by a clerk of
the court without judicial oversight

• University of Stellenbosch Legal Aid Clinic v Minister of Justice and Others 2015 (5) SA 221
(WCC) –
The High Court declared that certain specified words in section 65J(2) of the
Magistrates’ Courts Act 32 of 1944 were inconsistent with the Constitution and invalid to the
extent that they failed to provide for judicial oversight over the issuing of an emoluments
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attachment order against a judgment debtor. A further declaration was granted to the effect
that section 45 of the Act does not permit a debtor to consent in writing to the jurisdiction of a
magistrates’ court other than that in which that debtor resides or is employed. The
declaration of invalidity was submitted to the Constitutional Court for confirmation as
required by the Constitution.
The first applicant was a law clinic established by a university, and the second to sixteenth
applicants were individual clients of the Law Clinic, who all had emoluments attachment
orders issued against them by clerks of the court employed in various Magistrates’ offices,
many of which were located far away from where the applicants resided and worked.
Held that the credit market is currently regulated by the National Credit Act 34 of 2005.
Section 129(1) demands that notice be given to the consumer, drawing her attention to the
default and proposing that if the consumer so wishes, she may refer the matter to a debt
counsellor with the intent that the parties may resolve the dispute and agree on a plan to
bring payments up to date. Both sections 129(1)(b) and 130(1) preclude the credit provider
from instituting litigation before satisfying their requirements.

TOPIC 14
2020
APPEAL AND REVIEW
This is where the matter isn’t receded but is taken on appeal/ review
• Difference between Appeal and Review in Magistrates’ Court

1
GROUNDS
• Appeal:
Aimed at result of the trial this is different to a review (see below)
With regard to the appeal, you object to the finding of the presiding officer
Where you disagree with interpretation of the facts and / or law- i.e. where you believe if the matter goes
on appeal in HC, judge might have a different interpretation

• Review:
More aimed at method by which result obtained
Grounds for review set out in SCA S24 iro HC
Examples of your issue:
instances where an unsuccessful party normally
wouldn’t be happy and now wants to take the
matter on review
Absence of jurisdiction of the judge
Bias
Interest in the cause
Corruption
Gross irregularity in the proceedings
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Admission of inadmissible evidence

Because the matter wasn’t tried, and it’ taken to the HC for example, what is the court record?

2
RECORD
• Because the matter wasn’t tried, and it’s taken to the HC for example, what is the court record?

• Appeal:
Court record is accepted as correct- because the idea is that if a different judge were to hear the same facts
he would come to the same conclusion
Parties are bound by record on appeal

• Review:
Grounds for review are not always apparent from the record – i.e.
where grounds could be found on something else bias/corruption
Parties may use extrinsic evidence to support the application- in
order to prove bias/ corruption

3
PROCEDURE
• Appeal:
Notice of appeal filed with the clerk of the court

• Review:
Notice of motion instituted in High Court

4
TIME LIMIT

• Appeal:
Prescribed by the rules- there is a deadline

• Review:
No time limit
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2.3
PERFORMANCE OF AN ACTION
Judgments ad factum praestandum

• Judgements ad factum praesandum concern judgement with regard to performance of an

action. In this instance a person does not perform as required and what happens is he
person is in contempt of court and could lead to his/her imprisonment

• Bear in mind with regard to imprisonment in the High Court, applications should be made in
terms of the contempt of court in order for a person to be imprisoned

However in the Magistrate court, one need not make an application as it is a criminal
offence to not perform as is required of a judgement.