Study unit 8.

1
Civil procedure
 Outcomes
•Study guide
•Prescribed work:
•Madlingozi: 10.5
•Also 9.1 – 9.3
•Various case law
• https://www.youtube.com/watch?v=PjJzOpe9xEg
 Legal terms
• Adversarial system
• Inquisitorial system
• Legal proceeding
• Cause of action
• Parties
• Legal costs
• Prayer & legal relief
• Onus of proof
• Judgment / Order
 Legal process
• Legally prescribed, step-by-step method
that a party to a legal dispute must follow to
be successful in the dispute.
• Civil case: where one party sues another in
connection with a breach of any aspect of
the law other than criminal law.
 Adversarial system
• Party that initiated the case gathers
evidence and place it before the court.
• Presiding officer usually passively involved.
• Principle of party control.
• PO act as umpire
 Inquisitorial system
• PO plays an active roll and supervises the
collection of evidence to resolve the case.
• Actively steers the search for evidence.
• Question parties to the litigation.
• No right to cross-exam
 • Pre-litigation stage
1

• Pleading stage
2

• Trial preparation stage

3

• Trial phase
4
Trial have four stages
 Different civil procedures
Action proceedings (tb 338)
• Parties
• Documents
• 4 stages
Application/Motion proceedings (tb 342)
• Parties
• Documents
• Ex parte & Notice
• Action procedure concludes with a trial with live
witnesses before the judge.
• Application ends in a “paper trial” with the judge
reviewing evidence (including affidavits) and hearing
submissions from lawyers.
Application Process Madlingozi: p343)

Applicant - Notice Respondent - Respondent -

of Motion & Notice of Intention Answering
Founding Affidavit to Oppose Affidavit

Applicant - The application is

then heard before
Replying the presiding
Affidavit officer
 Trials

• http://www.youtube.com/watch?v=uvrHS7KdZ64
 Civil trial - Stage 1
Pre-litigation stage
• Consultation with client
• Consultation with witnesses
• Evidence?
• Material dispute of facts? Cause of action?
• Parties? Locus standi?
• Jurisdiction?
 Civil stage – Stage 2
Pleading stage:
•Pleading? Which will you use?
•Summons
•A court issued document which starts the
litigation process.
• Particulars of claim
 Types of summonses
• Simple
• Combined
• Provisional Sentence
• Automatic Rent interdict
• 5 aspects/allegations to be contained in
summons
 Simple Summons
• Where the claim is for a debt or liquidated demand.
• Does not embody all the particulars of claim, but it must set out the
nature of the claim.
• Only if the defendant delivers a notice of intention to defend does the
plaintiff give full particulars of claim in the form of a declaration.
• The declaration must be delivered within 15 days after receipt of the
notice of intention to defend. It must set forth the nature of the claim,
the conclusion of law which the plaintiff shall be entitled to deduce
from the facts stated therein, and a prayer for the relief claimed.
 Combined summons
• Where the claim is not for a debt or liquidated demand
•  A statement of the material facts relied upon by the plaintiff in
support of his claim must be annexed to the summons.
• Particulars of Claim advise the defendant of the relief claimed against
him and the grounds upon which such relief is claimed.
• As such it should clearly and concisely state the material facts on
which the plaintiff relies for his claim, with enough particularity to
enable the defendant to reply thereto.
• Particulars of Claim set forth the conclusions of law which the plaintiff
is entitled to deduce from the facts stated therein.
 Civil trial - Process
• Summons is issued:
• This is done at court
• Clerk of the court (lower courts) or Registrar of the Court (High Court)
• Original summons and 2 copies
•Summons is served:
• Summons must be swerved by the Sherriff of the Court
• Different ways the serves can take place
• In some instances (such as divorce actions) the summons must be served personally
on the defendant
• Sheriff takes original summons and a copy to be served on the Defendant
• Original summons is filed in the court file
• 1 copy is served on the defendant and 1 is filed in client's file
 Next class
• Class preparation will be communicated on
eFundi.
 Particulars of claim (contract)
1
• The Plaintiff is...
2
• The Defendant is...
 Set out the jurisdiction of the court
3
This honourable court have
jurisdiction…
 Details of contract
4
On or about 1 January 2022 and at or near
Potchefstroom, Plaintiff and Defendant , both
represented by themselves, entered into an oral
contract.
 Set out the terms of the contact
5
In terms of the contract:
5.1 Defendant would buy from the Plaintiff BMW
DRP123NW (the vehicle).
5.2 Purchase price would be R80 000-00
5.3 Purchase price would be payable within 30
days of delivery
 Performance in terms of the contract
6.
• Plaintiff delivered the vehicle to Defendant on 2 January
2022 who accepted delivery
7.
• Notwithstanding the lapse of 30 days after delivery of the
vehicle and demand of payment (attached annexure A) the
Defendant has neglected and/or failed to pay to the Plaintiff
the sum of R80 000-00.
 Legal premises

•In the premises the Defendant is

indebted to the Plaintiff in the sum
of R80 000-00
 Prayers
• WHEREFORE THE PLAINTIFF PRAYS FOR AN
ORDER IN THE FOLLOWING TERMS:
• 1. Payment of the sum of R80 000-00
• 2. Interest thereon at the rate of 15.5% from date
of judgment
• 3. Cost of suit
• 4. Further or alternate relief
 Undefended action
• No appearance to defend is entered
• Obtain judgment by default
• Send letter of demand requesting payment
• If payment is not forthcoming or no arrangements for payment was
made, start attachment procedure.
• Execution process – attach property
 Stage 2: Defended action: Combined
summons
• Notice of intention to defend
• Plea
• Reply to plea (if necessary)
• Litis contestatio (close of pleadings)
 Stage 3
• Trial preparation stage:
• Notice to enrol matter for trial
• Discovery – documents & expert witness: The object of discovery is to
ensure that before trial both parties are made aware of all the
documentary evidence that is available. By this means the issues are
narrowed and the debate of points which are indisputable is eliminated
• Pre-trial conference
• Trial date allocated
• Notice of set down
 Importance of discovery

Discovery is a vital part of litigation for the following reasons:

• As a general rule, a document may not be used in evidence at trial unless it has
been set out in the schedule(s) of the discovery affidavit. Such a document may
only be used in exceptional circumstances and with leave of the court.
• Failure to discover may result in judgement being given against the defaulting
party in the main action.
• Documents, which may harm a litigant's case, must be ascertained as soon as
possible to limit any damage that may be caused.
• Discovery to a large extent reduces the 'surprise' element.
• The list of documents supplied by the opposition may be of help either in
supporting the litigant's case or in destroying the opposition's allegations.
 Stage 4
Trial:
• Evidence is presented
• Onus usually rest on the plaintiff
• Plaintiff made initial allegations and therefore must prove it
• Onus: On a balance of probabilities
• Should probabilities favour plaintiff she will win.
• If evenly balanced or favour defendant then defendant will win.
• Absolution of the instance.
 Structure of trial
• Opening address by Plaintiff’s attorney
• Opening address by Defendant’s attorney
• Witnesses for the plaintiff testify in succession
• Examination in chief
• Cross-examination
• Re-examination
• Questions by the court
• Questions by legal representatives
• Closing of Plaintiff’s case
• Absolution of the instance if possible.
• Defendants case
 After trial
Three options to recover judgement debt:
1. Warrant of execution
2. Section 65A proceedings
3. Emoluments attachment order
 Cost orders by court
• Party and party costs
• Attorney and client cost
• Attorney and own client cost
• Cost de bonis propriis
• Wasted costs
• Cost reserved
• Cost in cause
• Cost of the day
• Taxed costs
• No cost order
 Cost orders:
• PURPOSE OF COST ORDERS
The purpose of an award of costs is to indemnify a successful party who has incurred
expenses in instituting or defending an action.
• Costs fall into one of two categories, namely Party and Party and Attorney and Client
costs.
• Party and Party costs do not include all costs, but only costs that have been necessarily
and properly incurred.
• Attorney and Client costs are further sub-divided as follows:
• Where one's client is to pay them, the costs are known as attorney and own client cost
• Where the losing party in litigation is to pay, such costs mean all reasonable costs
incurred on behalf of the client, although not strictly necessary. These costs are taxed
according to the tariffs, but generous leeway is given.
• Costs de bonis propriis
• Awarded against person acting in a representative capacity. Such costs are a
penalty for improper conduct and the representing person must pay out of his
own pocket.
• Wasted costs
• Costs are wasted when the services occasioned by them are of no use to the
parties in the action, e.g. subpoenas, notice of set down.
• Reserved costs
• These costs are reserved for argument and determination by a trial court when
the trial court can more effectively determine liability for costs of an interim
application.
• Costs in the cause
• Party liable for costs in the main action will then also be liable for costs of
an interim application.
• Costs here and below
• Order made by court of appeal when awarding costs to the party whom
has won both in the court of first instance and the court of appeal.
• Qualifying expenses
• These are the expenses necessarily incurred by a witness who has to
qualify himself to give evidence upon same matter, e.g. investigations,
experiments, research.
 Award of costs in courts discretion
• General rule is that the successful party is entitled to his costs.
• Where a successful application is made for the grant of an indulgence the general rule is that
costs do not follow the event.
• In determining the successful party, the court should not only look at the form, but also the
substance of the judgement, e.g. inflated claims, partial success.
• The court can for good reason deprive a party of his costs, in whole or in part, e.g. excessive
demands, taking unnecessary steps, vexatious proceedings, technical success only.
• The court can, for good reason, order the successful party to pay all or part of the other parties
costs, e.g. misleading statements.
• The court can, in special circumstances, order one party to pay the costs of the opponent on an
attorney and client scale, e.g. dishonesty, fraud, grave misconduct.
• The court may order the unsuccessful party, suing or being sued, to pay costs de bonis propriis,
e.g. material departure of responsibility of office.
 Next class:
Research:
1. What is the legal definition of murder?
2. What elements must be proofed before a person can be convicted
of murder?
Reading:
3. Madlingozi 10.3 and 10.4
Research: Navorsing:
1. What is the definition of 1. Wat is die definisie van
murder? moord?
2. What elements must be 2. Watter elemente moet
proofed before a person can bewys word voordat ʼn
be convicted of murder? persoon aan moord skuldig
Reading: bevind word?
3. Humby 9.3 Leeswerk:
3. Humby 9.3