Higher Certificate in Paralegal Studies

CIVIL LITIGATION PROCESS

Module Guide

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MANCOSA
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 Civil Litigation Process

Table of Contents
Preface 2
Unit 1: An Introduction to Civil Procedure 10
Unit 2: The Action Process in Civil Procedure 34
Unit 3: The Application Process in Civil Procedure 64
Unit 4: The Trial and Hearing Process 86
Unit 5: Judgements, Appeals & Reviews 107
Annexures 131
References 168
Bibliography 169

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Preface
A. Welcome
Dear Student

It is a great pleasure to welcome you to Civil Litigation Process (CLP5). To make sure that you
share our passion about this area of study, we encourage you to read this overview thoroughly. Refer
to it as often as you need to, since it will certainly make studying this module a lot easier. The
intention of this module is to develop both your confidence and proficiency in this module.

The field of Civil Litigation Process is extremely dynamic and challenging. The learning content,
activities and self- study questions contained in this guide will therefore provide you with
opportunities to explore the latest developments in this field and help you to discover the field of Civil
Procedure as it is practiced today.

This is a distance-learning module. Since you do not have a tutor standing next to you while you
study, you need to apply self-discipline. You will have the opportunity to collaborate with each other
via social media tools. Your study skills will include self-direction and responsibility. However, you will
gain a lot from the experience! These study skills will contribute to your life skills, which will help you
to succeed in all areas of life.

Please note that some Activities, Think Points and Revision Questions may not have answers
available, where answers are not available this can be further discussed with your lecturer at
the webinars.

We hope you enjoy the module.

~~~~~~~~~~~~~~
MANCOSA does not own or purport to own, unless explicitly stated otherwise, any intellectual property
rights in or to multimedia used or provided in Civil Litigation Process guide. Such multimedia is
copyrighted by the respective creators thereto and used by MANCOSA for educational purposes only.
Should you wish to use copyrighted material from this guide for purposes of your own that extend beyond
fair dealing/use, you must obtain permission from the copyright owner.

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B. Module Overview
The Module is a 20 credit module at NQF level 5. The purpose of this module is to provide you with a
sound theoretical framework creating an understanding and overview of the key concepts which will
be used throughout this program. You will be introduced to the concept of projects and project
management. We will unpack the phases in a project life cycle and consider the respective
international standards and global trends.

C. Exit Level Outcomes and Associated Assessment Criteria of the

Programme

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D. Learning Outcomes and Associated Assessment Criteria of the Module

E. Programme Notional Learning Hours

Learnin
Types of learning activities g Time
%

Lectures/Workshops (face to face, limited or technologically mediated) 10

Tutorials: individual groups of 30 or less 0

Syndicate groups 0

Practical workplace experience (experiential learning/work-based learning etc.) 0

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Independent self-study of standard texts and references (study guides, books, journal
40
articles)

Independent self-study of specially prepared materials (case studies, multi-media, etc.) 40

Other: Online 10

Total 100

F.Acronym
HCR High Court Rules
MCR Magistrate’s Court Rules
SCA Supreme Court of Appeal

G. How to Use this Module

This Module Guide was compiled to help you work through your units and textbook for this module,
by breaking your studies into manageable parts. The Module Guide gives you extra theory and
explanations where necessary, and so enables you to get the most from your module. The purpose
of the Module Guide is to allow you the opportunity to integrate the theoretical concepts from the
prescribed textbook and recommended readings. We suggest that you briefly skim read through the
entire guide to get an overview of its contents. At the beginning of each Unit, you will find a list of
Learning Outcomes and Associated Assessment Criteria. This outlines the main points that you
should understand when you have completed the Unit/s. Do not attempt to read and study everything
at once. Each study session should be 90 minutes without a break.

This module should be studied using the prescribed and recommended textbooks/readings and the
relevant sections of this Module Guide. You must read about the topic that you intend to study in the
appropriate section before you start reading the textbook in detail. Ensure that you make your own
notes as you work through both the textbook and this module.

In the event that you do not have the prescribed and recommended textbooks/readings, you must
make use of any other source that deals with the sections in this module. If you want to do further
reading, and want to obtain publications that were used as source documents when we wrote this
guide, you should look at the reference list and the bibliography at the end of the Module Guide. In
addition, at the end of each Unit there may be link to the PowerPoint presentation and other useful
reading.

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H. Study Material
The study material for this module includes tutorial letters, programme handbook, this Module Guide,
a list of prescribed and recommended textbooks/readings which may be supplemented by additional
readings.

I. Prescribed Textbook
There is at least one prescribed and recommended textbooks/readings allocated for the module.

The prescribed and recommended readings/textbooks presents a tremendous amount of material in

a simple, easy-to-learn format. You should read ahead during your course. Make a point of it to re-
read the learning content in your module textbook. This will increase your retention of important
concepts and skills. You may wish to read more widely than just the Module Guide and the
prescribed and recommended textbooks/readings, the Bibliography and Reference list provides you
with additional reading.

The prescribed and recommended textbooks/readings for this module are:

Prescribed Textbook

• Van Blerk, P. (2019) Legal Drafting: Civil Proceedings. Second Edition. Juta.

Recommended Readings

Hussain, I. S.C. (2019) Practical Drafting Skills. First Edition. Lexis Nexis.
Womack., C. (2019) A Practical Guide for Legal Support Staff. First Edition. Juta.
Magistrates Court Act 32 of 1944
Superior Courts Act 10 of 2013

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J. Special Features
In the Module Guide, you will find the following icons together with a description. These are designed to
help you study. It is imperative that you work through them as they also provide guidelines for
examination purposes.

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Special Feature Icon Description

The Learning Outcomes indicate what aspects of the particular

LEARNING
Unit you have to master and demonstrate that you have
OUTCOMES
mastered them.

The Associated Assessment Criteria is the evaluation of student

ASSOCIATED
understanding with respect to agreed-upon outcomes. The
ASSESSMENT
Criteria set the standard for the successful demonstration of the
CRITERIA
understanding of a concept or skill.

A think point asks you to stop and think about an issue.

THINK POINT Sometimes you are asked to apply a concept to your own
experience or to think of an example.

You may come across activities that ask you to carry out specific
tasks. In most cases, there are no right or wrong answers to
ACTIVITY
these activities. The aim of the activities is to give you an
opportunity to apply what you have learned.

At this point, you should read the reference supplied. If you are
unable to acquire the suggested readings, then you are
READINGS
welcome to consult any current source that deals with the
subject. This constitutes research.

PRACTICAL
Real examples or cases will be discussed to enhance
APPLICATION
understanding of this Module Guide.
OR EXAMPLES

You may come across knowledge check questions at the end of

KNOWLEDGE
each Unit in the form of Multiple-choice questions (MCQ’s) that
CHECK
will test your knowledge. You should refer to the module for the
QUESTIONS
answers or your textbook(s).

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You may come across self-assessment questions that test your

REVISION understanding of what you have learned so far. These may be
QUESTIONS attempted with the aid of your textbooks, journal articles and
Module Guide.

Case studies are included in different sections in this module

CASE STUDY guide. This activity provides students with the opportunity to
apply theory to practice.

VIDEO You may come across links to videos as well as instructions on

ACTIVITY activities to attend to after watching the video.

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Unit
1: An Introduction to Civil Procedure

Unit 1: An Introduction to Civil Procedure

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Unit Learning Outcomes

Prescribed and Recommended Textbooks/Readings

Prescribed Textbook
Van Blerk, P. (2019) Legal Drafting: Civil Proceedings. Second Edition.
Juta.

Recommended Readings
Hussain, I. S.C. (2019) Practical Drafting Skills. First Edition. Lexis
Nexis.

Womack., C. (2019) A Practical Guide for Legal Support Staff. First

Edition. Juta.

Magistrates Court Act 32 of 1944

Superior Courts Act 10 of 2013

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1.1 Introduction
The law is a system of rules that determines how people must conduct themselves both individually
and as part of a community. These rules are made, applied, and enforced by the Government. If
these rules are not followed, it will result in a civil or criminal sanction. One could say that the
purpose of the law is to bring about peace and order and allow for the proper functioning of society.
There are different types of law, for example: laws that tell you what to do, as well as how certain
things should be done, laws that regulate the relationship between the Government and the
community, as well as laws that regulate the relationship between people in the community (Legal
Wise, 2020).

The Oxford Dictionary (2020) defines law as; “The system of rules which a particular country or
community recognizes as regulating the actions of its members and which it may enforce by the
imposition of penalties.” Examples of our law is criminal law and criminal procedure law;
constitutional law and family law (Legal Wise, 2020). It is the rules in place which help govern the
manner in which we conduct ourselves as well as our affairs. A simple scenario where the law
governs us on a daily basis is the rules of road usage, that are set out in the National Road Traffic
Act which sets out the rules we are to obey when using the roads and the consequences of
contravening these rules (Saflii:2020).

The South African law can be found in common law, legislation, court rulings, customary and
international law. In this module the area of civil procedure is explored which falls within in the ambit
of civil law, that is explored through the various legal sources such as case law and legislation. The
systems, structures and procedures will be canvassed to provide an understanding of the Courts
structure, key role players and most importantly the civil process in conducting actions and
applications (Meintjes-Van Der Walt, Singh, De Preez, De Freitas, Chinnian, Barratt, Govindjee, Iya,
De Bruin and Van Coller, 2019:3).

Pete, Hulme, Du Plessis, Palmer, Sibanda and Palmer (2016: 38) state that if law is about the
creation and enforcement of rights, procedure is that part of law that deals with enforcement. Civil
Procedure can be broken down into two parts, the civil component which is the law itself and can be
compared to criminal law. The second component is procedure which the actual steps to be followed
to determine if a valid claim exists and exactly how to proceed with a civil claim.

Whilst civil procedure is relatively extensive in comparison to criminal law and it may seem like a
complex topic, this unit aims to give insight of the civil portion of our law with and an understanding of
the structures and key personnel that play a pivotal role in the civil process. The unit’s objectives are

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to guide you through understanding the key aspects in determining if a valid civil claim exists and the
manner to proceed with civil litigation in the correct forum in line with the applicable rules of law (van
Loggerenberg, 2016:126).

These procedures will arrive at your door on a daily basis by means of a client who approaches the
legal practitioner to proceed with an action or application on their behalf as they are of the view, they
have a valid claim or cause of action. Upon receiving the instruction to proceed on a matter the task
of accurately researching and conducting the process to action the matter will lie in your hands and a
thorough understanding of the process, applicable guidelines and time fames will assist in bringing
the matter to a successful conclusion.

1.2 Civil Procedure as a Body of Law

South African law distinguishes between substantive law and procedural law. Substantive law
essentially deals with the contents of a person’s rights, obligations and remedies in each factual
situation and is often subjective in nature.

Procedural law, including the law of civil procedure, deals with the enforcement of rights, obligations,
and remedies, often objective in nature (van Loggerenberg, 2016:126).

A civil action is generally brought about by a private person with the intention to recover what they
claim is due to them (Pete et al 2016:39) and civil procedure is the actual procedures in place to
enforce a person’s civil rights.

The state does not play a role in the procedure of enforcing a person’s civil rights unlike in criminal
law where it is the state that prosecutes the accused.

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Figure 1: A conceptual representation of the Generalities Underlining Criminal Law and Civil
Law
Source: (saylordotorg:2021)

Think Point 1.1

Describe your understanding of a person's civil right and give an example
of a civil right

Video Activity 1.1

See link for more on a basic understanding of the differences between

substantive and procedural law:
https://study.com/academy/lesson/substantive-law-vs-procedural-law-
definitions-and-differences.html
Explain the differences between substantive and procedural law?

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Activity 1.1

Consider the scenario below and answer the questions that follow:
Assume a drunk driver caused a motor vehicle collision and collided into your
motor vehicle. This collision caused serious damage to your vehicle which
you had to have repaired and the drunk driver was arrested at the scene of
the collision by the police.
1. Is the drunk driver’s arrest part of the criminal or civil aspect of the law?

2. Describe who may institute the claim for the damages suffered to your
vehicle and the cost of repairing it?

3. Discuss whether your claim for damages will be a civil claim or will the state
be a party to this claim?

1.3 Legal Structure of the Courts and the Roles and Functions of Court Officials
When preparing to study and understand civil procedure it is prudent to bear in mind that it is the
practical aspect of the law and to consider the actual Court structures, the people involved in these
structures and the functions and role that they play.

1.3.1 The Courts Structure

As individuals, we are aware of the different Courts in South Africa with a basic knowledge of their
roles but there is a distinctive hierarchy to our Court system as depicted in figure 2 below. The major
courts with civil jurisdiction in South Africa are the following:

The Constitutional Court;

The Supreme Court of Appeal;
The High Courts; and
The Magistrates' Courts, consisting of the
District Magistrates Courts, and
Regional Magistrates Courts

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Think Point 1.2

Jurisdiction is the power that a Court of law or an official has to carry out
legal judgments or to enforce the applicable laws (Collins Dictionary:
2020). Illustrate your understanding of the concept of jurisdiction.

The Constitutional Court is the highest Court of our Land. This Court deals with constitutional matters
i.e.: where a right in terms of our constitution is infringed upon, this matter will be dealt with in the
Constitutional Court. No other Court can overturn a ruling made by the Constitutional Court
(ConCourt, 2020).

The Supreme Court of appeal (SCA) is essentially the second highest Court however the highest in
respect of civil procedure. The SCA is situated in Bloemfontein in the Free State, is the highest court
in respect of all matters other than constitutional ones. The Supreme Court of Appeal has jurisdiction
to hear and determine an appeal against any decision of a High Court. Decisions of the Supreme
Court of Appeal are binding on all Courts of a lower order (Government Judicial System: 2020). The
SCA has jurisdiction over the whole of South Africa in appeal matters and deals exclusively with
appeals against rulings. No other Court, except for the Constitutional Court, can change a decision
made by the Supreme Court of Appeal.

South Africa currently has ten provincial and three local High Courts (HC), each presiding over a
different jurisdiction, these jurisdictions cover the different provinces with some provinces having a
‘local division’ due to the population size and commercial activity of the province. The decisions of
High Courts are binding on Magistrates’ Courts within the respective areas of jurisdiction of the
divisions.

The Regional Courts form part of the Magistrates Courts and they are able to deal with both civil and
criminal matters however there are limitations on the criminal matters they deal with such as treason
cannot be heard in a regional Court. Prior to the Jurisdiction of Regional Courts Amendment Act 31
of 200,8 divorces were only heard in the High Court’s however they can now also be dealt with in the
regional Courts. This initiative facilitates greater access to Courts to hear divorce matters and the
parties can now choose the Court that is closest to the area where they live to initiate divorce related
matters.

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The district Magistrates Court is the most versatile Court as they are in a position to deal with a
variety of civil and criminal matters. The Magistrates’ Courts form an important part of the judicial
system, as it is where ordinary people come into contact with the justice system daily (Government
Judicial System: 2020). These Courts hear matters from claims for money, ejectment of an unlawful
occupier, and less serious criminal offences. There are considerable limitations on their jurisdiction
such as in criminal matters they deal with only less serious offences in terms of the Criminal
Procedure Act and the same applies to civil matters such as their monetary jurisdiction, the rules with
govern the Magistrate’s Court is contained in the Magistrate’s Court Act 32 of 1944, as amended
(Government Judicial System: 2020). Both the district and regional Courts are situated in each of the
magisterial districts which carve up South Africa. It is important to note that our legal system has
developed several specialised Courts such as Maintenance Court and Labour Court which operates
within the current Courts structure to deal with these area specific matters effectively and efficiently.
The purpose of these specialised Courts is to allow an individual to have access to the remedies
available to them and further being able to deal with the matter themselves, usually without the need
of a legal representative (Government Judicial System: 2020).

Figure 2: Graphical Representation of the Hierarchical Organisation of the Courts within South

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Africa
(DSCLAW: 2020)

The manner in which the Courts conduct their proceedings are very similar in certain aspects and the
Magistrates court have recently had their Court procedures amended to bring their procedure in line
with that of the High court. However, there are distinct differences in the manner the Courts perform
their functions and roles with their different jurisdictions being the most relevant consideration. Each
Court in their respect provinces have their own practice directives however they must overall conform
to the Constitution and the law.

The relevance of understanding the Court structure’s and their hierarchy assists in the progression of
a matter. By understanding which Court has the relevant jurisdiction and powers to deliberate on a
matter will guide the legal practitioner in ensuring the matter is brought before the correct Court to
obtain the best possible results at the outcome.

Practical Example 1.1

Read the case of S v Pistorius which was first heard in the Pretoria High
Court, the decision was then taken on appeal to the Supreme Court of Appeal
and in particular the judgment handed down by the SCA indicates the powers
of the different Courts.
The accused herein then applied for leave to appeal the decision of the SCA
to the Constitutional Court which was then dismissed (Saflii, 2020).

1.3.2 The Judiciary and Court officials

The Judiciary is the body of Judges and Magistrates who preside over matters before all the Courts
in the Republic of South Africa. Each Court’s presiding officers and administrators are referred to by
specific titles and this relates to their role in the specific Court. These are the officials that litigants
and legal practitioners will come into contact within their matters and throughout their case
(Government Judicial System: 2020).

The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and
nine Constitutional Court judges.

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The Supreme Court of Appeal consists of the President and Deputy President of the Supreme Court
of Appeal, and 23 other judges of appeal. A transformational appointment was made when Justice
Mandisa Maya was appointed as President of the Supreme Court of Appeal in May 2017 (Figure 3).
She is the first woman to hold this position (Government Judicial System: 2020). A historic and
significant appointment in the history of South Africa. Such an appointment gives light to the
increasing aspirations of females to preserve and accomplish holding such positions which was
historically held by their male counter parts.

Figure 3: Image of Justice Mandisa Maya

(News24:2020)

In the High Court the presiding officer is referred to as a Judge. In terms of Section 174 (6) of the
Constitution, the President appoints Judges of all Courts, except for the Constitutional Court, on the
advice of the Judicial Service Commission. A judge is referred to as ‘Your Honour, My Lord or My
Lady’ during Court proceeding (Government Judicial System: 2020).

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Case Study 1.1

You are approached by a student who is considering writing a paper of the

different court officials, write a short list distinguishing between the different
court officials by stating what they are referred to in the different courts.

Read the article and judgment in:

https://businesstech.co.za/news/government/449293/high-court-calls-for-
road-accident-fund-to-be-liquidated-after-uncovering-dodgy-settlements/

Consider the judgement handed down and discuss in you view if the judge
has the relevant authority to make such and order.

Important officers in a High Court Division:

The Registrar of the High Court - The functions of a registrar are mainly administrative. The
registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants,
subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that
particular High Court division. Registrars also compile case lists, arrange available Courts, lend
assistance to judges in general and keep records (Government Judicial System: 2020).
The Family Advocate-The Family Advocate assists the parties to reach an agreement on
disputed issues, namely custody, access and guardianship of children. If the parties are unable to
reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best
interests of the child and makes a recommendation to the Court with regard to custody, access or
guardianship (Government Judicial System: 2020).

The Master of the High Court- The Master's Branch is there to serve the public in respect of:

Deceased Estates
Liquidations (Insolvent Estates)
Registration of Trusts
Tutors and Curators and
Administration of the Guardian’s Fund (minors and mentally challenged persons (Government
Judicial System: 2020)
The Sheriff of the Court - The Sheriff is an impartial and independent official of the Court
appointed by the Minister of Justice and Constitutional Development who must serve or execute
all documents issued by our Courts. These include summonses, notices, warrants and Court
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orders (Government Judicial System: 2020). The sheriff of the Court is one of the more common
Court officials you will encounter in daily practice
The Directors of Public Prosecutions - are responsible for all the criminal cases in their provinces,
so all the prosecutors are under their control. The police bring information about a criminal case
to the Director of Public Prosecutions or his/her representative prosecutors. The Director of
Public Prosecutions or his/her representative prosecutor then decides whether there is a good
reason to have a trial and whether there is enough information to prove in Court that the person
is guilty (Government Judicial System: 2020)
The State Attorney - The State Attorney's Division of the Department of Justice functions like an
ordinary firm of attorneys, except that its clients are the different departments of government and
not private individuals. The state attorney's major function is to protect the interests of the State
by acting for all government departments and administrations in civil cases, and for officials sued
in their official capacity (Government Judicial System: 2020)

The aforementioned officers of the Court are key role players whom you will encounter when
attending to a matter on behalf of a client. They are the individuals whom you will interact with, who
will give guidance on their procedures and ultimately fulfil a role in serving the public in respective
positions.

In the Regional and District Courts the Magistrate is the presiding officer who is referred to as ‘Your
Worship’. A magistrate is appointed by the Minister of Justice and Correctional Services on the
advice of the Magistrates Commission which is a statutory body established in terms of the
Magistrate’s Act, 1993 (Act NO. 90 of 1993). In the Regional Court the Court official is referred to as
a Registrar as in the High Court however in the Magistrates Court they are referred to as a Clerk.
Their roles are similar to that of the Registrars of the High Court and have semi-judicial duties such
as the issuing civil process (summonses, warrants, subpoenas) as well as managing the day-to-day
cases placed on a court roll, the case files management and assisting the magistrates with the
conducting of trials and hearings.

The Courts together with the presiding officers and administrative assistants play a vital role in the
civil procedure. They not only mange a civil action but ensure the matters are essentially placed
before a presiding officer for adjudication. These officials deal directly with legal representatives as
well as the public on a daily basis and are equipped with the knowledge and understanding of the
civil procedure in their respective Courts.

1.4 Jurisdiction of the Courts

It is noted in The South African School of Paralegal Studies (2012:5) in a matter involving a dispute,
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the first issue to be determined is whether the aggrieved party has a right and if so, whether that right
has been infringed. If a right has been infringed, then it follows that the injured party does have a
remedy because there is a general rule that where there is a right there is a remedy (ubi ius ibi
remedius). The next step would be to determine which Court is competent to grant the remedy. This
involves the issue of jurisdiction. Jurisdiction simply means the competency of a Court to hear an
issue and give an authoritative decision. The issue of jurisdiction is addressed before
commencement of proceedings and the selection of a competent court in turn influences the nature
and conduct of proceedings (The South African School of Paralegal Studies (2012:5).

Video Activity 1.2

Watch the video below which gives a basic overview of the factors that
influence jurisdictions of the Courts and identify specifically which matters can
be heard by the Constitutional Court.
https://youtu.be/oqQf0mbIDTQ

As noted above the Constitutional Court only deals with matters such as:

Disputes involving constitutional status, powers or functions of national or provincial organs of

State
The constitutionality of parliamentary/provincial bills
Applications to declare Acts unconstitutional
The constitutionality of any amendments to the Constitution
Whether parliament or the president has failed to fulfil a constitutional obligation

The SCA may decide any matter, except certain labour and competition matters; but

The SCA may make an order concerning the constitutional validity of an Act of Parliament, a
provincial Act or any conduct of the President, but an order of constitutional invalidity has no force
unless confirmed by the Constitutional Court

In determining whether a High Court or magistrate’s Court has jurisdiction it is important to as the
following questions:

1. What is the monetary value of the claim?

Any claims over the amount of R400 000.00 can only be dealt with in the High Court however there
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are a few exceptions such as:

1.1 the parties’ consent to the jurisdiction of the magistrate’s Court (Section 45)
1.2 the claimant abandons part of his claim to allow it to fall within the magistrate’s Court
jurisdiction (section 38)
1.3 the claimant deducts from his claim a debt which he owes the defendant (section 39)

Practical Example 1.2

Example of a claimant abandoning a portion of his claim:

The plaintiff claims R 208 000 − for work done

Less R 5 000 − paid
R203 000
Less R 3 000 − abandoned

The limit of jurisdiction in the magistrate’s Court is R200 000 the claimant can
elect to abandon the R3 000.00 for the matter to be dealt with in the
magistrate’s Court.

The Regional Court has a monetary jurisdiction of R200 000.00 to R400 000.00 whilst the
Magistrates Court is permitted to deal with claims up to R200 000.00 (Sections 25-50 of the
Magistrate’s Court Act).

2. What is the nature of the claim?

Some claims in value less than R200 000.00 can still be brought in the High Court such as the
interpretation of a will and claims for specific performance without an alternative of damages
(Magistrates Court Act 32 of 1944: Section 46).

It is important to determine jurisdiction at the time proceedings are instituted i.e.: when papers are
served on the opposition as once jurisdiction has been established it will continue to apply and exist
in the matter until the proceedings have come to an end. Failure to show jurisdiction will enable one’s
opponent to defeat the claim with a special plea of ‘lack of jurisdiction’ (Pete et al, 2016:109).

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Think Point 1.3

Identify some factors which are considered in determining jurisdiction and
give an example of which Court will be competent to hear the matter?

3. Which Court can hear the matter?

The specific geographical Court must be established before instituting the proceeding. The
Magistrate’s Courts have jurisdiction over person who resides, carries on business, or is employed
within its magisterial district (MCR section 28(1) (a)).

A residence of a natural person is where the person ordinarily resides and not considered their place
of residence if they are visiting for a short period of time. Ordinary place of residence must not be
confused with a person’s chosen domicilium citandi et executandi which is persons nominated
address for accepting certain legal notices and processes (MCR 32 of 1994). In the instance of a
juristic entity i.e.: a business, company or closed corporation their ordinary place of business is
defined as their place of central control, a head office or the location of their registered offices which
is stipulated on their official forms e.g.: with CIPC (MCR section 28).

The residence of the state is considered to be Pretoria when instituting proceedings against certain
organs of state and where a person is employed refers to where the person works from with a
degree of permanence (MCR section 28(1)(a)).

Once you have determined that the type of case is not beyond the jurisdiction of the magistrate's
Court in general, you will establish whether the magistrate's Court has jurisdiction in terms of section
29. Section 29 deals with the cause of action and the value of the claim. The causes of action, which
are within the jurisdiction of the magistrate's court are listed in section 29, please read and study
section 29 in Annexure A for a full description (MCR section 29).

Readings 1.1

Read the article below for a better understanding of section 29 of the MCR:
https://kemplaw.co.za/467-monetary-jurisdiction-of-the-magistrates-Courts#:

When referring to where the whole cause of action arose (Section 28(1) (d)), this refers to where the
actual event has taken place. In the instance of a contact the consideration for jurisdiction is the
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place where the contract was concluded, where the contract was to be performed or where the
contract was breached. This valid cause of action must have arisen within the Court’s jurisdiction for
a Court to hear a matter (facta probanda) see the case of Kings Transport v Viljoen which explains
determining the jurisdiction of the court.

The words 'the whole cause of action arose within the district or region mean that every material fact
which the plaintiff has to prove at the hearing of the case in order to succeed, must have taken place
within the district or region. Where the claimant relies on this ground of jurisdiction, the pleading must
contain an averment that the whole cause of action arose within the district or region of the Court and
set out the particulars in support thereof. The relevant High Court and Magistrate’s Court Act give
further grounds for determining jurisdiction with establishing same at the outset of a matter being of
tantamount importance.

Activity 1.2

You act for a Durban-based accountant. Your client, the accountant concluded
a contract with a businessman who lives and runs his business from Pretoria,
in terms of which your client would do the business books of the
businessman’s business in Cape Town. The contract between your client and
the businessman was concluded in Durban. Your client’s fee was
R110 000.00 of which your client did not receive payment.
1.1 Consider which Court/s will have jurisdiction to hear this matter?

1.2 If the businessman owed your client R250 000.00, explain how it
would affect the Court/s that would have jurisdiction over the matter?

1.5 Effective Service of Processes

It is trite in South African law that a person must be given adequate notice of the institution of an
action against him. This refers to the defendant or respondent being given the relevant pleadings or
notice of the claimant’s intention on proceeding with an action and allows the person sufficient time to
address the matter, the well-known Latin maxim audi alteram partem refers to this rule of natural
justice. The rule of adequate notice applies equally to action proceedings as to application
proceedings (Pete et al, 2016:133).

In giving effect to the audi alteram partem rule an integral part of commencing a civil action is to give
the requisite notice. The Sheriff of the Court is the pertinent person tasked to do so. The Sheriff is
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regarded as an officer of the Court and is empowered by the Rules of Court (The Sheriffs Act, section
3), which provides that the process of the Court shall be served through the Sheriff, who shall issue
what is commonly known as a 'return of service' setting out either that:

Service has been duly effected, and the date and manner of service as depicted in figure 4 below
or
He was unable to effect service, the reasons why and date of attempted service

In accordance with the rules, no legal process may be served on a Sunday or public holiday.

This rule also sets out the manner in which the sheriff may effect service, as follows:

To the said person personally or to his duly authorised agent

At his residence or place of business to some person apparently not less than 16 years of age
and apparently residing or employed there (Sheriff Act)
At his place of employment to some person apparently not less than 16 years of age and
apparently in authority over him, or in the absence of such person, to a person apparently not
less than 16 years of age and apparently in charge at his place of employment (Sheriff’s Act)
If the person to be served has chosen a domicilium citandi (a domicilium citandi is the place
chosen by a person where judicial processes may be served on him), by delivering or leaving a
copy thereof at the domicilium so chosen (Sheriff’s Act)
In the case of a corporation or company, by delivering a copy to a responsible employee thereof
at its registered office or its principal place of business within the Court’s jurisdiction, or if there is
no such employee willing to accept service, by affixing a copy to the main door of such office or
place of business, or in any manner provided by law (Sheriff’s Act)
If the plaintiff or his authorised agent has given written instructions to the sheriff to serve by
registered post, the process may be so served. Provided that a debt counsellor who makes a
referral to Court in terms of section 86(7) (c) or 86(8) (b) of the National Credit Act may cause the
referral to be served by registered post or by hand
To any agent or attorney who is duly authorised in writing to accept service on behalf of the
person upon whom service is to be effected in any applicable manner prescribed in this rule,
(Sheriff’s Act)
In the case of a Minister in his official capacity, the State or provincial administration, at the Office
of the State Attorney in Pretoria, or a branch of that Office which serves the area of jurisdiction of
the Court from which the process has been issued, (Sheriff’s Act) and
Where the person to be served keeps his residence or place of business closed and thus
prevents the sheriff from serving process, it is sufficient for the sheriff to affix a copy to the outer or
principal door or security gate of such residence or place of business. He may also place a copy
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 Civil Litigation Process

in the post box at the residence or place of Business, (Sheriff’s Act)

Where a local authority or statutory body is to be served, on the town clerk or assistant town clerk
or mayor of such local authority or the secretary or similar officer or member of the board or
committee of such body, or in any manner provided by law, (Sheriff’s Act)
Where the person to be served with any document initiating application proceedings is already
represented by an attorney of record such document may be served upon such attorney by the
party initiating proceedings (Pete et al, 2016:169)

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 Civil Litigation Process

Figure 4: An example of the Sheriff’s return of service.

The sheriff must serve all process by which an action or an application is initiated. All other
documents are served by the parties themselves or where they are represented by attorneys, by the
attorneys.

1.5.1 Edictal citation and substituted service

If service by the Sheriff cannot be effected in any of the ways prescribed by the rules, for example
because the person on whom service must be effected evades service or cannot be traced, the Court
must be approached for further directions as to how service must be effected. One of the means of
service the Court may prescribe is substituted service, for example, by means of a notice in a
newspaper. An application for leave to sue by way of edictal citation is utilised where the process is
served upon a person outside the Republic. (The South African School of Paralegal Studies,
2012:16). Figure 5 is an overview of the service of summons which can be effected by the sheriff.

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Figure 5: Overview of the Methods of Service of Summons

(The South African School of Paralegal Studies, 2012:16)

Knowledge Check Questions

State if the following is True or False.

1.1 The sheriff is an impartial officer of the Court.
1. True
2. False

1.2 Service of processes can take place at a person’s place of residence.

1. True
2. False

1.3 A person under the age of 16 years old can accept service of a process
from the sheriff.
1. True
2. False

1.6 Summary
After completing this unit, you will understand the role civil procedure plays in our law. The
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procedures that are in place to ensure a civil matter is effectively and efficiently dealt with. It will
become evident that is it instrumental in any proceeding to determine accurately the relevant
jurisdiction a Court will have in order to hear a matter and the importance of the different jurisdictions.
The key functions of the Courts, the judicial officers and their roles will give sound insight into their
importance in civil procedure.

Revision Questions

Demonstrate a knowledge of the official titles given to the various presiding

officers, and the other Court officials and their forms of address by answering
the following questions.
1.1 Provide the title given to the presiding officer in the High Court.

1.2 Discuss if a registrar or clerk have the powers to issue Court documents
such as a subpoena.

1.3 Explain if a sheriff is independent of the Courts.

1.4 In which Act is the powers of a Magistrate set out?

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Answers to Activities

Think Point 1.1: Describe your understanding of a person’s civil right and give an example of a civil
right.
A civil right is a person’s right which is infringed upon they have a right to recourse in the law. All
persons have civil rights and cannot be precluded form enjoying their civil rights by gender, race,
sexual orientation, or any other factor. Examples of civil rights are;

The right to vote.

The right to a fair trial
The right to legal representation
The right to privacy

Video Activity 1.1: The distinguishing factors between substantive and procedural law in captured
in their terms. Substantive refers to the substance and facts of a matter. Establishing the substantive
component will assist in establishing the civil right that may have been infringed, which is the
applicable law as well as ascertain the damages one could claim.
The procedural aspect refers to the different processes a matter will proceed through in order to
reach a judgment. This will include the manner in which to proceed with ie: by action or application
and will follow through until hearing and/or trial stages.

Activity 1.1:
1. Criminal aspect as driving under the influence of alcohol is a criminal offence.
2. The owner of the vehicle can claim for the damages and cost of repairing same.
3. The claim for damages will be a civil claim as it is a claim against another individual for the
damages suffered as a result of the collision. In this scenario the state will not be a party to the claim.

Think Point 1.2: Answer will be relative to the reader’s own understanding an experience.
Jurisdiction as defined is the powers of a court or official to enforce the law and hear matters. An
example of jurisdiction would be the interpretation of a will. In this instance only a High Court has the
competent powers of jurisdiction to hear the matter and further it will follow that only a Judge will
deliberate on the matter despite the value of the deceased’s estate.

Practical Example 1.1: The case of S v Pistorius clearly sets out the hierarchy and jurisdictions of
the different courts to hear and adjudicate upon matters.

Case Study 1.1: There is a hierarchy of the courts structure in South Africa and the reason or this is

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to ensure that a competent court and relevant judicial officer deals with a matter with sufficient
knowledge and expertise.

High Court - Judge - My lord or lady

Assistant - Registrar
Magistrates Court - Magistrates - your worship
Assistant - Clerk
Small Claims Court - Commissioner

Video Activity 1.2: The Constitutional Court only deals with matters such as:

Disputes involving constitutional status, powers or functions of national or provincial organs of

state.
The constitutionality of parliamentary/provincial bills
Applications to declare Acts unconstitutional.
The constitutionality of any amendments to the Constitution
Whether parliament or the president has failed to fulfil a constitutional obligation

Practical Example 1.2: Calculation as set out depicts how a claimant can abandon a portion of his
claim to bring it in line with the jurisdiction of a lower court to deliberate on a matter.

Think Point 1.3: Identify some factors which are considered in determining jurisdiction:

The nature of the claim e.g: interpretation of a will or a divorce

The relief sought e.g: monetary value or decree of divorce.
The area/ jurisdiction where the defendant to the action is resident or employed alternatively
where the cause of action arose.
Examples:

1. Interpretation of a will only the High Court can hear the matter
2. Divorces can be heard in the high court and now in the regional court
3. Claims for money over R400 000.00 can only be heard in the High Court

Activity 1.2:
1. Jurisdiction can be established by the nature of the claim, in this instance it is for non-payment and
thus can be heard in a competent magistrate’s court as the value of the claim is R110 000.00. The
Magistrates courts that the action can be instituted out of Pretoria as the businessman both resides
and runs his business there alternatively it can be out of the Durban as that is where the contract was

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concluded and the whole cause of action arose.

2. No, it would not, the magistrate’s court can hear matters up to R299 999.00 and if the claim was
R300 000.00 up to R400 000.00 then it would have to be heard in a regional court.

Knowledge Check Questions

1. True
2. True
3. False

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Unit
2: The Action Process in Civil
Procedure

Unit 2: The Action Process in Civil Procedure

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Unit Learning Outcomes

Prescribed and Recommended Textbooks/Readings

Prescribed Textbook
Van Blerk, P. (2019) Legal Drafting: Civil Proceedings. Second Edition.
Juta.

Recommended Readings
Hussain, I. S.C. (2019) Practical Drafting Skills. First Edition. Lexis
Nexis.

Womack., C. (2019) A Practical Guide for Legal Support Staff. First

Edition. Juta.

Magistrates Court Act 32 of 1944

Superior Courts Act 10 of 2013

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2.1 Introduction
In general proceedings in civil procedure commences by way of either an action or application. At
the outset based on the information provided to you by your client a decision will have to be made as
to which route to pursue. Both have their prescribed rules which is to be followed however there is
also significant differences between the two. When deciding whether to proceed by means of an
action or application it is important to properly assess the facts and evidence before you. Whilst an
application by seem a faster and more feasible option at first should the application not be dealt with
accordingly, you run the risk of the application being dismissed in Court with your client having to pay
the costs.

To better grasp the concepts of an action and application it would be useful to note their core
differences which will ultimately aid in making a decision as to which route to pursue to best benefit
your client with a favourable outcome (Pete et al. 2016:179).

A basic starting point in distinguishing between an action and application is what the parties are
referred to. In an action the person claiming or instituting the action is called the plaintiff and the
defendant is the person who the claim is against and defending the plaintiff’s claim. It is possible to
have more than one plaintiff and institute the action against more than one defendant depending on
the circumstances.

In an application the party instituting the action is referred to as the applicant, meaning the party
applying for the relief sought in the papers and the party responding to the applicant’s claims is the
respondent. Hereto there can be more than one applicant and respondent depending on the type of
application and relief sought.

Pete et al. (2016:179) explains that the main difference between these two processes is the stages
that are clearly separated. They go on to state that in the action process there are three stages,
namely the pleadings, evidence, and trial stages. The pleadings do not set out the actual evidence
but instead general statements with specific reference to the material facts of which the parties rely
on.

Once the pleadings have been finalised in an action the matter is then at evidence stages which is
where the parties will give their evidence at trial usually in the form of oral evidence by witnesses.
The witnesses are examined, and cross examined and once a presiding officer is satisfied sufficient
evidence has been produced a decision is then made which is the final stage at trial when judgment
is given (Pete et al. 2016:179).

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The application procedure however is determined on the papers. As Pete et al (2016:180) states
there is no separation of the pleadings and evidence stages. Essentially this means all the material
facts and evidence on which a party relies on to prove his case is contained written documents.
These documents come in the form of an affidavit which accompanies the application and will set out
all the material facts and evidence relied upon as well as the relief sought by the applicant. The
respondent also deposes to his defence in an affidavit usually referred to as an answering affidavit
basically answering to the applicant’s claims. There is usually no oral evidence given in an
application and the matter is solely argued on the papers by the legal representatives however there
are exceptions where a presiding officer deems it necessary for oral evidence to be given and so
orders that the parties to do so (Van Blerk 2019:67).

When considering the information given to you by you client and before making a decision as which
avenue to pursue it is important to note that some matters can only be brought by way of action and
others by way of application as is determined by statutes (Bregmans:2014).

In the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd the Court found that an
application must be brought to liquidate a company, sequestrate a debtor or to rehabilitate an
insolvent. The Court went further and stated that a divorce or a claim for an unliquidated amount
must be dealt with by way of an action.

There is room for a grey area where it is not determined by statute and the facts are not straight
forward. In this instance the test to determine whether to proceed by means of an action or
applications is whether there is a real dispute of fact. This means that there is one or more material
issues of fact that cannot be satisfactorily adjudicated upon without the hearing of evidence by a
party (Bregmans:2014).

Now you have all the necessary facts before you from your client and you have reviewed the relevant
statutes and can make an informed decision as to whether to proceed with the matter by way of
action or application.

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2.2 The Different Types of Actions in Civil Procedure

When a party intends to proceed with an action, he must have a legally recognised right which has
been infringed upon, this is known as the cause of action’ which he bases his claim (Pete et al.
2016:71).

The most common causes of action which arise in daily practise are referred to liquidated claims
such as:

Goods sold and delivered- where payment of the purchase price has not been effected
Work done and materials supplied- where full or part payment has not been effected
Professional services rendered
Professional services rendered and disbursements made
Money lent and advanced
Dishonoured cheques
Acknowledgements of debt
Motor vehicle collisions- where damages to the vehicles was sustained
Overpayment
Instalment sale agreement and
Divorce actions

Essentially these are claims for a value that can be quantified or for specific performance. Generally,
the liability aspect is not disputed as the terms are contained in the liquid documents such as in a
contract or acknowledgement of debt however the amount claimed is disputed such as for the
amount of damages claimed (Pete et al. 2016:71).

Think Point 2.1

Consider the following scenario and contemplate if your client has a valid
cause of action and if so what would the cause of action be? Your Client’s
wife was driving his car when another driver skipped a red robot and
crashed into the car. Your car was damaged and your wife sustained
minor injuries.

The cause of action has now been identified and the matter will proceed by way of action, what next
you ask? The next step would be to determine the jurisdiction of the Court which can hear the matter
as discussed in 1.4 above. It is noted in The South African School of Paralegal Studies (2012:6) the

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following are important to consider:

Whether the magistrate's Court (district or regional) has jurisdiction to hear the matter
Costs
Speed and urgency
Convenience
Complexity of the matter
Importance of the case to the client and
Quality of the justice dispensed

Video Activity 2.1

Watch the video presented below for an understanding of the action

procedure and discuss the four important phases in the action process.
https://youtu.be/uLfrFXfhWk8

Case Study 2.1

Read the article in De Rebus titled Which Road to choose Action or

Application.
http://www.derebus.org.za/road-choose-action-application/#:~:text=
The%20most%20salient%20distinction%20is,on%20the%20issues%20raised
%20in
Based on the detailed discussion of ‘a real dispute of fact’ in the above
reading, provide your legal opinion on the following scenario:
You are approached by a prospective client who wants to proceed with legal
action to claim unpaid rentals from a tenant. The client has done his own
research and is of the view that bringing an application would be easier, faster
and more cost efficient to him.
Consider the case law referred to in the article and provide your client with
advise as to when a matter should proceed by means of an action as well as
the possible consequences if an application is brought and unsuccessful.

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 Civil Litigation Process

2.2.1 Understanding the Purpose and Functions of Pleadings

Purpose of pleadings and notices are articulately described in Amlers (2015:1) which states:

‘’Pleadings and love letters have much in common: both are personal and reflect somewhat of the
author's personality. Precedents in either instance are dangerous because they tend to be
inapplicable to the facts under consideration. Each sets out and explains the position of the parties
involved. If too much or too little is said, problems arise. They provide embarrassing evidence of the
original perceptions and intentions of the author and never please successors in title’’.

In any action, pleadings serve a specific function and are required for the following reasons:

For the parties involved to be informed of the issues in dispute so that they may prepare
accordingly for the trial
For the Court to be informed of the issues so that it may know of the limits of the dispute before it
and
So that the issues be on record in case a party decides to reopen the same dispute once they
have already been adjudicated on (Van Blerk 2019:6)

Understanding the aforementioned functions served by pleadings is vital to determine the

requirements for pleadings (Van Blerk 2019:6). Pleadings are there to assist in simplifying and
identifying the issues between the parties in a dispute and allows the Courts to fairly and equitably
adjudicate over the matter. Pleadings are a mechanism for not only for the Courts to expeditiously
dealing with the matter but affords the parties and their legal representatives to properly prepare for
trial, to better understand the evidence they need to put before the Court and which witnesses are
required.

By having properly prepared pleadings which are in line with the relevant rules of the Courts, allows
the parties to set out the material elements in disputes and the other party is then in a position to
properly to respond to the claims. By doing this it will also reduce and eliminate certain issues that
must be dealt with by the Courts (Van Blerk 2019:6).

The case of Imprefed (Pty) Ltd v National Transport Commission stated that pleadings must be
prepared with as much precision as possible. Where the parties are clear on the disputes between
them it is also important for the presiding officer to be informed and be aware of these disputes. The

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 Civil Litigation Process

disputes must be recorded in the pleadings in such a manner to enable someone other than the
parties to ascertain what the disputes is.

Van Blerk (2019:7) states that that precision must not be equated with detail. Where to much detail is
included in the pleadings it can lead to confusing the issues that are in dispute and make it difficult
for the presiding officer to properly adjudicate over the matter. It can also lead to lengthy trials and
unnecessary evidence which ultimately waste the Courts and parties’ time. It is important to
understand that only the material facts must be pleaded and not the evidence which will be used by
a party in support of his claim.

Before preparing a pleading, you would have consulted with your client to obtain all the material facts
of the matter and once you are armed with this information you may think you are ready to start
drafting your pleadings but it is of utmost importance to understand that a pleading is not a mere
recital of the facts provided to you by a client (Van Blerk 2019:7). The late Professor George Wille is
reported to have said:‘ before you can draw a pleading you have got to know the law ’

What does this mean for the drafter? This means you need to understand that preparing a pleading
is governed by the substantive law, by the rules of Court and by matters of practice. You will have to
take the material facts presented to you and apply it to the relevant law which will give rise to their
cause of action (Van Blerk 2019:7).

Common practice when preparing a pleading is also taken into account and procedural law dictates
the form of pleadings.

The need for pleadings to be clear and concise is reiterated in Rule 18(4) of the Uniform Rules of
Court which provides that:

“every Pleading shall contain a clear and concise statement of the material facts upon which the
pleader relies for his claim, defence or answer to any pleading as the case may be, with sufficient
particularity to enable the opposite party to reply thereto”.

The aforementioned rule of Court read together with Rule 18(3) of the Uniform Rules of Court which
states:

‘’Every pleading shall be divided into paragraphs (including subparagraphs) which shall be
consecutively numbered and shall, as nearly as possible, each contain a distinct averment’’.

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Whilst it is a technical requirement it is beneficial when drafting a pleading as it promotes the

requirement to maintain being clear and concise and limiting the overlapping of issues in each
paragraph. It allows for the issues to be grouped together and dealt with individually whilst forming
part of the whole claim.

It is noteworthy to point out that it is permissible for a plaintiff to make a claim on more than one basis
and for a defendant to raise more than one defence to a claim (Van Blerk 2019:9). This concept is
better explained in the example below.

Practical Examples 2.1

Read the example set out in Van Blerk (2019:9) paragraph2.18 which sets out
an example of a basic pleading utilised in common practice.

A further consideration before starting to prepare the pleadings is to be able to appropriately identify
and describe the parties to the action.

The rules of Court prescribe the manner and extent to which a party must be described in the
pleadings. Rule 17(4)(b) requires that the full names, gender, occupation and residence or place of
business of the plaintiff and further if he/she sues in any other capacity, such capacity must be stated
in the pleading. The purpose of this function is to identify the plaintiff as fully as possible.

Think Point 2.2

Read the entire Rule 17(4)(b) of the Uniform Rules of Court, you will note
is still states a woman who is a plaintiff is required to state her marital
status. It is important to note that whilst the rule has not been amended it
did in fact fall in line with the law where it was assumed that not all married
women had locus standi in judico as there was a presumption in common
law that a married woman is married in community of property. Consider
how has this aspect since changed and what transformation South Africa
has undergone to ensure that no woman is subject to marital power.

When citing a defendant in a pleading Rule 17(4) (a) requires that the name of the defendant, his full
names where possible and/or initials as he is known to the Plaintiff be cited together with the details
of his residence or place of business and if know his occupation and if he is sued in a representative
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capacity to state such capacity (Van Blerk 2019:15). Hereto the purpose of this rule is to give as
much clarity as to who the Defendant in the action in and to avoid any confusion with another person
or entity with the same or similar details.

When citing a corporate body such as a company sufficient detail to identify the entity must be
included in the pleading. Where the entity trades under a particular name which differs from its legal
name then it can be cited by the name it is known as to the Plaintiff.

Correctly and accurately identifying the parties at the outset of the matter can avoid a situation of
having instituted action against the ‘wrong party’ and ensuring the process is effectively served on
the correct party.

The same general approach when identifying and citing the parties in a pleading in an action in
applicable to the parties in an application.

Activity 2.1

Read Rule 17(4) of the Uniform Rules of Court and discuss the essential
elements that must be included when describing a party in a pleading.

2.2.2 Pleadings and Notices required in an action

In some instances, there is a stage referred to as the pre-litigation process, this is not always a
requirement and in most instances determined by prescribing statutes, acts or contract which forms
the basis of the cause of action. An example of this is having to send a letter of demand to a debtor,
this may be necessary to complete a claim and arises in the following situations:

1. To place the debtor in mora (in default). In many cases a party to a contract has to perform on or
before a certain date fixed for performance
2. To give a right of cancellation of an oral or written agreement where no cancellation right has
been included in the agreement. The demand must request payment or performance of the
obligation within a reasonable period of time. The notice must also state that if performance is not
effected within the stated period, the agreement will be cancelled, and legal proceedings taken. If
the obligation is not performed, then the agreement must be cancelled either by another letter or
by a clause in the summons
3. To complete the plaintiff's cause of action
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Practical Examples 2.2

Example of a claimant completing his claim:

A person is in receipt of an acknowledgement of debt payable on demand to
him. It will be necessary for the person in possession of the acknowledgement
of debt to demand payment before action may be instituted.

The same principle applies to notice in terms of the National Credit Act, in
terms of section 129. Failure to issue a section 129 letter of demand under
the National Credit Act has become a defence to prevent further legal
proceedings

Van Blerk (2019:5) states an action is commended by the issue and of service summons. Where a
claim for a debt or liquid amount a simple summons may be used and in all other cases the plaintiff is
obliged to use a combined summons which has the statement of facts annexed to the summons
referred to as a particular of claim.

An action has two distinct stages out of the four phases highlighted above, the first being the
pleadings stage and then the trial stage when evidence is presented at trial. It is important to
reinforce that the purpose of pleadings is to define and record the issues that the action is based on
and enables the parties to adequately prepare and gather the evidence required for trial (Van Blerk
2019:6).

There are five (5) basic steps in pleadings in every action:

1. The plaintiff sets out the material facts on which he relies on in a simple summons and later a
declaration, alternatively if the claim is complex in a combined summons and particulars of claim
2. The Defendant then enters an appearance to defend the action instituted him by the Plaintiff
3. The Defendant then files a plea which sets out his defence to the plaintiff’s claims
4. The Plaintiff may then deliver a replication to answer any new facts raised by the Defendant in the
Defendant’s plea (Pete et al 2016:211)

Pleadings then close and the matter moves to the notices or discovery stage before it is set down for
trial.

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i. A simple summons

A simple summons can be used when the claim is for debt or liquidated debt. A brief description of
the cause of action is contained in a simple summons and the Uniform Rules of Court requires this to
be set out ‘in concise terms’. When an action that has been instituted by means of a simple
summons becomes defended the Plaintiff then has to deliver a more detailed account of his claim
and the material facts and this document is called a Declaration. This Declaration is similar to that of
a particular of claim and the difference is when it is produced ie: the declaration is delivered after the
simple summons has become defended and the particulars of claim is annexed to a combined
summons and the commencement of the action. An example of a simple summons can be found in
the Magistrate’s Court Act, see Annexure B.

Once the simple summons has been compiled it is then issued at Court. This issuing process
includes the clerk or registrar of the Court allocating a case number to the action and it is usually
stamped by the Court. This issued simple summons is then delivered to a sheriff for service on the
Defendant. Once the summons has been effectively served by the sheriff on the Defendant, they then
have 10 days to deliver a notice of intention to defend the Plaintiff’s claim. The plaintiff thereafter has
15 days to deliver their declaration which must set out in more details the claims against the
Defendant.

When preparing the declaration once the simple summons becomes defended it is relevant to note
the following considerations which also applies to preparing the particulars of claim which is set out
in Van Blerk (2019:19):

Ascertain the full facts from the instruction received and the accompanying documents
Establish and understand the relevant an applicable law
Decide on the cause or causes of action
Prepare a draft particular of claim and identifying briefly the content of each paragraph
Check all the information required for each claim is available (Pete et al 2016:213)

The declaration and particulars of claim should not contain unnecessary allegation but should
remain clear and concise reflecting the plaintiff’s claim. Where a simple summons is issued in the
magistrate’s Court the attorney representing the Plaintiff can sign the declaration however if the
summons is issued in the High Court both an advocate representing the Plaintiff as well as the
attorney must then sign the declaration (Pete et al 2016:215).

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ii. Combined Summons and Particulars of Claim

A combined summons utilised when the issues are more complex. There are two parts to a
combined summons the first part called the face of the summons which is the formal notice and then
the particulars of claim which will set of the relevant material facts relied upon by the Plaintiff.

Rule 17 of the High Court Rules (HCR) and rule 5 of the Magistrates’ Courts Rules (MCR) provide
specific and detailed instructions for the contents of the formal notice portion of the summons to
contain, which must:

Inform the defendant that if he wishes to defend the action, he must give notice of his intention to
defend to the plaintiff within a certain number of days. The time limit is usually 10 however there
are exception eg: when suing an organ of state, they have 20 days to deliver a notice of intention
to defend
Inform the defendant that within 20 Court days of delivering a notice of intention to defend, he
must take his next step in the action being delivering a plea, or an exception, or an application to
strike out the plaintiff’s action
Include an address for the service of further documents on the plaintiff in the matter must be set
out in the summons. This address is usually that of the plaintiff’s attorney offices and may not be
less than 15 kilometres from the office of the registrar or clerk of Court
Contain the signature of the plaintiff’s attorney if it is in the magistrate Court and as in the High
Court Rule 18(1) contain the signature of both an advocate and attorney alternatively only an
attorney who has been duly enrolled with the right of appearance in the High Court in terms of
section 4(2) of the Right of Appearance in Courts Act

The technical requirements for citing the plaintiff and defendant in the formal notice of the summons
is contained in the High Court rules 17(4)(a) and (b) and Magistrates’ Courts rules 5(4)(a) and (b).

Think Point 2.3

Read sections High Court rules 17(4) (a) and (b) and Magistrates’ Courts
rules 5(4)(a) and (b) which sets out the technical requirements for
describing a party. Discuss few of these technical requirements.

The particulars of claim are the statement of claim which is annexed to the formal notice. As in the
simple summons when preparing the declaration, the same criteria must be adhered to when

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preparing the particulars of claim.

It is noted in Van Blerk (2019:19) that the particulars of claim should not contain unnecessary
averments and allegations. The plaintiff need only plead the allegations of which he bears the onus
of proof.

It is further necessary to state the allegation of jurisdiction. As discussed earlier it necessary for the
plaintiff to state the basis on which jurisdiction is found. What this means is for reason does the
plaintiff alleges a Court has jurisdiction to hear a matter be it the defendant is resident or employed in
the Courts jurisdiction or the whole cause of action arose within the Court’s jurisdiction.

Readings 2.1

Read example 10 set out in Van Blerk, page 20 which sets out the basic
information which must be included in the particulars of claim

In the case of Sager Motors (Pty) Ltd v Patel the Court stated that a plaintiff will be bound to the
version which it has pleaded and cannot rely on a defendant’s plea.

The particulars must clearly state the cause of action upon which the plaintiff basis his claim and set
out the relief sought which is called the prayer. This is found at the end of the particulars of claim.

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Activity 2.2

Consider the following set of facts:

You are instructed by a businessman, Mr John who had entered into a written
agreement with Mr Doe. The terms of the agreement were as follows:
1. Mr John is a sanitiser manufacturer based in West Street, Durban.

2. Mr John is a sole proprietor and would manufacture and deliver 100

bottles of sanitiser to Mr Doe.

3. Mr Doe, who is self-employed would pay Mr John R20.00 per bottle of

sanitiser.

4. Mr Doe operates his business from his home situates in Pine Street,
Durban.

5. The contract was agreed upon at Mr John’s business premises on the 1st
December 2020.

6. Mr John manufactured and delivered the sanitisers but Mr Doe only paid
for 50 bottles.

7. Prepare a draft of the pertinent information you would utilise in the

summons and particulars of claim.

You have successfully prepared the summons and particulars of claim the next step as in the case of
the simple summons is to have it issued at Court by the allocation of a case number and duly
stamped by the clerk or registrar of the Court. The summons is then delivered to the sheriff to effect
service on the Defendant in accordance with the rules of Court.

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Figure 6: An Example of an Issued Summons

Source: Saflii, 2020

You now await the return of service and upon receipt of same from the sheriff your next step would
be to note the days allowed for the Defendant to defend the action which is usually ten (10) Court
days from date of which the summons was served which excludes weekends and public holidays.

As in most cases the reason the action was instituted is because there is a dispute between the
parties, and you now receive the defendant’s intention to defend. This is an incidental notice which

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comes after the issue of summons and before a plea is delivered. The defendant has twenty (20)
days from date of delivery of his notice of intention to defend to then deliver his plea to the Plaintiff’s
particulars of claim (The South African School of Paralegal Studies, 2012:15).

The notice of intention to defend must contain the details of the attorney representing the defendant
and as in the particulars of claim must comply with the technical requirements as set out in Rule 19
of the High Court Rules and rule 13 of the Magistrates’ Courts Rules. The notice of intention to
defend is delivered to both the Plaintiff’s attorneys as well as to the clerk or registrar of the Court
placing on record his intention to defend the matter as well as the address within 15 kilometres of the
clerk or registrars’ offices at which address he will accept service of all further notices and pleadings
in the action (MCR 13).

High Court rule 19(4) and Magistrates’ Courts rule 13(4) both provide that ‘’the defendant will not be
deemed to have waived any right he may have ‘to object to the jurisdiction of the Court or to any
irregularity or impropriety in the proceedings.’’ What this means is that because a defendant has
served and filed a notice of intention to defend he is then not precluded from raising an exception or
special plea to the Plaintiff’s claim such as the wrong person was sued or that a Court does not have
jurisdiction to hear the matter.

iii. The Plea

Pete et al (2016:234) accurately describes the plea as the Defendant’s answer to the plaintiff’s
particulars of claim and will contain the defendant’s defence to the claim. There are two main types of
a plea being a plea on the merits and a special plea.

A plea on merits as stated by Pete et al (2016:235) ‘deals with the substance of the plaintiff’s claim. It
attacks the validity of the cause of action with regard to the facts of the case’ such as addressing a
plaintiff’s claim that the defendant was negligent in a motor vehicle collision. While a special plea
deals with an objection in law and is the defendant’s attempt to dismiss a plaintiff’s claim even before
the merits are dealt with. Prescription or jurisdiction are examples of a special plea.

In practice whilst a defendant may raise a special plea in his defence it is still required to plead to the
merits of the matter so that the matter can still be dealt with if for some reason the special plea is not
upheld by the Court.

Ordinarily a special plea and plea is required to be served together and is to be delivered to the
plaintiff twenty (20) days after the notice of intention to defend has been served. This does not apply
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where the defendant has raised an exception to the plaintiff’s particulars of claim or brings an
application to strike out the plaintiff’s action. (Pete et al (2016:235)As is the case when preparing a
particular of claim a plea to is governed by technical requirements which is set out in the rules of
Court.

Readings 2.2

Read more on the technical requirements when preparing a plea in Rule 22

of the High Court Rules and rule 17 of the Magistrates’ Courts Rules. The
provisions of rules 22 and 17 must be read with the general provisions
relating to pleading contained in rule 18 of the High Court Rules and rule 6 of
the Magistrates’ Courts Rules, respectively
Click here:
https://www.justice.gov.za/legislation/rules/UniformRulesCourt[26jun2009].pdf

At the plea stage in an action the plaintiff’s claim has not yet been proved and for this reason these
claims are commonly referred to as allegations or averments. The Magistrate’s Court Rule is worded
almost exactly the same as its High Court counterpart, High Court rule 22(2) which states that:

‘The defendant shall in his plea either admit or deny or confess and avoid all the material facts
alleged in the combined summons or declaration or state which of the said facts are not admitted
and to what extent and shall clearly and concisely state all material facts upon which he relies’.

The requirements to admit, deny, confess and avoid goes one step further in that the defendant is
also required to state all material facts upon which the defendant relies. In the case of Wilson v
South African Railways and Harbours it was stated that:
‘Normally a defendant must obey the basic rule of pleading and admit, deny or confess and avoid’.

When preparing a plea, the golden rule is never to admit to any of the plaintiff’s averments unless
you have been expressly instructed to do so by your client as the consequences are that you may
not be able to amend the admission in the plea without reasonable explanation (Van Blerk 2019:29).
Further the Rules provide that any allegation that is not dealt with directly in the plea constitutes the
allegation having been admitted hence failing to deal with an allegation can ultimately mean it is
admitted which can prejudice the defendant (High Court Rule 22(3)).

The purpose of a pleading as stated earlier is to define the facts and issues that are in dispute and

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properly pleading it can limit the issues that are required to be determined by the Court. The different
types of plea can be summarised as follows:

1. Admission of facts is admitting facts which there is no need for evidence to be produced and
once a fact is admitted it becomes common cause. This can be simple issues which are not in
dispute such as the names of the parties, date when the cause of action arose and even the
jurisdiction claim (The South African School of Paralegal Studies, 2012:20).
2. Denial of facts by the defendant puts these at the centre of the dispute. The Defendant explicitly
denies these averments raised by the plaintiff; these are such claims by the plaintiff that a
defendant was negligent in a motor vehicle collision. When pleading one must caution not to
have ‘bare denial’ to the entire particulars of claim (The South African School of Paralegal
Studies, 2012:20).
3. Confession and avoidance is the instance where the defendant admits a certain averment but
then sets out new facts that would justify the defendant’s action. Again, we can use the example
of a motor vehicle collision where the defendant confesses to a collision having occurred but
denies he was negligent as he was faced with a situation of sudden emergency (The South
African School of Paralegal Studies, 2012:20).
4. Non-admission can only be pleaded when the first three pleas cannot be used such as in the
case where the plaintiff claims he was the owner of the motor vehicle that was damaged in the
collision, unless provided by means of proof of ownership the defendant does not have
knowledge of the averment and therefore puts forth a plea of non-admission is then utilised (The
South African School of Paralegal Studies, 2012:20).

Once all the averments put forth by the plaintiff has been addressed the plea is concluded with a
prayer for relief sought usually this takes the form of ‘wherefore the defendant prays for the dismissal
of the plaintiff’s claims with costs.

iv. A Special Plea

A special is where the defendant raises a special defence to the plaintiff’s claim. It is usually an
objection based on legal requirements and usually takes the form of one of the following:

The Court has no jurisdiction to hear the matter either due to geographical reasons such as the
cause of action did not arise within the Court’s jurisdiction or the value of the claim exceeds that
Courts powers to hear the matter (Pete et al 2016:241)
The plaintiff's claim has become prescribed by the effluxion of time as defined in the prescription
Act (Pete et al 2016:242)
The defendant or the plaintiff has no locus standi meaning they do not have the requisite capacity
to claim the relief sought (Pete et al 2016:245)
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Res Judicata is a special plea which states the issues raised by the plaintiff has already been
adjudicated upon and dealt with either in another action or in a different forum (Pete et al
2016:245)
A special plea of non-joinder or misjoinder is where the defendant pleads that a party with interest
I the matter was not joined as a party to the action alternatively that a party who was joined is in
fact the wrong party (Pete et al 2016:245)

v. A Counter Claim

The rules of Court require that the defendant files its counter claim at the same time as its plea and
the same technical requirements when preparing a particular of claim and plea applies to the counter
claim. It is a claim brought by the Defendant against the Plaintiff usually based on the same set of
facts raised in the particulars of claim. The Plaintiff’s claim is referred to as the claim in convention
and the defendant’s as the claim in reconvention and is between the same parties. Both the plea and
counter claim are dealt with together when heard at Court and judgment given accordingly. Just as a
defendant pleads to the plaintiff’s particulars of claim so too does the plaintiff plead to the defendant’s
claim in reconvention (The South African School of Paralegal Studies, 2012:21).

vi. Replication

Once the defended has pleaded the plaintiff is afforded the opportunity to respond to the defendant’s
claims by means of filing what is called a replication. This is provided for the Magistrates’ Courts rule
21 and Rule 25 of the High Court Rules. A replication is only necessary where the defendant has
raised new averments in his plea and the plaintiff cannot use this to introduce further new facts to his
claim.

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Knowledge Check Questions 2.1

1. A defendant has ____ days to defend a summons.

1. 10 days
2. 15 days
3. 20 days

2. Which is the stipulated kilometers for a service address from a court?

1. 10kms
2. 15kms
3. 20kms

3. Which is not a type of special plea:

1. ) Lack of jurisdiction
2. Dispute of the alleged facts
3. ) Prescription

vii. Exceptions and Notices out Strike Out

When preparing pleading in the form of particulars of claim and the subsequent plea and special
plea it is of tantamount importance to be ‘clear and concise’ in order to avoid a legal objection to the
pleadings. This takes the form of an exception and can be raised where:

A pleading lacks averment which are necessary to sustain an action or defence; or

The pleading is vague and embarrassing

When an exception is raised the party it has been raised against has specified period of time to
remove the cause of complaint after receipt of such notice. Should the party not remedy or remove
the cause of complaint the excipient then has the legal remedy to have the action or defence
dismissed by means of bringing an application to dismiss (Pete et al 2016:250).

viii. Annexure to Third Party Notice

A ‘third party’ notice provides for the joinder of a ‘third party’ who is not part of the action in two
situations, namely:

1. Where a party to an action claims to be entitled to a contribution or indemnification from the third
party in respect of any relief claimed against the party to the action; and

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2. Where any question or issue in the current action is substantially the same as a question or issue
to be determined between the third party and a party to the existing action (Van Blerk, 2019:53)

The third party notice is a standard form found in schedule or form 7 of the Uniform Rules of Court
and the annexure to the third party notice is equivalent to a particulars of claim (Van Blerk, 2019:53)
and the same requirements as set out above is to applied when preparing the annexure with the
content having to be clear and setting the relevant material facts to the action, see annexure C. A
further requirement is to attach all the pleadings to the action to date to the third party notice as it is
usually the case that the third party may be new to the action and not be in possession of any of the
pleadings.

ix. Amendment to Pleadings

Rule 28 of the Uniform Rules of Court provide for the amendment of a pleadings and it is a relatively
simple procedure (Van Blerk, 2019:59). There are various reasons a party may be required to
amend its pleadings for example to clarify the facts which were uncertain at the time of the
preparation of the pleading or to address an exception.

The procedure involves the party intending to amend a pleading, be it the particulars of claim or plea
must first give notice to the other party of its intention to amend. The notice must clearly set out the
proposed amendment and inform the other party of the time frame it may have to object to the
proposed amendment, this is usually 10 days. This objection must be delivered in writing stating the
reasons for the objection.

If no objection to the proposed amendment is received from the other party to the action, then the
party seeking to amend must then deliver its amended pages. These amended pages form part of
the pleadings and like in any other pleadings the guidelines in preparing a pleading must be
adhered to. It is stated in Van Blerk (2019:60) that ‘the pleading as amended reads sensibly and
discloses properly the cause of action or defence’.

x. Close of Pleadings

It is with certainty we can state that the purpose of pleadings is to define the issues in dispute
between the parties and once this has been done the pleadings are deemed to be closed, referred to
as litis contestatio. The preparation for trial can then begin.

The point when pleadings close is important and defined as the moment of litis contestatio where the

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plaintiff’s right is frozen in that moment. What this means in common practice and leal terms is that
where a plaintiff had a claim for damages for pain and suffering and he happens to die before litis
contestatio then his claimed would have died with him. However, if the plaintiff dies after the close of
pleadings, litis contestatio has occurred, then his claim continues and any benefit derived thereto
would be transmitted to his estate (Pete et al, 2016:250).

This rule has recently been unsettled by the Court’s decision in the case of Nkala and Others v
Harmony Gold Mining Company Limited and Others where the court held:
‘[T]he common law has to be developed to allow for the claim for general damages to be
transmissible to the estate or executor of a deceased mineworker, even though the stage of litis
contestatio had not been reached at the time of his death. Also, the development is necessary in the
light of the Court’s general duty to do justice by the persons affected by its orders. The development
should not be restricted to the case where the plaintiff has died pre-litis contestatio. It should also
apply to the case where the defendant or potential defendant has died pre-litis contestatio as the
same principles as those that apply to plaintiffs apply to them. The Court accordingly held that the
common law should be developed as follows:

1. A plaintiff who had commenced suing for general damages but who has died (from whatever
cause) before his claim has reached the stage of litis contestatio, will be entitled to continue with
such action notwithstanding his death
2. Such action shall be for the benefit of the estate of the person
3. The development is not restricted to class actions only, but all applies to claims

As it stands this judgment has not yet changed the current legal position and in the High Court rule
29 and Magistrates’ Courts rule 21A they set out the following instances in which pleadings shall be
considered 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 and
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

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Pleadings at this stage are deemed to be close and the preparation for trial can begin.

2.2.3 Time Frames in the Action Process

To better understand how the time frames are applicable to the delivery of pleadings and the allowed
time a response is required as prescribed in the law it is useful to understand the concept referred to
as dies in civil procedure. Dies literally means a day and there are prescribed time limits which are
applicable in an action where the calculation of the days is required to respond to a pleading.

Dies can further be defined a Court day and calendar day. A Court day is a day which is counted in
legal proceeding which excludes weekends and public holidays. It is literally considered an ordinary
workday. While a calendar day is every day of the week or a normal day, which includes weekends
and public holidays. The exception to a calendar day is if the last day falls on a Sunday or public
holiday then it is not counted as part of the time period and the last day will be the next normal day.
For the purposes of this unit, we will only utilise Court days when calculating the prescribed times
periods.

Video Activity 2.2

Watch the video below for a better understanding of both a calendar and
court day. Give a brief explanation of the two types of days?
https://www.coursera.org/lecture/construction-scheduling/understanding-work-
days-and-calendar-days-4ZjiF

Important time frames in an action

To better understand the application of these prescribed time frames which are stipulated in the High
Court and Magistrate’s Court rules, take note of the following:

1. Dies Non is defined in the Oxford dictionary (2020) as ‘a day on which no legal business can
be done, or which does not count for legal purposes. Each year our Courts set out a defined
period during the period December and January which is considered dies non where even
though pleadings may be served and received the time for responding only starts being
calculated from the day after the last day of dies non. This period is usually the 15 December to
the 16 January of each year and both days are inclusive of the dies non period. What this means
practically is that from the 15 December to the 16 January is non legal days for the purposes of

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the time limits prescribed in an action. There are exceptions however such as if a matter is
prescribing in this time period the service of the summons must still be served before the claim
has prescribed (Prescription Act No. 68 of 1969) and where the Court has specifically ordered the
delivery of certain notices or pleadings. For 2020 the Chief Justice issued the practice directive on
the 25TH November 2020 is from 15TH December 2020 to the 8TH January 2021, both days
inclusive

7Figure 7: Extract of Dies Non

Source: (Saflii: 2020)

2. Dies induciae is the time limits for an ordinary defendant in the action to enter an appearance to
defend. The Defendant has ten Court (10) days from the date it receives summons to give notice of
its intention to defend the action. This is extended in situations where the summons is served more
than 150 kilometres outside the jurisdiction of the Court which the summons is issued and two weeks
in any other cases (The South African School of Paralegal Studies, 2012:15)

3. Where a minister or organ of state is the Defendant in the action, they are allowed twenty (20)

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Court days to enter an appearance to defend from the date the summons is served (High Court Rule
19(2)). The High and Magistrate’s Court rules do allow a defendant to enter an appearance to
defend the action even after the expiration of the ten or twenty days, provided default judgment has
not yet been granted against the defendant and if application for default judgment has been made
then the defendant is to tender the costs of the application.

4. A defendant then has twenty (20) Court days from the date it has delivered an intention to
defend the action to deliver his plea. Should the defendant fail to deliver his plea on or before the
expiration of the twenty days the plaintiff is then in a position to serve the defendant with a legal
notice called a notice of bar. A notice of bar is informing the defendant that should he fail to deliver
his plea within five (5) Court days from receiving the notice of bar then the defendant will be barred
from pleading (The South African School of Paralegal Studies, 2012:15).

5. Once the defendant has delivered his plea and or counter claim the plaintiff in the action is then
afforded a period of fifteen (15) Court days to deliver his plea to the defendant’s counter claim and/or
replication to the defendant’s plea which is only necessary where the defendant has raised new
averments in his plea (Pete et al, 2016:249).

6. Once the required pleadings have been files in the prescribed time periods then the pleadings
are considered closed and referred to as litis contestation and trial preparation can begin (Pete et al,
2016:250).

It must be borne in mind that there is a certain degree of discretion and indulgences that are afforded
between the parties where they permit and grant the extension of the filing of pleadings to the other
party without seeking the permission of the Court. An example of this is where a defendant requires
a few more days to file his plea and/or counter claim and requests the extension from the plaintiff.
The plaintiff may well grant the extension by not serving a notice of bar on the defendant. This is
usually the case where the party granting the extension will not suffer any prejudice to their action by
allowing the extension.

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Revision Questions

1. Consider and explain when must a counter claim be filed?

2. Briefly state when an exception can be raised.

3. Provide an explanation of dies non.

2.3 Summary
In reading the text in conjunction with the applicable rules of court it will become easier to identify the
required information, the manner in which the information is to be presented and the requisite time
lines for the pleadings and notices to be timeously delivered. These rules are contained in accessible
court rules, practice directives and guidelines which enable a paralegal to easily ascertain and
identify the procedure to follow in an action.

These rules are what gives civil procedure a bit more certainty and allows the practitioner and their
paralegals, candidates attorneys and assistances to effectively handle a matter form inception of the
instruction from the client to conclusion of the pleadings stages to confidently prepare a matter to go
before a court for to be adjudicated upon.

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Answers to Activities

Think Point 2.1: The first point to note is the cause of action. In this scenario the cause of action
arose out of a motor vehicle collision which caused damages to your client’s vehicle which will need
to be repaired. Your client does have a valid cause of action to recover the cost of repairing the
damages sustained to his vehicle by means of claiming the costs of repairing the vehicle from the
negligent party.

Video Activity 2.1:

The action procedure can be broken down into four phases, namely:

1. The pleadings phase

2. Trial preparation phase
3. Trial phase/ trial proceedings
4. Execution of judgment phase

Case Study 2.1

As stated in the content and article above proceeding with an application where there is possible
dispute of material facts is not recommended. The courts have considered this aspect in detail and it
was found that certain claims can only be brought by way of action. In this scenario there is a high
possibility of a dispute of material facts for the following reasons:

1. There is no written agreement.

2. Your client is unclear as to the actual terms of the agreement.
3. Your client is uncertain of the actual amounts that is to be claimed.
4. the cause of action is for a monetary claim and not eviction in this scenario.
5. the tenant may raise material disputes to the facts.

In light of the above and with specific reference to the case of Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd it is highly probable there will be dispute of facts as well as the claim is for
payment and as such should be brought by way of action.

If an application is brought and the court hearing the matter finds that it should have proceeded by
way of action, the court can make any one of the following orders:

1. the application can be dismissed with an adverse cost order against your client.
2. the court can request oral evidence be heard however only in exceptional circumstances.
3. the court can refer the matter to proceed by way of action and utilise the application as the
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summons.

Practical Example 2.1: The example sets of how the parties are to be identified, how paragraphs
are used to separate different information as well as the cause of action and lastly the prayer, which
is the relief sought by the plaintiff.

Think Point 2.2: Whist the Uniform Rules of court have not been amended formally, it is now
common practice not to specifically state if a woman is married or not. The reference to her marital
status is generally only utilised is she is being sue din her capacity as being married to a debtor for
example and they are married in community of property. The community of property regime allows
for one spouse to be liable and be sued for the debts of the other spouse.

Activity 2.1: When describing a party in a pleading the following must be included, as far as
reasonably possible:

1. The name of the defendant, his full names where possible and/or initials as he is known to the
Plaintiff.
2. Details of his residence or place of business and if known his occupation.
3. If he is sued in a representative capacity to state such capacity.

Think Point 2.3: The technical requirements for describing a part in the pleadings assists in properly
identifying the parties to an action and further assists in avoiding any confusion that may arise where
other parties may have similar names and/or information. Some of these technical requirements are:

1. Full names
2. Residential, employment address or place of business
3. If the party is acting in his representative capacity

Activity 2.2: A draft of the paragraphs would contain the following information.

1. The Plaintiff is Mr John, an adult male businessman with his principal place of business situated
at West Street, Durban.
2. The Defendant is Mr Doe, an adult male who is self-employed and carries on from Pine Street,
Durban.
3. The whole cause of action being an agreement arose within the jurisdiction of the above
honourable court.
4. On the 1st of December 2020 the Plaintiff agreed to supply the Defendant with 100 bottles of
sanitiser for an agreed price of R20.00 per bottle.

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5. The Plaintiff had accordingly supplied the 100 bottles of sanitiser to the Defendant.
6. The Defendant has to date only effected payment for 5o bottles of sanitiser to the Plaintiff.
7. In the circumstances the Defendant is liable to the Plaintiff for the balance of the purchase of in
the sum of R1000.00.
8. Wherefore the Plaintiff claims payment pf the sum of R1000.00, interest, costs of suit and further
or alternative relief.

Knowledge Check Questions

1. 10 days
2. 15kms
3. Dispute of the alleged facts

Video Activity 2.2:

A court day is considered Monday to Friday excluding weekends and public holidays. These are the
days considered in most legal matters. Some rules permit for calendar days and these are everyday
of the week excluding public holidays Should a date fall on a public holiday then the next court or
calendar day is utilised for the purpose of the action.

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Unit
3: The Application Process in Civil
Procedure

Unit 3: The Application Process in Civil Procedure

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Unit Learning Outcomes

Prescribed and Recommended Textbooks/Readings

Prescribed Textbook
Van Blerk, P. (2019) Legal Drafting: Civil Proceedings. Second Edition.
Juta.

Recommended Readings
Hussain, I. S.C. (2019) Practical Drafting Skills. First Edition. Lexis
Nexis.

Womack., C. (2019) A Practical Guide for Legal Support Staff. First

Edition. Juta.

Magistrates Court Act 32 of 1944

Superior Courts Act 10 of 2013

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3.1 Introduction
Certain proceeding may, and in certain circumstances must be initiated by an application (Van Blerk,
2019:67). An application is purely based on paper where relevant material facts and supporting
evidence is set out in affidavits and annexures to a notice of motion and is also referred to as a
motion. The notice of motion is like the summons and sets out the relief sought by the applicant and
the procedure with handling an application is set out in HCR 6 and MCR 55.

An application is then heard in motion Court before a presiding officer being a magistrate or judge
and the hearings consists solely of the hearing of legal arguments based on the facts contained in
the affidavits. There are only three stages to the affidavit which will be detailed later in this unit and it
is only in exceptional circumstances is further affidavit and oral evidence allowed (Van Blerk,
2019:67).

Prior to proceeding with an application, the Applicant must have the relevant evidence and facts at
hand to prove his case and unlike in trial proceedings when the matter is heard, a litigant or the client
is not required to be present at the hearing of the application. The legal representatives will argue
the matter before the presiding officer and a decision made on the evidence and legal argument
presented to the Court (Pete et al, 2016:192).

The application process is considered to be a faster mechanism in achieving a result in a legal

matter however not all matters can be dealt with by way of application and the relevant Courtscourt’s
jurisdiction and competency to adjudicate on the issue must be considered for each matter (Pete et
al, 2016:179).

The magistrate’s court is often referred to as a ‘creature of statute’ and in the legal profession what
this means is that it is governed by the rules and laws as defined in an Act passed by Parliament. For
this reason, there are limitations to the types of applications that can be dealt with in the magistrate’s
Court. There are certain applications that cannot be heard in the Magistrate’s Court such as an
application for:

The interpretation or validity of a will

Declaring a person’s status in respect of mental capacity
Declaring a decree of perpetual silence
Ordering specific performance where no alternative claim for damages is claimed
Liquidation or sequestration of a debtor; and
A decree of divorce (HCR 32 & 6(1))

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The High Court however has inherent jurisdiction which grants it the powers to hear a matter that
comes before it. The High Court is not precluded by specific statutes or laws to hear a matter unless
there has been a judgment to that effect referring the matter to a specific Court or forum to deal with
the matter (Pete et al, 2016:181).

3.2 The Different types of Application (Motions)

Whilst the application process is relatively straight forward in the documents required to proceed
with, it is still important to establish what the purpose of the application is and understand the relief
sought. In doing so at the outset of the matter it will assist in establishing the type of application to be
brought. Applications can be broken down into four main categories, namely:

1. An ex parte application: this is brought by an applicant where the relief sought is immediate and
without having to adhere to the prescribed rules of Court at timelines at the time of bringing the
application. The circumstances are such that is it undesirable or impossible to give notice to another
interested party, (Pete et al, (2016:192). It is also utilised in circumstances where the relief sought is
not of interest to another party hence no notice is required to be given as the relief sought only
affects the applicant.

When an applicant elects to proceed with an ex parte application he has a duty to disclose all
relevant facts which not only sets out his case for the relief sought but also set out any other relevant
facts that may influence a Court’s decision. This is a strict duty of utmost faith and if the applicant fails
to do so then a Court may dismiss the application regardless of the merits (Pete et al, (2016:192).

The procedure for proceeding with an ex parte application is set out in the MCR 55(3) and it is similar
to the High Court Rules.

An applicant can utilise the short form of the notice of motion, referred to a Form 1 in the MCR
(Justice Department Form: 2020) (see annexure D) and the application can also be heard by a
magistrate of judge in chambers as well as in open Court depending on the facts of the case. Where
the ex parte application is brought due to reasons of extreme urgency or secrecy the relief sought
and ordinarily granted is only interim relief and called a rule nisi. The Court will then direct how the
rule nisi should be served on the other party with prescribed timelines as well as provide for a date
when the parties should return to Court for further adjudication of the matter. This return date also
affords the Respondent to do the following (Pete et al, (2016:192):

File answering affidavits and appear on the return date

Apply for the reconsideration of the interim relief granted to the applicant and
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On not less than 24 hours’ notice to the applicant, file an opposing affidavit which states why the
application cannot succeed and ask the Court to hear the matter before the stated return date.
This is usually done where the interim order granted is causing the respondent undue prejudice
(Pete et al, (2016:192)

On the return date the Court and provided all the interested parties have been served the rule nisi
the can then:

Confirm the rule nisi meaning make it a final order

Dismiss the rule nisi which means the entire application is dismissed
The rule nisi can be varied at the Courts discretion
Call the deponents to the affidavits which accompanied the application to be examined and
Make an appropriate cost order

Once the ex parte application is brought before the Court and on considering the papers and the
relief sought, if the Court finds that the relief sought does not affect any other person then it may
grant the relief sought by the applicant and make a final order without first granting an interim order.

2. An interlocutory application can be used in both an action and application that has already been
instituted where litigation is pending. It is used to obtain interim relief whilst awaiting the outcome of a
pending action or application (Van Blerk, 2019:67). Essentially, they are used to resolve procedural
disputes in a matter and in some instances to put a quick end to litigation such as an application for
summary judgment in an action.

The MCR states notice must be given in an interlocutory application except in instances of a request
for default judgment and for judgment by consent. The short form can be utilised as in the case of an
ex parte application and the notice of motion usually is accompanied by an affidavit however it is not
necessary in all applications such as when applying for default judgment for a claim based on for a
debt (Van Blerk, 2019:67).

3. A substantive application is governed by Rules 6(4) and (5) of the Uniform Rules of Court and
are used in proceedings where the material facts and relief sought are substantial and even complex
to an extent. This type of application requires the long form (Form 2 of the First Schedule, See
annexure E) for a notice of motion to be utilised and is accompanied by a founding affidavit and
supporting documents. The prescribed notice period must be included in the notice of motion as well
as the dates to oppose the application and date the matter will be heard in Court. These applications
are to be served on the other party by sheriff on inception of the application and thereafter should the
Responded appoint legal representative all further notices can be served on the nominated address.

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4. An urgent application is similar in its proceedings as an ex parte application however the

applicant is required to state in his affidavit the reasons for urgency and why if the matter is not dealt
with at the given time how the applicant may suffer some harm or prejudice. The urgent application is
to be accompanied by a certificate if urgency which is prepared by the advocate or attorney stating
he has considered the merits and is of the view it is urgent (Pete et al, 2016:191).

Activity 3.1

Joe and Jane are a divorced couple who have a minor child. Custody and
control of the minor child has been granted to Jane. Joe has limited rights of
access with which he is dissatisfied. At the end of a particular school term,
when Jane arrives at the nursery school to fetch the minor child, it transpires
that Joe has already taken the child with him for the school vacation.

The child’s teacher tells Jane that Joe insisted that he had right of access to
the child. Jane contests this. She consults you with a view to removing the
child from Joe. With these facts in mind, answer the following questions.
1. Explain whether you would proceed by means of an ex parte or an
ordinary opposed application.

2. Excluding the notice of motion, identify and describe the documents

that must be exchanged between the parties should Jane proceed with an
urgent application.

The applicant has to also show the Court that he has complied with the applicable rules as far a
reasonably possible and justify the departure and noncompliance with the rules as far as reasonably
possible. The application can be made on the short form. Such a matter can be heard in chambers,
after hours and allow for oral evidence if the time constraints are so dire that an affidavit cannot be
deposed to (Pete et al, 2016:191).

Urgency cannot be used as a tool to prevent a respondent from putting his version to a Court and as
in ex parte applications, should an order be granted the respondent can apply for a reconsideration if
the order or proceed to oppose the application in the case of a rule nisi being granted.

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Think Point 3.1

Consider the aforementioned types of applications available to a

litigant and provide examples when each application maybe used in
everyday situations.

Case Study 3.1

Analyse the example below and consider if it was the correct type of
application to proceed with, if you are of the opinion it was not, state the type
of application you would have used and reasons for same.
Where a landlord evicts his tenant and prohibits him access to the leased
premises, the tenant may approach the Court by way of an ex parte
application for urgent relief, requesting an interdict compelling the respondent
(the landlord) to place the applicant (the tenant) in undisturbed possession of
the property and to prohibit the respondent from further disturbing the
applicant in his undisturbed possession of the property. Should the applicant
in his founding affidavit satisfy the Court that he is entitled to possession and
undisturbed use of the property (for example, by stating that there is a valid
lease agreement and that he has properly fulfilled all his duties in terms
thereof), then the Court will grant a temporary interdict and a rule nisi which
will be confirmed or discharged on the return date

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3.3 Documents and Affidavits Utilised in an Application

3.3.1 Notices of Motion

As highlighted to above there are essentially two types of a notice of motion, the short form and then
the long form (See annexure D & E). The short form being utilised in ex parte, urgent application and
simple application as in the case of a request for default judgment. In this instance the short form
does not need to stipulate a date for a respondent to deliver a notice to oppose the application as it
is dependent on the reasons for notice being given. The Court deals with the required notice to be
given to a respondent in the interim order granted, the rule nisi which will also state the return date to
Court for the application to be dealt with further (Pete et al, 2016:192).

The short form is also utilised in an interlocutory application as it stipulates the relief sought and the
date the matter is enrolled at motion Court to be heard. It does not invite the respondent to oppose
the application however should the respondent intend to oppose the application he can still deliver
an answering affidavit on or before the hearing date (Pete et al, 2016:192).

In a substantive application the notice of motion must be in accordance with Form 2 (First Schedule
of the Rules), the long form of a notice of motion and requires that the respondent who wishes to
oppose the relief sought by the applicant to give notice of his intention to oppose the application by a
specified date. This date must be stated in the notice of motion and further state the date by which
the respondent must deliver his answering affidavit and when the application will be brought before
Court to be deliberated upon (Ven Blerk, 219:68).

The long form notice of the motion as in the short form must also set out the relief sought by the
application. As in an action this relief sought is also called a prayer. This is the most important part of
the notice of motion (Van Blerk, 2019: 71) and it is what the applicant is asking the Court to make an
order for. Depending on the relied sought and if it is an urgent application it is possible to include in
the prayer the immediate relief sought on an urgent basis as well as other forms of relief sought
which is not urgent. These different reliefs must be clearly separated in the prayer. The prayer can be
simple where it is for judgment of a debt, return of an asset or sequestration of a debtor’s estate (Van
Blerk, 2019:71).

Ven Blerk states that when preparing the prayer there are two questions to consider:

1. ‘What relief is the applicant entitled to? and

2. Does the order proposed cover all practical aspects necessary to render the relief effective?’

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(2019:79)

The first question is dealt with by understanding the substantive and procedural law where relevant
and is generally dealt with based on the facts of the application. The legal practitioner would be able
to determine what the applicant maybe entitled to when seeking an order based on certain facts
alternatively be able to make an adjusted and educated estimation. Where there is uncertainty as to
the relief that can be sought either due to a grey area in the law and precedents on the matter or as
a result of the fact of the application, an applicant is left to the Court’s discretion but to safeguard
against not obtaining any relief he may set out a lesser relief in his prayer (Van Blerk, 2019:71).

The second portion requires more detail to be considered. Once the relief sought is obtainable and
justifiable in law then the consideration must be given to exactly what is being asked for. Practically
what this means is that the prayer must adequately described so that the ‘applicant’s practical
objectives can be achieved’ (Van Blerk, 2019:79). In the matter of seeking an asset be returned such
a motor vehicle then that vehicle must be sufficiently described by means of its make, model and
registration number.

Identifying the subject matter of the relief sought is practical but the prayer must go one step further
to include the possibility of a respondent not complying. As in the case of returning a motor vehicle,
while the vehicle has been sufficiently identified, what would happen if the respondent does not
return it as ordered, it is here consideration of the applicant’s objective is considered and, in this
example, including a prayer for the sheriff to then uplift the vehicle is prudent (Van Blerk, 2019:79).

There is a need for careful thought and consideration to be given when preparing the prayer in order
to give effect to the law and what the client is seeking to achieve by bringing the application.

Think Point 3.2

Contemplate the two questions to consider when preparing the relief
sought and note in simple language how you would pose these questions
to your client in order to ascertain what they intend to achieve with the
application.

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3.3.2 The Founding Affidavit

The affidavits in an application take the place of pleadings and must be deposed to by a person with
personal knowledge of the facts and supporting or confirmatory affidavits are used to avoid hearsay
evidence. Generally attorneys do not depose to affidavit except instances of an application to compel
where the relevant facts are all within the attorneys personal knowledge. The affidavit is a written
statement which made on oath or under affirmation and at the end of the affidavit a commissioner of
oats signs the affidavit as well. The deponent to the affidavit as well as the commissioner of oaths
initials the bottom of every page of the affidavit and the supporting documents which is commonly
referred to as the annexures. The applicant’s own attorneys cannot commission the affidavit and it
must be done before an independent commissioner of oaths (Pete et al, 2016:193).

Figure 8: Extract of Oath Portion of an Affidavit

(Saflii: 2020)

The purpose of the founding affidavit is to set out the cause of action (Van Blerk, 2019:72) and it
must be in align with the relief sought. The affidavit must be simple and clear and set out the relevant
facts relied upon for the relief sought and refer to the annexures. This must be done in a concise and
chronological order without argumentative matter. As in the case of a pleading in an action there are
certain technical requirements that must be included in the founding affidavit, namely:

The parties must be identified and the capacity in which they act

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Locus standi is the second component which is stating that the parties in the application have the
right to sue and be sued
Jurisdiction must be set out to and sufficient facts given to identify the basis for the Court’s
jurisdiction to hear the matter
The relevant facts to show the cause of action (facta probanda) and the supporting evidence
(facta probantia)
The grounds for urgency of applicable
End with a prayer for judgment in terms of the prayer as set out in the notice of motion (Van Blerk,
2019:72)

In preparing the founding affidavit the drafter has to be weary to include all relevant facts to the
matter and even facts that may seem prejudicial to the applicant. The content of the founding affidavit
must also include content which may be in raised in a respondent’s answering affidavit and
adequately deal with any possible defences a respondent may raise (Van Blerk, 2019:72).

Readings 3.1

For a better understanding of the content to be included in a founding affidavit

which could include possible defences that a respondent could raise, read the
case of Lipschitz & Schwartz NNO v Markowitz 1976 (3) SA 772 (W) at 774H-
775A

The founding affidavit is evidence put before the Court and should only contain matters of fact within
the deponent’s personal knowledge of the matter.

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Activity 3.2

Read the list of information below and list the points that would be necessary
to include in affidavit in support of an application.
1. The applicant is a private company.

2. The director of the company is an adult male who is duly authorised to

depose to an affidavit.

3. The respondent is an individual to made representation to the director he

intended to buy some of their equipment.

4. The respondent has taken possession of equipment belonging to the

company.

5. The equipment was in the warehouse in Durban and the respondent has
taken it to Cape Town.

6. The respondent borrowed money from a friend to go to Durban.

7. The equipment was not being utilised by the company at the time as they
bought newer equipment.

8. The new equipment purchased by the company has increased the

company’s productivity.

9. The company intends to sell the equipment to assist in paying the cost of
the new equipment.

The company does not want to do business with the respondent as he has a
history of not paying for goods.

Certain content is prohibited in an affidavit and the rules of court permit these to be struck out of an
affidavit should it cause prejudice to a party; these can be summarised as follows:

Inadmissible evidence (Pete et al, 2016:195)

Hearsay evidence, generally this is where statements are made based on second-hand
knowledge but this can be qualified as hearsay evidence is acceptable where there is
confirmatory affidavits annexed to the founding affidavit by the person who has first-hand
knowledge but has no direct interest in the application. In certain urgent applications the court
may allow hearsay evidence, but this is dependent on the facts of each case and reason for
urgency (Pete et al, 2016:196)
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Privileged communication such as correspondences marked ‘without prejudice’ or

communications between attorney and client
Scandalous or vexatious matter which is defamatory or insulting and not relevant to the matter
(Pete et al, 2016:195)
Irrelevant and argumentative matter which is not pertinent to the case and/or argumentative (Pete
et al, 2016:196)

Video Activity 3.1

Watch the video which gives a clear explanation of inadmissible hearsay

evidence.
Watch here: https://youtu.be/oc4sIdpAOwg
1. Describe your thoughts while watching this video and consider if there is a
remedy to include hearsay evidence in an affidavit?

The founding affidavit is permitted to include certain submissions as it informs the respondent of the
cause of action and the evidence relied upon. These submissions must be clearly stated such as
when an applicant relies on the advice of his legal representative on an aspect of the law (Van Blerk,
2019:75).

Think Point 3.3

Affidavits may not contain inadmissible evidence or objectionable matter.
Identify two types of inadmissible evidence? Discuss what objectionable
matter is and provide an example of it?

3.3.3 Answering Affidavits

The answering affidavit is deposed to by the respondent in the application and must set out the
defence/s relied upon as well as the evidence relied upon. As in the case of a founding affidavit the
technical requirements must be adhered to and no prohibited statements must be made. The
respondent is required to address all the statements made by the applicant to show there is a bone
fide dispute of facts, for this reason, unlike in a plea, a bare denial of a statement is insufficient and
can ultimately prejudice a respondent’s defence (Van Blerk, 2019:81).

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There may be exceptions where the respondent does not have knowledge of the claims made and in
such an instance the respondent is permitted to still put those facts in issue by claiming the applicant
and or witnesses are ‘biased, unreliable or untruthful’ (Van Blerk, 2019:82). The respondent in his
answering affidavit must properly disclose the facts relied upon in his defence.

The respondents answering affidavit does not have to respond to each of the allegations of the
applicant’s founding affidavit as in the plea, it can start its affidavit by first setting out the facts and
back ground of his defence and thereafter deal with the applicant’s claims in more specific detail
individually, ((Van Blerk, 2019:84) and it is concluded by setting out the relief sought by the
respondent such as a dismissal of the application and appropriate cost order.

3.3.4 Replying Affidavits

The replying affidavit essentially brings the pleadings in an action to a close and is the applicant’s
response to the respondent’s answering affidavit. As stated earlier the applicant’s founding affidavit is
required to set out the cause of action and the relevant facts and evidence relied upon to justify the
relief sought. For this reason, the applicant cannot use this an opportunity to introduce new matter to
the application (Van Blerk, 2019:86). The applicant is only required to reply to the answers presented
in the respondent’s answering affidavit. As is the case in our law there are exceptions such as if the
new information were not present at the time the founding affidavit was deposed to, a Court has the
discretion to then allow this new matter to be considered provided it does not cause prejudice to the
respondent. Ultimately ‘the purpose of the replying affidavit is to rebut any averments made in the
answering affidavit’ as stated in Pete Et al (2016: 201).

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Knowledge Check Questions 3.1

1.1. The locus standi (capacity to act) of the parties must be included in the
affidavit.
1. a. True
2. b. False

1.2. A prayer for the relief sought is included at the end of the notice of
motion.
1. a. True
2. b. False

1.3. Communications marked ‘without prejudice’ can be included and

referred to in an affidavit.
1. a. True
2. b. False

1.4. An answering affidavit does not need to include a respondent’s defence

but merely reply to the applicant’s averments.
1. a. True
2. b. False

Video Activity 3.2

Watch the video about what an affidavit is and the difference between an
affidavit and declaration.
Watch here: https://www.youtube.com/watch?v=8yu43dRPvVY
1. What are your initial thoughts from watching this video?

2. Prepare a short paragraph on the important points that are to be included

in both the affidavit and declaration.

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3.4 Important Time Frames in the Application Process

The rules of Court prescribe certain timelines to be adhered to in the application process to enable
the matter to be dealt with expeditiously and effectively. This is what gives an application the
characteristic of being the faster mechanism to deal with a matter and obtaining the relief sought
(Pete et al, 2016:199).

As in the case of actions there are certain discretions and indulgences that are capable of being
granted between the parties but usually the application process is utilised to bring about quick results
and for this reason the prescribed time periods are for stringently adhered to. Once again it must be
born in mind when calculating these time periods court days are used unless otherwise ordered by a
court (Pete et al, 2016:233).

In the case of an urgent application the usual prescribed time periods for notices and responses are
dispensed with proved the application makes out a case for this and is entirely at a court’s discretion
on what time frames can be dispensed with in its entirety or alternative periods are ordered to be
complied with (Pete et al, 2016:200).

The usual prescribed times frames which are utilised in when and application is brought on the
requisite notice of motion with the supporting founding affidavit can be summarised as follows:

1. Effective service of the application must be made on the respondent at least ten (10) days before
the application is set down for hearing (Pete et al, 2016:200)

2. A respondent is afforded five (5) Court days in the High Court and ten (10) days in the Regional
and Magistrate’s Court, to deliver his notice of intention to oppose the application from date the
application is effectively served on him (Pete et al, 2016:200)

Where the respondent is more than 150 kilometre's outside the Court’s jurisdiction of where
the application is issued, the respondent is afforded a period of one month to deliver a notice
of his intention to oppose and where it is less than 150 kilometre's then he is afforded a period
of two weeks
Were the respondent is an organ of state such as a minister or deputy minister, he is afforded
fifteen (15) days to deliver his notice of intention to oppose the application

3. Once the notice of intention to oppose has been served the respondent then has fifteen (15)
days to deliver his answering affidavit (Pete et al, 2016:201)

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4. The applicant thereafter has ten (10) days after receiving the respondents answering affidavit to
deliver his replying affidavit (Pete et al, 2016:201)

5. Whilst a date for the hearing is already stipulated in the notice of motion, the applicant is still
required to file a notice of set down with the registrar or clerk of court; (see annexure F)

6. In the instance where an intention to oppose the application is received, but the respondent
does not comply with filing his answering affidavit within the stipulated fifteen (15) days, the applicant
may then also set the matter down for hearing

7. Any further filing of affidavits and extension of the time periods is at the discretion of the Courts
hearing the matter

Once the notice of motion has been effectively served and the parties comply with the filing of their
respective affidavits the matter can then be enrolled for hearing. This must be done by serving and
filing a notice of set down. The matter is then enrolled at court and put before a presiding officer to
adjudicate on the matter. Interim relief or a final order is granted dependant on the facts of the case
and the possible orders and their consequences will be dealt with later in this module (Pete et al,
2016:202).

Practical Application 3.1

You are a judge of the High Court at the hearing of an opposed application:
1. List the documents which you are likely to find in the court file in front of
you.

2. Explain briefly if you have discretion to allow for the further filing of affidavits
by the parties.

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Revision Questions

1. State the number of days that a respondent has to deliver his intention to
oppose an ordinary application in the High Court?

2. Explain if a respondent has the same amount of time to oppose an

application in the Magistrate’s Court?

3. Discuss if a respondent is an organ of state, how long would it have to

oppose an application?

4. After delivering an intention to oppose the application, what does the

respondent need to do next?

5. Discuss is there any discretion between the parties to extend the timelines
provided for in the Court rules?

3.5 Summary
The application process has a lot of similarities to the action process in civil procedure. The
overlapping aspects such as jurisdiction and applicable time frames must be understood as you will
note it is applied throughout civil procedure.

Understanding and utilising the application process can provide you and your client with a fast and
efficient method in seeking a relief sought provided the relevant criteria is understood and met.

In practice there will be instance where the above-mentioned cannot be followed to the T and the
requirements will differ, it is at this point is it essential to read the relevant court rule, practice
directives and current precedents to ensure you proceed with the matter accurately to achieve the
best possible outcome for your client.

As in the action process, as a paralegal, assistant, and legal advisor it is vital to understand the
process, the relevant time frames as well as the pertinent information required in an application.
Having this base knowledge and understanding will provide you with the tools to adequately engage
with the client to obtain the relevant information and proceed with the matter accordingly.

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Answers to Activities

Activity 3.1:
1. Jane would proceed by means of an “ordinary” opposed application since Joe must be given
notice of the application in order to have a chance to respond or to give his version of the story. On
the given facts, notice of the application should be given to the respondent Joe, and the ex parte
application is therefore not relevant in this instance
2. Should Jane proceed with an urgent application, the following documents would be exchanged.

a. The founding/supporting affidavit of the applicant will be attached to the notice of motion. It will
set out clearly the circumstances which render the matter urgent and the reasons why a hearing
in the normal course of events will not afford proper redress.

a. The answering affidavit by the respondent in terms of Rule 6(5) (d) (ii). In this affidavit, the
respondent deals paragraph by paragraph with the allegations and the evidence contained in
the founding/supporting affidavit.
b. The replying affidavit by the applicant in terms of Rule 6(5) (e) in which the applicant deals
paragraph by paragraph, in so far as may be necessary, with the allegations and evidence
contained in the respondent’s answering affidavit.
c. A certificate of urgency signed by the applicant’s advocate must accompany the documents.

Think Point 3.1: There are essentially four types of applications, namely:
1. Ex parte application which is used where the relief sought does not affect another party or the
relief sought is immediate and it is undesirable or impossible to give the other party sufficient notice
such as an application for a person to refrain from committing an unlawful act or where an attorney is
making application to the court to be enrolled to practice as an attorney.
2. Interlocutory application is utilised where there is a pending legal action and a party is seeking
specific relief such as in the case of a pending divorce and party seeks maintenance from the other
party.
3. Urgent application is similar to an ex parte application where the relief sought is required
immediately and it is undesirable to give the other party notice, an example would be an interdict to
prevent a person from doing something such as removing goods from a premises or causing harm to
a person.
4. Substantive application is utilised where the material facts and relief sought are substantial and
even complex to an extent an example of this is seeking an order for a return of a child to another
country in terms of the Hague Convention or even preventing the sale of a property.

Case Study 3.1: The given scenario provides the following facts:

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There was a lease agreement between the parties and the tenant has been in occupation of the
premises
According to the landlord the tenant has not complied with his duties in terms of the agreement
The landlord has restricted access to the property and use of the property to the tenant
The tenant has brought an ex parte application to be allowed access and use of the property

Based on the aforementioned information the ex parte application was the correct application to
bring as the facts are clear, they do not seem to be complex or substantive. Further the tenant
requires immediate relief as he has been denied access and use of the property by the landlord. This
is a primary characteristic if an ex parte application and where the court grants the interim relief in
the form a rule nisi it till afford the landlord (respondent) the opportunity to put his version before the
court on the return date which will enable the court to either confirm the interim order granted or
dismiss same.

Think Point 3.2: the two important questions are

1. What relief is the applicant entitled to? and

2. Does the order proposed cover all practical aspects necessary to render the relief effective?

A simple way to phrase these questions to a client is to engage with them during consultation and
establish what they intend to achieve with the application. They can be asked the following:

1. What outcome do you want to achieve?

2. Is there any alternative outcome you would be satisfied with if the first objective is unattainable?

You can go further to discuss with them the possible alternatives and effect thereof, for example if
your client wanted the return of a motor vehicle and the respondent fails to return the vehicle, then
the order can claim in the alternative that should the respondent fail to comply, the sheriff can then be
authorised to proceed to uplift the motor vehicle from the respondent and the respondent be liable
for the costs of the sheriff.

Reading 3.1: In Lipschitz and Schwartz NNO at 775H-776 Coetzee J said: ‘A litigant cannot, as it
were, throw a mass of material contained in the record of an enquiry at the Court and his opponent,
and merely invite them to read it so as to discover for themselves some cause of action which might
lurk therein, without identifying it. If this were permissible, the essence of our established practice
which is designed and which still evolves as a means of accurately identifying issues and conflicts so
that the Court and the litigants should be properly apprised of the relevant conflicts, would be
destroyed.’
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Activity 3.1: As stated in the content, the information to be contained in an affidavit must be clear,
concise and relevant to the application. An applicant cannot include arbitrary and irrelevant
information. The following would be necessary to include in the affidavit.

1. The applicant is a private company.

2. The director of the company is an adult male who is duly authorised to depose to an affidavit.
3. The respondent is an individual to made representation to the director he intended to buy some of
their equipment.
4. The respondent has taken possession of equipment belonging to the company.

Video Activity 3.1: The video clearly explains how hearsay evidence arises, in our law a party may
include hearsay evidence in an affidavit provided they include a confirmatory affidavit by the person
whom they obtained the evidence from.

Think Point 3.3: Types of inadmissible evidence are hearsay evidence and privileged
communications.
Examples of these are where a person deposes to facts in an affidavit but has no direct knowledge
nor any confirmatory affidavits to substantiate the claim. Such an instance is where the person states
he was told by an someone else that something was done. The deponent did not have first-hand
knowledge and thus cannot include that in his affidavit without a confirmatory affidavit as it is then
considered hearsay evidence.

Privileged communication is essentially communication which is marked without prejudice between

the parties and or their legal representative. Usually, it is in the form of an offer of settlement, but this
cannot be used in an affidavit to show the other party made any admissions merely because he
made an offer of settlement.

Objectionable matter can be scandalous, vexatious, and argumentative content. This is claims and
allegations that does not speak to the merits of the matter however is worded in such a way that it
aims to be defamatory or abusive against the other party. Claims such as a person’s trustworthiness
and or allegations about previous dealings.

Knowledge Check Questions

1. True
2. True
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3. False
4. False

Video Activity 3.2: The terms affidavit and declaration are used interchangeably but the key
difference is an affidavit is sworn to a deposed to by the deponent which is commissioned by a
commissioner of oaths ( a person authorised to administer an oath). In South Africa, a commissioner
of oaths can be a police officer, an attorney, notary public and conveyancer. A declaration is utilised
by a person who for their own personal reasons do not wish to take the oath but instead declares the
content is true to the best of their knowledge.

The important points that must be included in both affidavits and declarations are:

1. Who the person is deposing to the content and their authority to do so.
2. The person has direct or personal knowledge
3. The facts and information relied upon in seeking the relief.
4. Confirmatory affidavits if any to be included.

1.1 In an opposed application the documents likely to be in the court file are as follows:

The notice of motion accompanied by the founding affidavit

The respondents answering affidavit
The applicant’s replying affidavit
A notice of set down for hearing

1.2 Whilst the procedure essentially closes the pleadings in the application process once the
replying affidavit has been filed, a judge presiding over the matter does have the discretion to
request further affidavits be filed and accordingly extend the timelines to afford the parties the
opportunity to furnish the court with the requested further affidavits and or information.

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Unit
4: The Trial and Hearing Process

Unit 4: The Trial and Hearing Process

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Unit Learning Outcomes

Prescribed and Recommended Textbooks/Readings

Prescribed Textbook
Van Blerk, P. (2019) Legal Drafting: Civil Proceedings. Second Edition.
Juta.

Recommended Readings
Hussain, I. S.C. (2019) Practical Drafting Skills. First Edition. Lexis
Nexis.

Womack., C. (2019) A Practical Guide for Legal Support Staff. First

Edition. Juta.

Magistrates Court Act 32 of 1944

Superior Courts Act 10 of 2013

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4.1 Introduction
The pre-trial procedure is the stage after litis contestatio and is the preparation of the case to be
heard at trial. In any matter, the pre-trial procedure is crucial to ensuring that the trial runs smoothly
and further should this step be neglected it can result in adverse cost orders made against your
client and in severe situations losing the case entirely with little or no recourse.

This stage in civil procedure involves the exchange of information and documents between the
parties, convening a pre-trial to limit the issues to be canvassed at trial and making discovery of the
evidence that will be presented and utilised during the trial. The pre-trial procedure usually
comprises of three stages, the discovery stages, pre-trial stages and lastly set down for hearing
(Pete et al, 2016:211).

4.2 Pre-Trial Procedure

4.2.1 The Discovery Stag

1. The Discovery Notice and Discovery Affidavit

Once a matter has commenced there is usually a substantial amount of information exchanged
between the parties and in order to identify and secure this information to be utilised at trial discovery
of this information must be made. Discovery allows for transparency between the parties and aims to
eliminate issues between the parties regarding the information and its admissibility prior to the trial
between the parties (Pete et al, 2016:282).

In the MCR’s, Rule 23(1) deals with discovery and it is done by a notice to discover being delivered
to the other party calling upon him to discover the information he intends utilising at trial within twenty
days from delivery of the notice. The response to the notice to discover is done by means of the party
deposing to an affidavit. In the High Court there is an automatic obligation to make discovery under
oath within fifteen (15) days from receiving notice of the trial date. A party may deliver his discovery
affidavit without receiving the notice, however, should he receive the notice to discover then he is
compelled to comply with the request.

The information that must be discovered is all the relevant information and evidence relating to the
matter in question in the action and not just the information a party intends using during the hearing
of the matter to prove his case or disprove the other party’s case. All such documents, tape
recordings and images that are within the control of the party must be discovered. Pleadings that
are part of the Court file content, attorney and client communications and witness statements need
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not be included in the discovery affidavit (Pete et al, 2016:285).

Think Point 4.1

Consider a situation where a litigant does not have any documents he
wishes to discover; he intends relying solely on oral evidence in the
matter. Would he still be required to file a discovery affidavit?

There are two schedules that are included in the discovery affidavit, namely the First Schedule which
lists the documents and tape recordings that are in the possession and control of the deponent. The
First Schedule is divided into two parts being the first part which are the list of documents and tape
recordings which the party does not object to being inspected and the second part being documents
and tape recordings that the party objects to being inspected. This objection is usually based on this
information being privileged (Pete et al, 2016:286).

High Court Form 11 and Magistrates’ Courts Form 13 prescribe what the discovery affidavit referred
to in rule 35(2) and 23(2), respectively, must look like. According to Forms 11 and 13, there are two
schedules to a discovery affidavit, see annexure G for an example of a discovery affidavit.

Video Activity 4.1

Watch the video about discovery affidavits:

Watch here: https://www.youtube.com/watch?v=y2_Zk8xJqI8
What are your initial thoughts from watching this video?
Write a short paragraph wherein you describe your understanding of the legal
implications of the discovery affidavit.

As stated in Pete et al (2016:287), the Second Schedule lists those documents and ‘tape recordings’
(extended meaning) which were in the possession of the deposing party at one time but are now no
longer in the possession of that party.

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Practical Application 4.1

Describe the information that must be contained in a discovery affidavit.

2. 2. Further Discovery Notices and their purpose

There are a large number of different notices that are allowed for in the rules of Court but not all are
pertinent and necessary. Establishing what notices are necessary is dependent on the individual
action and how the party intends presenting its case and evidence before the Court. For the
purposes of this unit, we will highlight the usual notices that are utilised in an action and highlight
their purposes.

i. A Notice to Inspect

This notice is served after discovery has been made and it calls upon the party that has discovered
to make available for inspection the documents and/or tape recordings available to be inspected
(rule 35(6) of the High Court Rules and rule 23(6) of the Magistrates’ Courts Rules). Once a party
has received a notice to inspect the other party then has five days to deliver a notice to deliver a
response to the notice to inspect. This reply has to contain the address, usually the attorney’s offices
and the time which is ordinary business hours when the documents will be made available for
inspection. In practical terms though whilst the notices are delivered the requested documents are
usually provided to the other party via email or making copies available for inspection. It is only in
exceptional circumstances where the documents are large, or unable to be copied or scanned such
as the case of original diagrams does the formal inspection take place (Pete et al, 2016:289).

Should a party fail to deliver a reply to the notice to allow the inspection or not allow the inspection to
take place at all, then the documents that are not inspected may not be used at trial and the
requesting party has the remedy to bring an application to compel the inspection to take place (Pete
et al, 2016:289).

ii. A Notice to Specify

Once pleadings have closed (litis contestatio) than any party can deliver a notice to specify (rule
35(8) of the HCR and rule 23(9) of the MCR). This requires the party to specify the documents he

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intends using at trial. Whilst it may seem to have the same purpose of a discovery affidavit, this
notice goes further and must specify the nature of the documents as well as the documents
whereabouts in the event the other party wishes to proceed with a subpoena duces tecum, this will
be discussed further later in this this unit. The notice to specify should give the other party an idea of
how the opposition intends structuring his case (Pete et al, 2016:290).

iii. Notice to Produce

The notice to produce procedure is set out in Rule 35(10) of the HCR and rule 23(11) of the
Magistrates’ Courts which obliges the other party to make available at the trial the original of a
document or recording which was listed in his discovery affidavit. This is usually handed in at trial
and is done when the other party intends using that document or tape recording in the presentation
of their own case (Pete et al, 2016:291).

iv. Notice to Admit

Ordinarily a party who intends utilising a document or tape recording will have to call a witness to
attest to the validity of such evidence and introduce the evidence at the trial. Rule 35(9) of the HCR
and rule 23(10) of the MCR provides for the party to request the specified evidence be admitted as
what it purports to be with the need to call any witness. The party will deliver a notice to admit
specifying the documents they wish to be admitted and the opposition party will then have ten (10)
days to elect not to admit the evidence in question. Should the opposition party fail to indicate their
refusal to admit, the document can then be produced at trial without having to prove them (Pete et al,
2016:292). A common example of such a document is usually a contract concluded between two
parties who are needed to give evidence to confirm the contract was in fact concluded between
them, then the parties can admit this and these witnesses need not be called at trial. It is useful in
reducing the number of witnesses at trial and the overall time allotted to conclude the hearing of the
matter.

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Activity 4.1

Read the High Court rule 35 and Magistrate’s Court rule 23 in conjunction
with the content above and briefly summarise the purpose of sending out the
following notices:
1. Notice to inspect.

2. Notice to specify.

3. Notice to admit

v. Request for Further Particulars

In terms of rule 21(2) of the HCR and the MCR 16 a party may request certain particulars which are
strictly necessary to enable the party requesting them to prepare for trial. The notice can only be
served after the close of pleadings and at least twenty days before the trial date. The purpose of this
request is to prevent surprises at trial and allow for adequate preparation of the parties’ case to be
addressed in argument (Pete et al, 2016:295).

vi. Subpoenas

The subpoena is considered a formal notice and unlike the preceding notices requires the
documents to be issued by the clerk or registrar of the Court and served by the sheriff of the person.
The main purpose of a subpoena is to secure a witness at a trial and to give the witness formal
notice to present himself at trial. The subpoena will include the date, time, time, the Court details as
well as the party who has made the request for him to give evidence (Pete et al, 2016:297).

The second type of subpoena is called a subpoena duces tecum and this is used to secure a witness
bring a specified document/s or thing to Court to be utilised at the hearing of the trial. This is the case
where the document or thing is not in possession of either of the parties such as in the case of an
auditor’s records or municipal records. The person in possession of the requested documents or
thing must bring it to court on the date of the hearing and it is then handed to the clerk or registrar for
inspection or to be copied and then returned to the witness (Pete et al, 2016:298).

Should a witness fail to adhere to a subpoena by not appearing at Court or refusing to bring the
requested document or thing, a warrant of arrest can be issued by the Court and the witness will then
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have to appear before the Court and give reasons for non-compliance with the subpoena. If there is
no reasonable excuse for failing to appear and/or comply the Court can issue a fine of R300 or up to
three months in jail (Pete et al, 2016:298).

vii. Expert notices in terms of Rule 24 (9) of the Magistrate Court Rules and Rule 36(9) is utilised to
give the opposition party notice of your intention to call this expert witness to give evidence.
Ordinarily used in delictual claims for bodily injury however its purpose is to give the Court insight on
an aspect they are required to deliberate on which requires expert or specialist analysis. The notice
of the party’s intention to call an expert witness must be given not less than fifteen days before the
hearing of the trial and the party is required to provide a copy of the expert’s report and/or opinion
not less than ten days before the hearing of the matter (Pete et al, 2016:292).

viii. Plans, drawings and diagrams that are to be utilised at the trial must be discovered notice is
given to the opposing party in terms of HCR 36(10) and MCR 24(10). A notice to admit can be used
to obtain the plan or drawing to be admitted as evidence as what it purports to be.

Think Point 4.2

Have you considered the legal implications of not attending to pre-trial
preparation? state some of necessary notices and/or documents you will
utilise to bring your case to trial stages and supporting evidence before
the Court.

4.2.2 Pre-Trial Hearing

In proceeding with any action, it would have been noted thus far that determining the cause of action,
the evidence to be used and establishing the most efficient manner for a party to present his case is
the cornerstone of civil procedure.

The pre-trial conference enhances this foundation and is in place to once again identity the disputes
between the parties and attempt to limit these issues in order to mitigate against lengthy trials and
use of unnecessary evidence and calling of witnesses that do not advance either parties case and
can even assist in possible settlement of the matter (Pete et al, 2016:307).

The High Court under rule 37 requires the parties to hold a pre-trial conference at least six weeks
before the matter is set down for hearing. Once the hearing date has been obtained the party must
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then deliver a notice to the opposition party within five days calling upon them to hold the pre-trial
conference. The date, time and place can be agreed upon between the parties and in the current
legal climate these conferences are even held telephonically or via video call. Once the date and
time has been agreed upon, not less than ten days before the pre-trial conference is to be held, a
pre-trial agenda in terms of rule 37(4) must be delivered, this is a documents listing the admissions
sought from the opposition party, the enquiries to be directed at the other party and any other issues
to be canvassed in preparation of trial (Pete et al 2016:308).

In terms of Rule 37(6) a pre-trial minute must be drafted and signed by both parties who concluded
the pre-trial conference and must record the date, time, manner in which the conference was held
and list the aspects discussed and recorded for trial purposes.

The aspects that should be canvassed at the pre-trial conference as stated by Pete et al (2016:308)
are:

‘The place, date and duration of the conference and the names of the persons present
If a party feels that he is prejudiced because another party has not complied with the rules of
Court, the nature of such noncompliance and prejudice must be recorded
That every party claiming relief has requested his opponent to make a settlement proposal and
that such opponent has reacted thereto
Whether any issue has been referred by the parties for mediation, arbitration or decision by a
third party and on what basis it has been so referred
Whether the case should be transferred to another Court
Which issues should be decided separately in terms of rule 33(4)
The admissions made by each party
Any dispute regarding the duty to begin or the onus of proof
Any agreement regarding the production of proof by way of an affidavit in terms of rule 38(2)
Which party will be responsible for the copying and other preparation of documents and
Which documents or copies of documents will, without further proof, serve as evidence of what
they purport to be, which extracts may be proved without proving the whole document or any
other agreement regarding the proof of documents

Once signed by both parties the pre-trial minutes must then be filed at Court not less than five weeks
before the trial is to be heard. Once this minute is reviewed by the presiding judge the Court has a
mechanism in terms of Rule 37(8) to call the parties legal representatives to hold or continue a pre-
trial conference in the Judge’s chamber for further deliberation on the issues raised (Pete et al
2016:308).

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The Magistrate’s Court does not state it is compulsory to hold a pre-trial conference but most Courts
have their own practice directives, and it is more common than not that a pre-trial be concluded
between the parties before the matter is heard at trial. It is dealt with in section 54 of the Magistrates’
Courts Act, read with Magistrates’ Courts rule 25, which like its High Court counterpart is a
mechanism to address simplification of the issues, record any admissions, the number of witnesses
intended to be called at trial and note any other disputes between the parties for the Court to
deliberate on (Pete et al 2016:309).

Case Study 4.1

Read the article on pre-trial conferences below:

https://law.jrank.org/pages/9365/Pretrial-Conference.html
Based on the detailed discussion of ‘a real dispute of fact’ in the above
reading, provide your legal opinion on the following scenario:
Consider the following scenario and provide answers to the questions that
follow.
Your act for Mrs Jele, a defendant in a High Court matter. As her attorney you
have now received a notice in terms of the High Court rules 37(2) to attend a
pre-trial conference with the other party (the plaintiff).
1. Write a short memorandum on the purpose of the pre-trial conference.

2. Draw a checklist of no more than 5 points that should be canvassed at

the pre-trial conference.

4.2.3 Setting the matter for trial

The pleadings have closed, the formal notices and discovery have been dispensed with and the next
step is the matter being brought before a Court to be adjudicated upon. Whilst it seems all the work
has been done on paper and it is just a matter of presenting your case to a Court, it must be noted
there are still practical steps to be taken to ensure the matter is in fact enrolled at Court to be heard.

Once the date for the hearing has been obtained and the notice of set down has been timeously
served on the opposition parties, at least twenty days before the hearing of the trial, the legal
practitioner, candidate attorney and his paralegals now must attend to the preparation of their file as
well as the Court file.

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The Court file is requested from the clerk or registrar and the file must be indexed and paginated.
The documents in the Court files is usually divided as follow:

Index to pleadings
Index to notices and
Index to documents

This assists practically at trial for the presiding officer as well as the parties and witnesses to easily
identify the subject matter being referred to especially in cases with substantial documents. These
bundles are collated in chronological order and numbered accordingly. A copy of the index is
provided to the opposing party to paginate their file accordingly. Should the Court file not be
timeously and adequately indexed and paginated, the party who failed to do so runs the risk of the
matter not being placed on the court roll for hearing and should the matter need to be adjourned for
this to be attended to, an adverse cost order can even be granted as it is wastes the Court and the
other party’s time (Pete et al, 2016:311).

4.3 Trials and Hearings

We know and understand that a trial occurs in an action and a hearing in an application. The most
significant difference between these two is the evidence aspect. In a trial oral evidence is heard and
in conjunction with the pleadings and documents a decision is made while in a hearing the presiding
officer is limited to the papers and only legal argument is submitted by the parties’ legal
representatives.

In an application the presiding officer considers the papers, the relief sought and will hear the legal
argument presented by the legal representatives. Once this has been concluded an order is made
either granting interim or final relief as prayed alternatively the application can be dismissed or
adjourned with an appropriate cost order being made (Pete et al, 2016:192).

The trial procedure however requires a bit more from the parties and is usually held in open Court,
this means anyone from the public can sit in and hear the trial unless it is a ‘special case’. Only
evidence relating to the issues raised in the pleadings can be led in evidence and the standard of
proof in a civil trial is on a balance of probabilities.

The trial procedure is set out in the Rules of Court, but this can be adjusted at the discretion of the
presiding officer. On the day of the hearing is a party does not arrive default judgment can be granted
against the party if the Court is satisfied the requisite notice was delivered.

Where both parties are present the matter will proceed before the presiding officer, ordinarily the
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plaintiff has the duty to begin but this can be agreed upon between the parties alternatively either
party may apply to Court for a ruling on who bears the onus to begin (Pete et al, 2016:315).

The plaintiff begins the trial by delivering his opening remarks which is a general overview of the
pleadings, explaining what the case is about and outline averment he intends to prove or disprove
during the course of the trial as well as highlight the facts that have been admitted or are common
cause.

Once the opening remarks have been made it is essentially the ‘plaintiff’s case. The plaintiff will
proceed with its case by calling its witness who will give his evidence in support of the plaintiff’s case.
Once the plaintiff has concluded examining the witness the opposing party then has an opportunity to
cross-examine the witness. As stated by Pete et al (2019:315) the purpose of cross examining the
witness is ‘to put the other party’s version to him, probe inconsistencies and to show any weakness in
the evidence that the witness has presented. The plaintiff’s legal representative then has the
opportunity to re-examine the witness which essentially to clear up any inconsistencies or
discrepancies that may have arose during cross-examination (Pete et al, 2016:315).

It must be noted that during the examination of the witness, the presiding officer has the power to
examine every witness in order to clarify any question asked and obtain further explanation from the
witness. Once the witnesses have been examined and the plaintiff has called all his witness, the
plaintiff’s case is considered closed (Pete et al, 2016:316).

It is at this point in the trial that the defendant can make application to the Court during the trial
proceeding for ‘absolution from the instance’. This done before the defendant leads any evidence
and the interlocutory application is done verbally in support of the application. The defendant can
bring such an application as it is of the view that after the hearing of the plaintiff’s evidence that the
plaintiff has failed to prove his case on a balance of probabilities or discharge the onus of proving his
case (Pete et al, 2016:316).

The Court on hearing the evidence led by the plaintiff’s witnesses and the basis for the application or
absolution from the instance from the defendant will deliberate on the matter. This is articulated in
Pete et (2016:316) all which states ‘the test the Court will apply in deciding whether or not to
grant absolution from the instance at this point in the proceedings is whether or not the
plaintiff has succeeded in adducing sufficient evidence upon which a reasonable person
might find in his favour’. If the Court grants absolution, then that is the end of the hearing and the
defendant need not call his witnesses. Should the Court not grant absolution from the instance then
the trial will proceed.

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Readings 4.1

Read A Critical Analysis of 'Absolution from the Instance' in South African

Labour Law with Specific Reference to the CCMA, Journal of Contemporary
Roman-Dutch Law, Vol. 79, p. 85-102, 2016
Read pages 85-102 to understand how the concept of absolution from the
instance is currently applied across our different legal systems
Click here to access journal:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2835422

The defendant will then present his case by firstly giving his opening address and then calling his
witnesses and these witnesses will be examined, cross-examined and re-examined as in the case of
the plaintiff’s witnesses. The procedure is the same as with the presentation of the plaintiff’s case and
hereto the presiding officer has the powers to ask the witnesses questions to seek clarity (Pete et al,
2016:317).

After all the witnesses have been called and both parties have presented their cases the parties
proceed with a closing address. The legal representatives will address the Court by going through
the evidence led, stating what they are of the view has been proven and addressing the usefulness
and credibility of the witnesses. The trial is considered concluded at this stage and it is then left to the
Court to make a decision by delivering a judgement (Pete et al, 2016:317).

In most cases, depending on the issues, the complexity of the issues and the number of witnesses
presented, the Court will reserve judgment to be handed down at a later date once the presiding
officer has had time to consider all the evidence put before it, the law as well as other judgments

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Knowledge Check Questions 4.1

Choose the correct answer

1. A notice to discover can delivered at what stage?
1. a. Before the close of pleadings
2. b. After the close of pleadings
3. c. When the hearing of the matter has commenced

2. A party who receives a notice to admit certain evidence has ____ days to
either admit or not admit the said evidence.
1. 10 days
2. 5 days
3. 20 days

3. What notice is used to secure a witness at trial?

1. a. Subpoena
2. b. A letter from the attorney
3. c. A request from the clerk of Court

4. Who is not permitted to ask witnesses questions during a trial/

1. a. The attorney
2. b. Another witness
3. c. The presiding officer

Video Activity 4.2

Watch this video about the presentation of a hearing.

Watch here: https://www.youtube.com/watch?v=EcmunVPLGyQ

1. Identify the action that is before the Court and consider the manner in
which the litigants present their case and the flow of the hearing.

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4.4 The Roles and Duties of Paralegals

Throughout the litigation process there are a number of pertinent role players, from the client who
brings the matter to a legal practitioner to the paralegal who ultimately handles the matter from the
outset to the hearing of the trial together with the legal representative to ensure the matter is
successfully brought to trial.

In most practices an attorney and in some instances together with an advocate relies upon the
paralegal to assist with the matter from the inception. This includes and not limited to:

Sitting in and recording relevant information and facts when consulting and taking instructions
from the client
Noting the cause of action and disputes and assisting the attorney in researching the applicable
and relevant law and requirements to bring the action
Preparing the necessary notices and ensuring they are effectively and timeously served on the
opposing party
Accurately diarising matters to ensure they are dealt with in terms of the prescribed Court rules
Preparing the attorneys file for trial as well as the necessary brief to the advocate if one is used in
the matter
Attending to the indexing, paginating of the Court file so the matter may be set down for hearing
and
Attending Court for the hearing of the matter to assist with the handling of witnesses and taking
copious notes whilst the trial is being heard to ensure any aspect the legal representative may
have missed is addressed

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Figure 9: Paralegal Cartoon (Cartoonstock: 2021)

Think Point 4.3

Think Point 3 Describe you encounters with a paralegal and attorneys, if
any. If so, what were the distinguishing factors in their roles that you
noticed?

Whilst the aforementioned is generally the duties of a legal practitioner it is ordinarily the paralegal
who carries out all the groundwork and if of great assistance to the legal practitioner in ensuring a
matter is successfully brought before a Court to be heard and adjudicated upon.

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Activity 4.2

1. Consider the roles of a paralegal and that of an attorney, can you list the
tasks a paralegal can attend under the guidance of the attorney.

Revision Questions

1. What is the name of subpoena utilised when you require a witness to bring
a document to Court to be used during a hearing?
2. Briefly discuss the concept of a ‘request for further particulars’ in relation to
trial preparation.
3. Explain the purpose of a pre-trial conference.

4.5 Summary
In light of the content in this unit it will now be evident how important the pre-trial procedure and
preparation of both an action and application is. From understanding when pleadings close and
moving to discovery you will have a clearer picture of what to look for from the inception of the matter
to adequately prepare the necessary discovery notices, request further information and preparing
the matter accordingly for trial.

The pre-trial conference in both the Magistrate and High Courts are an integral part of the civil
process not just to assist in reducing the issues between parties but also affords the parties the
platform to consider their matter fully and assist the Courts by not over burdening them with lengthy
hearings and trials which could have been reduced substantially. This mechanism allows greater
access to the Courts for all.

A paralegal’s role in an integral part of not only a practice but of the matter as they are involved from
the outset and by being able to identify the correct information and obtain the necessary information
from a client and opponent, to preparing a Court file and seeing the matter ultimately are able to see
the successful conclusion of the matter. It is the understanding that preparation is key in any matter
and which is what all the above-mentioned mechanisms assist in dealing with a matter.

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Answers to Activities

Think Point 4.1:

In practice this is hardly ever the case as while a litigant may not have any documents or evidence,
he wishes to discover that has a direct link to the subject matter, he may well have secondary
information such as images of a road in a motor vehicle collision scenario which will assist the Courts
to paint a clearer picture of the oral evidence led at the trial. Should a litigant have no documents or
information to discovery he is not obligated to file a discovery in terms of the magistrate’s Court
unless ordered to do so however in the high Court he may well have to and leave the first schedule
either bank alternatively what is common practice is to cite the pleadings in the matter as being the
discovered documents.

Video Activity 4.1:

Discovery affidavits is utilised by both parties to reveal all the evidence they have in their possession
before the hearing date. It is vital part in the litigation process. In most instances the outcome of a
successful hearing is dependant of the documents/items discovered and will assist the Court with
giving a clearer picture of the substance of the matter in conjunction with the oral evidence provided
by witnesses.

Activity 4.1:

1. The notice to inspect is served after discovery has taken place and requests the other party
available for inspection the documents and/or tape recordings available to be inspected. In daily
practice what this requires is the party to state when the documents can be made available to be
viewed and or copied if so required.
2. The notice to specify stipulates not only the documents a party intends using at trial but also the
documents whereabouts and if in another person’s possession, that person’s details.
3. The notice to admit request the other party to admit certain discovered documents are what they
purport to be without having to call a witness at trial to attest to the validity of the document or
tape/recording/image.

Think Point 4.2:

It is dangerous and unprofessional to not give sufficient attention to the pre-trial stage, especially to
discovery which can ultimately make or break a litigant’s case. Discovery is a crucial step to ensure
all the relevant evidence is accurately put before the Court to assist in the Court making a decision
on a matter.

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Once pleadings have closed it is vital to look at the matter before you from a hearing perspective and
utlise the necessary notices and mechanisms available in the Court rules to properly put all the
information necessary before the Court.

The common practice notices are:

1. Discovery affidavit which will contain all the documents, tapes/recordings and/or images and
witness statements you intend to utilise during the trial.
2. Notices to discover, inspect, produce and specify to obtain the other parties’ cooperation in
providing their discovery affidavit and obtaining sight of the discovered items.
3. Subpoenas to secure a witness’s attendance at the hearing or to have a witness bring to the
hearing documents/evidence they may have in their possession.

In a discovery affidavit the party making discovery must set out

1. Those documents relating to the matters in dispute in the action which are in his or her
possession or are under his or her control.
2. Those documents which, although relating to the matters in dispute in the action and being in the
party's possession or control, the party objects to producing, and the reasons for such objection
must be stated.
3. Those documents which he or she has had in his or her possession or which were under his or
her control, but which he or she does not now have in his or her possession or which are not now
under his or her control.
4. Such party must also state when such documents were last in his or her possession or under his
or her control, and where such documents now are.

Case Study 4.1:

1. A pre-trial conference is conducted after the exchange of the discovery notices and before the
matter is set down for hearing. The purpose of a pre-trial is for the parties to canvass the various
issues in dispute with the aim of limiting the issues to be presented at the hearing.
2. Checklist to include any five of the below listed:

The place, date and duration of the conference and the names of the persons present;
If a party feels that he is prejudiced because another party has not complied with the rules of
Court, the nature of such noncompliance and prejudice must be recorded;
That every party claiming relief has requested his opponent to make a settlement proposal and
that such opponent has reacted thereto;
Whether any issue has been referred by the parties for mediation, arbitration or decision by a

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third party and on what basis it has been so referred;

Whether the case should be transferred to another Court;
Which issues should be decided separately in terms of rule 33(4);
The admissions made by each party;
Any dispute regarding the duty to begin or the onus of proof;
Any agreement regarding the production of proof by way of an affidavit in terms of rule 38(2);
Which party will be responsible for the copying and other preparation of documents; and
Which documents or copies of documents will, without further proof, serve as evidence of what
they purport to be, which extracts may be proved without proving the whole document or any
other agreement regarding the proof of documents

Knowledge Check Question

1. B
2. A
3. A
4. B

Video Activity 4.2:

The matter before the Court is an application for the right to housing in terms of section 26 of the
Constitution. The parties firstly are referred to as the Applicant and Respondent which is applicable
in an application and not in an action.

What is pertinent to note from this video is the way the litigants present their argument to the Court
and further how the presiding officers seeks clarity by asking further questions from the legal
representatives to clarify their arguments and on what basis their argument was formulated.

Think Point 4.3:

Answer will be relative to the reader’s person experience and an example would be that during a
consultation the attorney usually asks all the questions and engages directly with the client whilst the
paralegal would be the person taking copious notes, making copies of the relevant documents and
even at the first consult would prepare the base documents such as the mandate for the client’s
perusal.

Activity 4.2:
As discussed in the content, a paralegal is capable and empowered to carry out almost all the tasks
of an attorney and often does. From preparation of pleadings and notices, to attending Court to file
documents and even assist in the preparation and conducting of the trial. Any of the following can be
included.
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Sitting in and recording relevant information and facts when consulting and taking instructions
from the client;
Noting the cause of action and disputes and assisting the attorney in researching the applicable
and relevant law and requirements to bring the action;
Preparing the necessary notices and ensuring they are effectively and timeously served on the
opposing party;
Accurately diarising matters to ensure they are dealt with in terms of the prescribed Court rules;
Preparing the attorneys file for trial as well as the necessary brief to the advocate if one is used
in the matter;
Attending to the indexing, paginating of the Court file so the matter may be set down for hearing;
and

Attending Court for the hearing of the matter to assist with the handling of witnesses and taking
copious notes whilst the trial is being heard to ensure any aspect the legal representative may have
missed is addressed.

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Unit
5: Judgements, Appeals & Reviews

Unit 5: Judgements, Appeals & Reviews

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Unit Learning Outcomes

Prescribed and Recommended Textbooks/Readings

Prescribed Textbook
Van Blerk, P. (2019) Legal Drafting: Civil Proceedings. Second Edition.
Juta.

Recommended Readings
Hussain, I. S.C. (2019) Practical Drafting Skills. First Edition. Lexis
Nexis.

Womack., C. (2019) A Practical Guide for Legal Support Staff. First

Edition. Juta.

Magistrates Court Act 32 of 1944

Superior Courts Act 10 of 2013

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5.1 Introduction

The action has been instituted, you have covered thorough and meticulous preparation of all the
paperwork and the matter has been successfully put before a presiding officer in a trial or at a
hearing. What next? Now the final decision is left in the hands of the Courts to make a judgment or
order based on the case presented by each party and the law. Once this decision is made by the
presiding officer it may essentially be the end of the matter but in certain circumstances if the final
decision is made with no basis or reached erroneously there are a few remedies available to the
party.

This unit discusses the possible judgments and orders that can be granted by the Courts, their
effects and how they can be enforced. It will also cover the variation and setting aside of a judgment
and provide an overview of the appeal and review process. When it is applicable will be canvassed
as it is an important aspect in civil procedure.

5.2 Judgments and Orders Granted

In an action the judgment is the Court’s decision in response to the relief sought based on the facts
presented and the applicable law. At the conclusion of the trial, the Court will consider all the relevant
facts presented before it by the parties and in accordance with the applicable laws and precedents,
which it will make an informed decision, this is called a judgment (Pete et al, 2016:321), whilst in an
application the decision made by the Court is referred to as the order. As Jones and Buckle
(2016:320) suggest, judgment has two functional components:

(a) It is a command to the party at which it is aimed, coupled in an appropriate case with a
warrant to the sheriff to enforce the command

(b) It regulates the legal relationship between the parties and settles their mutual rights and
obligations, to the extent necessary for its grant

There are different types of judgments that arise depending on the manner in which the case was
actioned together with the applicable civil procedure, these will be discussed below.

5.2.1 Judgement at the close of the plaintiff’s case

Once the trial has commenced and the plaintiff has concluded presenting his case to the Court, it is
at this stage that a defendant can make application to the Court for a judgment called ‘absolution

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from the instance’. In practical terms what the defendant is telling the Court is that the plaintiff has not
proved his case by adducing sufficient evidence for a reasonable person might find in his favour
(Gascoyne v Paul and Hunter, 1969:170) and for this reason the defendant is asking the Court to
dismiss the plaintiff’s action. There is no judgment granted against either the plaintiff or the
defendant. Should the plaintiff wish to pursue the action after absolution from the instance has been
granted then the plaintiff must institute a fresh action against the defendant (Pete et al, 2016:322).

5.2.2 Judgement at the close of the defendant’s case

Once both parties have presented their case the Court can then make one of the following
judgments:

Judgment for the plaintiff where the plaintiff has proved his version on a balance of probabilities
Judgment for the defendant where the defendant has proved his version is more probable than
the plaintiff’s or
Absolution from the instance, in this case the Court finds neither party has adduced sufficient
evidence to prove their case or disprove the other’s case (Pete et al, 2016:321)

5.2.3 Default Judgement

The process of applying for default judgment is brought in an action by means of requesting the
Court on a specified form with supporting claims to grant judgment by default. Ordinarily in practice
when an action is instituted and the summons effectively served on the defendant and the defendant
has not defended the action, the plaintiff can then apply to the Court for default judgment to be
granted against the defendant. Default judgment can also be requested where the defended has
defended the action but failed to deliver a plea to the plaintiff’s claims (Pete et al, 2016:267).

The request for default judgment is utilised for claims of a debt or liquidated claim and always made
in writing to the Court (MCR Form 5, see annexure H). The request must include the payment sought
as per the summons, interest and any applicable costs. In certain claims a supporting affidavit
deposed to by an expert for the damages claim is required to assist the Court in determining if the
amount claimed is justifiable and reasonable, this is usually called a damages affidavit (Pete et al,
2016:271).

The request must be accompanied by a damages affidavit, original summons, original return of
service and state whether the action was defended or not, and if it was, then state when a notice of
bar was delivered, and that the defendant failed to timeously deliver his plea. The request for default

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judgment in the magistrate’s Court is usually dealt with by a magistrate in chambers but the Court
rules does afford registrars in the High Court to deal with the request. Once the request has been
considered the judgment can either be granted in full or part thereof, it can be refused wholly or in
part alternatively referred to Court for a hearing or request further written submissions (Pete et al,
2016:269).

Once the request for default judgment has been granted the plaintiff then has the right to proceed
with effecting the judgment, this will be discussed later in the unit.

Practical Examples 5.1

Read the example set out below and provide a short answer with regard to
the given facts, determine the procedure that will be used if the defendant
failed to respond to the summons within the time stated in the summons.
Joe is a landlord and Shorty is his tenant. Shorty is in arrears with his rental.
Joe issues a summons against Shorty for the arrear rental and it was served
on Shorty. Shorty failed to defend the action in line with the summons within
the time stated in the summons.

5.2.4 Summary Judgment

The summary judgment process is also considered a short cut judgment process and occurs where
the plaintiff has a clear-cut case and has made out the case in his papers. The defendant has no
valid or bone fide defence and has merely delivered an intention to defend the action to either delay
the process or frustrate the plaintiff (Pete et al, 2016:273).

When this situation arises the HCR 32 and MCR 14 provides for the plaintiff to apply to the Court for
judgment to be granted against the defendant without having to go through the whole trial process
and is an interlocutory application in nature (Pete et al, 2016:274).

Summary judgment can only be applied for in four specific liquidated claims, namely:

1. Claims based on a liquid document such as a cheque or mortgage bond

2. Claims for liquidated sums of money such as for an acknowledgement of debt or for a taxed bill of
costs
3. Delivery of a specified movable property and
4. Claims for ejectment which is the removal of a defendant who is in unlawful occupation of a
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premises (Pete et al, 2016:274)

An application for summary judgment must be brought within fifteen (15) days of receiving the notice
of intention to defend and the application for summary judgment must be effectively served on the
defendant within this time period (Pete et al, 2016:276).

The short form notice of motion can be used and supported by an affidavit deposed to by a person
with personal knowledge of the facts and go on to state the cause of action, the amount claimed, and
lastly that the person is of the opinion that the defendant has no bone fide defence and merely
entered the intention to defend to delay or frustrate the matter (Pete et al, 2016:276).

A defendant has the option to oppose the application for summary judgment and must do so by
delivering an affidavit not less than 12 noon two (2) days before the hearing date, where he must
state he has a valid bone fide defence to the plaintiff’s claim. The defendant must disclose fully the
nature of his defence as well as the evidence relied upon for his defence (Pete et al, 2016:278).

The matter is then heard in motion Court, where the following orders can be made:

The ‘usual order’ is where the application for summary judgment is dismissed and the defendant
is permitted to defend the main action or
The matter is adjourned to be to the opposed roll for argument and
The matter is then argued by both sides and the Court will either grant the application or dismiss
it (Pete et al, 2016:279

Think Point 5.1

What is your understanding of when a judgment is obtained and what is
the effect of a judgment? Note it down then compare it to the perspective
you have gained after reading this unit.

5.2.5 Consent to Judgment

Both the HCR 31(1) and MCR 11 has a mechanism available to the defendant to consent to
judgment being granting against him. This can be done before the defendant delivers a notice of
intention to defend. The consent to judgment must be done in writing and signed by the defendant
which is then delivered to the plaintiff and the Court. If the defendant consents to judgment before
entering an appearance to defend he can avoid the undefended legal costs (Pete et al, 2016:281).
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The defendant can also deliver a consent to judgment after he has defended the matter however this
option is likely to attract certain legal costs incurred such as sheriff’ fees and costs of a request for
default judgment (Pete et al, 2016:281).

Activity 5.1

Consider the scenario that you have instituted an action for monies owed to
you, where summons was effectively served on the defendant. The defendant
has not defended the action and you intend proceeding with a request default
judgment.
List the averments you will include in your request for default judgment and
documents, if any, that you will attach to the request.

5.3 Variation and setting aside of a judgement

Once the court has made a judgement in a matter it is considered final. In the High Court a judge is
required to have fully exercised his jurisdiction and authority over the matter, the term for this is
functus officio. There are only two exceptions to his rule, namely:

Where there is an error in the judgment that needs correcting such a typographical error or patently
apparent omission. The judgment is then directed back to the same judge who gave the judgment for
a variation of the order

Where judgment is rescinded or cancelled then the whole judgment is set aside. This occurs
where there has been a successful rescission application granted (Pete et al, 2016:324)
In order to have a judgment varied or set aside the party seeking this relief must follow the
procedure in that an application to vary the judgement must be brought within a reasonable time
from obtaining the judgment. Notice to all interested parties must be given and the application
must set out the common mistake or causative link between the mistake and the Courts eventual
order (Pete et al, 2016:324).

The process is essentially the same in the Magistrate’s Court and is set out in Rule 49(7), which
requires that an application must be brought on notice to all parties and supported by affidavit/s
setting out the grounds on which the applicant seeks rescission/variation of the judgment (Pete et al,
2016:326).

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Video Activity 5.1

Watch the video presented below foran understanding of the manner in which
a presiding officer hands down judgmentat the conclusion of a hearing.
https://www.youtube.com/watch?v=6615WapKE4k&feature=youtu.be
1. Can you identify what the primary factor/right that was considered in
reaching the decision to legalise the private use of cannabis?

Case Study 5.1

Read the article titled Rescission of divorce order below and write a short
memo describing the three instances in which a judgment can be varied or
rescinded.
http://www.derebus.org.za/the-rescission-of-divorce-orders-a-note-of-caution-
to-courts/

5.4 Rescission of Default judgements

An application for the rescission of a default judgment is granted when a defendant has failed to
deliver an intention to defend or file his plea timeously. It is a common occurrence in both the High
Court and magistrate’s court. Section 36 of the Magistrate’s Court Act deals with this aspect.

When person who default judgment has been granted against and wishes to have it rescind, he must
bring an application for the rescission of the judgment. This application must be brought within
twenty days of the judgment coming to the persons knowledge however should exceptional
circumstances arise the Court has the discretion to consider condoning the late application. The
application will consist of a notice of motion, founding affidavit, confirmatory affidavits and or any
other documents to support the application. The application must show good cause why the
judgment should be rescinded alternatively the Court must be satisfied there is good reason to do so
(Pete et al, 2016: 330). The notice must be delivered to all interested or affected parties. The
essential elements which must be contained in the affidavit are as follows:

i. Good Reason

A Court will consider an application for rescission where the applicant shows there is indeed good
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reason for his failure to defend the matter or deliver a plea. This requirement is considered a lower
standard to that of showing good cause however even if an applicant fails to show reason the Court
may still grant the rescission if it is in the interest of justice to do so (Pete et al, 2016: 330).

ii. Good cause shown

This requires the applicant to give a reasonable explanation for his default and further show that he
was not in wilful default. If one or all the following arises then it negates wilfulness.

The applicant knew of the action

He deliberately refrained from taking proper steps to defend the action for no good reason
He had an indifferent attitude to the consequences of his default and
He was negligent in failing to understand the rules

The defendant must state in his affidavit the reasons for his default and show they are good reason
to grant the rescission in the circumstances (Pete et al, 2016: 330).

iii. Bone fide Defence

A further element to be contained in the affidavit is the defendant must set out that he has a bone fide
defence to the action that is sound in law and will enable him the defend the matter. The purpose of
the application must be bone fide as well, not merely to delay the action. This requirement is dealt
with in detail under High Court Rule 31(2) (b) (Pete et al, 2016: 328).

Once the application is brought before the Court, the Court then has the discretion to grant the
application for rescission and allow the defendant to ‘enter the main action’. Generally, if the
defendant has not shown that he was not in wilful default and further fails to state his bone fide
defence, this Court is unlikely to grant the application for rescission (Pete et al, 2016: 328).

iv. By consent

The last scenario when a default judgment may be rescinded is when it is done by the consent of the
judgment creditor. This usually occurs when the judgment debt has been settled or the action
resolved between the parties and in infrequent instances the judgment creditor will consent if it is
evident a mistake was made when judgment was granted. This form of application can be made any
time after the applicant has consented to the rescission and is still accompanied by a founding
affidavit which sets out the circumstances of the consent and the written and signed consent by the

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judgment creditor (Pete et al, 2016: 281).

Knowledge Check Questions 5.1

Choose the correct answer

1. An application to rescind a default judgement must be brought within
____ days of coming to the parties’ knowledge.
1. a) 10 days
2. b) 15 days
3. 20 days

2. A party wishing to rescind a judgment must show:

1. a) He knew about the action and forgot to take any steps to defend the
action.
2. He has a bone fide defense
3. c) He failed to understand the rules of law

3. An application for rescission of default judgment must be accompanied

by:
1. a) A founding affidavit
2. b) Proof the claim was settled
3. c) Consent by the other party to rescind the judgment

Activity 5.2

Briefly explain the averments you will include in your affidavit to support
an application for rescission of default judgment.

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5.5 Enforcing Civil Judgements

Once a matter has been finalised and judgment is obtained against the other party the next relevant
step is to enforce this judgment to recover what was claimed. These as well as consent to judgement
as discussed earlier does fall under the ambit of debt collection procedures but is a pivotal part of
civil procedure and the culmination of an action or application.

There are several instruments available in civil procedure to enforce a judgement depending on the
content of the judgement granted. A distinction should be made between a judgment sounding in
money (ad pecuniam solvendam), where the judgment debtor is ordered to a pay a specific amount
of money and a judgement where the judgment debtor must do something or refrain from doing
something, i.e.: not sounding in money (ad factum praestandum) (Pete et al, 2016:417).

In the case of a judgment sounding in money, a warrant of execution (writ), Section 65 procedures in
terms of the Magistrate’s Court Act as well as administration orders may be utilsed. We will look at
the procedure involved when utilising these mechanisms in enforcing a judgment.

Think Point 5.2

Consider and note down the different mechanisms that may be available
to a judgment creditor in enforcing the judgment obtained.

For the purposes of proceeding with giving effect to a judgment it is relevant to note that once a
judgment has been granted, the party whom the judgment is granted in favour of is called the
judgment creditor and the party that the judgment is against is called the judgment debtor (Pete et al,
2016:417). Further the term execution refers to the process of attaching the judgment debtor’s
property.

5.5.1 Warrant of Execution

A warrant of execution commonly referred to a writ is the process of instructing the sheriff to proceed
to attach and remove the judgment debtors’ movable property to satisfy the judgment debt. A writ is
prepared by the legal practitioner which is then issued by the clerk or registrar of the Court. The writ
is then provided to the sheriff with an instruction to proceed with the attachment and removal of the
judgment debtor’s movable property. It is common practice and stated in the Court rules that the
process of attaching movable property must be done first before attaching immovable property

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unless good cause is shown or unless otherwise ordered by the Court (Pete et al, 2016:418).

Figure 10: Example of an Issued Writ

Source: (Saflii: 2020)

The sheriff will then proceed with the instruction by presenting it to the judgment debtor and
explaining the nature of the writ. The debtor does have the option to immediately pay the amounts

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claimed in the writ to the sheriff and the sheriff will not then proceed with attaching movable property.
The amount paid is endorsed on the writ and both the sheriff and judgment debtor will sign the writ
(Pete et al, 2016:420).

In the event the debtor refuses to make payment the sheriff will then request movable property be
pointed out by the judgment debtor and an inventory will be made by the sheriff. The inventory will
contain the description of the goods being attached as well as their estimate value. The good listed
on the sheriff’s inventory is now under ‘judicial attachment’ and the judgment debtor cannot dispose
of or sell the listed items (Pete et al, 2016:420).

Certain property is exempt from execution:

The necessary beds, bedding and clothing of the execution debtor and his family
The necessary furniture and household utensils under R2000.00 in value
Stock, tools and agricultural implements of a farmer under R2000.00 in value
The supply of food and drink in the house sufficient for the needs of such debtor and of his family
for one month
Tools and implements of trade under R2000.00 in value
Professional books, documents and instruments necessarily used by the debtor in his profession
under R2000.00 in value and
Such arms and ammunition as the debtor is required by law to have in his possession as part of
his equipment (Pete et al, 2016:426)

Once the inventory has been compiled the sheriff will then prepare a return of service and provide
same to the judgment creditor or his attorney and/or Court. The legal practitioner will then request a
date and time for the sale to proceed. Upon receipt of this information from the Sheriff, the legal
practitioner will then prepare the notice of sale and the notice will then be delivered to the sheriff and
a notice placed in the local newspaper of the sale to take place, this must be done not less than ten
days before the sale is to take place. Should no steps to satisfy the debt by the time the sale occurs
the goods are then sold by public auction. The amount recovered is then reduced by the sheriff’s
costs and the remaining amount paid to the judgment creditor and/or his attorney (Pete et al,
2016:426).

In the event that there is no movable property to attach the sheriff will provide a return of service
called a nulla bona return, in this instance and should the judgment debtor have immovable property,
an application to Court to execute against the immovable property must then be made (Pete et al,
2016:427).

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In the case of Jaftha v Schoeman and others CC, the Constitutional Court held that the process of
execution against immovable property is unconstitutional in that it allows an execution against a
debtor's home to be sold where the circumstances may not justify it. In the circumstances the Court
held that the ideal remedy would be a judicial process in order that the Court can determine whether
the sale of the immovable property is justifiable in the circumstances.

The Magistrate’s Court Act section 66 (1) (a) was amended to read ‘a Court after consideration of all
relevant circumstances', could order execution against immovable property. Where immovable
property is attached to satisfy a judgment, the following procedure must be adhered to:

The writ must contain the full description of the immovable property as described in the title deed
Written notice of the attachment must be sent via registered post to the registered owner of the
property, the registrar of deeds and the occupier in the event it is leased
Once it has been judicially attached, the judgment creditor must then give the sheriff written
notice to sell the property
The sheriff must then make enquiries if there are any bonds registered against the property and
inform the judgment creditor
The judgment creditor must then give written notice of his intention to sell the property to the bond
holder such as the bank, to the local authorities if arrear rates are owed and advise the interested
parties that they must inform the judgment creditor of a reasonable reserve price to the sell the
property at or agree the property without reserve
These replies or no replies will be provided to the sheriff to proceed with the sale
The sheriff then proceeds to set a date for the sale at least one month after the notice of
attachment and advertise the notice of sale in a local newspaper as well as in the government
gazette
Twenty days prior to the sale the judgment debtor will provide the condition of sale to the sheriff in
terms of Form 21 of the Hugh Court Rules, once approved by the sheriff this conditions of sale will
lie for inspection at the sheriff’s office for prospective bidders to view
Ten days prior to the sale the sheriff must send notice to all the judgment creditor’s and bond
holders and affix a copy of the notice of sale to the notice board at the Magistrate’s Court and at
the same location
After the sale the sheriff will prepare a plan for the distribution of the proceeds of the sale which
will lie for inspection for fifteen days at the sheriff’s office and registrar’s office
If any party objects they must give ten days’ notice of the objection to all the parties before
bringing the distribution plan before a Court to review
The proceeds are then distributed to the relevant parties and judgment creditor ((Pete et al,
2016:423)

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Readings 5.1

In Jaftha v Schoeman and others CC the Court discussed the process of an

execution against immovable property being unconstitutional in that it allows
an execution against a debtor's home to be sold where the circumstances
may not justify it. In the circumstances the Court held that the ideal remedy
would be a judicial process in order that the Court can determine whether the
sale of the immovable property is justifiable in the circumstances

5.5.2 Section 65 Proceedings, Emolument’s attachment orders and Garnishee orders

i. Section 65 Proceedings
The Section 65 procedure can be an effective device in securing payment of the judgment debt when
carried out correctly and its main purpose is to make a proper enquiry into the debtor’s financial
position for a reasonable payment plan to be put into place which the Court can consider and make
an order to (Pete et al, 2016:438).

The section 65 procedure can only be instituted in the Court where the judgment debtor resides or is
employed in within the Court’s jurisdiction. A notice setting out the judgment claimed, the date for the
enquiry and reason for the enquiry must be delivered to the debtor by the sheriff. The notice to
appear must be delivered to the debtor not less than ten days before the date to appear (Pete et al,
2016:438).

On the day of the hearing, should the debtor fail to appear, the Court may authorise a warrant for his
arrest to be brought before the Court. If the debtor appears, he is required to produce documents or
evidence in respect of his financial situation. The section 65 procedure is a financial enquiry into the
debtor ‘s financial circumstances and based on the information provided the Court will determine
what amount the debtor is able to pay towards the debt and order him to do so usually by means of
monthly instalments (Pete et al, 2016:439).

In the event the debtor fails to make his payments he may be called upon to appear at Court and if
no valid reasons are provided the Court can find him to be in contempt of Court which can result in a
fine being imposed and/or imprisonment.

ii. Emolument’s Attachment Orders

An emoluments attachment order (EAO) is an order whereby a judgment creditor is authorised to
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attach a portion of the judgment debtor’s salary or wages to satisfy the judgment debt. This is done
by ordering the debtor’s employer to pay a portion of the debtor’s salary or wages to the judgment
creditor to before the debtor his paid (Pete et al, 2016: 430).

An EAO maybe be utilised when a debtor consents to the attachment alternatively with the
permission of the Court. The judgment creditor will have to obtain the Court’s permission to proceed
with an EAO by submitting an affidavit to the Court stating the judgment amount and the date it was
ordered together with a request for an EAO to be granted (Pete et al, 2016: 430).

Once the Court has granted the EAO the debtor’s employer is then notified and the employer is then
responsible deduct the amount from the debtor’s salary/wages and to effect payment of the judgment
debt by means of instalments as set out by the Court until such time the debt is settled or paid in full
(Pete et al, 2016: 430).

iii. Garnishee Orders

A garnishee order is a unique method to recover monies from a debtor and does require further
enquiry by a judgment creditor. What a garnishee order is in practical terms is an order authorising a
person who owes the debtor a debt to pay that debt over to the judgment creditor (Pete et al, 2016:
432).

Such an order is given effected by:

The judgment creditor makes an ex parte application to the Court to get an order attaching any
debts owed to the judgment debtor
The garnishee order is then granted for these debts to be paid to the judgment creditor
The order essentially replaces the debtor and if the garnishee (person who owed the debt to the
debtor) refuses to pay the judgment creditor can then proceed with attachment of the garnishee’s
property (Pete et al, 2016: 432)

5.6 The Appeal Process

Once a decision has been made by a Court and judgment given that there is a possibility that the
judgment given by the trial Court was in either wrong in law or in fact then an appeal can be brought.
In the High Court where a matter is taken on appeal the judgment of the majority is the judgment of
the Court and if there is no majority decision then the matter must be heard de novo before a newly
constituted Court. A judge who gave a judgment cannot hear the appeal for the same matter. Also,
in the High Court the party seeking to appeal the judgment must seek the Court’s permission to do so
(Pete et al, 2016: 375).

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Appeals are applicable where a judgment or final order has been granted and not for a ruling such
as a ruling for the granting or refusing an adjournment in a matter. The exception to this is judgments
for the following cannot be appealed:

Maintenance pendente lite

Contribution towards costs in a matrimonial action
Interim custody in a pending matrimonial action and
Interim access in a pending matrimonial action (Pete et al, 2016: 378)

Where parties in a matter consent in writing that the Court’s decision will be final or where a party
consents to judgment then an appeal cannot be brought. The person appealing the judgment is
called the appellant and the presiding officer/s who made the judgement is called the respondent.

In the magistrate’s Court there is an automatic right to appeal against any judgment given by a
magistrate, any order that gives effect to be being a final judgment and any decision overruling an
exception. The procedure to be followed when lodging an appeal can be summarised as follows:

Within ten days after judgment is received, the prospective appellant must request from the
magistrate in writing the judgment setting out the facts the magistrate found to be proved and his
reasons for the judgment (Pete et al, 2016: 392)
The magistrate then has fifteen days to deliver to the clerk/registrar of the Court the written
judgment. The clerk/registrar must provide the prospective appellant the written judgment
Within twenty days from receiving the written judgment, the appellant must deliver a notice of
appeal to the respondent and a copy of the notice to the clerk of the Court
When filing the notice of appeal, the appellant must also file security for the respondent’s costs up
to the amount of R1 000.00
The notice of appeal must state whether whole or part of the judgment is being appealed and the
grounds of appeal specifying the facts or ruling of law being appealed against
Within ten days of receiving the notice of appeal the respondent must note any cross-appeal he
may want to prosecute and deliver a notice of cross appeal setting out the same elements as in
the notice of appeal
Within fifteen days after the appeal has been noted, the magistrate must then hand to the clerk a
written statement showing the facts he found to be proved and the grounds upon which he
arrived at the decision or aspects appealed against as well as any reasons for any ruling of law
and the authority relied upon
Thereafter the appeal must be prosecuted within sixty days or the appeal lapses
Both the appellant and respondent can apply for date and a copy of the records made available

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to the registrar (Pete et al, 2016: 393)

The appeal will then be heard and as stated above the judgment will be as per the majority of the
Judge’s decisions, if there is no majority decision then the matter must be heard de novo,
meaning a fresh hearing is to be conducted (Pete et al, 2016: 393)

5.7 Reviews
Review is the process where the proceedings of a lower Court where there are allegations of serious
irregularities and/or illegalities having occurred during a hearing of a matter is brought before a
higher Court for adjudication upon. The purpose of a review is to determine if the process was
correct, and it looks at the trial method to establish any irregularities.

The common ground for reviewing a matter is absence of jurisdiction, interest in the case, bias,
malice or corruption by the presiding officer, gross irregularity and the admission of inadmissible
evidence or rejection of admissible evidence (Pete et al, 2016:405).

Practical Application 5.1

Consider the scenario below that your client has presented to you. You are of
the view the decision should be reviewed.

Jessie James, a well-known DJ, is sued in the Magistrate's Court by Terry

Theron, a supplier of stereo sound equipment, for the non-payment of his
account. Peter contends that the equipment that he purchased was defective.
The magistrate, in passing judgment in favour of Terry Theron, states inter
alia that: ``only a lying, thieving, degenerate and drunken DJ would neglect to
pay his debts like all other law-abiding citizens''.
State the four grounds for review and which ground would be applicable
here.

To proceed with a review, a notice of motion is delivered to the magistrate and all affected parties
setting out the decision you seek to review. As with any application the notice of motion must be
supported by a founding affidavit setting out the grounds for the review, the facts and circumstances
relied upon.

The notice of motion will also call upon the respondent to show cause as to why the review should
not be conducted and for the magistrate to lodge with the registrar within fifteen days of receiving the

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notice the record of the proceedings which are being reviewed (Pete et al, 2016:404).

The applicant then has ten days from receiving the record to amend, add or vary his notice and
affidavit. Like in an application the respondent then has fifteen days from receiving the notice of
motion to file a notice to oppose and after the expiry of the ten days of which the applicant may
amend his founding affidavit, the respondent must then file his answering affidavit within thirsty days.
The applicant may file a replying affidavit thereafter (Pete et al, 2016:405).

Once the exchange of the records and relevant affidavits have concluded the matter will then be
reviewed by the superior Court. The effect of the matter being reviewed may result in the superior
Court setting aside the judgment handed down by the magistrate and send the matter back to that
Court for reconsideration alternatively the superior Court may make its own decision where interest
of justice demands it (Pete et al, 2016:406).

Video Activity 5.2

Watch the video presented below on the case of President Cyril Ramaphosa's
application for a judicial review of the Public Protector's report on the CR17
Bosasa donation which was heard in the Pretoria High Court.
https://youtu.be/5-gznYaGLwY
Are you able to identify the grounds for the review?

The key differences between the appeals and review process can be tabulated as follows:

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Table 1: Tabulation of the key differences between appeal and review

(Pete et al, 2016: 392-406)

Think Point 5.3

Consider the key differences between the review and appeal process. Are
you able to identify real life examples of one of each?

Revision Questions

1. Explain for what types of claims that summary judgment can be applied
for.

2. Discuss when can a claimant apply for default judgment in a matter

3. Consider if it is possible for a Court to give judgment at a trial before a

defendant has led any evidence?

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5.8 Summary

The laws and applicable rules determined in our Courts determines the procedure we should
following from the inception of the action or application process to the judgment being delivered and
further understanding the effect of the judgment.

The aim of this unit is to give an overview of the available remedies to a litigant even after the
judgment is obtained and to understand that these mechanisms are not in place to merely address a
disgruntled litigant who is unhappy with the outcome but to show legal practitioner and paralegals
that serious consideration into the facts and law must be taken into account before embarking on
these processes.

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Answers to Activities

Practical Example 5.1:

The nature of the claim is one of debt or liquidated demand being the arrear rental A default
judgment may be sought without notice to the defendant by means of a written request for judgment
submitted to the registrar to the Court. The registrar is empowered to make a variety of orders and
no evidence in respect of the claim need be led.

Think Point 5.1: Answer will be relative to reader’s own understanding.

Essentially it is important to note the different points in an action when a judgment can be obtained,
at the end of the hearing or on application for default judgement. A judgment is an order against the
other party which gives effect to the relief sought and applicable law in the circumstances. It is
ordering the other party to do something such as make payment or refrain from doing something.

Activity 5.1:
When a summons is effectively served and the defendant does not enter an appearance to defend
timeously, the plaintiff can then apply to the Court for default judgment to be granted against the
defendant. The request for default judgment must be made in writing, by means of an application to
the Court. This application will contain the following averments:

The date summons was effectively served;

The date and time to enter the appearance to defend has expired;
The amount claimed;
Attached the original summons, return of service and damages affidavit if applicable to quantify
the amount claimed

Video Activity 5.1:

On Tuesday 18 September 2018 at 10h00 the Constitutional Court handed down judgment in this
application for the confirmation of an order of constitutional invalidity made by the High Court of
South Africa, Western Cape Division, Cape Town (High Court) which declared legislation
criminalising the use, possession, purchase, and cultivation of cannabis unconstitutional.

The matter arose from three different court proceedings instituted in the High Court which were
consolidated by the High Court and heard as one matter as they were all premised on the same
basis, that is, that certain sections of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and
the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act) were constitutionally
invalid. It was a very big day for South African cannabis legalisation.

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Can you identify what the primary factor/right that was considered in reaching the decision to legalise
the private use of cannabis?

The primary factor that was considered in reaching the judgment to decriminalise the private use of
cannabis is the right to privacy.

Case Study 5.1: The article highlights the following three instances when a judgment can be varied
or rescinded:

1. After evidence has been ended and the merits n dispute has been determined, rescission is
allowed in exceptionally circumstances such as fraud or justus error.
2. Rescission where judgment was obtained by default and the party can show good cause why the
judgment should be rescinded.
3. A Court may vary an order by correcting, altering, or supplementing the order to give the content
meaning and clarification.

Knowledge Check Questions

1. C
2. B
3. C

Activity 5.2: The averments that should be included in the affidavit in support of an application for
rescission of default judgment are:

The person deposing to the affidavit is duly authorised to do so

The applicant was not in wilful default
The applicant must shoe good cause and/or good reason why the application should be granted
That the applicant has a bone fide defence
And include any other documents or information that would assist in his application

Think Point 5.2: Once a judgment is obtained the first consideration is what type of judgment it is.
i.e.: a judgment sounding in money or a judgment where someone must do something or refrain from
doing something. For judgments sounding in money, the following mechanisms are available:

Warrant of execution against movable property and in exceptional circumstances against

immovable property
Section 65 proceedings

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An emoluments attachment order

Garnishee order

Practical Application 5.1:

The grounds are:

Absence of jurisdiction on the part of the Court

Interest in the cause, bias, malice, or corruption on the part of the presiding officer
Gross irregularity in the proceedings

The admission of inadmissible or incompetent evidence or the rejection of admissible or competent

evidence. By the remarks made by the magistrate it would appear there is some sort of bias or
malice towards Jessie James which would be the applicable grounds for the review.

Video Activity 5.3: The president’s legal team argues that funding for political parties cannot be
opened to the Public Protector’s jurisdiction. The ground they utilise for the application for review is
based on the jurisdiction of the public protector. In other words, they contended the public protect
lacked the powers to review the donations Cyril Ramaphosa’s political party received.

Think Point 5.3: Reader to refer to table for key difference, real life examples could be:
Appeal: there was incorrect information in respect of the merits such as who a party is the matter.
Review: The Court made an error in applying the law such as he considered incorrect time frames.

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A n n e x u r e s

Annexures

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Appendix A
ANNEXURE A: Extracts from the Magistrates' Courts Act 32 of 1944

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ANNEXURE B: SIMPLE SUMMONS

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Answers to Revision

Unit 1:
1.1 The different titles given to the presiding officers in the various Court of South Africa not only
illustrates which Court they preside in but also allows both those in the legal profession and ordinary
citizens to identify the Court. In the High Court the presiding officer is referred to as Judge and often
during Court proceedings they are called ‘my lord or my lady’

1.2 The clerks and registrars are the cog wheels of the Court that keep the system flowing. Presiding
officers cannot attend to every judicial function and for this reason certain powers are conferred to
the registrars and clerks. Some of these include the issuing of legal processes such as a summons,
subpoenas and in some instances the granting of a default judgment.

1.3 A divorce action changes a person’s status, from being married to being single and because of
this status change previously only High Courts would deal with divorce actions. Actions in the High
Court could take longer and become expensive as only High Court enrolled attorneys can appear
and advocates. For the reason the Court rules were amended and now the regional Courts can hear
and deliberate on divorce matters and not only matters brought by persons who have legal
representatives, but they also deal with the public directly This gave greater access to the Courts and
to the individuals who prefer to deal with the divorce action themselves.

1.4 Magistrates Court Act 32 of 1944

Unit 2
2.1 After the defendant has filed its intention to defend the matter it then has 20 days thereafter to file
its plea to the plaintiff’s claims. At the same time that the plea is filed so must a counter claim
together with any special plea the defendant intends to raise. The counterclaim is the defendant’s
claim against the plaintiff but must arise from the same cause of action. The defendant cannot claim
in this action for claims he may have against the plaintiff arising from other causes of action.
Example of this scenario is if the plaintiff’s claim is for non-payment of good ordered then the
defendant can only claim for example the costs of defective goods received. The defendant cannot
claim for damages to his property that was caused by the plaintiff’s delivery vehicle as it is a separate
cause of action.

2.2 An exception is raised after the intention to defend has been served and before the plea and/or

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counter claim served. The reason for this is to afford the plaintiff a reasonable period of time as
stipulated in the rules the opportunity to remedy the causes of complaint. An exception can be raised
in the following instances:

Where the pleadings lack averments, which are necessary to sustain an action or defence. An
example of this is the averments does not clearly state on what basis the plaintiff is making the
claim or exactly what he is claiming for, or
When the pleadings are vague and embarrassing, this is when the claims are unclear and does
not include pertinent information to identity the parties and cause of action to an extent to sustain
the action.

2.3 Dies non is defined in the Oxford dictionary as ‘a day when no legal business can be done’. This
is usually weekends and public holidays, or days identified by our justice department as non-legal
days. The effect of dies non is that those days are not taken into account for the relevant time periods
such as if a person received a summons the 1o days to defend the action will not include Saturdays,
Sundays and any public holidays.

Unit 3:
3.1 The respondent has10 Court days to oppose the application however a respondent may have a
second opportunity to oppose an application if he is late in filing his opposition, he may make
application to Court request his late opposition be condoned provided he has good reason for same.

3.2 Yes, 10 Court days to oppose the application but as in 1, can oppose after the 10 days and apply
for condonation.

3.3 An organ of state would have 20 Court days to oppose an application. The reason behind this is
based on an organ of state has many roles and functions and not to prejudice them in an action to
oppose due to the size and internal processes to make decisions.

3.4 The respondent would have to file his replying affidavit to the applicant’s founding affidavit. The
replying affidavit will respond to the applicant’s claims as well as set out any other pertinent
information that should be put before the Court.

3.5 Yes, there is discretion between the parties to extend the prescribe time periods for the delivery
of certain notices and/or documents, however this is usually done by consent between the parties
and provided that there is no prejudice that will be suffered by either party.

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Unit 4:
4.1 Subpoena duces tecum is utilised when a party requires certain document/s to be brought to
Court. This subpoena requires the person who is in possession of the documents to ensure the
documents are at Court on the specified date and make it available to the requesting party as set out
in the subpoena.

4.2 A party may request certain particulars which are strictly necessary to enable the party
requesting them to prepare for trial to prepare for trial and to assist in relevant argument.
Unnecessary, irrelevant of ‘fishing’ of information should not be done in the hope of uncovering
useful evidence to be used in a hearing.

4.3 The pre-trial conference is utilised to identity the disputes between the parties and attempt to limit
these issues in order to mitigate against lengthy trials and use of unnecessary evidence and calling
of witnesses that do not advance either parties case or can even assist in possible settlement of the
matter.

Unit 5:
5.1 A decision can be appealed when there was a judgment given by the trial Court was in either
wrong in law or in fact. Wrong in law is the presiding officer incorrectly applied a law in coming to its
decision and wrong in fact refers to when the facts before the Court in making the decision was
either incorrect at the time or misinterpreted in the given context of the action.

5.2 There are four specific instances when a judgment may not be appealed, namely:

Maintenance pendente lite;

Contribution towards costs in a matrimonial action;
Interim custody in a pending matrimonial action; and
Interim access in a pending matrimonial action

5.3 Where parties in a matter consent in writing that the Court’s decision will be final or where a party
consents to judgment then an appeal cannot be brought.

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References
Bascerano, E. (2021) A Basic Guide to Civil Procedure in the Magistrates’ Courts. First Edition.
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Department of Justice (1944) Magistrate’s Court Act. NO 32 of 1944, as amended, South Africa:
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Department of Justice (1959) The Supreme Court Act, The Uniform Rules of Court as amended.
Act 59 of 1959, South Africa: Department of Justice
Department of Justice (1969) Prescription Act. No. 68 of 1969, South Africa: Department of
Justice
Department of Justice (1986) The Sheriffs Act. NO 90 of 1986, South Africa: Department of
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Department of Justice (1993) Magistrate’s Court Act. NO. 90 of 1993, South Africa: Department
of Justice
Department of Justice (2008) Regional Courts Amendment Act. NO 31 of 2008, South Africa:
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Department of Transport (1996) The Road Traffic Act. NO 93 of 1996, South Africa: Department
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Harms, L.T.C. (2015) Amlers Precedents of Pleadings. Nineth Edition. South Africa: LexisNexis
Meintjes-Van Der Walt, L. Singh, P. De Preez, M. De Freitas, S.A. Chinnian, K. Barratt, A.
Govindjee, A. Iya, P. De Bruin, H.P. Van Coller, H.P. (2019) Introduction to South African Law.
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Pete, S. Hulme, D. Du Plessis, M. Palmer, R. Sibanda, O. Palmer, T. (2017) Civil Procedure a
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Van Blerk, P. (2019) Legal Drafting: Civil Proceedings, Second Edition. Juta.
The South African School of Paralegal Studies (2012)
Womack, C. (2019) A Practical Guide for Legal Support Staff. First Edition. South Africa: Juta.

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