CIVIL

PROCEDURE
LOCUS STANDI

P35-59
WHAT IS?

= legal standing in a matter

2 tests:
• direct/substantial interest
• Legal capacity
DIRECT/SUBSTANTIAL INTEREST

Common law

Subject matter + outcome

May litigants enter and defend?
= point in limine, before litigation
Jones & Buckle:

- Adequate interest in subject matter;

- Interest not too far removed;
- Interest = actual, not abstract
- Interest = current, not hypothetical

Financial interest not always adequate – see

example p 36
Bill of Rights
S38:
• In own interest
• Obo another person, who cannot act in own
name
• Member of/in interest of group/class of persons
• In public interest
• Association, in interest of members
Benefit of “class action” – issue tried once on in
everyone’s interest

Benefits accrue to everyone

Large groups of individuals can now be assisted in one

trial

Must be certified as
“group” by court – see ex p 37
CAPACITY TO LITIGATE

Both natural/legal persons

Some persons must be represented by others…

Others may only defend actions…

No legal action against diplomats…

Children

No LS – assisted or represented by guardian –

difference in citation – see p 39/40

Child = litigant, not the guardian

Guardian NOT liable for costs against child, unless he

acted recklessly/frivolously
Dual capacity: guardian represents child (nomine
officio) AND acts on own behalf (eo nomine) – ex p 41

See citation p 41 (be able to draft)

Curator ad litem where:

• No guardian
• Guardian refuses to act
• Guardian missing
• Conflict of interests between guardian and child
Application before litigation starts

Citation in pleadings – see example p41 (be able to

draft)

Child may litigate unassisted:

- Curator ad litem
- Permission granted by court
- Marry without parent’s/guardian’s consent
- Permitted by statute, eg family violence.
Children’s Act extends locus standi

S15 – who may approach court:

• Child affected by/involved in matter

• Someone acting in interests of child/on behalf of
someone who cannot act in own name
• Someone acting as member of/in interest of
group/class of persons
• Someone acting in public interest
Married women

Marital power abolished – 1 December 1993

All women now have LS

HC Rule 17(4) amended – no mention of marital status

any longer for purposes of Summons
BUT remember Matrimonial Property Act, s17:
Woman, married IN community of property, may not
litigate against another person WITHOUT written
consent of spouse, unless:

• Proceedings between spouses (eg divorce);

• Spouse’s separate property;
• Damages, other than for patrimonial damages, as
result of delict against her;
• Matter re profession/trade/business
BUT note:

• s17 MPA = NOT applicable to LS

• Lack of written consent will not negate LS

BUT lack of consent an result in adverse cost order…

Mentally disabled persons

No LS – cannot appreciate nature/impact of legal

proceedings

HC rule 57 – procedure: declared of unsound mind +

incapable of handling own affairs

Curator ad litem appointed – thereafter, curator

bonis/ad personam appointed
Requirements:

- Affidavits of 2 medical professionals

- Name of suggested curator (advocate)
- Consent letter from suggested curator

Frequently found in Road Accident Fund matters

Prodigals

Curator ad litem not necessary, unless person does not

understand/appreciate court proceedings to have him
declared a prodigal

May litigate unassisted, unless court orders otherwise

Insolvents

Sue/be sued in own name with no reference to trustee

However, see s23, Insolvency Act… (do not have to

study in this module – will be covered during
Insolvency Law lectures)
Fugitives from justice

No LS

May not institute in SA, but may defend

Each case to be determined on own merits, because

everyone has right of access to the courts (s34,
Constitution)
Alien enemies

= people voluntarily residing/carrying on business in

enemy territory during war

May not sue in SA courts

BUT may be sued in SA courts

BUT may sue if under state protection in SA

Judges

S47(1) SC Act:
Need consent to sue – from head of court/Chief
Justice/President of SCA/Judge-President

Ensure independence of judiciary

Notice to senior judge – notice to applicable judge

Members of Parliament, provincial legislatures,
municipal councils

Constitution, s58(1)(a) and (b): Not liable for what they

have said/produced to Parliament/any committee

Extended to delegates of National Council of

Provinces/members of provincial legislatures -
Constitution, s 71(1) and 117(1)
Trusts

No legal persona like company/close corporation

Trustees must therefore be sued in capacity as

trustees – nomine officio
Partnerships, firms, associations, etc

No legal personality of their own

No LS

Common law – each member of partnership to be

joined and sued in one action
Jones & Buckle – if names of partners = unknown,
plaintiff must discover names before having Summons
issued

BUT High Court/Magisrates’ Court rules: partnership

to be sued in own name –
• Issue of procedural law, not substantive law
• Not changing legal personality of partnership
• No additional rights/liabilities created
HC rule 14(3) and (4)

Effect: partners are still sued, as no additional

rights/liabilities created for partnership

Process of service merely facilitated

MC rule 54(1)(a) and (b) – sue partners who at time of
accruing of cause of action were partners…

How would you know?

Rule 54(4): notice to demand names + place of

residence of partners when cause of action
arose/present proprietor/all members of entity
REPRESENTATION OF PARTIES

Power of attorney

What is? p55

Special/General POA

Client can give SPOA to attorney to handle matter…

Protection to both client and attorney…

Attorney, acting outside provisions of

SPOA, may not be able to recover fees
from client

See example of POA on Moodle (no need

to draft)
mandela.ac.za