Parties in civil litigation

UNIT 3
 OUTCOMES

 On successful completion of study Unit 3 the student will be able to:

 Understand and discuss party-related concepts (locus standi; class
actions; joinders; mis-joinders)
 Identify, and explain relationship between a legal practitioner and
client.
 Understand and draft a letter of demand.
 Discuss third party procedures (High Court Rule 13)
 Draft related documents with regard to provided set of facts.
PRESCRIBED READING:

 Theophilopoulus et al chapter 3 & 7;

 Pete et al (pg. 35 – 59; 122—128; );

 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)
 Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC)
 Nkala and Others v Harmony Gold Mining Co Ltd and Other (Treatment
Action Campaign NPC and Sonke Gender Justice NPC Amicus Curiae)
2016 (5) SA 240 (GJ)
 Consultation & Legal Representation
 Before taking on a client, you consider:
 Can you represent this client? (expertise; ethical considerations; time)
 Is it an action or application? (Subject matter → best remedy)
 Would you need an advocate? (Expertise; Senior or Junior counsel)
 Costs of litigation? (length of case determine costs of case; contingency fees)
 Initial consultation:
 Confidential meetings/consultations.
 Mandate letter (proof of authorisation).
 FICA- client. (Money laundering)
 Chronological records (pleadings, emails, telephone calls)
 Note of trial dates; prescription dates.
 Legal practice management systems:
 Generate invoices; administration; centralised system;
 Still issues of manual systems.
 Trust accounts and business accounts.
 Business (fees & disbursements)
 Deposits to cover initial costs of opening the case.
 Representation
 Section 35(2) & (3) of the Constitution
 “Representation by Agency”→ Law of agency (acting on someone’s behalf)
 POWER OF ATTORNEY- Written permission/authorisation (‘General’ OR ‘Special’)
 Authorising attorney to institute or defend a matter on behalf of your client.
 Legal requirements
 Duty on legal representatives to act in diligence, with skill and care (Reasonable attorney)
 HCR 7 & MCR 52
 Representation in High Court (Right of appearance certificate)
 Moyo v Minister of Police 2014
 Companies and organisations (resolution to authorise attorneys).
 HCR 17→ Duty to inform opposing attorneys of name and address and who you represent (on the
record).
 Attorney needs to be within 15 kilometres of the court (Service and delivery of pleadings).
 When appointing a new attorney, new attorney must “introduce” themselves through new
mandate document to registrar and opposing attorney (Notice of entry as attorney of record).
 UNETHICAL to withdraw from a case the day before trial and send the withdrawal via registered
post.
Action vs Application
 Prescribed times  Evidence presented on the papers
(affidavit)
 Evidence viva voce (oral);
 Factual dispute that can be dealt
 Based on real and material factual
with on paper. Disputes on law.
dispute.
 Issuing of notice of motion & founding
 Issuing of summons commences process.
affidavit.
 Defendant defends action.
 Respondent opposes motion.
 Plea & counterclaim→ Replication to
 Opposing affidavit→ replying affidavit
plea→
 No written preparation for trial stage.
 After exchange of pleadings:
preparation of trial stage  Procedure ends motion court → people
do not testify.
 Actions end at trial → oral evidence
from witnesses.  Matter is argued on the papers.
Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd 1949 (3) SA 1155 (T)

 It is obvious that a claimant who elects to proceed by motion runs the risk that a
dispute of fact may be shown to exist. In that event (as is indicated infra) the
Court has a discretion as to the future course of the proceedings. If it does not
consider the case such that the dispute of fact can properly be determined by
calling viva voce evidence under Rule 9, the parties may be sent to trial in the
ordinary way, either on the affidavits as constituting the pleadings, or with a
direction that pleadings are to be filed. Or the application may even be
dismissed with costs, particularly when the applicant should have realised when
launching his application that a serious dispute of fact was bound to develop. It
is certainly not proper that an applicant should commence proceedings by
motion with knowledge of the probability of a protracted enquiry into disputed
facts not capable of easy ascertainment, but in the hope of inducing the Court
to apply Rule 9 to what is essentially the subject of an ordinary trial action.
 DEMAND
 Purpose: payment or performance of a specific obligation between the two parties to
settle the dispute before litigation begins.
 Sent by registered post (proof of service) BUT… digital service also allowed.
 Requirements (contains):
 Clearly that attorney is acting on behalf of a client.
 Clear explanation for the letter of demand (based on your client’s version).
 Clear explanation of what is expected of the defendant (payment/performance)
 Time in which to comply with said demand.
 Consequences for the failure to comply.
 Legal necessity in some instances:
 Where a contract states an amount is payable on demand, failure to do so constitutes a
cause of action.
 Cause of action based on breach of contract that requires a letter of demand.
 Creditor intends to cancel a credit agreement that has no automatic cancellation.
 No date of performance agreed upon, Letter used to place defendant in mora.
 Legal necessity for some statutes:
 S29 Small Claims Court Act- need a LoD before you can take legal action.
 S96 Customs & Excise Act- deliver LoD one month before you can take legal action
 Suing an Organ of State- deliver LoD within 6 months of the damages arising.
 S129 Notice under the National Credit Act- Credit must provide proof that s129 notice was
sent in terms of s130.
 S4(2) PIE Act- Person applying for eviction order must send a LoD at least 14 days before
matter heard in court.
 PRESCRIPTION
 What is it?
 “Extinctive prescription”- Certain debts have time limits (become unenforceable after
a certain amount of time).
 Prescription Act 1943→Applies ONLY to debts arising before December 1970
 Prescription Act 1969→ Applies to debts arising AFTER 1 December 1970.
 The failure to institute litigate within the prescribed period will result in an
unenforceable claim.
 Prescription promotes certainty.
 Calculation of prescription refers to ‘calendar days’.
 If prescription is not raised by the defendant, the Court will NOT raise it mero motu.
 Prescription BEGINS AS SOON AS THE DEBT BECOMES DUE:
 This means the Creditor has knowledge of the debtor and facts that led to the debt arising.
 Prescription can be stopped by the debtor acknowledging their liability or creditor
serves summons on the debtor.
 Letters of demand do NOT interrupt prescription.
 Attorneys must KNOW what prescription period apply in their matters. Allowing a
matter to prescribe can result in a negligence claim against the Attorney of record.
 Institution of Legal Proceedings against Certain Organs of State Act:
 Uniform rules in bringing claims against the State. Prescribed time periods.
 “An organ of State may be a national or provincial of local government department, an organ or
institution exercising a function as defined in the Constitution or a person whose debt an organ
of State is liable.”
 Section 3- A person must first give written notice of intention to institute legal proceedings
against an organ of State within six (6) months of the date when the Cause of Action arose.
 Failure to comply (Ask for condonation/ consent from the Defendant)

 Summons can only be sent to the organ of State, 30 days AFTER serving the written notice.
 Notices to organs can be served by hand delivery, certified mail, fax or email.
 Notice must have a brief summary of the facts that resulted in the Cause of Action.
 Other statutes to look at:
 S11 Prescription Act (depends of type of debt and type of debtor)→ 3 years to 30 years
 Road Accident Fund Act;
 National Credit Act;
 Apportionment of Damages Act;
 Consumer Protection Act.
 SUPERANNUATION
 Another form of time limits in legal proceedings.
 Superannuation of judgements:
 Judgement debts prescribe after 30 years.
 In Magistrate and High Courts, execution orders against properties must be issued
within 3 years of the judgement (“writ of execution”).
 Failing to do so, the Plaintiff will have to bring another application under s63 of
the MCAct and HCR 66(1)
 Superannuation of summonses:
 In the past, MCR10 stated that a summons has to be served on a defendant within
a year of the issue date (when stamped by the clerk) AND if a plaintiff doesn’t do
anything to further the matter in those 12 months, the matter would lapse (die).
 Same does not apply to the High Court. HC summons does not lose its validity
because of time.
 High Courts have discretion to refuse to grant a judgement in some circumstances.
Time limits for delivery of pleadings
 Time periods are calculated in terms of The Interpretation Act (section 4)
 General rule: “First day out, last day in”- The first day of the period is
excluded and the last day is included.
 9 June to 19 June (9 June is excluded and 19 June is included)
 Court days:
 HCR and MCRs refer to court days→ Court days exclude the first day AND any
Saturday, Sunday or public holiday within that time period.
 Excluded Court days (16 December to 15 January when courts are on recess).
 Calendar days:
 Ordinary days including weekends.
 BUT… if the last calendar falls on a weekend/public holiday, it is not counted.
 (If 19 June was Saturday, the document would be served on 21 June without
prescription being an issue)
©Theophilopoulos et al. 2021
 Locus Standi:
 Locus standi in iudicio (“a place to stand before a court”).
 A Party must establish a legal connection to a factual or legal dispute before they can
proceed with litigation.
 Who has sufficient interest in the matter. Those with sufficient interest should be joined in
the legal proceedings.
 2 legal concepts:
 1. Does the litigating party have sufficient interest in the subject matter of the litigation??
 2. Does the litigating party have the capacity to sue or be sued.

Plaintiff Defendant Applicant Respondent

 Sufficient right and interest:
 In terms of the common law
 Is the correct party before the court?
 Does the plaintiff have direct and substantial interest in the right in question that is the subject
matter of this litigation?
 What about litigations in Constitutional Courts??
 Chapter 2 of the Constitution:
 Allows any person or organisation to enforce their Chapter 2 rights regardless of the presence of adverse
effects on the Plaintiff.
 Constitutional locus standi is broader than common law locus standi.
 What about Class actions and public-interest actions??
 S38(c) of the Constitution
 Allows a person or persons, to institute legal proceedings on behalf of OR in the interest of a group of
people/class of persons WITH THE SAME FACTUAL/LEGAL ISSUE. (Political parties, gender, race,
occupation, communities, etc.)
 READ: Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC)!!!
 READ: Nkala and Others v Harmony Gold Mining Co Ltd and Other (Treatment Action Campaign NPC
and Sonke Gender Justice NPC Amicus Curiae) 2016 (5) SA 240 (GJ)
 Is there a Anyone acting
direct in their own
interest? interest

An association
acting in the Locus Anyone acting
in the public
Is the interest
too far
Sufficient Is the interest
CURRENT?
interests of its
members
Standi in
interest

interest
(not
removed?

the Con
hypothetical)

Court
Anyone acting
Is the interest Anyone acting as a member
REAL/ACTUAL on behalf of of, or
(not abstract someone who interests of, a
or academic)? cannot act. group or class
of persons
Because there are no specific
Is there an
uniform rules for class actions, identifiable
over the years, courts have class?
used s173 of the Constitution
AND their powers to develop
Is res
common laws, in order to judicata a Is there a
develop a framework for possible plea known cause
at the end of of action?
initiating class actions. the matter?

READ cases mentioned in

earlier slides Class
actions
Suitable Commonality
method to in legal and
institute factual
action disputes

Legal
importance
to begin this
matter?
 Capacity to litigate
 Not everyone enjoys full legal capacity and therefore cannot appear as parties in a civil litigation
without legal assistance.
 Minors:
 S17 Children’s Act (Majority is at age 18)- so children under 18 MUST be assisted or represented by a
guardian.
 S15 Children’s Act extends locus standi for certain matters (Bill of Rights and Children’s Act)
 Married women:
 S29 General Law Amendment Act and s11 of the Matrimonial Property Act, all married women have locus
standi
 BUT…spouses married ICOP cannot begin or defend a legal proceeding without their spouse’s permission.
 Mentally ill persons (read with Mental Health Act, 2002):
 HCR 57- appointment of a curator for those incapable of managing their own affairs.
 Curator ad litem: Court appointed curator to protect the interests of a patient unfit/unable to manage
their own affairs during litigation.
 Curator bonis: Court appointed to manage and control the property of an unfit patient.
 Elderly, mental disabilities (dementia/Alzheimers)
 Ex parte application (affidavits from a family member and 2 medical practitioners)
 Prodigals:
 Those unable to manage their own financial affairs.
 Court will appoint a curator bonis to manage the persons estate (including legal
proceedings).
 NB→ You do not need a curator ad litem where a prodigal is capable of understanding
the nature of litigation.
 Insolvents:
 RESTRICTED LOCUS STANDI. (Sequestration; Insolvency)
 Court appointed trustee with representative capacity to sue on behalf of the estate.
 Trusts:
 Legal entity WITHOUT legal personality where 2 or more people (trustees) are
responsible for the administration of assets on behalf of and for the benefit of
beneficiaries.
 Trusts can’t sue in its own name so it is ALL the trustees who will sue or be sued.
 When listing the trustees (it must be clear that there are being cited in their
capacities as trustees (nomine officii).
 Partnerships/firms/associations:
 Have no legal personality so each partner is named under common law. BUT…
 HCR 14 and MCR 54 allow for Partnerships to be sued in the name of the partnership
(ONLY A PROCEDURAL ADVANTAGE)
 Judges/diplomats:
 You MUST get consent BEFORE you subpoena a Magistrate or Judge (HC & SCA)
 Write a letter to the Judge President and at the same time send a Notice to the Judge
you want summoned or subpoenaed.
 If successful, you must decide on a date with the Judge President.
 Magistrate→ Consent of appeal division of that lower court
 Judge/SCA Justice→ Consent from Judge President
 Con Court Judge→ Consent from Chief Justice
 To institute civil proceedings against Member of Parliament, you have to wait for
Parliament sitting to be over.
 Diplomats/foreign heads of state/foreign officials/those with immunity: enjoy
immunity from litigation in civil courts in South Africa
 Minister of Foreign Affairs has a list of immunised people and organisations.
 As a South African, choosing to pursue litigation against those with immunity can carry
a FINE or Imprisonment.
 Immunity can be waived in writing by the person being sued OR by their country of
origin.
 Fugitives cannot institute legal proceedings in a South African court BUT they can
defend themselves in civil matters
CITATION of Parties
 Proper citation establishes locus standi of the litigating parties.
 You need a complete descriptive citation of each party mention in the
legal proceedings.
 Plaintiff:
 Full name (first name and surname)
 Gender (if natural person)
 Occupation
 Residence OR place of business
 If the Plaintiff represents someone/something, a full description of their
representative capacity. (cessionary)
 Defendant:
 Surname, first names (what the Defendant is known as in public)
 Business or residential address
 If the Defendant represents someone/something, a full description of their
representative capacity.
PURPOSE OF CITATION:
 1. It is meant to identify and describe the parties to the case.
 2. It establishes that all parties have the capacity to litigate.
 3. It helps establish the courts jurisdiction and the jurisdictional principles
the Plaintiff relied on (actor sequitur forum rei)
 4. It tells the Sheriff where the location of the Defendant so that summons is
served properly.
 JOINDER OF PARTIES & ACTIONS
 Multiple parties OR causes of Action are joined in a single action.
 Several plaintiffs/defendants OR several causes of action in one legal proceeding.
 Rationale→ Save costs and time.
 High Court:
 Joinder of convenience (HCR 10 & HCR6(14))
 Joinder of necessity (Common Law)
 Magistrates Court:
 Sections 41 & 42 – Mag Court Act
High Court joinders
Joinder of Convenience Joinder of Necessity
 HCR 10- Court has discretion to allow  Common law- when an outside party will
parties to be joined together even though have a direct and substantial interest in any
it is not essential that they are joined. order.
 When the matter before court depend  No discretion. Court must order the joinder
substantially on the same question of law before granting a judgment.
or fact.
 Plaintiff/defendant must make a request OR
 This can take place at any stage of Court can also do it on its own.
litigation (but sooner the better).
 The right to demand that a necessary party be
 “Any number of persons having a claim, joined is NOT limited to the subject matter of
whether jointly, jointly and severally, litigation
separately, or in the alternative may join
 TEST→ Whether the party has a direct and
as parties.”
substantial interest (OR a legal interest in the
 When plaintiffs join, each must make out subject matter) which may be affected
a separate cause of action against the prejudicially by the court’s judgement.
defendant.  Direct legal interest;
 When defendants join, the plaintiff must  Financial or commercial interest NOT enough
disclose a separate cause of action against
each defendant.  Political interest NOT enough
 Joinder of Necessity continued…
 Amalgamated Engineering Union v Minister of Labour:
 Test:
 1. Would a third party have locus standi to claim relief in respect of the same subject matter?
 2. Where a third party has not been joined, any order the court might make would not be re
judicata against a third party. (This means the third party can approach the court again on the same
subject matter and get an order that does not reconcile with the first order.)
 Examples of necessary joinders:
 Co-owners of a common property;
 All the parties in a contract;
 All debtors who are jointly and severally liable’
 Co-trustees (except if there is a nominated trustee)
Joinder of causes of action and separation of trials
 HCR 10(2)→ Plaintiffs can join several causes of action in one proceeding
 A Particulars of claim can contain multiple claims based on a separate cause of action.
 Where causes of action are in conflict, THEY MUST BE PLEADED IN THE ALTERNATIVE
 When a claim is based on two alternative causes of action and judgement is given on one of
them, the other one falls away (extinguished).
 HCR 10(5)→ Court can order a separation of trials on a case-by-case basis.

Waiver, non-joinder, misjoinder

 Whoever has established a right of joinder (convenience/necessity) may waive that right
and agree to be bound by the court’s judgement
 Non-joinder: the necessary party has NOT been joined (applies to necessary joinders)
 Misjoinder: Joining someone who has no interest in the matter (applies to joinders of
convenience)
 Ask: is this joinder justified?
 To raise an objection to a joinder, these terms will appear in a special plea (action) OR a
point in limine (application).
Magistrate Court Joinders
 S41-42 of MCAct:
 S41→ Any number of plaintiffs can be joined against one defendant even when there is no
similarity or correspondence between the plaintiffs claims or causes of action.
 IT MUST BE SHOWN PRIMA FACIE THAT EACH PLAINTIFF HAS A SEPARATE CLAIM AGAINST THE
SAME DEFENDANT BASED ON A COMMON QUESTION OF LAW OR FACT.
 S42→ Several defendants can be sued in the alternative OR jointly in one action when the
plaintiff alleges damages and is uncertain in law who of the defendants is responsible for the
damages.
 The plaintiff will establish a bona fide (good faith) allegation of uncertainty on which of the
defendants are responsible for the damages caused. (e.g. nobody wants to take responsibility;
defendants blame each other).
 MCR 28(2)→ Court order another person be joined (plaintiff/defendant) on just terms
 Interests of justice or convenience.
 Magistrate has some level of discretion.
 USUALLY A DEFENDANT MAKES THIS APPLICATION TO JOIN A PROSPECTIVE DEFENDANT
(AN OUTSIDER) SO THAT THE COURT WILL ALLOCATE A PROPORTIONATE DEGREE OF
FAULT ON THE CO-DEFENDANT WHEN PASSING JUDGEMENT.
 READ Khumalo v Wilkins 1972 (4) SA 470 (N)
 Effect of MCR 28(2)→ Joining in terms of this section is not binding and does not mean
the outside party is joined or liable for the plaintiff’s claim
 This section allows the Magistrate to determine the proportion of fault between the
original defendant and the joined defendant.
 The original will be liable for the WHOLE claim BUT… The original defendant will now be
able to sue the joined defendant based on how the magistrate shared/apportioned the
fault.
 E.g. Jane goes after Jack and Jill for an accident caused resulting in damages worth R300
000. Jane doesn’t know who is responsible for the accident and so she sues Jill who was
the driver. Jill decides that Jack should be joined in terms of MCR 28(2) so that the
Magistrate can apportion the fault between the Jack and Jill. The Magistrate decides
that Jill is 60% at fault and Jack is 40% at fault. Jill will pay the full amount of R300k to
Jane but NOW, Jill can recover R120k from Jack in a separate cause of action.
 MCR 28(3)→ Joinders of causes of action (similar to that of the HC)
 MCR 28(4)→ Separation of trials (read with MCAct 41(1) & 42(1)) and allows court to
exercise discretion on separations after joinder
 Intervention
 HCR 6(14) & HCR12→ any person  MCR 28(1)→ ONLY persons who have an
entitled to join an action proceeding interest in proceedings may apply to
may apply for leave to intervene. intervene in a matter.
 Another remedy for an outside party  Also at courts discretion.
to intervene on a case to protect their
 Show prima facie proof of interest in
interest in the subject matter.
subject matter and establish that
 Courts discretion (convenience) BUT if his/her interest can only be protected
the outside party proves the element by his/her intervention.
of necessity, then they MUST be joined
in the matter.
 All parties to the proceedings must be
notified.
 Prima facie case for intervention must
be established
 It can happen at any stage of
proceedings.
Amicus Curiae (Friend of the court)
 HCR 16A→ Type of intervention only allowed in the High Court
 Any party interested in a constitutional issue raised in proceedings can be
admitted as amicus curiae on terms and conditions agreed upon in writing by
the parties.
 If consent isn’t granted, the interested party can apply directly to the court
to be admitted as amicus curiae:
 Their application/submission will describe:
 Their interest as friends of the court
 The relevance of the interest and how this interest will assist the court.
 Courts can grant or refuse the application based on grounds set out in
s16A(8).
SELF-STUDY:
Third party joinders;
Consolidation of actions
Plurality of parties;
Cession;
Subrogation