STAGE THREE:

AFTER LITIGATION

PART 1: APPEALS AND REVIEWS

All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

Introduction
A: Appeals
B: Reviews

PART 2: DEBT COLLECTION PROCEDURES

Introduction
A: Writs and warrants of execution
B: Section 65 procedure
C: Administration orders
Copyright 2016. Oxford University Press Southern Africa.

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AN: 1590463 ; STEPHEN PET, DAVID HULME, MAX DU PLESSIS, ROBIN PALMER, OMPHEMETSE SIBANDA, TONI PALMER.; Civil Procedure: A Practical Guide
Account: s7393698.main.eds 347
 PART 1: APPEALS AND REVIEWS

Introduction

Introduction
After litigation has been finalised (that is, after the trial or application has been completed and
judgment has been given), a party who is unhappy with the outcome of the litigation, or with the
procedure used by the court in arriving at the outcome, has certain further options available. If the
party is dissatisfied with the judgment of the court because he thinks the court got the law or the
facts wrong when coming to its decision, then that party may appeal against that judgment to a
higher court. Where a party is dissatisfied with the method or procedure used by the court in
arriving at its judgment, then that party may take the case on review. In both situations, the reason
for bringing the proceedings under review or appeal is normally the same, namely, to have the
judgment of the court set aside. But in the case of an appeal, the dissatisfied party thinks the court
came to a wrong decision on the facts or the law, and therefore attacks the result of the trial or
application, whereas in the case of a review, the party wants the judgment set aside because of the
process used by the court in coming to its decision.
Having set out this basic distinction between appeals and reviews, we can now go on to look at
these two procedures in more detail.

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 PART 1: APPEALS AND REVIEWS

A: Appeals
1 General overview
Whereas reviews focus on the procedure whereby the judgment of the court (or tribunal or board,
etc.) was reached, appeals focus on the merits of the judgment itself. In other words, when you
appeal against a judgment, you are not telling the judge or magistrate (or whoever made the
decision) that he was dishonest or biased or grossly negligent1 when he formulated his judgment.
However, although he might have reached his judgment in good faith, you still disagree with the
judgment, either on the law, or on the facts, or on both the law and the facts. As such, the procedure
available to you is to appeal against the judgment to a higher court which has appeal jurisdiction.
The aim of your appeal is to have the judgment of the court a quo (the court of first instance) set
aside, or at least that portion of the judgment with which you are dissatisfied.

2 Preliminary issues relating to appeal

2.1 What may be appealed – judgments, orders and rulings

2.1 High Court matters

.1
In High Court matters, the general rule under the now repealed Supreme Court Act2 was that you
were entitled to appeal against a judgment or an order, but not entitled to appeal against a ruling.3
The Superior Courts Act,4 which repealed and replaced the old Supreme Court Act, now refers only
to an appeal against a ‘decision’. In our view, this change in terminology does not affect the existing
principles and case law set out below.
A judgment or order (or decision, to use the terminology of the Superior Courts Act5) is a
determination which has the following three attributes:

1. It must be final in effect and not susceptible to alteration by the court of first instance.
2. It must be definitive of the rights of the parties in the sense that it must grant definitive and
distinct relief.
3. It must have the effect of disposing of at least a substantial portion of the relief claimed in the
main proceedings.6

While previously – under the test laid down in Zweni v Minister of Law and Order7 – if a decision did
not have all three of the above attributes, it would be considered a ruling, which was not appealable,
the Supreme Court of Appeal and Constitutional Court have recently softened this approach. The
requirements stated in the Zweni case are no longer cast in stone or exhaustive.8 The position now is
that a decision may be appealable even if it does not possess all three attributes. However, in
general terms, a non-appealable decision is one which is not final because the court of first instance

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 remains entitled to alter it, or because it is not definitive of the rights of the parties, or because it
does not have the effect of disposing of at least a substantive portion of the relief claimed in the
main proceedings.9
Even if a decision takes the form of an order, it may, on consideration of its effect, be deemed to
be a ruling and therefore not subject to appeal.10 The following are examples of rulings:11

1. A ruling on a point of evidence;

2. A ruling on a preliminary point of law;
3. An order referring a matter to oral evidence (see Man Truck & Bus (SA) (Pty) Ltd v Dorbyl Ltd
2004 (5) SA 226 (SCA));
4. The ordering of further particulars;
5. An order in terms of rule 33 of the High Court Rules (which concerns special cases and
adjudication upon points of law);
6. An Anton Piller order;12
7. An order for security for costs;
8. A discovery order;
9. An order granting or refusing a postponement;
10. An order that a matter be heard as a matter of urgency; and
11. An order upholding or dismissing an exception, save for exceptions which go to jurisdiction.

Our courts have therefore stressed that in determining whether an order is final in effect, what
matters is not only the form of the order, but also, and predominantly, its effect.13 A good example is
that of an interim interdict which disposes of any issue or portion of an issue in the main
application. In such a case, the interim interdict has a final effect and is appealable. For example, in
Maccs and CC v Macassar Land Claims Committee and Others [2005] 2 All SA 469 (SCA), the court
dealt with an interim interdict restraining the mining of land pending finalisation of the claim. The
Supreme Court of Appeal held that the order was appealable since the effect of the interdict was
final as mining rights were likely to expire before finalisation of the action. The order was thus
appealable.
In National Treasury and Others v Opposition to Urban Tolling Alliance and Others,14 which also
concerned interim interdicts, the Constitutional Court held that, while courts should be reluctant to
hear appeals against interim orders, it is not an inflexible rule and, in each case, what best serves the
interests of justice dictates whether an appeal against an interim order should be entertained. In
assessing the interests of justice in this case, the Constitutional Court stated:

Whether an interim order has a final effect or disposes of a substantial portion of the
relief sought in a pending review is a relevant and important consideration. Yet, it is not
the only or always decisive consideration. It is just as important to assess whether the
temporary restraining order has an immediate and substantial effect, including
whether the harm that flows from it is serious, immediate, ongoing and irreparable.

The Court went on to state:

A court must also be alive to and carefully consider whether the temporary restraining
order would unduly trespass upon the sole terrain of other branches of Government
even before the final determination of the review grounds. A court must be astute not to
stop dead the exercise of executive or legislative power before the exercise has been
successfully and finally impugned on review.

Other examples of judgments and orders include the following:

1. A dismissal of a special plea (but see the decision of the Supreme Court of Appeal in Steenkamp v

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 1.
SABC 2002 (1) SA 625 (SCA) regarding special pleas as to jurisdiction);
2. A finding that the defendant is not liable to the plaintiff;
3. A declaratory order that the plaintiff’s claim for damages is limited;
4. A finding that the defendant is liable to the plaintiff although the extent of the liability has not yet
been established;
5. An application for adequate reasons;15 and
6. An order granting or refusing review, example, of a registrar’s decision on the amount of security
for costs, is appealable.

In addition to the general principles relating to judgments, orders and rulings, the provisions of s
16(3) of the Superior Courts Act16 set out various judgments and orders against which no appeal lies
in a High Court matter:

Notwithstanding any other law, no appeal lies from a judgment or order in proceedings
in connection with an application
(a) by one spouse against the other for maintenance pendente lite;
(b) for contribution towards the costs of a pending matrimonial action;
(c) for the interim custody of a child when a matrimonial action between his or her
parents is pending or is about to be instituted; or
(d) by one parent against the other for interim access to a child when a matrimonial
action between the parents is pending or about to be instituted.

2.1 Magistrates’ Courts matters

.2
The position in the Magistrates’ Courts is regulated entirely by statute. In terms of s 83 of the
Magistrates’ Courts Act,17 any party to a civil suit or proceeding may appeal to the division of the
High Court having jurisdiction against the following judgments, rules, orders and decisions of a
Magistrates’ Court:18

1. Any judgment of the nature described in s 48 of the Magistrates’ Courts Act. These are (a)
judgment for the plaintiff; (b) judgment for the defendant; (c) absolution from the instance; (d)
judgment as to costs; and (e) order suspending the taking of further proceedings upon a
judgment.
2. Any rule or order having the effect of a final judgment, including any order under Chapter IX (i.e.
relating to execution and debt-collecting procedures) and any order as to costs.

The rationale for prohibiting or limiting appeals against judgments which are not final in effect is to
discourage piecemeal appeals.19 As to the meaning of ‘having the effect of a final judgment’,
previously, this was determined by asking whether the rule or order sought to be appealed from was
‘interlocutory’. Jones and Buckle states as follows:20

In South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd [1977
(3) SA 534 (A) at 549] Corbett JA refers to the fact that the tests to be applied in
determining whether or not an order is interlocutory, ‘emerge with a reasonable degree
of certainty’ from a series of decisions of the Appellate Division ranging from 1911 to
1977. The general effect of this series of decisions, ‘together with consistent judgments
of other courts’, is summarised [at 549F–551A] in the following terms:

(a) The term ‘interlocutory’ refers to all orders pronounced by the court upon matters
incidental to the main dispute, preparatory to, or during the process of, the
litigation.

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 Orders of this kind are of two classes: (i) those which have a final and definitive
effect on the main action; and (ii) those which do not (known as ‘simple (or
purely) interlocutory orders’ or ‘interlocutory orders proper’).
(b) Statutes relating to the appealability of judgments or orders which use the word
‘interlocutory’ or other words of similar import, are taken to refer to simple
interlocutory orders. In other words, it is only in the case of simple interlocutory
orders that the statute is read as prohibiting an appeal or making it subject to the
limitation of requiring leave, as the case may be. Final orders, including
interlocutory orders having a final and definitive effect, are regarded as falling
outsider the purview of the prohibition or limitation.
(c) The test as to whether or not an order is a simple interlocutory one is the well-known
one stated by Schreiner JA in Pretoria Garrison Institutes v Danish Variety
Products (Pty) Ltd:

‘… [A] preparatory or procedural order is a simple interlocutory order and therefore not
appealable unless it is such as to ‘dispose of any issue or any portion of the issue in the
main action or suit’ or … unless it ‘irreparably anticipates or precludes some of the
relief which would or might be given at the hearing’.

While the classification of the order as interlocutory might at one time have been considered to be
determinative of whether it was susceptible to an appeal, the approach that has been taken by the
courts in more recent times has been increasingly flexible and pragmatic.21 The enquiry has been
directed more to doing what is appropriate in the particular circumstances than to elevating the
distinction between orders that are appealable and those that are not to one of principle. If an order
irreparably anticipates or precludes some of the relief which would or might be given at the hearing,
it will generally be appealable. However, ultimately, what is of paramount importance in deciding
whether a judgment is appealable is the interests of justice.22

1. Any decision overruling an exception when the parties concerned consent to such an appeal
before proceeding further in an action, or when it is appealed from in conjunction with the
principal case, or when it includes an order as to costs.

Because s 83 of the Magistrates’ Courts Act23 gives you a right to appeal, no leave to appeal is
required before you prosecute the appeal. Although you have an automatic right to appeal (in other
words, you do not need to ask the court which gave judgment for leave to appeal against the
judgment), you may lose this right in certain circumstances. One example of this is where, in terms
of s 82 of the Magistrates’ Courts Act,24 the parties lodge an agreement in writing with the court that
the decision shall be final. Another example is the common-law rule of peremption of an appeal,
where, after judgment, a party unequivocally conveys an intention to be bound by the judgment. In
such instances any right of appeal is abandoned. The test for determining whether there has been
peremption of an appeal was laid down by the Appellate Division in Dabner v SA Railways and
Harbours where Innes CJ said:

The rule with regard to peremption is well settled, and has been enunciated on several
occasions by this Court. If the conduct of an unsuccessful litigant is such as to point
indubitably and necessarily to the conclusion that he does not intend to attack the
judgment, then he is held to have acquiesced in it. But the conduct relied upon must be
unequivocal and must be inconsistent with any intention to appeal. And the onus of
establishing that position is upon the party alleging it. In doubtful cases acquiescence,
like waiver, must be held non-proven.25

2.2 Appeal on the facts versus appeal on the law

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 In an appeal a party’s dissatisfaction with the judgment of the court a quo may arise either because
that party is unhappy with a finding of fact made by the court (for example, the party is of the view
that the court incorrectly believed or disbelieved a witness whose evidence was material to the case)
or because the party is unhappy with a ruling of law made by the court (for example, the party is of
the view that the court misunderstood the law on a certain point). It often happens that a party feels
that the court got both the law and the facts wrong, and an appeal will then be lodged on both
grounds.
Certain principles governing appeals on facts have arisen in our case law, and are set out in the
leading case of R v Dhlumayo and Another26 as follows:

1 An appellant is entitled as of right to a re-hearing, subject to the stipulated principles.

. The principles are, in the main, matters of common sense, and are flexible and should
2 not hamper the court of appeal in doing justice in the case before it.
. The trial judge has the advantage – which the court of appeal cannot have – of seeing
3 and hearing the witnesses and of being steeped in the atmosphere of the trial. He
. has the opportunity of observing not only their demeanour, but also their
appearance and whole personality.
4 In consequence the court of appeal is very reluctant to upset the findings of the trial
. judge.
5 The mere fact that the trial judge has not commented on the demeanour of a witness
. can hardly ever place the appeal court in as good a position as he was.
6 Even in drawing inferences, the trial judge may be in a better position than the court
. of appeal in that he may be more able to estimate what is probable or improbable
in relation to the particular people whom he has observed at the trial.
7 Sometimes, however, the court of appeal may be in as good a position as the trial
. judge to draw inferences, where they are drawn either from admitted facts or from
the facts found by the trial judge.27
8 Where there has been no misdirection on fact by the trial judge, the presumption is
. that his conclusion is correct; the court of appeal will only reverse it where it is
convinced that it is wrong.
9 In such a case, if the court of appeal is merely left in doubt as to the correctness of the
. conclusion, it will uphold the decision.
10 There may be a misdirection on fact by the trial judge where the reasons are either
. on their face unsatisfactory or where the record shows them to be such; there may
be such a misdirection also where, though the reasons as far as they go are
satisfactory, he is shown to have overlooked other facts or probabilities. The court
of appeal will then be able to disregard his findings on fact, even though based on
credibility, in whole or in part, according to the nature of the misdirection and the
circumstances of the particular case, and so come to its own conclusion on the
matter.
11 A court of appeal should not seek anxiously to discover reasons adverse to the
. conclusions of the trial judge. No judgment can ever be perfect and all-embracing,
and it does not necessarily follow that because something has not been mentioned
it has not been considered.
12 Where the court of appeal is constrained to decide the case purely on the record the
. question of onus is all-important.
13 In order to succeed, the appellant has got to satisfy a court of appeal that there has
. been ‘some miscarriage of justice or violation of some principle of law or
procedure.’28

Harms usefully sums up the further principles applicable to appeals on facts which were added in

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 subsequent cases as follows:

14 Where the trial court has made no finding on the credibility of witnesses, the court of
. appeal has to do its best on such material as it has before it to decide the
credibility issue. Only after the relevant evidence has been examined and only if
the probabilities are balanced is the onus decisive.
15 If the trial court committed an irregularity (for example, by excluding admissible
. evidence), the proceedings will be set aside unless the respondent can convince
the court that the appellant did not suffer any prejudice as a result of that
irregularity.
16 An award of compensation will only be set aside if the court of appeal is satisfied that
. the award was incorrect. The fact that an unsatisfactory method or an arbitrary
figure was used does not mean that the conclusion was incorrect.
17 Where the trial court did not assess the amount of damages suffered because it was
. not necessary for its judgment, the Appeal Court may fix damages rather than
remit the matter to the court below if there are ‘good reasons’ for doing so.29

2.3 Principles governing appeals in discretionary matters

In addition to appeals against the decision of a court a quo on the facts or the law, a party may be
faced with a situation where he wishes to appeal against the exercise of discretion by a court. As a
general rule, a court of appeal is not entitled to interfere with the exercise by the lower court of its
discretion.30 Generally, an appeal court may interfere with a lower court’s exercise of discretionary
power only if that power was not properly exercised.31 Discretionary power is regarded as having
not been exercised judicially if:

• it is applied capriciously;
• the court was moved by a wrong principle of law or an incorrect appreciation of the facts;
• it did not bring its unbiased judgment to bear on the issues; or
• it did not act for substantial reasons.32

A good example of the reluctance of an appeal court to interfere with the decision of a lower court in
the exercise of its discretion is provided by the Constitutional Court’s decision in National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs and Others.33 In that case, the applicants
had brought an application in the High Court for an order declaring a certain statute to be
unconstitutional. At the High Court, the respondents had failed to file answering affidavits despite a
lapse of seven months. A day before the hearing, the respondents asked the High Court for a
postponement in order to file these affidavits. The High Court, in the exercise of its discretion,
refused the postponement. When the matter eventually went on appeal to the Constitutional Court,
one of the arguments on appeal by the Minister of Home Affairs was that the High Court had erred
in exercising its discretion to refuse the postponement. The Constitutional Court held, however,
that a court of appeal is not entitled to set aside the decision of a lower court granting or refusing a
postponement in the exercise of its discretion merely because the court of appeal, on the facts of the
matter before the lower court, would have come to a different conclusion. According to the
Constitutional Court, a court of appeal can only interfere when it appears that the lower court had
not exercised its discretion judicially, or that it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which could not reasonably have been
made by a court properly directing itself to all the relevant facts and principles. On the facts before
it, the Constitutional Court was satisfied that the High Court was correct not to grant the Minister of
Home Affairs a postponement to file answering affidavits when the government had already had a
period of seven months in which to do so.34

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 2.4 The effect of a pending appeal on the judgment of the lower court
In terms of s 18(1) of the Superior Courts Act,35 the operation and execution of a decision which is
the subject of an application for leave to appeal or of an appeal is suspended pending the decision
of the application or appeal.
What this means is that the execution of a judgment (i.e. its coming into effect) is suspended
when an appeal is noted by one party. The effect of this suspension is that pending the appeal, the
judgment cannot be carried out and no effect can be given to it, unless the court which granted it
gives permission. To obtain such permission, the party in whose favour the judgment was given
must make a special application in terms of section 18.
Prior to the enactment of s 18 of the Superior Courts Act, applications of this nature were
governed by the provisions of the now repealed rule 49(11) of the High Court Rules which provided
that any of the parties may apply to the court to direct that its order will not be suspended pending
the decision of the appeal or application.36
Previously, the court to which application for leave to execute was made had a wide general
discretion to grant or refuse leave and, if it was granted, to determine the conditions according to
which the right to execute would be exercised. In exercising this discretion, the court could
determine what was just and equitable in all the circumstances and, in so doing, would normally
have regard, inter alia, to the following factors:

1. The potentiality of irreparable harm or prejudice to the appellant on appeal (respondent in the
application) if leave to execute were to be granted;
2. The potentiality of irreparable harm or prejudice to the respondent on appeal (applicant in the
application) if leave to execute were to be refused;
3. The prospects of success on appeal, including more particularly the question whether the appeal
is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse
the judgment but for some indirect purpose, for example to gain time or harass the other party;
and
4. Where there is the potentiality of irreparable harm or prejudice to both appellant and
respondent, the balance of hardship or convenience, as the case may be.37

The position is now regulated by s 18(3) of the Superior Courts Act, which has radically altered the
position under rule 49(11). In terms of s 18, a court may only make an order allowing execution if
the party who applied to the court for the order proves two things:

1. There exist ‘exceptional circumstances’ warranting the operation and execution of the judgment
pending the outcome of the appeal; and
2. On a balance of probabilities, the party who applied to the court for the order will suffer
irreparable harm if the court does not so order and the other party will not suffer irreparable
harm if the court so orders.

This makes it clear that the wide discretion previously enjoyed by courts when determining whether
to grant an order allowing execution pending the outcome of an appeal has been curtailed.
Subsections 18(4) and (5) of the Superior Courts Act are also novel. These subsections require the
court hearing the matter to immediately record its reasons if it grants an order allowing execution
pending the outcome of an appeal. Furthermore, these subsections afford the other party a right to
an automatic appeal to the next highest court, which has to be treated as a matter of extreme urgency
. The Gauteng Local Division, Johannesburg, in Mokgatla and Others v South African Municipal
Workers Union and Others38 explained the significance of these subsections as follows:

Previously, an order made in terms of Rule 49(11) was purely interlocutory and,
therefore, not appealable. The court granting the order always had the power to vary it
on application, should it be appraised of changed circumstances. This can no longer

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 occur as the losing party is now afforded an appeal, and once the appellate court
upholds the order it becomes an order of that court. It is no longer an order of the court
a quo that initially granted it. The court a quo cannot vary a judgment or order of an
appeal court.

Note that in terms of s 18(2), where a court has granted an interlocutory order not having the effect of
a final judgment and this is the subject of an application for leave to appeal or of an appeal, the rule
set out above does not apply. The operation and execution of an interlocutory decision is therefore
not suspended pending the decision of the application or appeal.
In terms of rule 49(12),39 if the order is not suspended, any party who wishes to execute in terms
of the order must, before execution, provide security for the restitution of any sum obtained upon
execution. The parties may agree or the registrar may decide on the amount of the security required.
Neither the government nor any provincial administration need file security for the restitution of
any sum obtained upon execution.

2.5 Disputing the validity of law in the Magistrates’ Courts

In practice, parties to litigation in the Magistrates’ Courts may from time to time wish to dispute the
validity of a law (either statute law or common law) on constitutional grounds.
The Magistrates’ Courts are not entitled to declare either statute law or common law to be invalid
on constitutional (or any other) grounds. The remedy for a litigant in this situation, as discussed in
more detail below, is to take the matter on appeal to the High Court, which is empowered to
pronounce upon the validity of existing law.
Section 170 of the Constitution provides that ‘a court of a status lower than the High Court may
not enquire into or rule on the constitutionality of any legislation or any conduct of the President’.
In terms of s 110(1) of the Magistrates’ Courts Act, a Magistrates’ Court is ‘not … competent to
pronounce on the validity of any law or the conduct of the President’.40 The meaning of ‘law’ in s 110
of the Magistrates’ Courts Act41 is broad enough to encompass both statutory law and common law.
Despite the absence of any reference to common law in either s 170 of the 1996 Constitution or in s
110 of the Magistrates’ Courts Act,42 Magistrates’ Courts do not have the power to rule on the
constitutionality of any rule embodied in common law. The Magistrates’ Court is a creature of
statute and has no jurisdiction beyond that granted by the statute creating it. No statutory
jurisdiction has been accorded to the Magistrates’ Court to enquire into, or rule on, the validity of
rules of common law.43
Accordingly, if in any proceedings before a Magistrates’ Court it is alleged that any law (statutory
or common law) or conduct of the President is invalid because of inconsistency with the
Constitution, the Magistrates’ Court shall decide the matter on the assumption that such law or
conduct is valid.44 If a litigant in a Magistrates’ Court matter raises the point that an Act of
Parliament is unconstitutional, the magistrate will hear evidence regarding the invalidity, but will
proceed as if the Act were constitutionally valid.45 The purpose of hearing the evidence is to
facilitate a litigant who may wish to take the point on appeal to the High Court once the matter has
been finalised in the Magistrates’ Court.46

3 The different routes an appeal may follow

In simple terms, the route followed by a civil appeal will depend upon whether the court of first
instance is a Magistrates’ Court or the High Court. In other words, did the case start in a Magistrates’
Court, or did it start in the High Court? We will deal with each in turn.

D32 3.1 Appeals from the Magistrates’ Courts

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 3.1 The usual route
.1
A Magistrates’ Court, sitting as a court of first instance,47 gives a judgment. In your opinion the
magistrate was wrong in his understanding of the law, or the facts, or both. You therefore wish to
appeal against the judgment.
No leave to appeal is required. You have the right to appeal to the High Court.48
The appeal will be heard by two judges of either a main or local seat of the High Court.49 (i.e. both
main and local seats have jurisdiction to hear Magistrates’ Courts’ appeals).50 Once the two High
Court judges have delivered their judgment on appeal, you may still not be satisfied with the
decision. You will then have to appeal against that decision to the Supreme Court of Appeal in
Bloemfontein.51
Before you are entitled to appeal, however, you must obtain leave to appeal from the Supreme
Court of Appeal.52
If you are granted leave to appeal and follow the proper procedure, the matter will eventually be
heard by three or five judges of the Supreme Court of Appeal.53 This was previously the final court of
appeal for all the non-constitutional issues in a matter. However, an amendment to the Constitution
has brought about a change in the jurisdiction of the Constitutional Court, making it the apex court
with final appeal jurisdiction in respect of both constitutional and non-constitutional matters.
Accordingly, a decision of the Supreme Court of Appeal may be taken on appeal to the
Constitutional Court.
In terms of the Constitutional Court Rules of 1 December 2003,54 Rule 19 requires that before you
are entitled to appeal, leave to appeal will have to be obtained by way of an application to the
Constitutional Court. The application for leave to appeal must be lodged with the registrar of the
Constitutional Court within 15 court days after the order you are appealing against has been handed
down. Notice of the application must be given to the other party or parties.55 The application, signed
by the appellant, must set out the decision against which the appeal is brought and the grounds on
which that decision is disputed; must contain a statement setting out clearly and succinctly the
constitutional matter raised in the decision; and any other issues including issues that are alleged to
be connected with a decision on the constitutional matter and such supplementary information or
argument as the applicant considers necessary to bring to the attention of the Court; and, finally, it
must include a statement indicating whether the applicant has applied or intends to apply for leave
or special leave to appeal to any other court.56
The Constitutional Court Rules were drafted prior to the Constitution Seventeenth Amendment
Act of 2012 which expanded the Constitutional Court’s jurisdiction, from matters which were
exclusively constitutional to now include matters that raise an arguable point of law of general
public importance which ought to be considered by the Court. Despite this amendment, Rule 19 of
the Constitutional Court Rules has not yet been updated to cater for appeals in respect of
‘non-constitutional’ matters. Rule 19 must therefore be read in the light of the constitutional
amendment to regulate appeals in respect of both constitutional and non-constitutional matters.57
A litigant seeking leave to appeal to the Constitutional Court need not first approach the court
whose decision and order is sought to be overturned and may apply directly to the Constitutional
Court.
Within 10 days of the application for special leave to appeal having been lodged, the respondent
or respondents may respond thereto in writing, indicating whether or not the application is
opposed and the grounds for such opposition.58 If leave to appeal is granted by the Court (after the
Court has made its decision in terms of Rule 19(6)), then the appellant must note and prosecute his
appeal in accordance with the provisions of Rule 20 of the Constitutional Court Rules, although
frequently the matter is simply set down and leave to appeal is only granted in the ultimate
judgment handed down by the Constitutional Court after the hearing.
In Nkabinde and Another v Judicial Service Commission and Others,59 the Constitutional Court
sets out how it deals with applications for leave to appeal. The Court explained:

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 The practice of this Court in dealing with applications for leave to appeal is that, as a
norm, they are deliberated upon at Conference or a meeting of the Justices. An
overwhelming majority of them are dismissed summarily at Conference without any
written or oral argument. A few of them are set down for hearing. Those that are set
down are those that appear to have reasonable prospects of success and raise important
constitutional issues or arguable points of law of general public importance that
deserve consideration by this Court. They are then heard in open court where the
litigants have a right to attend. Those applications that do not get set down are dealt
with and finalised at Conference and are summarily dismissed without a judgment.
Occasionally, a short judgment is written without oral or additional written submission
but sometimes with additional written argument. Litigants have no right to attend
Conference or to be represented there when the Court considers applications for leave
to appeal. This procedure is consistent with both section 173 of the Constitution and
Rule 19 of the Rules of this Court.

3.1 Shortcut appeals directly to the Constitutional Court

.2
In three instances, it may be possible to take a shortcut to the Constitutional Court.

3.1 Direct access cases

.2(a)
The first instance in which a shortcut to the Constitutional Court is possible is in those exceptional
cases where direct access is permitted to the Constitutional Court in the interests of justice. Such
matters will go directly to the Constitutional Court without first being heard by another court.
Direct access to the Constitutional Court is provided for in s 167(6)(a) of the Constitution, read
with Constitutional Court Rule 18 of the Constitutional Court Rules.60 The Constitutional Court will
sit as a court of first instance in these cases because the matter is of sufficient public importance or
urgency to necessitate direct access.61 (Note that it is not only in these direct access cases that the
Constitutional Court will be sitting as a court of first instance. It will also sit as a court of first
instance in those cases over which it has exclusive jurisdiction. Matters in which the Constitutional
Court has exclusive jurisdiction are limited to a few specific constitutional issues set out in s 167(4),
such as matters relating to the constitutionality of parliamentary or provincial Bills or certification of
provincial constitutions.62 In the case of direct access in terms of s 167(6)(a) of the Constitution,
however, any kind of case may qualify, as long as it involves a constitutional issue or a matter that
raises an arguable point of law of general public importance which ought to be considered by the
Constitutional Court, and it is in the interests of justice that direct access to the Constitutional Court
is granted.)
In order to be allowed direct access to the Constitutional Court, you will have to make an
application to the Court by way of a notice of motion supported by an affidavit.63
The affidavit in support of the application for direct access must set out:

1. the grounds on which it is contended that it is in the interests of justice that direct access to the
Constitutional Court be granted;
2. the nature of the relief sought and the grounds upon which such relief is based;
3. whether the matter can be dealt with by the Constitutional Court without hearing oral evidence;
and
4. if oral evidence needs to be heard, how such evidence should be adduced and conflicts of fact
resolved.64

3.1 Declarations of invalidity in constitutional cases

.2(b)
A second instance in which a shortcut to the Constitutional Court is possible (and, in this case,
required) is when the Supreme Court of Appeal or High Court declares an Act of Parliament, or a

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 provincial Act, or any conduct of the President to be constitutionally invalid. (Remember that the
Magistrates’ Courts are not empowered to do this due to the provisions of s 170 of the Constitution
and s 110 of the Magistrates’ Courts Act.)65
In terms of s 172(2)(a) of the Constitution, however, the Supreme Court of Appeal and the High
Court do have the power to declare an Act of Parliament, or a provincial Act, or any conduct of the
President to be constitutionally invalid.
It should be noted though that the declaration of invalidity will be of no force unless it is
confirmed by the Constitutional Court.66 The court making the order of invalidity may, however,
grant a temporary interdict or other temporary relief to a party, pending the decision of the
Constitutional Court. This protects the interests of the party whose interests are being threatened by
the legislation or conduct which has been declared, but not yet confirmed to be, invalid.67
There are two ways in which a declaration of invalidity will come before the Constitutional Court:

1. Firstly, regardless of whether any party wishes to appeal against or apply to confirm the
declaration of invalidity, the registrar of the court which issued the declaration of invalidity must
refer the order to the registrar of the Constitutional Court within 15 days of the order. If no notice
of appeal or notice of application for confirmation is lodged by any party within this time, the
matter of the confirmation of the order of invalidity shall be disposed of in accordance with
directions given by the Chief Justice.68
2. Secondly, it is open to either of the parties to appeal against, or to apply for the confirmation of,
the declaration of invalidity.69

3.1 The leapfrog to the Constitutional Court

.2(c)
A third instance in which a shortcut to the Constitutional Court is possible is where the High Court
has made a decision on a constitutional matter (other than a declaration of invalidity) or a matter
that raises an arguable point of law of general public importance that ought to be heard by the
Constitutional Court, and you are able to show that it is in the interests of justice to appeal directly
to the Constitutional Court.70
The Constitutional Court has only pronounced on the question of what constitutes a matter of
‘general public importance’ in one previous judgment to date.71 In Paulson the Court had regard to
comparative law in developing its jurisprudence in relation to what would constitute a matter of
general public importance. In summary, the Court held, with reference particularly to United
Kingdom (UK) and Kenyan authorities, that ‘for a matter to be of general public importance, it must
transcend the narrow interests of the litigants and implicate the interest of a significant part of the
general public.’72 The Court also referred to what was held by the House of Lords in R v Secretary of
State for Trade and Industry, ex parte Eastaway [2000] 1 WLR 2222 at 2228, in relation to its similar
jurisdiction (more recently endorsed by the UK Supreme Court):73

In its role as a supreme court the House must necessarily concentrate its attention on a
relatively small number of cases recognised as raising legal questions of general public
importance. It cannot seek to correct errors in the application of settled law, even where
such are shown to exist. (Our emphasis).

Before you will be allowed to leapfrog to the Constitutional Court, however, you will have to apply to
the Constitutional Court for leave to appeal.74

3.2 Appeals from the High Court

3.2 The usual route

.1
A division of the High Court, sitting as a court of first instance,75 gives a judgment. In your opinion

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 the judge was wrong in his understanding of the law, or the facts, or both. You therefore wish to
appeal against the judgment.
You need to apply to the same judge who gave the judgment for leave to appeal against his
judgment.76 If the judge refuses your request, you may petition the President of the Supreme Court
of Appeal to grant you leave to appeal. Note that the Supreme Court of Appeal may grant you leave
to appeal either to a full bench of the High Court or to the Supreme Court of Appeal.77
The appeal will be heard by a full court of the division of the High Court within whose
jurisdiction the matter falls.78 A full court of the division consists of three High Court judges.79 As a
general rule, local seats of divisions of the High Court (such as the KwaZulu-Natal Local Division,
Durban) do not have jurisdiction to hear full court appeals. An exception to this general rule is the
Gauteng Local Division, Johannesburg, which does possess such jurisdiction.80
If your appeal is turned down by the full court, you will then require special leave to appeal to the
Supreme Court of Appeal.81 The way in which you obtain special leave to appeal is by means of an
application to the Supreme Court of Appeal. This application is made to the President of the
Supreme Court of Appeal, who is in charge of the Supreme Court of Appeal.82
As a general rule, your appeal will be heard by five judges of the Supreme Court of Appeal in
Bloemfontein, although the President of the Supreme Court of Appeal may allow the appeal to be
heard by three judges.83
D33 Before you are entitled to appeal, leave to appeal against the judgment of the Supreme
Court of Appeal will have to be obtained by way of an application to the Constitutional
Court.84

3.2 Shortcut appeals directly to the Supreme Court of Appeal or Constitutional

.2 Court
In four instances, it may be possible to take a shortcut directly to the Constitutional Court or to the
Supreme Court of Appeal.

3.2 Direct access in constitutional cases

.2(a)
Precisely the same principles apply as were discussed in 3.1.2(a) above dealing with jurisdiction in
Magistrates’ Courts appeals.

3.2 Declarations of invalidity in constitutional cases

.2(b)
Precisely the same principles apply as were discussed in 3.1.2(b) above dealing with Magistrates’
Courts appeals.

3.2 The leapfrog to the Constitutional Court

.2(c)
Precisely the same principles apply as were discussed in 3.1.2(c) above dealing with Magistrates’
Courts appeals.

3.2 The leapfrog to the Supreme Court of Appeal

.2(d)
In terms of s 16(1)(a)(i) of the Superior Courts Act,85 if an appeal is being launched against the
judgment of a single judge, then the appeal may be by way of a full court appeal to the relevant main
seat of the division (or Witwatersrand Local Division, now the Gauteng Local Division,
Johannesburg), or by way of an appeal to the Supreme Court of Appeal. The court granting leave to
appeal may order an appeal to the Supreme Court of Appeal as opposed to a full court appeal if the
court is of the view that the decision to be appealed involves a question of law of importance,
whether because of its general application or otherwise or in respect of which a decision of the
Supreme Court of Appeal is required to resolve differences of opinion. It may also do so if the

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 administration of justice, either generally or in the particular case, requires consideration by the
Supreme Court of Appeal of the decision.86 Notwithstanding what a party or the parties may prefer,
it remains the duty of the judge to consider which court is the more appropriate in the
circumstances.87 This provision is aimed at ensuring that parties do not unnecessarily increase costs
by being inappropriately allowed to appeal to the Supreme Court of Appeal.
It also ensures that cases involving greater difficulty and which are truly deserving of the
attention of the Supreme Court of Appeal do not end up competing for a place on the court’s roll
with a case which is not. When the court granting leave to appeal orders that an appeal must be by
way of a full court appeal as opposed to an appeal to the Supreme Court of Appeal, or vice versa, any
interested party may, in terms of s 17(6)(b) of the Superior Courts Act,88 apply to the Supreme Court
of Appeal to set that order aside. Such an application to the Supreme Court of Appeal will take the
form of an application to the President of the Supreme Court of Appeal. It may also be set aside by
the Supreme Court of Appeal acting of its own accord.

4 Leave to appeal

4.1 Overview

In High Court appeals, the appellant will need to obtain leave (i.e. permission) to appeal or special
leave to appeal, before actually launching an appeal. This is a procedure which a litigant must
follow if he wishes to appeal against a decision of the High Court, or if he wishes to appeal against a
decision of the Supreme Court of Appeal to the Constitutional Court. (Note again that the leave to
appeal procedure is not a feature of appeals against decisions of the Magistrates’ Courts. As we
pointed out above (para 3.1), you have an automatic right by law to appeal against the decision
handed down in a Magistrates’ Court and do not have to seek permission to appeal first.)
The requirements for leave to appeal and special leave to appeal are set out in s 17 of the
Superior Courts Act:

1. In terms of s 16(1)(b) of the Superior Courts Act, if a judgment has already been appealed against
by means of a full court appeal, and you now want to launch a further appeal against the
judgment of the full bench, then you need the special leave of the Supreme Court of Appeal.
Section 17(3) of the Superior Courts Act sets out the procedure to be followed. The Appellate
Division in Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA
555 (A) held that the meaning of the phrase ‘special leave’ is as follows:

[T]he general principle is that an applicant for ‘special leave’ to appeal must show, in
addition to the ordinary requirement of a reasonable prospect of success, that there
are special circumstances which merit a further appeal to the Appellate Division
[now the Supreme Court of Appeal]. Examples of such special circumstances would
be (a) where the appeal raises a substantial point of law; (b) where the matter is of
very great importance to the parties or of great public importance; or (c) where the
prospects of success are so strong that the refusal of leave to appeal would probably
result in a manifest denial of justice.

2. Furthermore, in terms of s 16(1)(b) of the Superior Courts Act, the special leave of the Supreme
Court of Appeal is now also required where leave to appeal is sought in respect of a decision of
two judges on appeal to it from a Magistrates’ Court.89

4.2 Grounds for granting leave to appeal and special leave to appeal

Historically, the court, in evaluating an application for leave to appeal, was guided by whether the
applicant had satisfied the court that there is a reasonable prospect of the appeal succeeding, and

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 whether the matter was of substantial importance for the appellant or for the appellant as well as
the respondent.90 These principles are now codified in s 17(1) of the Superior Courts Act, which
prescribes that leave to appeal may only be given where the judge or judges concerned are of the
opinion that:

(a ) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
( b) the decision sought on appeal will have some practical effect or result; and
(c) if the decision sought to be appealed does not dispose of all the issues in the case, the
appeal would nonetheless lead to a just and prompt resolution of the real issues
between the parties.

If you are applying to the Supreme Court of Appeal for special leave to appeal, you need to show that
there are special circumstances which merit a further appeal, over and above the requirements of
reasonable prospects of success and substantial importance. As stated above, in Westinghouse
Brake, special circumstances may include a matter (a) in which the appeal raises a substantial point
of law; (b) that is of great importance to the parties involved or the general public; and (c) in which
the prospect of success is strong and the refusal of leave to appeal would probably result in a
manifest denial of justice.91 The power is likely to be exercised only when the President of the
Supreme Court of Appeal believes that some matter of importance has possibly been overlooked or
grave injustice will otherwise result.92

4.3 Application to the High Court for leave to appeal

The procedure which you must use in asking the High Court from a court constituted before a single
judge for leave to appeal is set out in High Court rule 49(1):

1. In terms of rule 49(1)(a), you may request leave to appeal at the time the judgment or order is
made. In other words, at the time the judge gives his judgment, you may inform the judge that
you want to appeal, and state verbally the grounds on which you want to appeal.
2. If you did not verbally request leave to appeal at the time the judgment or order was made, and
you still wish to appeal, then, in terms of rule 49(1)(b), you must make an application for leave to
appeal within 15 days of the date of the judgment or order appealed against. This procedure is
more frequently followed than that of requesting leave at the time of the judgment in terms of
subrule (a). In the application you must set out succinctly and clearly the grounds upon which
you believe that the court should grant you leave to appeal. In Xayimpi v Chairman Judge White
Commission [2006] 2 All SA 442 (E) the court went so far as to dismiss an application for leave to
appeal for noncompliance with rule 49(1)(b) where the applicants simply attached an affidavit of
some 45 pages instead of setting out the grounds of appeal clearly and succinctly as required by
the rule.

Once you have lodged your application for leave to appeal with the registrar, you will wait for the
registrar to arrange a date on which the application will be heard.93 Once the registrar has arranged
a date, he will inform all the parties thereof. On that date, the application will be heard by the judge
who presided at the trial of the matter being appealed against. If that particular judge is not
available, then another judge of the division in which the judgment was handed down will hear the
application.94 Usually, the court will decide ex tempore whether to grant or refuse leave. If the court
reserves its judgment, and then fails to give its judgment for an unreasonable period of time, such
failure may be regarded as frustrating the litigant’s right to a fair hearing and his right to apply to a
court for leave to appeal.95

4.4 Petition to the Supreme Court of Appeal for special leave to appeal

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 If your application for leave to appeal has been refused by the the High Court, but you still believe
that you have good grounds for an appeal, you may then address a petition96 to the President of the
Supreme Court of Appeal for special leave to appeal against the decision of the High Court.97
Similarly, you must address a petition to the President of the Supreme Court of Appeal for special
leave to appeal when you are appealing against the decision of a full court (meaning three judges; or
the Gauteng Local Division, Johannesburg) which has been given following a full court appeal.98
In terms of s 17(2)(b) of the Superior Courts Act, the petition must be made within one month of
the refusal of the application of leave to appeal or the judgment of the full bench has been given.
The following requirements must be met:

1. The petition must be addressed to the President of the Supreme Court of Appeal.
2. It must be lodged with the registrar of the Supreme Court of Appeal.
3. It must be lodged together with two copies of the petition (i.e. in triplicate).
4. A copy of the petition must also be served on the respondent or his attorney.

If the respondent wishes to respond to the allegations made in the petition, he must lodge his
written response with the registrar of the Supreme Court of Appeal within one month after the
petition was served on him.99 His written response must be in the form of an affidavit and two
copies thereof must be lodged with the registrar.
The petition is then considered in chambers by two judges of the Supreme Court of Appeal
designated by the President of the Supreme Court of Appeal.100 If these two judges cannot agree,
then the President himself, or else a third judge designated by the President, will also consider the
petition.101 The judges who are considering the petition may:102

1. grant or refuse the petition; or

2. order that the petition be argued before them on a set date; or
3. refer the petition to the court (i.e. the Supreme Court of Appeal) for consideration.

The decision of the majority of the judges considering the petition (or the decision of the Supreme
Court of Appeal if it is referred to the Supreme Court of Appeal) to either grant or refuse the petition
is final.103 This is subject to only one proviso: the President of the Supreme Court of Appeal may in
exceptional circumstances, whether of his own accord or on application filed within one month of
the decision, refer the decision to the court for reconsideration and, if necessary, variation.

5 The procedure leading up to the appeal hearing

What follows is a brief discussion of the procedure you will follow leading up to the actual hearing of
the appeal. Whichever appeal procedure one is dealing with, be it from the Magistrates’ Court to the
High Court, the High Court to the Supreme Court of Appeal or the Constitutional Court, or the
Supreme Court of Appeal to the Constitutional Court, it is important that the rules relating to the
particular appeal being pursued are carefully scrutinised by practitioners to ensure full and proper
compliance. Litigants are constantly warned that those who fail, for instance, to prepare a proper
index of the record, or to heed the rules against duplication of documents, or to ensure that the
record is properly prepared, risk adverse costs orders.104 In Ensign-Bickford (South Africa) (Pty) Ltd
and Others v AECI Explosives and Chemicals Ltd,105 the Supreme Court of Appeal went so far as to
warn that:

[l]itigants who do not in future follow the rules fully and intelligently will run the risk of
being debarred from proceeding with their appeals.

5.1 Appeals to the High Court: the procedure

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 5.1 Overview
.1
The rules regarding appeals from the Magistrates’ Court to the High Court are set out in the
Magistrates’ Courts Rules (rule 51) and in the Rules of the Court of Appeal (mainly High Court rule
50, but also, among others, rule 7). If you are appealing to the Gauteng Division, Pretoria, or the
Gauteng Local Division, Johannesburg, the rules of those divisions, usually contained in practice
directives for the division, must be consulted as they contain particularities relating to the appeal
procedure before them.

5.1 The noting of an appeal

.2
5.1 Request for written judgment (rules 51(1) and (2) of the Magistrates’
.2(a) Courts Rules)
Within 10 days after judgment, the prospective appellant must deliver to the magistrate, who
presided, a written request for a written judgment showing:

1. the facts which the magistrate found to be proved; and

2. his reasons for judgment.

The magistrate must deliver the written judgment to the clerk of the Magistrates’ Court within 15
days.106 The clerk of the court delivers the written judgment forthwith to the prospective appellant.
107

5.1 Procedure on noting an appeal (rules 51(3), (4), (7) and (8) of the
.2(b) Magistrates’ Courts Rules)
Within 20 days after receiving the written judgment, the appellant must note the appeal.108 The
appeal is noted by delivering a notice of appeal to the respondent and filing a copy of the notice of
appeal with the clerk of the court. Together with the notice of appeal, the appellant must provide
security for the respondent’s costs, up to the amount of R1 000 (unless the court of appeal orders
otherwise). The state and persons using legal aid need not provide security.109 The notice of appeal
must state:

1. whether the whole or part only of the judgment is being appealed against, and if part only, then
which part; and
2. the grounds of appeal, specifying the findings of fact or rulings of law appealed against.110

Within 10 days after the notice of appeal is delivered to him, the respondent must note any cross
-appeal he may want to prosecute. This is achieved by delivering a notice of cross-appeal to the
appellant. The notice of cross-appeal must contain the same details as a notice of appeal.111
Within 15 days after the appeal has been noted, the magistrate must hand the clerk of the court a
written statement showing:

1. the facts he found to be proved;

2. the grounds upon which he arrived at any finding of fact specified in the notice of appeal as
appealed against; and
3. his reasons for any ruling of law or for the admission of any evidence so specified as appealed
against.112

5.1 The prosecution of an appeal

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 .3 the appellant or the respondent must prosecute113 the appeal within 60 days after the appeal
Either
was noted, otherwise the appeal lapses.114
The prosecution of the appeal operates as the prosecution of any cross-appeal which has been
noted.115
The appeal is taken to have been prosecuted on the date on which the registrar of the division of
the High Court receives a written application from either the appellant or the respondent for the
assignment of a date for the hearing of the appeal.116 There are different time periods within which
the appellant and the respondent may apply for such a date:

Either the appellant may apply for a date at any time within 40 days after the appeal was
noted; or if the appellant does not apply for a date within the 40-day period, then the
respondent may apply for a date at any time until 60 days have elapsed after the appeal
was noted.117 (Note: In respect of the Gauteng Division, Pretoria, and the Gauteng Local
Division, Johannesburg, the period of 40 days is extended to 12 weeks and the period of
60 days is extended to 14 weeks.)

At the same time that he applies for a date for hearing from the registrar, the appellant must lodge
with the registrar two copies of the record (i.e. one for each of the two judges who will hear the
appeal). If more than two judges are going to hear the appeal, the registrar may request extra copies
of the record.118

5.1 Preparing the court record and subsequent procedures

.4
The record must be typed on A4-sized paper in double spacing, and every tenth line on each page
must be numbered. The record must contain a correct and complete copy of the pleadings,
evidence and all documents necessary for the hearing of the appeal. The record must be indexed,
and the copies of the record supplied to the registrar must be certified as correct by the attorney
lodging them or by the person who prepared the record.119
Formal documents such as subpoenas and notices of trial may be omitted from the record.120
Immaterial portions of lengthy documents may also be omitted from the record if the parties
consent in writing to this.121
As soon as the registrar receives a request for a date for the hearing of the appeal, he will assign a
date. Unless all the parties consent to an earlier date, the date for the hearing must be at least 40
days after the application for the date was made.122
The registrar will immediately give the appellant written notice of the date of the hearing.123
The appellant must then immediately deliver a notice of set down to the respondent, and give
written notice of the date of hearing to the clerk of the Magistrates’ Court.124
Not less than 15 days before the date of hearing, the appellant must furnish the respondent (or if
there is more than one respondent, each of the respondents) with two copies of the record.125
Not less than 15 days before the date of the hearing, the appellant must deliver a concise and
succinct statement of the main points which he intends to argue on appeal, as well as a list of
authorities to be tendered in support of each point. The common name for this document
containing the main points of argument is heads of argument. One copy of the heads of argument
must be delivered to the respondent, and three copies must be filed with the registrar.126
Not less than 10 days before the date of the hearing, the respondent must deliver his heads of
argument.127
In terms of s 14(3) of the Superior Courts Act,128 the division of the High Court which is hearing
the appeal will consist of at least two judges.129
The court of appeal is empowered to make a wide range of orders. The various orders which may
be made by the court of appeal are set out in s 87 of the Magistrates’ Courts Act and s 19 of the
Superior Courts Act (the two sections to some extent overlap), and include confirming, varying or
reversing the judgment appealed against.

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 5.2 Appeals to the full court of the High Court: the procedure
The procedure to be followed in order to prosecute a full court appeal – i.e. an appeal from a court
constituted before a single judge of a division of the High Court, sitting as a court of first instance, to
a full court of that division or the Gauteng Local Division, Johannesburg (previously known as the
Witwatersrand Local Division) – is set out in High Court rule 49:

Step 1: The first step in prosecuting a full court appeal is to obtain leave to appeal from
the judge who gave the judgment which is being appealed against.
Step 2: Once leave to appeal to the full court has been granted, a notice of appeal must be
delivered to all the parties within 20 days. This period of 20 days may be
extended if you are able to show good cause to the court.130 You must state in
your notice of appeal whether you are appealing against the whole or a part of
P34 the judgment or order concerned. If you are only appealing against a part of
the judgment or order, then you must state which part. You must also specify
the finding of fact and/or ruling of law which you are appealing against, and
the grounds upon which your appeal is founded.131
Step 3: The respondent must deliver notice of any cross-appeal he wishes to bring within
10 days after he receives the notice of appeal. This period of 10 days may be
extended on good cause being shown.132
Step 4: Within 60 days after delivering the notice of appeal, the appellant must apply in
writing to the registrar of the court for a date for the hearing of the appeal.133
Step 5: If the appellant fails to apply for a date for the hearing of the appeal within the
60-day period referred to above, then within 10 days after the 60-day period
has expired, the respondent may apply for such date. If neither the appellant
nor the respondent applies for a date, the appeal (together with any
cross-appeal which has been noted) will lapse.134
Step 6: In terms of High Court rule 7(2), a power of attorney authorising the attorney to
prosecute the appeal must be filed with the registrar together with the
application for a date for hearing.
Step 7: In terms of rule 49(13), unless the respondent waives his right to security, the
appellant must, before lodging copies of the record with the registrar (see
next paragraph), enter into good and sufficient security for the respondent’s
costs of appeal. If the parties fail to agree on the amount of security to be
lodged, the registrar shall fix an amount. The decision of the registrar is final.
Neither the government nor any provincial administration need file security
for the costs of appeal.
Step 8: At the same time that the appellant applies for a date for the hearing of the
appeal, he must file three copies of the record with the registrar, and deliver
two copies to the respondent. The appellant must also provide the registrar
with copies of all papers, documents and exhibits in the case, except formal
and immaterial documents. A comprehensive index must be provided with
the documents, and any documents which have been omitted must be
referred to in the index.135
Step 9: The record must be typed on A4 paper in double spacing. It must be paginated
and bound, and every tenth line on every page must be numbered.136 If all the
parties consent in writing, any exhibit or annexure or other portion of the
record which has no bearing on the point which is in issue in the appeal, as
well as immaterial portions of immaterial documents, may be omitted from
the record. The written consent must set out which documents or parts
thereof have been omitted, must be signed by the parties, and must be filed
with the record.137

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 Step 10: When an appeal is to be decided exclusively on a point of law, the parties may
agree to submit the appeal to the court in the form of a special case in terms
of High Court rule 33. In such a case, only those portions of the record which
the parties believe are necessary for the proper decision of the appeal need be
submitted to the court.138
Step 11: If the appellant fails to deliver the required copies of the record within 40 days
after the registrar has accepted his application for a date for the hearing of the
appeal, the respondent may approach the court for an order that the appeal
has lapsed.139
Step 12: Once the registrar receives the record, he will assign a date for the hearing of the
appeal and will set the matter down for hearing on that day. The registrar will
give the parties 20 days’ written notice of the date of the hearing.140
Step 13: In terms of rule 49(15), not later than 15 days before the appeal is heard, the
appellant must deliver a concise and succinct statement of the main points
which he intends to argue on appeal, as well as a list of the authorities to be
tendered in support of each point. In other words, not less than 15 days
before the hearing, the appellant must deliver his heads of argument. The
respondent is in turn required to deliver heads of argument no later than 10
days before the hearing. Three extra copies of the heads must also be filed
with the registrar.

5.3 Appeals to the Supreme Court of Appeal (SCA): the procedure

Appeals to the Supreme Court of Appeal (the SCA) are dealt with by ss 16 and 17 of the Superior
Courts Act, as read with the Rules Regulating the Conduct of Proceedings of the Supreme Court of
Appeal of South Africa (the SCA Rules).

Step 1: The first step is for the appealing party to obtain leave to appeal from the High Court against
whose judgment the appeal is being brought, or if such leave to appeal is refused by the
High Court, to obtain leave to appeal by petitioning the President of the Supreme Court
of Appeal. While the SCA Rules requires a certified copy of the order, the registrar of the
Supreme Court of Appeal will accept applications for leave to appeal or notices of appeal
without a certified copy of the order because of problems experienced in obtaining
orders from registrars in various divisions. Instead, a letter from the registrar of the
division certifying the date of the order will be sufficient.141
Step 2: Every appellant to whom leave to appeal has been granted must, within one month, deliver a
notice of appeal to all the parties.142 This period of one month may be extended by the
written agreement of all the parties to the appeal.143 You must state in your notice of
appeal what part of the judgment or order is appealed against.144 The respondent must
deliver notice of any cross-appeal he wishes to bring within one month after he receives
the notice of appeal.145
Step 3: After an appeal has been noted, the appellant must lodge with the registrar of the Supreme
Court of Appeal six copies of the record of the proceedings in the court appealed from.146
The appellant must also deliver the number of copies of the record to the respondent as
is necessary. If the decision of a matter on appeal is likely to turn exclusively on a
question of law, the parties may, by mutual consent, submit the question of law to the
Supreme Court of Appeal in the form of a special case.147
Step 4: The copies of the record (or special case) must be typed on A4 paper in double spacing. It
must be paginated and bound, and every tenth line on every page must be numbered.148
If the appellant fails to lodge the record within the prescribed period of time and has not
within that period applied to the respondent or his attorney for consent to an extension of
time to lodge and has given notice to the registrar of the Supreme Court of Appeal that he
has applied for an extension, then in terms of SCA rule 8(3) his appeal shall lapse.

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 Step 5: The appellant must lodge his heads of argument with the registrar of the Supreme Court of
Appeal (six copies of his main heads of argument, together with a list of authorities to be
quoted in support of the argument), and must do so within six weeks of lodging the
record.149
Step 6: The respondent must then, within one month from the receipt of the appellant’s heads of
argument, lodge with the registrar six copies of the respondent’s heads of argument,
together with a list of authorities to be quoted in support of each head.150
Step 7: The parties must in respect of their heads of argument have regard to the Supreme Court of
Appeal Practice Directions dated 15 November 2014. In the Practice Directions the
parties are required to attach to their heads of argument a brief note indicating, inter alia,
the nature of the appeal, an estimate of the duration of the appeal, and a summary of the
argument. Various other points of procedure are also dealt with.151 See Van Aardt v
Galway where it was stated:152

The practice note requires a statement of counsel’s view, in the form of a list, of those
parts of the record that need to be considered in order to decide the case. The fact that
his or her opponent may disagree is neither here nor there. That will emerge from the
opponent’s practice note. In addition the list is to be confined to those parts of the
record that are ‘necessary’ for that purpose. Documents and evidence are not to be
included in the list on the off chance that someone might wish to refer to them. The list
should include only those parts of the record that counsel is likely to refer to either in
support of the argument, or for rebuttal, or to highlight flaws in the judgment appealed
against. It is inappropriate to include material on the basis that if a particular question
is asked, or explanation is sought, it may be necessary to refer to it. What is required is a
list setting out the portions of the pleadings, the documents and the particular passages
in the record of evidence that counsel believes are necessary to determine the case. The
list must identify by reference to volumes and pages where those parts of the record are
to be found. Lastly, it would be a salutary practice for counsel to prepare the list in
positive terms, identifying the parts of the record necessary for the determination of the
appeal, rather than, as seems frequently to be the case, identifying portions that need
not be read. The list is supposed to assist the judges in identifying what needs to be read.
It should not be treated as the commencement of a process of elimination of
unnecessary material.

After the provisions of the rules have been complied with, the registrar of the Supreme Court of
Appeal must notify the parties or their attorneys of the date of the hearing (SCA rule 13(1)).

5.4 Appeals to the Constitutional Court: the procedure

The Constitutional Court, as the highest court in all matters, sits also as a court of appeal. Appeals
lie to it under the following circumstances:

1. In the case of a declaration of constitutional invalidity of an Act of Parliament, a provincial Act or

any conduct of the President, by either a division of the High Court (or a court of similar status)
or the Supreme Court of Appeal, with no requirement of leave to appeal;153
2. From a judgment or order of the Supreme Court of Appeal, subject to leave having been granted
by the Constitutional Court;154 or
3. Decisions on a constitutional matter or point of law of importance by any other court, subject to
leave having been granted by the Constitutional Court.155

These types of appeals require an in-depth knowledge of the Rules of the Constitutional Court.
What follows is a brief summary of the key procedural steps.156
The procedure for bringing an appeal to the Constitutional Court is set out in Rules 19 and 20 of

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 the Constitutional Court Rules:

Step 1: In terms of Rule 19, a litigant who is aggrieved by the decision of a court (any court, including
the Supreme Court of Appeal)157 and who wishes to appeal against it directly to the
Constitutional Court on a constitutional matter shall, within 15 days of the order against
which the appeal is sought to be brought and after giving notice to the other party or
parties concerned, lodge with the registrar of the Constitutional Court an application for
leave to appeal.158 The application must be signed by the applicant or his legal
representative and shall contain:

a) the decision against which the appeal is brought and the grounds upon which such
decision is disputed;
b) a statement setting out clearly and succinctly the constitutional matter or arguable
point of law of importance to the general public raised in the decision, and any other
issues, including issues that are alleged to be connected with a decision on the
constitutional matter;
c) such supplementary information or argument as the applicant considers necessary to
bring to the attention of the Court; and
d) a statement indicating whether the applicant has applied or intends to apply for leave
or special leave to appeal to any other court, and if so, which court, whether such
application is conditional upon the application to the Constitutional Court being
refused, and the outcome of such application if known at the time of the application
to the Court.159

Step 2: Within 10 days from the date upon which the application for leave to appeal is lodged with
the Constitutional Court, the respondent or respondents may respond thereto in writing,
indicating whether or not the application for leave to appeal is being opposed, and if so,
the grounds for such opposition.160

Step 3: The Court shall then decide whether or not to grant the appellant leave to appeal.161
Applications may be dealt with summarily, without receiving oral or written argument
other than that contained in the application itself,162 or the Court may order that the
application for leave to appeal be set down for argument and direct that the written
argument of the parties deal not only with the question whether the application for leave
to appeal should be granted, but also with the merits of the dispute.163

Rule 20 governs the procedure on appeal. In terms of this rule, if leave to appeal is granted under
Rule 19, the appellant shall note and prosecute the appeal as follows:164

Step 1: The appellant shall prepare and lodge the appeal record with the registrar within such time
as may be fixed by the Chief Justice in the directions. Subject to the provisions of Rule
20(1)(c) (set out in Step 2–4 below), the appeal record shall consist of a transcript of the
judgment of the court from which the appeal is noted, together with all the
documentation lodged by the parties in that court and a transcript of all the evidence
which may have been led in the proceedings and which may be relevant to the issues that
are to be determined.165
Step 2: The parties shall endeavour to reach agreement on what should be included in the record
and, in the absence of such agreement, the appellant shall apply to the Chief Justice for
directions to be given in regard to the compilation of the record.
Such application shall be made in writing and shall set out the nature of the dispute
between the parties in regard to the compilation of the record and the reasons for the
appellant’s contentions.

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 Step 3: The respondent may respond to the application within 10 days of being served with the
application and shall set out the reasons for the respondent’s contentions.
Step 4: The Chief Justice may assign the application to one or more judges, who may deal with the
matter on the papers or require the parties to appear before him or her or them on a
specified day and at a specified time to debate the compilation of the record.
The judge or judges concerned shall give directions in regard to the compilation of the
record, the time within which the record is to be lodged with the registrar and any other
matters which may be deemed by him or her or them to be necessary for the purpose of
enabling the court to deal with the appeal, which directions may include that the matter
be referred back to the court a quo for the hearing of additional evidence specified in the
directions, or that additional evidence be put before the court by way of affidavit or
otherwise for the purpose of the appeal.
Step 5: Once the record has been correctly lodged,166 the registrar shall cause a notice to be given to
the parties to the appeal requiring the appellant to lodge with the registrar written
argument167 in support of the appeal within a period determined by the Chief Justice and
specified in such notice,168 and the respondent to lodge with the registrar the written
argument in reply to the appellant’s argument by a specified date determined by the
Chief Justice, which shall be subsequent to the date on which the appellant’s argument
was served on the respondent.169
Step 6: The appellant is given further opportunity to lodge written argument with the registrar in
answer to the respondent’s argument.170 Such written argument must be lodged within
10 days from the date on which the respondent’s argument was served on the appellant.
171

Step 7: The Chief Justice may thereafter decide whether the appeal shall be dealt with on the basis of
written arguments only,172 but if the Chief Justice decides that oral argument is to be
heard, the Chief Justice shall determine the date on which the oral argument is to be
heard and the registrar shall within five days of such determination notify all parties to
the appeal of the date of the hearing by registered post or facsimile.173

6 The appeal hearing

6.1 Further evidence on appeal and the raising of new points

In terms of s 19(b) of the Superior Courts Act,174 the Supreme Court of Appeal or a division
exercising appeal jurisdiction, has the power to receive further evidence on appeal, or to remit the
case to the court of first instance, or the court whose judgment is the subject of the appeal, for
further hearing. However, since a court of appeal has to consider the correctness of the decision of
the court a quo, it will, as a general rule, not allow evidence of events subsequent to the judgment
under appeal. As Cloete J remarked in the case of Fedsure Life Assurance Co Ltd v Worldwide African
Investment Holdings (Pty) Ltd and Others,175 a court deciding an appeal decides whether the
judgment appealed from was right or wrong according to the facts in existence at the time it was
given, and not according to new circumstances which came into existence afterwards. Accordingly,
further evidence can only be admitted in exceptional circumstances and caution should be
exercised when admitting this type of evidence lest the floodgates be opened for such a procedure
to be followed in almost every case; it is in the public interest to attain finality in litigation. 176
Therefore the appeal court will use this power reluctantly and in accordance with the following
principles set out in the case of Colman v Dunbar 1933 AD 141:

1 It is essential that there should be finality to proceedings and a litigant should not,
. exception in exceptional circumstances, be allowed to adduce further evidence.
2 The applicant must show that the failure to adduce the evidence was not due to his
. negligence and must satisfy the court that he could not have obtained the
evidence if he had used reasonable diligence …

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 3 The evidence tendered must be admissible, weighty and material and, presumably, to
. be believed, and must be such, that if adduced, it would be practically conclusive
…
4 If conditions have so changed that the fresh evidence will prejudice the opposite
. party, for example, if the witnesses of the opposite party cannot be brought back
to refute the fresh evidence, or to explain their own evidence in the light of the
fresh evidence, the court will not lightly grant the application.177

A more general, but related, principle is that a party who takes a matter on appeal is bound by the
record of the case in the court a quo and cannot raise a new point by relying on a circumstance
which does not appear from, or which cannot be deduced from, the record. Put differently, a party
whose case has unravelled before the trial court is not allowed to stitch together a new one on
appeal if it was not properly covered in evidence. A party is not entitled to advance on appeal a case
different from the one he presented on paper in the court below – be it in the affidavits on notice of
motion or in the pleadings on trial.178 If an appellant is not satisfied with the record he must apply
for leave to amend it.179 As a good example of the rule that a court will not allow a point to be raised
on appeal unless it was covered by the pleadings, consider the case of Road Accident Fund v
Mothupi.180 In this case, the Supreme Court of Appeal dealt with the question of whether a new
point that the appellant wished to take (regarding estoppel) could be raised on appeal.
According to the court, it would be unfair to the other party if the new point had not been fully
canvassed or investigated at the trial. In this case, the Supreme Court of Appeal was not certain that
the issue of estoppel in all its ramifications had been properly and fully investigated by the High
Court. It appeared to the court that the proposed amendment ‘opened entirely new fields of
enquiry’ which had not been properly explored at trial. The application for amendment was
accordingly refused, and estoppel fell by the wayside.181
The Constitutional Court has similarly explained the principles that guide the admission of
further evidence on appeal before that Court. There are two ways in which evidence not adduced
before a court of first instance may be admitted in the Constitutional Court. In Prophet v National
Director of Public Prosecutions 2007 (6) SA 169 (CC), the court explained (at para [33]) that the test
for admission was a strict one:

Before turning to deal with the documents sought to be introduced on appeal, it will be
useful to indicate that there are two routes for the admission of late evidence on appeal
in this Court. The first is Rule 31 of the Rules of this Court which permits parties to
adduce relevant material that is common cause or otherwise incontrovertible or is of an
official, scientific, technical or statistical nature and capable of easy verification. The
second is in terms of s 22 of the [now repealed] Supreme Court Act, which is
incorporated into the Rules of [the Constitutional Court] by Rule 30. This Court has
considered the circumstances in which evidence may be tendered in terms of s 22 on
several occasions and concluded that it may only be done in exceptional circumstances
where the evidence sought to be submitted is ‘weighty, material and to be believed’ and
there is a reasonable explanation for the late filing of the evidence.

The Court in giving further consideration to Rule 31 continued at para [38]:

It is true that Rule 31 does not expressly require an explanation for lateness. However,
our courts have always required an explanation for the late tender of evidence. There
are important reasons of fairness in an adversarial system why this is so. The late filing
of an application in terms of Rule 31 would also require an explanation for the late
filing. The applicant clearly made a deliberate choice not to adduce Mr Smith’s
evidence earlier and take the Court into his confidence. His counsel correctly conceded
in oral argument that the information contained in the affidavit is ‘objectively

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 ascertainable’ and could have been obtained at any stage. The applicant, insofar as Mr
Smith’s affidavit is concerned, has clearly been remiss. It would be a travesty of justice
and a precedent which could lend itself to abuse were this Court, on account of the
reason that Rule 31 does not require an explanation, to exercise its discretion in favour
of the applicant where there has been remissness and recantation. The application falls
to be determined on this ground alone. It is, however, also clear that Mr Smith’s
affidavit does not fall within the terms of Rule 31. Although it is scientific evidence, it is
disputed by the respondent and is not capable of easy verification. That ground of
admissibility is therefore not open to the applicant.

The Constitutional Court in Mail and Guardian Media Ltd and Others v Chipu N.O. and Others182
and Lee v Minister of Correctional Services183 refused applications to introduce further evidence.

6.2 No appeal or order granted without a practical effect or result

Another point relating to the hearing of appeals is that in terms of s 16(2)( a)(i) of the Superior
Courts Act,184 an appeal court will not grant any appeal or order requested if such appeal or order
will have no practical effect or result.185 A good example of the application of this rule is provided by
the Supreme Court of Appeal’s decision in Coin Security Group (Pty) Ltd v SA National Union for
Security Officers and Others.186 In this case, the appellant (a private security company) had been
involved in a labour dispute with some of its employees arising out of a strike action and sought an
interdict from the High Court. When the matter came to the High Court, the court upheld an
argument by the employees that the High Court had no jurisdiction since the Labour Court
exercised exclusive jurisdiction in matters of this nature. The appellant appealed this decision to the
Supreme Court of Appeal, asking that the employees’ point concerning jurisdiction be dismissed
and that the matter be sent back to the High Court for determination. By the time the case came on
appeal to the Supreme Court of Appeal in 2001, however, the employees had been fairly dismissed
from their jobs in 1997.187 The Supreme Court of Appeal found, therefore, that it was unnecessary to
decide the question of whether the High Court really had jurisdiction in respect of the interdict
sought by the appellants as against the striking employees. The order sought would have no
practical effect or result, as the court was asked to confirm an interdict, for the future, in respect of
acts committed in the course of an industrial dispute which had been finally resolved between the
parties by the dismissals in 1997. The court therefore dismissed the appeal and ordered the
appellant to pay the costs of the appeal.188

6.3 Condonation of noncompliance with rules

A court of appeal is empowered to condone noncompliance with any of its rules, if good cause is
shown.189 Precisely what constitutes good cause in a particular case lies within the discretion of the
court of appeal considering the matter.190
The Constitutional Court has held that the standard for considering an application for
condonation is the interests of justice. The concept ‘interests of justice’ is elastic and may include
the following: the nature of the relief sought; the extent and cause of the delay; the effect of the delay
on the administration of justice and other litigants; the reasonableness of the explanation for the
delay; the importance of the issue to be raised in the intended appeal; and the prospects of success.
191

A party who wishes his breach of the rules to be condoned must apply for condonation as soon as
he becomes aware that he has breached the rules.192 In situations where a party is aware that he will
not be in a position to meet a particular time limit, and his opponent refuses to consent to the time
limit being extended, he must make an immediate application for condonation, even though the
rules have not yet been breached.193 The Constitutional Court has stressed that an application for
condonation must set out a full explanation for the delay and the explanation must be reasonable.
194

An application for condonation in the Supreme Court of Appeal is made by means of a petition.

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 195

In appeals before the Constitutional Court, Constitutional Court Rule 32 allows the
Constitutional Court to condone noncompliance with the Constitutional Court Rules.196 That power
of condonation appears to be limited to proceedings that take place in the Constitutional Court. In
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,197
the Constitutional Court held that on appeal it has no power to make condonation orders on behalf
of other courts, short of setting aside an order on appeal and substituting it with another order. In
casu, the applicants had brought an application in the High Court for an order declaring a certain
statute to be unconstitutional.
In the High Court the respondent (the Minister of Home Affairs) had failed to file answering
affidavits despite a lapse of seven months. A day before the hearing, the respondent asked the High
Court for a postponement in order to file such affidavits. The High Court, in the exercise of its
discretion, refused the postponement. When the matter came on appeal to the Constitutional
Court, the respondent launched an application in the Constitutional Court seeking, inter alia,
condonation of their failure to file their answering affidavits in the High Court and an order granting
them leave to file affidavits, and, alternatively, referring the matter back to the High Court. In
addition, the respondents argued, as one of their arguments on appeal, that the High Court had
erred in exercising its discretion to refuse the postponement.198 The Constitutional Court held that
the application for condonation was wholly misconceived,199 and that in any event a court of appeal
is not entitled to set aside the decision of a lower court granting or refusing a postponement in the
exercise of its discretion merely because the court of appeal, on the facts of the matter before the
lower court, would have come to a different conclusion.200 According to the Constitutional Court, a
court of appeal may only interfere when it appears that the lower court has not exercised its
discretion judicially, or that it has been influenced by wrong principles or a misdirection on the
facts, or that it has reached a decision which could not reasonably have been made by a court
properly directing itself to all the relevant facts and principles.201 On the facts before it, the
Constitutional Court was satisfied that the High Court was correct not to grant the Minister of Home
Affairs a postponement to file answering affidavits when the government had already had a period
of seven months in which to do so.202
The Constitutional Court has issued many warnings to litigants about the consequences of failing
to observe court rules. In eThekwini Municipality v Ingonyama Trust203 it stated:

The Court cannot continue issuing warnings that are disregarded by litigants. It must
find a way of bringing this unacceptable behaviour to a stop. One way that readily
presents itself is for the Court to require proper compliance with the rules and refuse
condonation where these requirements are not met. Compliance must be demanded
even in relation to rules regulating applications for condonation.

6.4 The judgment

The judgment of the majority of the judges on appeal is taken to be the judgment of the court. If the
judges differ in their judgments to the extent that there cannot be said to be a majority judgment,
then the matter must be heard de novo (i.e. from the beginning) before a freshly constituted court.204
If one of the judges is absent or unable to perform his functions, or if a vacancy among the members
of the court arises (i.e. a judge dies or cannot continue sitting in an appeal for some or other
reason), the hearing will continue before the remaining judges, provided that those remaining
judges constitute a majority of the judges who started hearing the appeal. The judgment of the
majority of the remaining judges is taken to be the judgment of the court, provided that those judges
also constitute a majority of the number of judges who started hearing the appeal.205
A judge may not form part of a court which is hearing an appeal against one of his own
judgments.206

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 PART 1: APPEALS AND REVIEWS

B: Reviews
1 General overview
The usual meaning of the term ‘review’ is the process whereby the proceedings of lower courts, both
civil and criminal, are brought before the High Court in respect of irregularities occurring during the
course of such proceedings.207
The term ‘review’ may also be used in other contexts, such as:

1. the review of the proceedings of administrative authorities and domestic tribunals; and
2. judicial review in constitutional matters.

2 Review jurisdiction
Magistrates’ Courts do not have review jurisdiction. In other words, Magistrates’ Courts do not have
the power to review the proceedings of, for example, the Small Claims Court. This would have to be
done by the High Court.
In terms of s 21(1)(b) of the Superior Courts Act,208 a division of the High Court has the power to
review the proceedings of all Magistrates’ Courts within its area of jurisdiction. Previously, local
divisions of the High Court, apart from the Witwatersrand Local Division (now the Gauteng Local
Division, Johannesburg), did not have review jurisdiction unless such jurisdiction was conferred by
a particular statute, whereas provincial divisions of the High Court (as they were then called), did
have review jurisdiction. While it appears that, subsequent to the enactment of the Superior Courts
Act, this continues to be the practice, the recent case of Nedbank Limited v Norris and Others209 has
held that local divisions do have review jurisdiction:

In s 22 [of the Superior Courts Act], which deals with the grounds of review of
proceedings of Magistrates’ Courts, the introductory portion of sub-section (1)
indicates that review proceedings may be brought ‘before a court of the Division’. The
equivalent provision of the now repealed Supreme Court Act indicated that the power to
review a decision of a lower court was confined to provincial divisions and ‘a local
division having review jurisdiction’. In terms of s 19(2)(b) of the repealed Act only the
Witwatersrand Local Division was vested with both appeal and review jurisdiction. The
Superior Courts Act does not in terms address this. There is no express provision which
indicates that the Witwatersrand Local Division, now a local seat of the Gauteng
Division, no longer enjoys such jurisdiction. No doubt if it had been intended to do so
the new Act would have had to specifically so provide. The absence of an express
provision saving the appeal and review jurisdiction of the local seat of that Division
points, in my view, to the clear intention of the legislature to confer the power to hear
and determine appeals and reviews upon courts of a Division whether sitting at the
main seat or a local seat of the Division.

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 There is no provision for the proceedings of the High Court to be reviewed by another higher court.
If grave irregularities or illegalities occur in proceedings before a High Court, your remedy is to
include these issues in an appeal.210

3 Grounds for review

Section 22 of the Superior Courts Act sets out the various grounds upon which the proceedings of
any Magistrates’ Court may be reviewed. A Magistrates’ Court is defined in s 1 of the Superior
Courts Act to mean any court established in terms of s 2 of the Magistrates’ Courts Act.211
The grounds of review set out in s 22 are:

1. absence of jurisdiction on the part of the court to hear the matter;

2. interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;
3. gross irregularity in the proceedings; and
4. the admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence by the inferior court.

An example of gross irregularity as grounds for review would be for the audi alteram partem rule to
be disregarded. Because this rule is one of the cornerstones of our law, if a court makes an order
against a party without affording the party an opportunity to present his case, the disregard of the
rule will be a good cause for review.

D34 4 The procedure to bring a matter under review

You use the application procedure to bring a matter under review. In the High Court you may either
use the normal application procedure set out in High Court rule 6, or else you may use the
specialised review application procedure set out in High Court rule 53. The procedure set out in rule
53 is simply the normal application procedure which has been modified to make it particularly
suitable for bringing an application for review.212 Although the review procedure may also be used
to review the proceedings of administrative authorities and domestic tribunals – this may well
change in the near future213 – we shall examine the rule 53 procedure from the perspective of an
application for the review of proceedings in a Magistrates’ Court.
In terms of rule 53(1), the proceedings of a Magistrates’ Court may be brought under review by
way of a notice of motion directed and delivered to the magistrate who presided over the
proceedings in the Magistrates’ Court, as well as to all other parties affected. In other words, the
respondents in the application for review will include the relevant magistrate, as well as the
opposing party or parties in the Magistrates’ Court matter. The notice of motion will:

1. call upon the respondents (i.e. the magistrate and the opposing party or parties) to show cause
why such decision or proceedings should not be reviewed and corrected or set aside; and
2. call upon the magistrate, within 15 days after he receives the notice of motion, to dispatch to the
registrar:
3. a) the record of the proceedings; together with
b) any reasons that he may be required by law or desires to give, and to notify the applicant that
he has done so.

Note that the proceedings of a tribunal, or board, or officer performing judicial, quasi-judicial or
administrative functions are brought under review in the same way.
In terms of rule 53(2):

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 The notice of motion shall set out the decision or proceedings sought to be reviewed
and shall be supported by affidavit setting out the grounds and the facts and
circumstances upon which applicant relies to have the decision or proceedings set aside
or corrected.

Paterson214 gives the following useful example of a notice of motion for review:

NOTICE OF REVIEW

TAKE NOTICE that the Applicant (the Defendant in the above-mentioned case) hereby
calls upon Honourable Magistrate ………. to show cause why the proceedings in the
matter between ………. (Plaintiff) and ………. (Defendant) heard under case number
………. of ………. should not be reviewed and corrected.

TAKE NOTICE FURTHER that Honourable Magistrate ………. is called upon to dispatch,
within 15 days after receipt of this notice, to the registrar of the above-mentioned
Honourable Court the record of the proceedings in the above-mentioned case together
with such reasons as he is by law required or desires to give or make, and to notify the
Applicant that he has done so.

TAKE NOTICE FURTHER that the Applicant applies for review on the basis that during
the trial of the above-mentioned matter and before the Applicant had called all of his
witnesses and closed his case, the Honourable Magistrate indicated to ………. that he
would grant judgment against the Applicant and that the said conduct of the
Honourable Magistrate constitutes a gross irregularity.

TAKE NOTICE FURTHER that the affidavit of ………. attached hereto will be used in
support of the application.

In terms of rule 53(3), once the registrar receives the record of the proceedings under review from
the magistrate (or other official) who presided at those proceedings, the registrar will make the
record available to the applicant on such terms as the registrar thinks appropriate to ensure its
safety. The applicant will then make several copies of those portions of the record which are
necessary for the review proceedings. The registrar must receive two of these copies, and the other
parties must receive one copy each. The copies must be certified by the applicant as true copies.
The costs of transcription shall be borne by the applicant and shall be costs in the cause.
In terms of rule 53(4), the applicant is entitled, within 10 days after the registrar has made the
record available to him, to amend, add to or vary the terms of his notice of motion and supplement
his supporting affidavit. This is achieved by delivering a notice in terms of rule 53(4), together with
an affidavit setting out the changes. Consent from the opposing party to the amendment is not
required. Rule 53(4) therefore modifies the normal application procedure to make this specialised
procedure particularly suitable for the bringing of an application for review. In a matter of this
nature, it makes sense to allow the applicant to amend, add to, or vary his notice of motion and
supplement his supporting affidavit after receiving the record of the matter. The record may contain
all sorts of details of which the applicant was unaware when he launched his application for review.

5 Opposing the application for review

If the magistrate (or other official) who presided at the proceedings under review wants to oppose
the application for review, he must follow the procedure set out in rule 53(5):

1.
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 1. Within 15 days after receiving the notice of motion, the magistrate (or other official) must deliver
a notice of opposition to the applicant. The notice of opposition must include a service address
within 15 kilometres of the office of the registrar.
2. Within 30 days after the expiry of the ten-day period within which the applicant may alter his
application papers in terms of rule 53(4), the magistrate (or other official) must deliver his
answering affidavits to the applicant.

In terms of rule 53(6), the applicant is entitled to deliver replying affidavits in response to the
answering affidavits as if the matter were a normal application matter.
Note that depending on the circumstances, the respondent is not prevented from placing the
record, or the relevant parts thereof, before the review court simply because the applicant has
chosen not to do so. While it is clear that, in terms of rule 53, the right to require the record of the
proceedings of a body whose decision is taken on review is primarily intended to operate for the
benefit of the applicant, the respondent may, in appropriate circumstances, oppose the application
for review by placing the record or relevant parts thereof before the court even though the applicant
has failed to do so.215

6 Time limits
An applicant is required to institute review proceedings within a reasonable period of time.216
Where an applicant has failed to institute proceedings within a reasonable period of time, the
review court has to decide (a) whether the proceedings were in fact instituted after the passing of a
reasonable period; and (b) if so, whether the unreasonable delay ought to be condoned. The court
exercises a judicial discretion, having regard to all the relevant circumstances, in deciding whether
the delay ought to be condoned.217

7 Urgent reviews
You should be aware that applications to review decisions of Magistrates’ Courts may require
urgent handling and, in proper circumstances, a review application might justify the granting of
interim relief. Sometimes, therefore, you will have to consider bringing an application for urgent
review of an inferior court’s decision.

8 Powers of the court on review

If the application for review is successful, the court will usually set aside the proceedings reviewed,
and refer the matter back to the court (or person or body) which made the decision, for
reconsideration. This is not always the case, however. In certain cases, the review court may decide
to impose its own decision in place of that of the inferior court.218 In determining whether there are
exceptional circumstances justifying the review court to substitute its own decision for that of the
body being reviewed, a number of guidelines have crystallised in South African law, and have been
summarised by Hlophe J (as he then was) in University of the Western Cape and Others v Members of
the Executive Committee for Health and Social Services and Others:

Where the end result is in any event a foregone conclusion and it would merely be a
waste of time to order the tribunal or functionary to reconsider the matter, the courts
have not hesitated to substitute their own decision for that of the functionary. The
courts have also not hesitated to substitute their own decision for that of the functionary
where further delay would cause unjustifiable prejudice to the applicant. Our courts
have further recognised that they will substitute a decision of a functionary where the
functionary or tribunal has exhibited bias or incompetence to such a degree that it

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 would be unfair to require the applicant to submit to the same jurisdiction again. It
would also seem that our courts are willing to interfere, thereby substituting their own
decision for that of the functionary, where the court is in as good a position to make the
decision itself.219

9 Court record required

Unlike the situation that pertains to appeal, the review court is not bound to the record of
proceedings in the court a quo. This is because the irregularity may not be apparent from the
record. This means that extrinsic evidence of a bribe given to a magistrate, for example, would be
admissable in review proceedings.

1 See the grounds of review in s 22 of the Superior Courts Act 10 of 2013.

2 59 of 1959.
3 Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A) at 587.
4 10 of 2013
5 10 of 2013.
6 Marsay v Dilley 1992 (3) SA 944 (A) at 962; Jones v Krok 1995 (1) SA 677 (A).
7 1993 (1) SA 523 (A) at 532I–533B.
8 Absa Bank Ltd v Mkhize and Two Similar Cases 2014 (5) SA 16 (SCA) in para 17 (minority judgment). That is not to
say, however, that the Zweni case has lost its relevance; rather, the correct test now is an augmented Zweni test
which involves a consideration of the interests of justice – see Baluso v FirstRand Bank Limited t/a Wesbank
[2016] ZACC 23 at para 20.
9 SA Motor Industry Employers’ Association v SA Bank of Athens Ltd 1980 (3) SA 91 (A) at 96.
10 See Harms, LTC (2002) Civil Procedure in the Supreme Court SI 54, Oct 2015, C1.17. See further Cilliers, AC, Loots, C
and Nel, HC (2009) Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court of
Appeal of South Africa (fifth edition), vol. 2, 1204–1212.
11 Ibid.
12 See Stage Four, p409.
13 See Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at 307A; and see
Metlika Trading Ltd and Others v Commissioner, South African Revenue Service 2005 (3) SA 1 (SCA) at para [23].
14 (CCT 38/2) [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) (20 September 2012).
15 Commissioner, South African Revenue Service v Sprigg Investment 117 CC T/A Global Investment 2011 (4) SA 551
(SCA) at 23.
16 Act 10 of 2013.
17 Act 32 of 1944.
18 In terms of s 21(1)(a) of the Superior Courts Act 10 of 2013, a division of the High Court has the power to hear and
determine appeals from all Magistrates’ Courts within its area of jurisdiction.
19 Health Professions Council of South Africa and Another v Emergency Medical Supplies and Training CC t/a EMS
2010 (6) SA 469 (SCA) at para 16; Guardian National Insurance Co Ltd v Searle NO 1999 (3) SA 296 (SCA) at
301B–C and Van Niekerk and Another v Van Niekerk and Another 2008 (1) SA 76 (SCA) paras 3–7.
20 Erasmus, HJ and van Loggerenberg, DE (1996) Jones and Buckle: The Civil Practice of the Magistrates’ Courts in
South Africa, Vol I, The Act (ninth edition) RS 11, 2016, Act–p587.
21 National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) at para 42.
22 Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771) at para 8. The facts of the case Philani
-Ma-Afrika And Others v Mailula and Others 2010 (2) SA 573 (SCA) provides a striking illustration of the need for
orders of the nature of the execution order to be regarded as appealable in the interests of justice.
23 32 of 1944.
24 32 of 1944.
25 1920 AD 583 at 594. There are, however, limits to the doctrine of peremption. In Government of The Republic of
South Africa and Others v Von Abo 2011 (5) SA 262 (SCA), the Supreme Court of Appeal held that an appeal
cannot be perempted where it will mean that a court is bound, as a result of a mistake of law by a party, to what is
legally untenable. In such an instance, a court will not be precluded from investigating the legal soundness of a
judgment. See also Yannakou v Apollo Club 1974 (1) SA 614 (A) at 623G-H; Newlands Surgical Clinic (Pty) Ltd v
Peninsula Eye Clinic (Pty) Ltd 2015 (4) SA 34 (SCA) at paras 11–12 (regarding the limits of reliance on the legality
principle on appeal).

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 26 1948 (2) SA 677 (A).
27 See further in this regard Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another 2002 (4) SA 408
(SCA), para [24] at 416F–G/H.
28 Harms, LTC (2002) Civil Procedure in the Supreme Court, op. cit., SI 54, C1.38.
29 Harms, op. cit., SI 54, C1.38.
30 See Kekana v Society of Advocates of SA [1998] 3 All SA 577 (A).
31 Ferris and Another v FirstRand Bank and Another (CCT 52/13) [2013] ZACC 46; 2014 (3) SA 39 (CC) (12 December
2013); 2014 (3) BCLR 321 (CC) at para 28.
32 Florence v Government of the Republic of South Africa 2014 (6) SA 456 (CC); 2014 (10) BCLR 1137 (CC); Mphela and
Others v Haakdoornbult Boerdery CC and Others 2008 (4) SA 488 (CC); 2008 (4) BCLR 675 (CC). Naylor and
Another v Jansen 2007 (1) SA 16 (SCA) at para 14 and authorities collected in fns 16–23; Malan and Another v Law
Society, Northern Provinces 2009 (1) SA 216 (SCA) at para 13; Bookworks (Pty) Ltd v Greater Johannesburg
Transitional Metropolitan Council and Another 1999 (4) SA 799 (W) at 807fin, approved by the Constitutional
Court in Giddey NO v JC Barnard 2007 (5) SA 525 (CC) at para 21. See most recently Trencon Construction (Pty)
Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) at paras 82–92.
33 2000 (2) SA 1 (CC).
34 Supra, para [11] at 14A/B–C/D.
35 10 of 2013.
36 See, for example, the decision in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534 (A) and N and Others v Government of the Republic of South Africa and Others (No 2) 2006 (6) SA
568 (D).
37 Harms, LTC (2002) Civil Procedure in the Superior Courts, SI 54, October 2015, B49.24 .
38 (21815/2014) [2014] ZAGPJHC 322 (12 November 2014) at para 5.
39 High Court Rules.
40 Section 110(1) of the Magistrates’ Courts Act 32 of 1944. See too Snyckers, F: ‘Civil and constitutional jurisdiction
and procedure’ (1997) Annual Survey of South African Law, 657 at 658–659.
41 32 of 1944.
42 32 of 1944.
43 Jones and Buckle, Vol I, The Act, op. cit., Act 403. Note, however, that s 39(2) of the Constitution requires all courts
(including Magistrates’ Courts) indirectly to apply the Bill of Rights when interpreting any legislation and when
developing the common law so as to promote the ‘spirit, purport and object of the Bill of Rights’. As such, while
Magistrates’ Courts may not enquire into or rule on the validity of any law (statute or common law), there is
nothing to prevent a magistrate from indirectly applying the Bill of Rights to a matter before it in the process of
interpreting a statute or developing common law. See in this regard Du Plessis, M, Penfold, G and Brickhill, J
(2013) Constitutional Litigation (first edition) at 36.
44 Section 110(2), Magistrates’ Courts Act 32 of 1944.
45 Section 110(2)(a) of the Magistrates’ Courts Act 32 of 1944. See also Du Plessis, M, Penfold, G and Brickhill, J (2013)
Constitutional Litigation (first edition) at 37.
46 Ibid.
47 See Stage One, Part 1C above on jurisdiction in respect of the Magistrates’ Courts jurisdiction.
48 Section 83 of the Magistrates’ Courts Act 32 of 1944.
49 Section 14(3) of the Superior Courts Act 10 of 2013. Note that, despite this general rule, the Judge President or, in
the absence of both the Judge President and the Deputy Judge President, the senior available judge may in the
event of the judges hearing such appeal not being in agreement, at any time before a judgment is handed down
in such appeal, direct that a third judge be added to hear that appeal.
50 Section 6(4) of the Superior Courts Act 10 of 2013.
51 Note that if the decision involves a constitutional issue, you may wish to leapfrog directly to the Constitutional
Court, a procedure which we discuss under 3.1.2(c).
52 In Lewis and Another v Vexma Properties 329 CC, In Re: Vexma Properties 329 CC v Lewis and Another [2015]
ZAGPPHC 325 (8 May 2015), referring to the cases of Van Wyk v The State (20273/2014) and Galela v The State
(20448/2014) [2014] ZASCA 152 (22 September 2014) at paras 19 and 22 and Potgieter v S [2015] ZASCA 15, it was
held that s 16(1)(b) of the Superior Courts Act 10 of 2013 relates to an appeal from a decision of a division of the
High Court where it sits as a court of appeal from a decision of a single judge or of a Magistrates’ Court.
53 Section 13(1)(a), read with (b), of the Superior Courts Act 10 of 2013.
54 The Constitutional Court’s rules were amended by Government Notice No 1603, Regulation No 7808 Government
Gazette No. 25643, 31 October 2003. The new rules became operative on 1 December 2003. But see Government
Gazette No 25726, Notice No 1675, Regulation No 7827, 31 October 2003.
55 Constitutional Court rule 19(2).
56 Constitutional Court rule 19(3)(a)–(d).
57 Practice Direction dated 17 March 2015: Interim Reading of Rule 19 Pending Revision of Court’s Rules.

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 58 Constitutional Court rule 19(4)(a). If an appellant fails to comply with these time limits, an application for
condonation (i.e. condoning the late filing) must be made (see discussion at 6.3 below).
59 Nkabinde and Another v Judicial Service Commission and Others (CCT 122/16) [2016] ZACC 25 (24 August 2016) at
para 4–6.
60 Rules of the Constitutional Court operative from 1 December 2003, contained in Government Gazette No. 25726, 31
October 2003 No. R1675.
61 See Du Plessis, M, Penfold, G and Brickhill, J (2013) Constitutional Litigation (first edition) at 82–90 for further
discussion.
62 See Part VII of the Constitutional Court Rules.
63 Constitutional Court rule 18(1).
64 Constitutional Court rule 18(2).
65 Act 32 of 1944. See the discussion above under Section 2.5, p349.
66 Section 172(2)(a) of the Constitution read with s 15 of the Superior Courts Act 10 of 2013.
67 Section 172(2)(b) of the Constitution.
68 Constitutional Court rule 16(5).
69 Section 172(2)(d) of the Constitution, read with Constitutional Court Rules 16(2) and (4).
70 Section 167(6)(b) of the Constitution, read with Rule 19 of the Constitutional Court Rules.
71 Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) at para 25.
72 Paulson (supra) at para 26D–E.
73 Uprichard v Scottish Ministers and Another [2013] UKSC 21 at para 60.
74 Rule 19(1) of the Constitutional Court Rules. Note that in terms of the rules of the Constitutional Court, it is not
necessary to apply for leave to appeal and a judge’s certificate from the High Court (as had been required by Rule
18 of the rules which preceded the current version). The procedure is to apply directly to the Constitutional
Court for leave to appeal in terms of Rule 19(1) of the Constitutional Court Rules.
75 See Stage One, Part 1C above on jurisdiction in respect of the High Court’s jurisdiction.
76 Section 17(2)(a) of the Superior Courts Act 10 of 2013. This is essentially an application for permission to appeal.
77 Section 16(1)(a)(i) and 17(2)(a) and (b) of the Superior Courts Act 10 of 2013. This application will be considered by
two judges of the Supreme Court of Appeal designated by the President of the Supreme Court of Appeal and, in
the case of a difference of opinion, also by the President of the Supreme Court of Appeal or any other judge of the
Supreme Court of Appeal so designated.
78 Section 16(1)(a)(i) of the Superior Courts Act 10 of 2013.
79 Section 1 of the Superior Courts Act 10 of 2013.
80 Rule 49(5) of the Uniform Rules of Court and the commentary in Erasmus et al. (1994) Superior Court Practice vol.
2, OS, 2015, D1–668. See also s 21(1) and 50(1) of the Superior Courts Act 10 of 2013 and Thembani Wholesalers
(Pty) Ltd v September and Another 2014 (5) SA 51 (ECG) at paras 8–11.
81 Section 17(2)(b) and 16(1)(a)(ii) of the Superior Courts Act 10 of 2013.
82 Rule 6 of the Supreme Court of Appeal Rules.
83 Section 13(1)(a) and (b) of the Superior Courts Act 10 of 2013.
84 Rule 19 of the Constitutional Court Rules.
85 Act 10 of 2013.
86 Section 17(6)(a) of the Superior Courts Act 10 of 2013.
87 Note in this regard the decision of the Supreme Court of Appeal in Shoprite Checkers (Pty) Ltd v Bumpers
Schwarmas CC and Others 2003 (5) SA 354 (SCA) and its critical approach to the High Court’s granting of leave to
appeal to the Supreme Court of Appeal when the issue was purely one of fact, in which no controversial legal
principle was involved, and where the sums of money involved in the matter were not so great as to justify a
leapfrog to the Supreme Court of Appeal.
88 10 of 2013.
89 Van Wyk v S, Galela v S (20273/2014, 20448/2014) [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1) SACR 584
(SCA) (29 September 2014); Potgieter v S (20109/2014) [2015] ZASCA 15 (17 March 2015); Lewis and Another v
Vexma Properties 329 CC, In Re: Vexma Properties 329 CC v Lewis and Another [2015] ZAGPPHC 325.
90 United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A). In that case the Appellate Division stated that
‘[t]hese factors are not individually decisive but are interrelated and must be weighed one against the other’ (at
720F–G). See too Rutherford v Ferguson en Andere (Standard Bank van Suid-Afrika Bpk toetredend) 1998 (4) SA
90 (O).
91 Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) 564H–565E.
92 Avnit v FirstRand Bank Ltd [2014] ZASCA 132 at para 7.
93 See rule 49(1)(d).
94 See rule 49(1)(e).
95 See Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO; New Clicks South

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 Africa (Pty) Ltd v Minister of Health and Another 2005 (3) SA 238 (SCA); Strategic Liquor Services v Mvumbi T NO
and Others 2010 (2) SA 92 (CC) (2009 (10) BCLR 1046) (CC) para 15; and Commissioner, South African Revenue
Service v Sprigg Investment 117 CC T/A Global Investment 2011 (4) SA 551 (SCA) at 29.
96 In terms of the Petition Proceedings Replacement Act 35 of 1976, the term ‘petition’ must be understood as
referring to the institution of such proceedings by notice of motion. (As to the rules regarding the Supreme Court
of Appeal, see rule 6 of the SCA Rules).
97 Section 17(2)(b) of the Superior Courts Act 10 of 2013.
98 Section 16(1) of the Superior Courts Act 10 of 2013.
99 Supreme Court of Appeal rule 6(3).
100 Section 17(2)(c) of the Superior Courts Act 10 of 2013.
101 Ibid.
102 Section 17(2)(d) of the Superior Courts Act 10 of 2013.
103 Section 17(2)(f) of the Superior Courts Act 10 of 2013.
104 See, for example, Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA) at 26G–27F; Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd en ’n Ander 2002 (2) SA 447 (SCA).
105 1998 (2) SA 1085 (SCA) at para [16] 1091D–E.
106 See Magistrates’ Courts rule 51(1)(a) and (b): The judgment must show the facts the magistrate found to be
proved and his reasons for judgment.
107 Magistrates’ Courts rule 51(2).
108 Magistrates’ Courts rule 51(3).
109 Magistrates’ Courts rule 51(4).
110 Magistrates’ Courts rule 51(7).
111 Magistrates’ Courts rules 51(6) and (7).
112 Magistrates’ Courts rule 51(8).
113 ‘Prosecution’ means applying to the registrar, on notice to all other parties, for a date of hearing in the prescribed
manner.
114 High Court rule 50(1).
115 High Court rule 50(2).
116 High Court rule 50(4)(c).
117 High Court rule 50(4).
118 High Court rule 50(7)(a).
119 High Court rule 50(7)(b) and (c).
120 High Court rule 50(8)(a).
121 High Court rule 50(8)(b).
122 High Court rule 50(5)(a).
123 High Court rule 50(5)(b).
124 High Court rule 50(6).
125 High Court rule 50(7)(d).
126 High Court rule 50(9).
127 Ibid.
128 10 of 2013.
129 The Judge President or Deputy Judge President or, in the absence of both of them, the senior available judge may
in the event of the judges hearing such appeal not being in agreement, at any time before a judgment is handed
down in such appeal, direct that a third judge be added to hear the appeal.
130 High Court rule 49(2).
131 High Court rule 49(3).
132 High Court rule 49(4).
133 High Court rule 49(6)(a).
134 Ibid.
135 High Court rule 49(7)(a).
136 High Court rule 49(8)(a).
137 High Court rules 49(8)(b) and 49(9).
138 High Court rule 49(10).
139 High Court rule 49(7)(d).
140 High Court rule 49(7)(c).
141 Supreme Court of Appeal Practice Directions dated 15 November 2014.
142 SCA rule 7(1).
143 SCA rule 7(4).

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 144 SCA rule 7(3)(a).
145 SCA rule 7(2).
146 SCA rule 8(1). In addition to the record, SCA rule 8(7) requires that a core bundle should be prepared as an
adjunct to the appeal record.
147 See SCA rule 8(8).
148 SCA rule 8(6).
149 SCA rule 10(1)(a) and 10(3)(e)(i).
150 SCA rule 10(1)(b) and 10(3)(e)(i).
151 Rule 10A, titled ‘Practice Notice’, has been incorporated into the SCA Rules: Heads of Argument must be
accompanied by a brief typed note containing:a concise statement of the basis for jurisdiction in this Court,
including the statutory provisions and time factors on which jurisdiction rests; if that party wishes to raise a
constitutional question relating to the constitutional validity or the constitutional applicability of any law or the
constitutional validity or applicability or extension of a common law rule, a concise definition of the question;
the issues on appeal succinctly stated (for example, ‘negligence in MVA case’, ‘admissibility of a confession’,
‘interpretation of …’); an estimate of the duration of the argument; if more than one day is required for argument,
the reasons for the request; which portions or pages of the record are in a language other than English; a list
reflecting those parts of the record that, in the opinion of counsel, are necessary for the determination of the
appeal; a summary of the argument, not exceeding 100 words; if a core bundle is not appropriate for the appeal,
the reasons for the conclusion; that there was due and timeous compliance with rule 8(8) and (9) [of the SCA
Rules], and if not, why not; and a certificate signed by the legal practitioner responsible for the heads of
argument that rules 10 and 10A(a) have been complied with.
152 Van Aardt v Galway (923/10) [2011] ZASCA 201; 2012 (2) SA 312 (SCA); [2012] 2 All SA 78 (SCA) (24 November
2011) at para 36.
153 Section 172(2)(2) of the Constitution of the Republic of South Africa Act 108 of 1996. See also Rule 16(2) of the
Constitutional Court Rules and s 15 of the Superior Courts Act 10 of 2013.
154 Rule 19 of the Constitutional Court Rules.
155 Rule 19 of the Constitutional Court Rules. The requirement (laid down by the previous rules in Rule 18) that the
litigant obtain a judge’s certificate in appeals from a division of the High Court or other superior court (such as
the Land Claims Court or the Labour Court) has been done away with by the Constitutional Court Rules.
156 Consult the Rules of the Constitutional Court, Government Gazette No 25726, Notice No 1675, Reg. No 7827, 31
October 2003. Readers are further advised to consult the latest practice directions issued by the Chief Justice in
terms of Rule 32(2) of the Constitutional Court’s Rules on 17 March 2015.
157 See Rule 19(1) which prescribes that the procedure set out in Rule 19 for an application for leave to appeal to the
Constitutional Court applies in respect of a decision on a constitutional matter, other than an order of
constitutional invalidity under s 172(2)(a) of the Constitution, which has been given ‘by any court including the
Supreme Court of Appeal’.
158 Rule 19(2): provided that if the President of the Supreme Court of Appeal has refused leave to appeal the period
prescribed in the rule shall run from the date of the order refusing leave.
159 Rule 19(3)(a)–(d). Rule 21 further provides that where an application for leave to appeal is lodged in terms of Rule
19, the applicant or appellant shall at the same time provide the registrar with a note – (a) setting out the length
of the record, or if the record consists of evidence that has not been transcribed, an estimate of the length of the
record and the time required for transcription, and (b) whether there are any special circumstances that may
require a hearing of more than one day or which might otherwise be relevant to the directions to be given by the
Chief Justice.
160 Rule 19(4)(a). This response must be signed by the respondent or respondents or his or her legal representative
(Rule 19(4)(b)). Rule 19(5) sets out the procedure to be followed if the respondent or respondents wish to
cross-appeal.
161 Rule 19(6)(a). The Court’s jurisdiction is governed by s 167(3) to (7) of the Constitution. Whereas previously s
167(3) conferred jurisdiction on the Court to ‘decide only constitutional matters and issues connected with
decisions on constitutional matters’, the section has been amended by the Constitution Seventeenth
Amendment Act to make the Constitutional Court the highest court in all matters (see Paulsen and Another v Slip
Knot Investments 777 (Pty) Limited (CCT 61/14) [2015] ZACC 5); 2015(3) SA 479 (CC) (24 March 2015).
Previously, the test applied by the Constitutional Court was whether an applicant had satisfied the following two
requirements: 1. The application must raise a constitutional matter or issues connected therewith; 2. It must be
in the interests of justice to grant leave. In Paulsen, the Court held that some of the factors that are of relevance to
the interests of justice factor in the context of jurisdiction based on constitutional matters may also find
application in respect of non-constitutional matters.
162 Rule 19(6)(b).
163 Rule 19(6)(c): the provisions of Rule 20 on the procedure for hearing of appeals shall, with necessary
modifications, apply to the procedure to be followed when the Court orders the parties to deal not only with the
question whether the application for leave to appeal should be granted, but also with the merits of the dispute.

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 164 Rule 20(1)(a)–(c).
165 As to the preparation of the record, see the provisions of rule 20(2)(a)–(i).
166 In compliance with the provisions of rule 20(1)(b) and (c), and read with rule 20(2).
167 Or heads of argument.
168 Rule 20(3)(a).
169 Rule 20(3)(b).
170 Rule 20(4).
171 Ibid.
172 Rule 20(5).
173 Rule 20(6).
174 10 of 2013.
175 2003 (3) SA 268 (W).
176 Supra para [12] at 275A–B/C. In Masetlha v The President of the Republic of South Africa and Another 2008 (1)
BCLR 1 (CC) the Constitutional Court explained that a request by the applicant in appeal proceedings before the
Constitutional Court to refer certain issues to the High Court for the hearing of oral evidence was turned down
where the evidence in question related to a ‘marginal dispute’ which did not weigh more heavily than the need
for finality in the matter.
177 Harms (2002) Civil Procedure in the Superior Court, SI 54, Oct 2015, C1.34.
178 Cooper and Others NNO v Syfrets Trust Ltd 2001 (1) SA 122 (SCA), para [21] at 133A/B–E.
179 S v Siwela 1981 (2) SA 56 (T).
180 2000 (4) SA 38 (SCA).
181 At 54C–F.
182 (CCT 136/12) [2013] ZACC 32; 2013 (11) BCLR 1259 (CC); 2013 (6) SA 367 (CC) (27 September 2013) at paras 6–20.
183 Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA 144 (CC);
2013 (1) SACR 213 (CC) (11 December 2012) at paras 32–34.
184 10 of 2013.
185 Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA). See also Department of Public Works v MS Moos
Construction CC [2006] 4 All SA 535 (SCA). It seems the courts have a discretion to allow an appeal where its
decision or order would have a practical effect, not between the parties but in other respects (for example where
important questions of law which were likely to arise frequently were at issue and their determination could
benefit others). However, under the provisions of the Superior Courts Act 10 of 2013, the position may have
changed. While s 16(2)(a) of the Superior Courts Act provides that the appeal may be dismissed on this ground,
which would suggest a discretion, s 17(1) of the Act dictates that leave to appeal may only be given where the
judge or judges concerned are of the opinion that, inter alia, the ground in s 16(2)(a) is not present. This latter
provision of the Superior Courts Act 10 of 2013 would appear to restrict the discretion of the court. In Legal-Aid
South Africa v Magidiwana and Others (1055/13) [2014] ZASCA 141; 2015 (2) SA 568 (SCA) [2014] 4 All SA 570
(SCA) (26 September 2014), the Supreme Court of Appeal held that, where the parties have by agreement settled
all disputes between them, as a matter of principle there is no discretion for this court to exercise under s 16(2)(a
)(i) of the Superior Courts Act.
186 2001 (2) SA 872 (SCA).
187 The fairness of the dismissals had been challenged by the employees but upheld as fair and therefore legal by the
Labour Appeal Court.
188 Coin Security Group, supra, 876I-J and 877A–B. See also Police and Prisons Civil Rights Union and Others v
Minister of Correctional Services and Others (No 2) 2008 (3) SA 129 (E) where the Court held that it was consistent
with the purpose of (the now repealed) s 21A of the Supreme Court Act and with the common law that the court
of first instance may also refuse leave to appeal because the judgment or order on appeal will have no practical
effect (see para [8] at 132A–B). In that matter, a settlement agreement between the parties providing that the
appellant ‘waives its right to enforce the outcome of the appeal against the affected employees should it succeed
on appeal’ (see para [6] at 131C–D) had the effect of rendering any appeal ineffective. Because the outcome of the
appeal could have no effect whatsoever on the position of the parties between themselves, the High Court chose
to refuse leave to appeal.
189 See rule 27(3) of the High Court Rules and Cairns’ Executors v Gaarn 1912 AD 181.
190 Cairns’ Executors v Gaarn 1912 AD 181.
191 Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) at para 22.
192 Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281.
193 De Beer en ’n Ander v Western Bank Ltd 1981 (4) SA 255 (A).
194 See Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472
(CC) at para 22 and Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC); 2014 (1) BCLR
65 (CC) at para 23.
195 Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A).

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 196 As to the factors to be considered in granting or refusing condonation, see Brummer v Gorfil Brothers Investments
(Pty) Ltd and Others 2000 (2) SA 837 (CC) at para [3].
197 2000 (2) SA 1 (CC).
198 2000 (2) SA 1 (CC) at para [9].
199 Supra at para [10].
200 Supra at para [11].
201 Florence v Government of the Republic of South Africa 2014 (6) SA 456 (CC); 2014 (10) BCLR 1137 (CC); Mphela
and Others v Haakdoornbult Boerdery CC and Others 2008 (4) SA 488 (CC); 2008 (7) BCLR 675 (CC). Naylor and
Another v Jansen 2007 (1) SA 16 (SCA) at para 14 and authorities collected in fns 16–23; Malan and Another v Law
Society, Northern Provinces 2009 (1) SA 216 (SCA) at para 13; Bookworks (Pty) Ltd v Greater Johannesburg
Transitional Metropolitan Council and Another 1999 (4) SA 799 (W) at 807fin, approved by the Constitutional
Court in Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) at para 21. See, most recently, Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited 2015 (5) SA 245 (CC) at
paras 82–92.
202 Ibid.
203 (CCT 80/12) [2013] ZACC 7; 2013 (5) BCLR 497 (CC); 2014 (3) SA 240 (CC) (28 March 2013) at para 26.
204 Section 13(2)(b) and 14(4)(b) of the Superior Courts Act 10 of 2013.
205 Section 13(3)(a) and 14(5)(a) of the Superior Courts Act 10 of 2013.
206 Section 12(3), 13(5) and 14(8) of the Superior Courts Act 10 of 2013.
207 Harms, LTC (2002) Civil Procedure in the Superior Courts, SI 54, A9.3.1. See also Herbstein and Van Winsen (2009),
op. cit., vol. 2, 1264–1310.
208 10 of 2013.
209 (2978/2015) [2016] ZAECPEHC 5; 2016 (3) SA 568 (ECP) (1 March 2016) at paras 17 and 18.
210 See Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 601D–F. See also Pretoria Portland Cement Co Ltd
and Another v Competition Commission and Others 2003 (2) SA 385 (SCA).
211 32 of 1944.
212 A party is not compelled to use rule 53 when taking a matter on review and the failure to utilise rule 53 is not
necessarily irregular. See South African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons
and Another 2003 (3) SA 313 (SCA); and Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) at 661E-663D.
213 See the Rules of Procedure for Judicial Review of Administrative Action, published in Government Notice 966;
Regulation No 9165 of 9 October 2009 (Government Gazette No 32622). These rules have not yet come into effect.
Note, further, that these rules have been declared to be inconsistent with the Constitution, unlawful and invalid
to the extent that they fail to provide for a mechanism whereby a private respondent in an application for judicial
review can obtain access to the record and reasons for a decision which is sought to be reviewed and set aside (
Lawyers for Human Rights v Rules Board for Courts of Law and Another (78163/2009) [2012] ZAGPPHC 54; 2012
(7) BCLR 754 (GNP) (11 April 2012); [2012] 3 All SA 153 (GNP); [2012] JOL 28787 (GNP) at [102]).
214 Paterson, TJM (2001) Eckard’s Principles of Civil Procedure in the Magistrates’ Courts (fourth edition), 299.
215 See SACCAWU and Others v President, Industrial Tribunal, and Another 2001 (2) SA 277 (SCA) at 282B/C–E.
216 Lion Match Co Ltd v Paper Printing Wood and Allied Workers Union and Others 2001 (4) SA 149 (SCA).
217 Harms (2002) Civil Procedure in the Superior Courts, SI 54, B53.21.
218 See Ruyobeza and Another v The Minister of Home Affairs and Others 2003 (8) BCLR 920 (C). See also Masamba v
Chairperson, Western Cape Regional Committee, Immigrants Selection Board and Others 2001 (12) BCLR 1239
(C).
219 University of the Western Cape and Others v Members of the Executive Committee for Health and Social Services
and Others 1998 (3) SA 124 (C) at 131D–J.

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 PART 2: DEBT COLLECTION PROCEDURES

Introduction

Introduction
In this chapter we consider the procedures used to enforce the judgment in favour of your client
against the losing party.
In order to enforce a money judgment, one may issue a writ or a warrant of execution. When you
are enforcing a judgment in the High Court, you issue a writ of execution on behalf of your client. If
the judgment emanates from the Magistrates’ Courts, then you issue a warrant of execution to
enforce the provisions of that judgment. Note that special rules apply under the National Credit Act
34 of 2005 to credit providers who attempt to enforce credit agreements as defined in the Act.
Another method used to enforce judgments, as an alternative to issuing a writ or warrant of
execution, is the section 65 procedure. In terms of s 65 of the Magistrates’ Courts Act,1 a judgment
debtor may be brought to court in order that the court may conduct an enquiry into his financial
affairs. If the court reaches the conclusion that the debtor can afford to pay the judgment debt in
instalments, the court will make an order to this effect. If the judgment debtor persists in not paying,
he is liable to be arrested and imprisoned for disobeying an order of court.
Aside from writs and warrants of execution, and the s 65 procedure, we also consider
administration orders. These are orders which arise from a type of insolvency proceeding in which
the estate of the debtor is not sequestrated, but an administrator is appointed to take charge of the
debtor’s affairs and to satisfy the claims due to his creditors.
Other procedures that, by their nature, must also be regarded as debt collection procedures, but
have already been dealt with in other parts of the book, include: consent and confession to
judgment (see shortcut judgments in the pleadings section of Actions, at p243) and ss 57 and 58 of
the Magistrates’ Courts Act (see Settlement, p411).

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 PART 2: DEBT COLLECTION PROCEDURES

A: Writs and warrants of execution

1 General overview and effect of the National Credit Act
In order to enforce a judgment debt, one may issue a writ of execution (in the High Court) or a
warrant of execution (in a Magistrates’ Court). In both these scenarios, the effect of the writ or the
warrant is to instruct the sheriff of the court to attach the property of the judgment debtor so that if
the judgment debt remains unpaid after the attachment, the attached property can be sold at a
public auction and the proceeds used to pay the money owed to the judgment creditor. In relation
to writs and warrants of execution, note that both corporeal as well as incorporeal property may be
attached. Corporeal property includes either movable or immovable property. In respect of
incorporeal property we shall discuss specialised orders known as garnishee orders and emoluments
attachment orders.
Once a litigant has obtained judgment in his favour in respect of a money claim, he is referred to
as the judgment creditor. The party against whom judgment has been awarded in such a case is
referred to as the judgment debtor.
When considering the enforcement of judgments, you should distinguish between judgments
sounding in money (ad pecuniam solvendam), and judgments not sounding in money (ad factum
praestandum). A judgment sounding in money is one in which the judgment debtor is ordered to
pay a specific amount of money to the judgment creditor (e.g. an order to pay a sum of money by
way of damages for breach of contract or delict, or an order for the payment of maintenance, or an
order for the payment of the purchase price of property bought).2 It does not matter whether the
claim arose as the result of a delict, or a contract, or unjust enrichment – if the judgment contains an
order in money terms, then it is a judgment sounding in money. A judgment sounding in money
may be enforced by attaching the debtor’s property, but not the debtor’s person.3
A judgment not sounding in money will contain an order to do something (other than pay over
an amount of money), or not to do something (e.g. transfer or take transfer of immovable property;
deliver movable property; vacate property; allow a right of way, etc.). If the judgment debtor does
not comply with a judgment not sounding in money, the judgment creditor may apply to court to
have the debtor committed for contempt of court.
In this section, when referring to execution, we mean the process by means of which a judgment
debtor’s property is attached by the sheriff in terms of a writ or warrant of execution so that it may
be sold in order to satisfy a judgment sounding in money, i.e. a judgment debt. Note, however, that
it is not only in order to satisfy a judgment debt that property (or, indeed, a person) may be
attached. Other reasons include the following:

1. The property of a debtor may be attached in order to found or confirm jurisdiction.

2. An interim attachment of property may be granted in order to protect a real or personal right
which is claimed over the property by an applicant. It is also possible to attach property in order
to preserve it as evidence by means of an Anton Piller order.4
3. In certain cases, the person of a debtor (i.e. the debtor himself) may be attached (i.e. arrested)
where he is in contempt of an order of the court.5

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 Note that under the National Credit Act6 certain constraints are placed upon a ‘credit provider’ for
the enforcement of a credit agreement. If a credit provider (e.g. a bank) attempts to enforce a credit
agreement (i.e. an agreement in terms of which it lent money to a client), it may not commence
legal proceedings to enforce the agreement before certain steps have been followed. A credit
provider must deliver a notice in terms of s 129 of the National Credit Act before it is entitled to take
legal steps to enforce a credit agreement to which the Act applies or repossess the goods sold
thereunder, advising the consumer of his right to refer the credit agreement to a debt counsellor,
alternative dispute resolution agent, consumer court, or ombud to resolve any dispute under the
agreement. Only when a credit provider has sent the s 129 notice, and the consumer has not
responded or has responded by rejecting the proposal contained in the notice, a period of ten
business days has elapsed since the credit provider delivered the notice to the consumer and the
consumer has been in default of the credit agreement for a period of at least 20 business days, may
the credit provider approach a court for relief.7 Readers are cautioned to consult a specialist text on
the National Credit Act to ensure that the detailed procedures laid down therein are followed prior
to the enforcement of a credit agreement as defined in the Act. For further discussion on this, see
Annexure B: ‘Impact of the National Credit Act and the Consumer Protection Act on Civil
Procedure’.

D35 2 Attachment and sale of corporeals

2.1 Writ of execution in the High Court

2.1 Overview
.1
Execution of judgments in the High Court is dealt with by High Court rules 45 and 46, read with ss
42 and 45 of the Superior Courts Act:8

1. Rule 45 deals with execution in general, and with execution against movables in particular.
2. Rule 46 deals with execution against immovables.

Generally speaking, the registrar will not issue a writ of execution against a judgment debtor’s
immovable property until he is certain that the judgment debtor does not possess sufficient
movable property to satisfy the amount of the judgment debt.9 In other words, before you may issue
a writ of execution against a judgment debtor’s immovable property, you must first issue a writ
against his movable property. It is only if the sheriff finds that the judgment debtor does not have
sufficient movable property to satisfy the judgment debt, and provides you with what is called a nulla
bona return, that you are able to proceed to have a writ of execution issued against the judgment
debtor’s immovable property. There are, however, exceptions to this general rule. In certain cases,
the judgment debtor’s immovable property may be ‘specially declared executable’. In other words,
you may issue a writ of execution against the judgment debtor’s immovable property without first
having to issue a writ against his movable property. This is confirmed by High Court rule 46(1)(a
)(ii). Note that a warrant of execution may be rescinded after it has been issued. As a general rule, a
warrant of execution will be rescinded if it is not supported, or no longer supported, by its causa.10
The causa is the debt and the judgment based on such debt, and the causa for a warrant falls away if
the debt and the judgment are extinguished because the debt has been paid or come to an end
through novation, compromise, delegation or cession.11
Section 39 of the old Supreme Court Act stated (prior to its repeal) that the following categories of
movable property could not be seized in execution of any process:

1. The necessary beds and bedding and wearing apparel of the person against whom execution is

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 1.

levied, or any member of his family;

2. The necessary furniture, other than beds, and household utensils in so far as they do not exceed
R2 000 in value;
3. Stock, tools and agricultural implements of a farmer in so far as they do not exceed R2 000 in
value;
4. Any food or drink sufficient to meet the needs of such person and the members of his family for
one month;
5. Tools and implements of trade in so far as they do not exceed R2 000 in value;
6. Professional books, documents or instruments necessarily used by the debtor in his profession in
so far as they do not exceed R2 000 in value; and
7. Such arms and ammunition as the debtor is, in terms of any law, regulation or disciplinary order,
required to have in his possession as part of his equipment.

Section 45 of the Superior Courts Act,12 which replaces the Supreme Court Act,13 contains a similar
provision to the effect that certain belongings of the debtor may not be seized by the sheriff in
execution of process, unless the court in exceptional circumstances permits this to be done.
However, s 45 does not identify which belongings of the debtor the sheriff may not seize; rather, this
must be prescribed by the Minister of Justice and Correctional Services (‘Minister’) in regulations,
which, at the time of writing the third edition of the book, has not yet been done. More
fundamentally, however, s 45 is not yet effective and will enter into force on a date to be published
by the Minister. Given this, at the time of writing the third edition of this book, the position appears
to be that such items are not protected from attachment by the sheriff. This uncertainty is
unfortunate, and can and should be remedied by the relevant regulations being drafted and the
section being made operative.
Annuity and benefits payable under a pension law may not be attached or subjected to any form
of execution.14

P36 2.1 Attachment and sale of movables

.2
In terms of High Court rule 45(1), the format to be adopted for a High Court writ of execution
against movables is set out in High Court Form 18 (contained in the First Schedule to the High
Court rules). Once the writ has been issued by the registrar, it must be delivered to the sheriff of the
High Court who is responsible for making the attachment. A judgment creditor who sues on a writ
of execution does so ‘at his own risk’.15
In terms of High Court rule 45(3), the sheriff or his assistant will proceed to the residence or place
of employment or business of the judgment debtor,16 unless you have given specific instructions
that he must proceed to another place where you believe that assets of the judgment debtor are
situated. Once the sheriff or his assistant arrives at the judgment debtor’s residence or place of
employment, or wherever, he must follow this procedure:

1. He must first demand satisfaction of the writ. If the judgment debtor (or anyone else) responds
by paying the full amount set out in the writ, then that, of course, is the end of the matter.
2. If the judgment debtor fails to satisfy the writ, the sheriff must demand that the judgment debtor
point out as much of his movable and disposable property as is sufficient to satisfy the writ. In
other words, the judgment debtor (if he is present, alternatively one of his family members or
colleagues) has the opportunity to say which of his possessions should be attached and which
should not. Of course, it is the sheriff who has the discretion to decide whether or not sufficient
objects have been pointed out so as to satisfy the writ. In other words, the sheriff must be satisfied
that the value which will be realised at a sale in execution of the objects will cover the amount of
the judgment debt, plus costs.
3. If no movable property belonging to the judgment debtor is pointed out to the sheriff, he must

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 3.
search for such property.

In terms of High Court rule 45(3)(c), once the sheriff has located attachable movable property, he
must:

1. make an inventory of the property; and

2. take the property into his custody.

The sheriff must take the goods into his custody in order to effect a valid attachment, but he will not
take the property into his custody if:

1. the judgment creditor directs the sheriff not to take the goods into custody;
2. the judgment debtor undertakes in writing that if the attachment has not been legally lifted by the
day of the sale, he will produce the goods attached on that day so that they may be sold in
execution. A person of ‘sufficient means’ must stand surety for the due fulfillment of this
undertaking by the judgment debtor. Both the judgment debtor and the person standing surety
for him must sign a deed of suretyship in accordance with High Court Form 19;17
3. another person makes a claim to the property, and the judgment creditor fails to give the sheriff
an indemnity holding him harmless from any loss or damage which results from the seizure.18

If the satisfaction of the writ was not demanded from the judgment debtor personally, the sheriff
must give the judgment debtor written notice of the attachment and a copy of the inventory made
by him.19
Once the sheriff has taken the attached goods into his custody, he must either ‘remove the said
goods to some convenient place of security’, or ‘keep possession thereof on the premises where they
were seized’.20 If he chooses the latter course of action, he must leave an officer permanently in
possession of the goods. It is not good enough for him to occasionally send one of his officers to
check up on the goods.
After the sheriff has made the attachment, he will leave a copy of the writ of execution with the
judgment debtor, and file the original, together with his return of service, at the office of the registrar
of the division. He will also furnish you, as the attorney for the judgment creditor, with copies of the
writ of execution, his return of service, and the inventory of the goods attached.21
If the property which has been attached is perishable (for example, a truckload of tomatoes),
then the sale in execution may take place immediately, provided that:

1. the execution debtor consents to the sale; or

2. the execution creditor indemnifies the sheriff against any claim for damages which may arise as a
result of the sale.

If the property which has been attached is not perishable, the sale in execution may only take place
once 15 court days have elapsed from the date of the attachment.22
The goods must be sold by public auction.23 The sheriff must advertise details of the auction
beforehand in two suitable newspapers circulating in the district in which the property has been
attached.24
Where property subject to a real right of any third person is sold in execution, such sale shall be
subject to the rights of such third person unless he agrees otherwise.25
Note that special rules apply in respect of execution against the state. Section 3 of the State
Liability Act 20 of 1957 previously provided as follows:

No execution, attachment or like process shall be issued against the defendant or

respondent in any such action or proceedings against any property of the State, but the
amount, if any, which may be required to satisfy any judgment or order given or made

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 against the nominal defendant or respondent in any such action or proceeding may be
paid out of the National Revenue Fund or a Provincial Revenue Fund, as the case may
be.

In Nyathi v MEC for Department of Health, Gauteng and Another,26 the Constitutional Court found
that the section was unconstitutional, inter alia, because it failed the test of public accountability.
Parliament has since passed the corrective legislation, and the following procedure is now to be
followed in respect of execution against the state:

1. If a final order against a national or provincial department for the payment of money is not
satisfied within thirty (30) days of the date of judgment or within the time period agreed upon by
the judgment creditor and the accounting officer of the department concerned, the judgment
creditor may serve the court order in terms of the applicable rules of court on the executive
authority and accounting officer of the department concerned, the State Attorney or attorney of
record appearing on behalf of the department concerned and the relevant treasury;
2. The relevant treasury shall within fourteen (14) days of service of the order, cause the judgment
debt to be settled or acceptable arrangements to be made with the judgment creditor for the
satisfaction of the judgment debt should there be inadequate funds available to the department
concerned;
3. Should the relevant treasury fail to cause the judgment debt to be satisfied or acceptable
arrangements be made with the judgment creditor for the satisfaction of the judgment debt, the
judgment creditor may apply for a writ of execution in terms of rule 45 of the High Court Rules or
a warrant of execution in terms of rule 36 of the Magistrates’ Courts Rules, whichever is
applicable, against movable property owned by the state and used by the relevant department;
4. The sheriff of the relevant court shall, pursuant to the writ of execution or warrant of execution,
attach but not remove the identified movable property;
5. In the absence of any application to stay the execution, the sheriff of the relevant court may after
the expiration of thirty (30) days from the date of attachment, remove and sell the attached
movable property in execution of the judgment debt; and
6. A party having a direct and material interest may, before the attached movable property is sold in
execution, apply to the court which granted the order, for a stay on grounds that the execution of
the attached movable property would severely disrupt service delivery, threaten life or put the
security of the public at risk or is not in the interests of justice.

2.1 Attachment and sale of immovables

.3
High Court rule 46 deals with the attachment and sale of immovable property in the High Court. In
order to execute against immovable property, the debtor’s movable property must have been
excussed in terms of rule 45 or the immovable property must have been declared ‘specially
executable’. This means that, despite the debtor’s movable property not having been excussed, the
immovable property may nonetheless be executed against. This may occur, for example, where
immovable property has been hypothecated as security (e.g. in favour of the bank which granted the
debtor a home loan).
In terms of High Court rule 31(5)(b), when a debtor has failed to deliver a notice of intention to
defend or a plea, and the claim is for a debt or liquidated demand, the registrar of the division may
grant judgment for the creditor, including an order declaring immovable property specially
executable. The registrar may, however, not do so if the property in question is residential property.
In such instances, the matter must be referred to court. This is so even if the immovable property is,
for example, a holiday home.27
Where the residential property is the debtor’s primary residence, additional safeguards apply. In
such instances, not only must the application be referred to open court but the court considering
the application must consider all ‘relevant circumstances’ before making the order.28

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 These requirements were introduced to rules 31(5) and 46 as a result of the decision of the
Constitutional Court in Gundwana v Steko Development and Others.29 In this case, the
constitutionality of the practice of registrars granting orders declaring property constituting a
person’s home specially executable was considered. The Constitutional Court, having regard to the
constitutionally entrenched right of access to housing, and in the light of its earlier decision in
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others ,30 held that the practice was
unconstitutional.
The precise content of ‘relevant circumstances’ was deliberately not defined by the Court.
However, generally this would include any evidence showing an infringement of constitutional
rights or an abuse of process, as well as evidence offered to support any contention by the creditor
that an infringement is justifiable.31 The Constitutional Court stated in Jaftha:

[F]actors that a court might consider, but to which a court is not limited, are: The
circumstances in which the debt was incurred; any attempts made by the debtor to pay
off the debt; the financial situation of the parties; the amount of the debt; whether the
debtor is employed or has a source of income to pay off the debt and any other factor
relevant to the particular facts of the case before the court.

Note, further, that the summons initiating action in which an order declaring immovable property
executable is sought must contain a prescribed paragraph drawing the debtor’s attention to s 26(1)
of the Constitution (the right of access to adequate housing) and indicating that, should the
defendant claim that the order for execution will infringe s 26(1), that it is incumbent on the
defendant to place information supporting that claim before the court.32
A High Court writ of execution against immovable property must take the format of High Court
Form 20. It must set out what was contained in the sheriff’s return in respect of the debtor’s movable
property (i.e. to verify that the debtor does not have sufficient movable assets to satisfy the judgment
debt). It must also contain a full title deed description (which may be obtained from the Registrar of
Deeds), as well as the street address of the property to be attached.
Rule 46(3) provides that immovable property is attached by means of a written notice sent by the
sheriff, by prepaid registered post, to the following people:

1. The owner;
2. The Registrar of Deeds; and
3. The occupier of the property (unless the occupier is also the owner).

Details of the names and addresses of the owner and occupier of the immovable property, as well as
details of the Registrar of Deeds in whose office the title deeds relating to the property are lodged,
must thus accompany the writ of execution.33
Once the immovable property has been attached, the execution creditor must instruct the sheriff
in writing to proceed with the sale.34
The sheriff must then find out and record which bonds or other encumbrances are registered
against the property, together with the names and addresses of the persons in whose favour such
bonds and other encumbrances are registered. The sheriff must provide the execution creditor with
this information.35
Thereafter the execution creditor must send a written notice by prepaid registered post to the
following persons:

1. All preferent creditors: For example, a preferent creditor might be a bank in whose favour a
mortgage bond has been registered over the property.
2. The local authority: This is only necessary if the property is rateable. The local authority will be a
preferent creditor in respect of any claim for arrears rates.

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 In his written notice to the preferent creditors and the local authority, the execution debtor must
call upon these persons to stipulate, within 10 court days, a reasonable reserve price at which the
property may be sold, or to agree to a sale without reserve. Obviously, if the property is to be sold in
execution, then the preferent creditors will want to recover at least the outstanding amounts of the
debts owing to them by the execution debtor, and will take this into account when they set the
reserve price.36
The execution creditor must provide the sheriff with proof that the preferent creditors and the
local authority have set a particular reserve price, or have agreed to a sale without reserve.
If the sheriff is satisfied that it is impossible to notify a preferent creditor of the sale, or that a
preferent creditor has been notified of the sale but has not responded, the sale may nevertheless go
ahead.37
The sheriff will then appoint a date for the sale of the property. This date must be not less than
one month after service of the notice of attachment.38 The execution creditor must then prepare the
notice of sale, which must contain:

1. A short description of the property;

2. The situation and street number, if any, of the property;
3. The time at which and place where the sale will be held; and
4. An invitation to inspect the conditions of sale at the office of the sheriff.

The execution creditor must publish the notice of sale in one newspaper that circulates in the
district in which the property is situated, as well as in the Government Gazette, not less than five
court days and not more than 15 court days before the date of the sale. The sheriff must be provided
with a photocopy or a telefax of the notices once they have been published. Instead of providing the
sheriff with a copy or fax of the notice in the Government Gazette, the execution creditor is entitled
simply to provide the number of the Government Gazette in which the notice was published.39
Not less than 20 days before the date of the sale, the execution creditor must prepare conditions
of sale in accordance with High Court Form 21. The conditions of sale must be submitted to the
sheriff for approval. Thereafter, the execution creditor must supply the sheriff with two copies of the
conditions of sale, one of which must lie for inspection by any interested party at the sheriff’s office.40
Not less than 10 days before the date of the sale, the sheriff must:

1. send a copy of the notice of sale to every judgment creditor who has attached the property, as
well as to every mortgagee of the property;41 and
2. affix one copy of the notice on the notice board of the Magistrates’ Court of the district in which
the property is situated, and one copy as near as possible to the place where the sale is to take
place.42

Not later than the day before the sale, the execution creditor must provide the sheriff with a copy of
each of the newspapers, and the number of the Government Gazette, in which the notice of sale was
published.43
On the date of the sale, the property will be sold by public auction.44
As soon as possible after the sale, the sheriff must prepare a plan of distribution of the proceeds
of the sale. A copy of the plan must be forwarded to the registrar, and it must lie for inspection at
both the office of the registrar and the office of the sheriff for a period of 15 court days. Written
notice must be given, by registered post, to all parties who have lodged writs, as well as to the
execution debtor, that the plan of distribution is lying for inspection.45
Any interested party may object to the plan of distribution, in which case he shall give notice in
writing to the sheriff and all other interested parties of the particulars of his objection, and shall
bring such objection before a judge for review, on 10 court days’ notice to the sheriff and the said
persons.

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 2.2 Warrant of execution in the Magistrates’ Courts

2.2 Overview
.1
In the Magistrates’ Courts one speaks of a warrant as opposed to a writ of execution. Note that there
are three types of warrants in the Magistrates’ Courts:

• Warrant of ejectment: Here one is dealing with a claim for ejectment of a person from your property
– the sheriff removes the person from the property. Use Magistrates’ Courts Form 30 (contained
in the annexure to the Magistrates’ Courts Rules).
• Warrant for delivery of goods: The claim is for the delivery of certain property – the sheriff removes
the property from the defendant and gives it to you. Use Magistrates’ Courts Form 31.
• Warrant of execution against property: This is a normal money claim – the sheriff attaches property
which is then sold in execution and proceeds of the sale are given to you. Use Magistrates’
Courts Form 32.

Execution by warrant in the Magistrates’ Courts is dealt with by Magistrates’ Courts rules 36 to 43.
Rule 41, in particular, deals with execution against movable property, while rule 43 deals with
execution against immovable property. Rule 42 deals, inter alia, with execution against incorporeal
property such as a lease, a bill of exchange, a promissory note, a bond, or another form of security
for the payment of money.46 It also deals with execution against the interest of the execution debtor
in property pledged, leased or sold under suspensive condition to or by a third person, and with
execution against movable property which is under the supervision or control of a third person.47
Here, we focus on the warrant of execution against property, and particularly those cases where a
Magistrates’ Court has given judgment for the payment of money and that judgment has not been
complied with. The execution procedure consists, first, of the attachment of the judgment debtor’s
assets and, second, of the sale in execution of those assets. In terms of s 63 of the Magistrates’ Courts
Act, the judgment must be executed within three years of the date on which it was granted
(superannuation is dealt with at 5 below).

2.2 The warrant of execution

.2
In practice, the judgment debtor is usually given some time to satisfy the judgment. At this stage, the
judgment debtor often makes arrangements with the attorney representing the judgment creditor
for the payment of the judgment debt, plus costs. In such a case, a warrant of execution is usually
not issued. Obviously, if no acceptable arrangement can be made to satisfy the judgment, the
plaintiff will arrange for a warrant of execution to be issued against the property belonging to the
judgment debtor. Before applying for a warrant of execution, it is recommended that a judgment
creditor first issue a notice in terms of s 65A(1) of the Magistrates’ Court Act (discussed at 3 below),
unless the judgment debtor is already aware of the existence of attachable assets. Where the
judgment creditor has issued a warrant of execution before the hearing of proceedings in terms of a
notice under s 65A(1) and a nulla bona return is made, the judgment creditor shall generally not be
entitled to the costs of the warrant.48
The warrant is issued and signed by the clerk of the court and addressed to the sheriff for the
purpose of attachment.49
The sheriff of the court may be regarded as its executive officer. His duty is to execute orders and
carry out the instructions of the court, for example by attaching goods. The sheriff’s return, i.e. the
declaration made by the sheriff concerning the execution of the court’s instructions to him, is
considered prima facie evidence of the matters stated in the return.50

2.2 Attachment – what can and cannot be attached

.3
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 Before we go on to a detailed examination of writs of execution against movables and immovables,
note that certain property is not liable to be seized in execution by the Magistrates’ Courts. Section
67 of the Magistrates’ Courts Act provides that the following categories of property may not be
seized in execution of any process:

1. The necessary beds and bedding and wearing apparel of the person against whom execution is
levied, or any member of his family;
2. The necessary furniture, other than beds, and household utensils in so far as they do not exceed
R2 000 in value;
3. Stock, tools and agricultural implements of a farmer in so far as they do not exceed R2 000 in
value;
4. Any food or drink sufficient to meet the needs of such person and the members of his family for
one month;
5. Tools and implements of trade in so far as they do not exceed R2 000 in value;
6. Professional books, documents or instruments used by the debtor in his profession in so far as they
do not exceed R2 000 in value; and
7. Such arms and ammunition as the debtor is, in terms of any law, regulation or disciplinary order,
required to have in his possession as part of his equipment.

Note that the court has a discretion in exceptional circumstances to increase the sums referred to
above.51
Section 68 of the Magistrates’ Courts Act stipulates which property may be attached and sold in
execution. The list is extensive and includes, for example:

1. movable property generally;

2. money; cheques; bonds; promissory notes, etc.; and
3. the interest of the execution debtor in any movable property belonging to him or her.

You are advised to consult the full list in s 68 to check whether the property you are trying to execute
against is, in fact, executable.

2.2 The attachment

.4
Once the warrant has been issued and handed to the sheriff of the court for execution, the sheriff
will proceed to the residence or place of employment or business of the judgment debtor, unless
you have given specific instructions that he must proceed to another place where you believe that
assets of the judgment debtor are situated.52 Once the sheriff or his assistant arrives at the judgment
debtor’s residence or place of employment or wherever, he must follow this procedure:

1. He must first demand satisfaction of the writ by exhibiting the original warrant of execution. He
must hand a copy thereof to the execution debtor or leave it on the premises. 53 If the judgment
debtor (or anyone else) responds by paying the full amount set out in the writ, that is the end of
the matter.
2. If the judgment debtor fails to satisfy the writ, the sheriff must demand that the judgment debtor
point out as much of his movable and disposable property as is sufficient to satisfy the writ.54 In
other words, the judgment debtor (if he is present, alternatively one of his family members or
colleagues) has the opportunity to say which of his possessions should be attached and which
should not. Of course, it is the sheriff who has the discretion to decide whether or not sufficient
objects have been pointed out so as to satisfy the writ. In other words, the sheriff must be satisfied
that the value which will be realised at a sale in execution of the objects will cover the amount of
the judgment debt, plus costs.
3. If no movable property belonging to the judgment debtor is pointed out to the sheriff, he must

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 3.
search for such property. So far as may be necessary to the execution of the warrant, the sheriff
may open any door on any premises or of any piece of furniture. If opening is refused and, if it is
necessary, the sheriff may use force to open any door.55

Once the sheriff has located attachable movable property, he must draw up an inventory of the
property and make a valuation.56
If the debtor declares that he has no, or insufficient, movable property and the sheriff is unable to
find sufficient movable property to satisfy the warrant, the sheriff must request the execution debtor
to declare whether he has immovable property which is executable and enter the reply on his return
of service, endorsed on the warrant.57
Note that if the sheriff has issued a nulla bona return indicating that insufficient movables exist to
discharge the debt, the sheriff is not allowed simply to attach immovable property (such as a
debtor’s house) for execution. According to the Constitutional Court decision in Jaftha v Schoeman
and Others and Van Rooyen v Stoltz and Others 2003 (10) BCLR 1149 (C), the creditor will first need
to approach a court to seek an order allowing execution against the immovable property of the
judgment debtor (see paras [62] to [64] of the judgment).58
As soon as the requirements of rule 41 have been complied with, the property specified in it is
deemed to be judicially attached.59
Note, however, that unlike High Court attachments of movable property where the sheriff must
either ‘remove the said goods to some convenient place of security’, or ‘keep possession thereof on
the premises where they were seized’,60 with attachments in the Magistrates’ Courts the execution
creditor or his attorney must advise the sheriff, after receiving notification of the attachment,
whether the property is to be removed to a place of security or left on the premises in the charge of
the judgment debtor or of some other person.61 This is subject to the proviso that the execution
creditor or his attorney may instruct the sheriff in writing to immediately remove all articles
reasonably believed to be in the execution debtor’s possession, provided the judgment creditor has
first satisfied the registrar or clerk as to the desirability of immediate removal and the registrar or
clerk has endorsed his approval on the document containing the instructions. This instruction to
the sheriff by the judgment creditor or his attorney may be of vital importance to ensure that
property the sheriff has attached does not disappear from the premises of the execution debtor, and
is not damaged to such an extent that there is nothing of value left to sell in order to satisfy the
judgment.62

2.2 Execution
.5
After attachment, the property is sold in execution on a date, appointed by the sheriff, which is not
less than 15 days after the attachment.63 The sheriff will appoint a day for the sale and a notice of
sale will be advertised (at the court and the place where the sale is to be held). If the sheriff is of the
opinion that the value of the goods exceeds R5 000, then the notice must also be published in a
newspaper circulating in the district at least 10 days before the sale.64 Notice of attachment should
be given to interested parties.65 Where a motor vehicle is to be sold in execution, notice must be
given to both the title holder and owner of the vehicle.66
On the date of the sale, the property will be sold by public auction.67

D36 3 Attachment and sale of incorporeals

3.1 Attachment of incorporeals in the High Court

3.1 Attaching a debt owed to the judgment debtor by a third party

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 High
.1 Court rule 45(12) provides a procedure whereby the judgment creditor may attach debts
owing or accruing to the judgment debtor by a third party. Such debts may include salary or wages
as are now and will in the future be owed to the judgment debtor by his employer (i.e. the rule
covers debts which are both owing now and accruing in the future),68 as well as any other kind of
debt owed to the judgment debtor (e.g. money loaned to the third party by the judgment debtor).
There is no distinction in the High Court (as there is in the Magistrates’ Courts practice discussed
below) between so-called emoluments attachment orders (which relate to the attachment of the
salary or wages of the judgment debtor) and garnishee orders (which relate to the attachment of
other kinds of debts owed to the judgment debtor).
In the High Court, if any debt is owing to the judgment debtor (including salary and wages), such
debt may be attached by the sheriff if he is requested to do so by the judgment creditor. 69 The
person who owes the debt to the judgment debtor is known, for the purposes of attachment, as a
garnishee. The sheriff must serve a notice on the garnishee, ordering him to pay the debt directly to
the sheriff, instead of to the judgment debtor. If the amount of the debt owed by the garnishee to the
judgment debtor is more than the amount of the judgment debt, the sheriff may not demand that
more than the amount of the judgment debt be paid to him. Once the garnishee has paid the sheriff,
the sheriff will issue a receipt to the garnishee to the effect that the amount of the debt paid to the
sheriff has been discharged.70
If the garnishee refuses or neglects to comply with the notice calling on him to pay the debt
directly to the sheriff, the sheriff must immediately notify the judgment creditor. The judgment
creditor may then deliver a notice to the garnishee, calling upon him to appear before the court to
show cause why he should not pay the debt to the sheriff. If the garnishee does not dispute the debt
due by him to the judgment debtor, or does not appear in court to answer the judgment creditor’s
notice, the court may order that a writ of execution be issued against the garnishee’s property for the
amount of the debt.71

3.1 The procedure for attaching incorporeal property

.2
Rule 45(12) should be read together with rule 45(8), which governs the attachment of incorporeal
property in the High Court. All debts owed or accruing to the judgment debtor by a third party
(which are recoverable by means of the procedure set out in rule 45(12) discussed above), may be
classified as incorporeal property in terms of rule 45(8). Rule 45(8) sets out the procedure which
must be followed when attaching incorporeal property (including debts owed to the judgment
debtor by a third party). It is important to follow closely the process set out in rule 45(8); this
provision is mandatory to the extent that, insofar as any of its provisions have not been complied
with, the attempted attachment is void.72 The rule divides incorporeal property into three categories
for the purposes of attachment:

1. Lease (i.e. the judgment debtor is owed rent by a third party, who leases property from the
judgment debtor), bill of exchange (e.g. the judgment debtor is in possession of a cheque made
out to him by a third party), promissory note (e.g. the judgment debtor is in possession of an IOU
in respect of money lent by the judgment debtor to a third party), bond (e.g. the judgment debtor
is in possession of a mortgage bond over the property of a third party, to whom he loaned
money), or other security for the payment of money;
2. The interest of the execution debtor in property pledged, leased or sold under a suspensive
condition, to or by a third person; and
3. Other incorporeal property.

In order to complete the attachment of incorporeal property falling into the first category, the
following conditions have to be met:

1. The sheriff must give notice to the lessor and lessee, mortgagor and mortgagee, or person liable
on the bill of exchange, or promissory note, or security.

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 2. The sheriff must take possession of the written lease agreement (if there is one), or the bill of
exchange, or the promissory note, or the mortgage bond, or the security.
3. If the lease or right concerned has been registered, then notice must be given to the Registrar of
Deeds.73

In order to complete the attachment of incorporeal property falling into the second category, the
sheriff must serve the notice of attachment, together with a copy of the writ of execution, on the
execution debtor as well as on the third person.74 Attachment of property subject to a lien is also
effected in this way.75
In order to complete the attachment of incorporeal property falling into the third category, the
following conditions have to be met:

1. The sheriff must give written notice of the attachment to all the interested parties.76 Where the
asset consists of incorporeal immovable property or an incorporeal right in immovable property,
the sheriff must also give written notice to the Registrar of Deeds in whose registry the property or
right is situated.
2. The sheriff must take possession of the document which evidences ownership of the property or the
right. For example, in Badenhorst v Balju, Pretoria Sentraal, en Andere,77 the court held that a
member’s interest in a close corporation is an incorporeal moveable.78 In respect of such an
asset, attachment should take place, where possible, of the document or similar item establishing
the right. In the case of a company it would be a share certificate; in the case of a close
corporation it would be a certificate issued in terms of the mandatory provisions of s 31 of the
Close Corporations Act 69 of 1984.79 Attachment is then effected by a caveat, interdict or order of
attachment being noted against the relevant title deeds in the Deeds Office.80

If the sheriff cannot locate such a document, he must certify that, despite a diligent search, he has
been unable to obtain possession of the document.81

3.2 Attachment of incorporeals in the Magistrates’ Courts

3.2 Emoluments attachment orders versus garnishee orders

.1
In terms of the procedure adopted in the Magistrates’ Courts, there is a distinction between
emoluments attachment orders (which relate to the attachment of the salary or wages owing or
accruing to the judgment debtor by a third party), and garnishee orders (which relate to the
attachment of all the other kinds of debts which may be owed to the judgment debtor by a third
party). There have recently been significant developments concerning emolument attachment
orders, which have significantly changed how such orders may be obtained. These are considered
below.

3.2 Emoluments attachment orders

.2
3.2 What is an emoluments attachment order?
.2(a)
Emoluments attachment orders are dealt with in s 65J of the Magistrates’ Courts Act. According to s
65J, an emoluments attachment order is an order whereby the judgment creditor is able to attach
part of the salary or wages of the judgment debtor. In other words, once an emoluments attachment
order has been granted, the employer of the judgment debtor (who is referred to as the garnishee) is
obliged (on a continuing basis and until such time as the judgment debt has been paid in full) to pay
a certain portion of the judgment debtor’s salary or wages to the judgment creditor.82 This is a good
way of proceeding against a judgment debtor who does not possess sufficient attachable assets to
pay off a significant portion of the debt. Because the money goes directly from the employer to the

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 judgment creditor, the latter’s attorney does not have to worry about the judgment debtor spending
it before it can be attached. The judgment debtor also has an interest in retaining his job, and, as
long as jugdment debtor does so, the debt will continue to be paid.

3.2 How is such an order obtained?

.2(b)
An emoluments attachment order may be obtained in the following ways:

1. By obtaining the written consent of the judgment debtor.83

or
2. By obtaining the authorisation of the court.
or
3. By the judgment creditor or his attorney:
• sending a registered letter to the judgment debtor at his last known address, advising the
judgment debtor of the amount of the judgment debt and costs as yet unpaid and warning
him that an emoluments attachment order will be issued if the amount is not paid within 10
court days from the date on which the registered letter was posted;84
and
• filing, with the clerk of the court, an affidavit or an affirmation by the judgment creditor, or a
certificate by his attorney, setting forth the amount of the judgment debt at the date of the
order, laying down the specific instalments, the costs (if any) which have accumulated since
that date, the payments received since that date and the balance owing, and declaring that
the provisions of the paragraph above have been complied with on the date specified therein.
85

Since the recent judgment of the Constitutional Court in University of Stellenbosch Legal Aid Clinic
and Others v Minister of Justice and Correctional Services and Others (South African Human Rights
Commission as amicus curiae),86 there are only two methods by which to secure an emolument
attachment order – both involving the intervention of the court. With effect from 13 September
2016, section 65J(2) provides that an emolument attachment order shall not be issued:

(a ) unless the judgment debtor has consented to it in writing and the court has so
authorised it;
( b) unless the judgment creditor or his or her attorney has first—
(i) sent a registered letter to the judgment debtor at his or her last known address
advising him or her of the amount of the judgment debt and costs as yet
unpaid and warning him or her that an emoluments attachment order may
be issued if the said amount is not paid within ten days of the date on which
that registered letter was posted; and
(ii) filed with the clerk of the court an affidavit or an affirmation by the judgment
creditor or a certificate by his or her attorney setting forth the amount of the
judgment debt at the date of the order; and
(iii) been granted an order of court authorising that an emoluments attachment
order be issued.”

Furthermore, before a court may grant an order authorising an emolument attachment order, it
must be satisfied both that it is just and equitable that an emoluments attachment order be issued
and that the amount is appropriate. While there is no clear guidance on what constitutes just and
equitable circumstances, the Court did some guidance where it held:

An emoluments attachment order is clearly burdensome. It severely constricts the

autonomy of the debtor to decide how she will pay off the debt. It is also inflexible as it

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 does not adapt to the debtor’s changing circumstances from week to week. It goes
directly off a debtor’s wages – and these wages will often form the means for the debtor’s
day-to-day survival. These are all important considerations to be borne in mind when
deciding whether an emoluments attachment order should be granted. What is more, a
debtor’s personal circumstances may well have changed in the interim between when a
judgment debt is entered and ordered to be paid in instalments and when an
emoluments attachment order is sought. It is, therefore, crucial that these
considerations are taken into account at the time the emoluments attachment order is
sought.

3.2 Out of which court must the emoluments attachment order be issued?
.2(c)
An emoluments attachment order must be issued from the court of the district in which the
employer of the judgment debtor resides, carries on business or is employed.87 If the judgment
debtor is a state official, the emoluments attachment order must be issued from the court of the
district in which the judgment debtor resides.88

3.2 What is the effect of the order?

.2(d)
The effect of an emoluments attachment order is that it obliges the garnishee (i.e. the employer) to
pay the judgment creditor or his attorney, from time to time, specific amounts (as laid down by the
court) out of the emoluments of the judgment debtor, until the judgment debt and costs have been
paid in full.89

3.2 What if the judgment debtor leaves his employment?

.2(e)
Section 65J(8) reads as follows:

(a ) Whenever any judgment debtor to whom an emoluments attachment order relates

leaves the service of a garnishee before the judgment debt has been paid in full,
such judgment debtor shall forthwith advise the judgment creditor in writing of
the name and address of his or her new employer, and the judgment creditor may
cause a certified copy of such emoluments attachment order to be served on the
said new employer, together with an affidavit or affirmation by him or a certificate
by his attorney specifying the payments received by him since such order was
issued, the costs, if any, incurred since the date on which that order was issued
and the balance outstanding.
( b) An employer on whom a certified copy referred to in paragraph (a) has been so
served, shall thereupon be bound thereby and shall then be deemed to have been
substituted for the original garnishee, subject to the right of the judgment debtor,
the garnishee or any other interested party to dispute the existence or validity of
the order and the correctness of the balance claimed.

3.2 Garnishee orders

.3
Section 72(1) of the Magistrates’ Courts Act reads, inter alia, as follows:

The court may, on ex parte application by the judgment creditor … order the
attachment of any debt at present or in future owing or accruing to a judgment debtor
by or from any other person (excluding the state), residing, carrying on business or
employed in the district, to an amount sufficient to satisfy the judgment and the costs of
the proceedings for attachment, whether such judgment has been obtained in such
court or in any other Magistrate’s Court, and make an order (hereinafter called a

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 garnishee order) against such person (hereinafter called the garnishee) to pay to the
judgment creditor or his attorney … so much of the debt as may be sufficient to satisfy
the judgment and costs, and may enforce such garnishee order as if it were a judgment
of the court.

Note that the garnishee order effectively pulls the garnishee into the matter between the judgment
creditor and judgment debtor. If the garnishee refuses to pay in terms of the garnishee order, the
judgment creditor is entitled to attach his property or proceed against him in terms of s 65A. In
other words, even though the garnishee might not know the judgment creditor from a bar of soap, if
he (the garnishee) for some reason or other refuses to obey the terms of the garnishee order, he may
find himself at the receiving end of various debt collection procedures instituted by the judgment
creditor.
Magistrates’ Courts rule 47 (read with s 72 of the Magistrates’ Courts Act) sets out the procedure
in terms of which an application for a garnishee order must be made. In terms of rule 47(1), the
application must be supported by an affidavit or affirmation by the judgment creditor or a certificate
by his attorney. The following details must be included in the affidavit, affirmation or certificate:

1. A court (a) has granted judgment to the judgment creditor; or (ii) has ordered the payment of a
debt referred to in s 55 and costs in specific instalments.
2. Such judgment or order referred to in rule (1)(a) is still unsatisfied, stating the amounts still
payable thereunder.
3. The garnishee resides, carries on business or is employed within the district, with mention of the
address of the garnishee.
4. That a debt is at present or in future owing or accruing by or from the garnishee to the judgment
debtor and the amount thereof.

In terms of rule 47(2):

Unless the application for a garnishee order is directed to the court which granted the
judgment or order referred to in rule (1)(a), a certified copy of the judgment or order
against the judgment debtor shall accompany the affidavit or affirmation or certificate
referred to in sub-rule (1).

Rule 47(3) requires the following:

Sufficient information including the identity number or work number or date of birth of
the judgment debtor shall be furnished in a garnishee order to enable the garnishee to
identify the judgment debtor.

The application is made ex parte. In other words, when the application is made, only the judgment
creditor (the applicant) will be in court. In terms of rule 47(5), if the application papers are in order,
the court will order the garnishee:

1. to pay to the judgment creditor or his attorney so much of the debt at present or in future owing
or accruing by or from him to the judgment debtor as may be sufficient to satisfy the judgment,
together with the costs of the garnishee proceedings (including the costs of service); or
2. if he does not pay to appear before the court on a certain date (the ‘return date’) in order to show
cause why he should not be required to pay the debt.

In terms of rule 47(7), once the initial order of court has been served on the garnishee and the
judgment debtor, it operates as an attachment of the debt in the hands of the garnishee. In other
words, the garnishee may not go ahead and pay the debt to the judgment debtor.

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 The main defences open to the garnishee on the return date are to:

1. dispute that he is liable to pay the debt to the judgment debtor;

2. allege that he has a set-off against the judgment debtor;
3. allege that he has a valid counterclaim against the judgment debtor; or
4. allege that the debt belongs to or is subject to a claim by some other person.

In terms of rule 47(9), if the garnishee does not appear in court on the return date, or appears but
fails to convince the court that he should not be required to pay the debt, the court may order the
garnishee to pay the debt (or such portion of it as the court may determine) to the judgment creditor
or his attorney on the dates set out in the order. If the garnishee fails to pay as ordered, execution
may be issued against the garnishee by the judgment creditor.

4 Interpleader proceedings

4.1 General overview

The interpleader procedure enables a party who is, or may be, the subject of adverse claims by two
or more parties to have the competing claims decided between the claimants. By doing so, the party
who is the subject of these adverse claims can ensure that he is protected against costs. Although
interpleader proceedings are not a type of debt collection procedure, we deal with them here
because, in practice, the need for such proceedings often arises following the attachment of goods
in terms of a writ or warrant of execution. In other words, after attachment of goods, the sheriff may
receive a claim to the property from a third party (i.e. someone other than the judgment debtor).

4.2 Interpleader proceedings in the High Court – rule 58

Interpleader proceedings in the High Court are dealt with by High Court rule 58. There are two basic
types of interpleaders:

1. Two or more persons make adverse claims to property which is in the custody of a third party,
known as the stakeholder. For example, a lecturer finds an expensive watch which is claimed by
two students. The lecturer is unable to keep the watch, for fear of being sued by either or both of
the students. The lecturer is also unable to hand the watch to one of the two students, for fear of
being sued by the other student.
2. The sheriff of the court attaches property which ostensibly belongs to the judgment debtor in a
particular case. Another person then claims that the property that has been attached does not
belong to the judgment debtor but to him. The judgment creditor insists that the property
belongs to the judgment debtor. The sheriff is now in the position of a stakeholder, uncertain
whether to continue with the sale of the property, or to release the property from attachment.

If you are acting for a stakeholder who is faced with competing claims in respect of certain money or
property he is holding, you should deliver an interpleader notice to the competing claimants on
your client’s behalf in terms of rule 58(1). Once the interpleader notice has been issued, any
proceedings instituted against your client by either of the two claimants will be stayed.90
In terms of High Court rule 58(2):

1. If the stake being held by your client consists of money, it must be paid to the registrar at the
same time as you deliver the interpleader notice to the claimants.
2. If the stake being held by your client consists of a movable item, you must offer to deliver that
item to the registrar at the same time as you deliver the interpleader notice to the claimants.
3. If the stake being held by your client consists of immovable property, you must give the title deeds
relating to that property to the registrar at the same time as you deliver the interpleader notice to

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 3.

the claimants. You must also give the registrar an undertaking that your client will sign all
documents necessary to effect transfer of the property in accordance with any order the court
may make or any agreement of the claimants.

Rule 58(3) sets out the details which must be included in an interpleader notice. Basically, the
interpleader notice:

1. tells the claimants what the stake is;

2. requires each of the claimants to deliver his particulars of claim to the stake; and
3. notifies the claimants that the stakeholder is going to apply to court to decide on his (the
stakeholder’s) liability or the validity of the respective claims.

The stakeholder is required to attach an affidavit to the notice. In terms of rule 58(4) the stakeholder
is required, in his affidavit, to state the following:

1. He claims no interest in the subject matter in dispute, other than for charges and costs.
2. He does not collude with any of the claimants.
3. He is willing to deal with, or act in regard to, the subject matter of the dispute as the court may
direct.

In terms of rule 58(5), if a claimant fails to deliver particulars in support of his claim, or fails to
appear in court when the interpleader application is heard, the court may make an order barring
that claimant, as against the stakeholder, from making any claim in relation to the ‘stake’ being held
by the stakeholder. The claimant must specify an address for service within 15 kilometres of the
office of the registrar.91
Rule 58(6) sets out the various orders which a court may make in relation to an interpleader
matter:

1. Then and there adjudicate upon such claim after hearing such evidence as it deems fit.
2. Order that any claimant be made a defendant in any action already commenced in respect of the
subject matter in dispute in lieu of, or in addition to, the applicant.
3. Order that any issue between the claimants be stated by way of a special case or otherwise and
tried, and for that purpose order which claimant shall be plaintiff and which shall be defendant.
4. Dismiss the application if it considers that the matter is not a proper matter for relief by way of
interpleader notice.
5. Make such order as to costs, and the expenses (if any) incurred by the applicant … as to it may
seem meet.

With regard to the type of interpleader matter in which the sheriff of the court is involved, rule 58(1)
states as follows:

In regard to conflicting claims with respect to property attached in execution, the sheriff
shall have the rights of an applicant and an execution creditor shall have the rights of a
claimant.

In other words, the procedure discussed above applies in the same way when the sheriff is the
stakeholder, as it does when someone else is the stakeholder.
The court adjudicating the matter may:

1. order any claimant to state orally or in writing under oath or otherwise the nature and particulars
of his or her claim;
2. order that the matters in issue are to be tried on a day appointed for that purpose, and order

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 2.
which of the claimants is to be the plaintiff and which is to be the defendant for the purpose of
the trial; or
3. try the matters in dispute in a summary manner.92

4.3 Interpleader claims in the Magistrates’ Courts – rule 44

Interpleader claims in the Magistrates’ Courts are dealt with by Magistrates’ Courts rule 44 and s 69
of the Magistrates’ Courts Act.
Magistrates’ Courts rule 44(1) deals with the situation where a stakeholder has in his possession
money or property to which two or more persons make adverse claims. This rule must be read
together with Magistrates’ Courts Form 35.
Magistrates’ Courts rule 44(2) deals with the situation in which the sheriff is the stakeholder. In
these cases, a claim is made on property attached by the sheriff, by a person other than the
execution debtor, and the execution creditor does not, after notice of the claim, admit the said
claim. This rule must be read together with Magistrates’ Courts Form 36. In such a case where a
stakeholder (or claimant, as he is referred to in rule 44(2)) makes any claim to or in respect of
property attached by the sheriff in execution of any process of the court or where any such claimant
makes any claim to the proceeds of property so attached and sold in execution, the sheriff shall
require from such claimant to lodge an affidavit in triplicate with the sheriff within 10 days from the
date on which such claim is made, setting out certain details which are to be forwarded to the
judgment creditor. Those details include the nature and grounds of his claim substantiated by
evidence rule 45(2)(a) (iii). These details allow the judgment creditor to make an informed decision
as to whether to accept or reject such claim. Only once the judgment creditor rejects such a claim
will the sheriff then prepare and issue an interpleader summons, calling upon the rival claimants to
appear in court and have their claims adjudicated upon. The summons takes the form set out in
Form 36 of the Magistrates’ Courts forms. In addition to the summons, the applicant must annex an
affidavit in which he states that:

1. he claims no interest in the subject matter in dispute other than for charges or costs;
2. he is not in collusion with any of the claimants; and
3. in the case of property other than money paid into court, he is willing to deal with the property as
the court may direct.93

5 Superannuation of judgments
A party who has secured a judgment debt has a certain period of time within which he must take
steps to execute against the assets of the judgment debtor. If he does not do so in time, the judgment
is said to superannuate, and certain consequences result for the judgment creditor who wishes to
proceed with execution.

5.1 Superannuation of judgments in the High Court

In terms of the Prescription Act, a judgment debt (the debt a party owes to the creditor on account
of a judgment awarded against him) only prescribes once a period of 30 years has passed from the
date on which the judgment was granted. One of the two main ways in which the judgment creditor
may seek to recover a judgment debt is by issuing a writ of execution against the assets of the
judgment debtor.94 Previously, in terms of High Court rule 66(1), you could not issue a writ of
execution to enforce a judgment if more than three years have passed since the date on which the
judgment was granted unless the debtor consented to the issue of the writ or the judgment was
revived by the court on notice to the debtor.
This rule was amended in 2014, and now provides as follows:

Writs of execution of a judgment once issued remain in force, and may, subject to [the

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 Prescription Act], at any time be executed without being renewed until judgment has
been satisfied in full.

5.2 Superannuation of judgments in the Magistrates’ Courts

Superannuation of Magistrates’ Courts judgments is dealt with by s 63 of the Magistrates’ Courts
Act, which reads as follows:

… execution against property may not be issued upon a judgment after three years from
the day on which it was pronounced or on which the last payment in respect thereof was
made, except upon an order of the court in which judgment was pronounced or of any
court having jurisdiction, in respect of the judgment debtor, on the application and at
the expense of the judgment creditor, after due notice to the judgment debtor to show
cause why execution should not be issued.

For further discussion see the decision in Absa Bank Ltd v Snyman.95 See Stage 2 for a
comprehensive discussion of superannuation of judgments and summons.

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 PART 2: DEBT COLLECTION PROCEDURES

B: Section 65 procedure
1 General overview
If used correctly, the so-called section 65 procedure, which is set out in the Magistrates’ Courts Act,
96 can be a very effective procedure for the collection of judgment debts.97 The main thrust of s 65A

(which is the heart of s 65) is to set up an enquiry at which the financial position of the judgment
debtor can be properly assessed. Once it is clear how much the judgment debtor can afford to pay
(usually on an instalment basis), the court can make an order to this effect.98
The s 65 procedure need not be restricted to the recovery of money judgments in the Magistrates’
Courts, which are smaller, in comparison, than the money judgments in the High Court. It can also
be used in the recovery of large High Court money judgments.

2 Section 65M
The first thing to note about s 65 is that, although it is a Magistrates’ Courts debt collection
procedure, it may also be used for judgments taken in the High Court, provided that the provisions
of s 65M are complied with:

If a judgment for the payment of any amount of money has been given by a division of
the Supreme Court of South Africa, the judgment creditor may file with the clerk of the
court from which the judgment creditor is required to issue a notice in terms of s
65A(1), a certified copy of such judgment and an affidavit or affirmation by the
judgment creditor or a certificate by his attorney specifying the amount still owing
under the judgment and how such amount is arrived at, and thereupon such judgment,
whether or not the amount of such judgment would otherwise have exceeded the
jurisdiction of the court, shall have all the effects of a judgment of such court and any
proceedings may be taken thereon as if it were a judgment lawfully given in such court
in favour of the judgment creditor for the amount mentioned in the affidavit or
affirmation or the certificate as still owing under such judgment, subject however to the
right of the judgment debtor to dispute the correctness of the amount specified in the
said affidavit or affirmation or certificate.

3 The section 65A procedure

The s 65 procedure can only be brought in the court in the district in which the debtor works and/or
resides.
The procedure is as follows:

1. Judgment is handed down by the court.

2. In most cases, the judgment will have been by default. In other words, neither the judgment
debtor nor his representative (attorney) would have been present when judgment was handed

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 2.

down. If this was the case, the judgment creditor has to send a registered letter to the judgment
debtor, in which the judgment debtor is informed about the terms of the judgment. (This is not
necessary, however, if the judgment creditor served a warrant of execution on the judgment
debtor personally – i.e. opted for the warrant of execution route before trying s 65.)99 In the letter
the judgment creditor should request payment within 10 days.
3. Ten days must elapse from the date on which the letter was posted.100
4. A notice may then be issued101 calling on the judgment debtor to come to court to
P35 attend an enquiry into his financial position. The notice must be supported by an
affidavit by the judgment creditor or a certificate by his attorney, in which the
information prescribed by rule 45(1)(a)–(d)102 is clearly set out (for example, stating in
what respect the judgment debtor has failed to comply with the judgment or order
referred to in s 65A(1) of the Act, the amount in arrears and outstanding balances on the
date upon which the notice is issued). The financial enquiry is then held in the
magistrate’s chambers. The court must be situated in the district where the debtor stays,
is employed or carries on business. If the judgment debtor is a juristic person, e.g. a
company, then the notice may be served on a director or officer of the company.103
5. The notice must be served on the judgment debtor:
by the sheriff
or
by the attorney or candidate attorney representing the judgment creditor
and
at least 10 court days before the date on which the judgment debtor is to appear in court for the
financial enquiry.104
6. If the judgment debtor ignores the notice to attend the financial enquiry and fails to appear at
court on the day set out in the notice, the judgment creditor or his attorney may request the court
to authorise the issue of a warrant directing the sheriff to arrest the judgment debtor.105
7. If the court authorises the warrant, the judgment creditor or his attorney may prepare a warrant,
have it signed by the clerk of the court, and then deliver it to the sheriff who will go out and arrest
the judgment debtor.106
8. Once the sheriff has arrested the judgment debtor, he must be brought before a competent court
as soon as possible.107
9. By ignoring the notice to attend the financial enquiry, the judgment debtor may be guilty of an
offence and be liable on conviction to a fine or to imprisonment for up to three months.108
10. The court before which the judgment debtor is brought after arrest will conduct a summary
enquiry into whether or not the judgment debtor is guilty of such an offence.109
11. Before conducting the summary enquiry, the court will explain to the judgment debtor what is
going on (i.e. that a summary trial is going to be held and that he may be convicted of the offence
referred to and fined or sent to prison), and will tell the judgment debtor that he has the right to
choose, and be represented by, a legal practitioner.110
12. The court will have regard to the following rights of the judgment debtor during the summary
enquiry:
) The
a right to remain silent and to be presumed innocent.
) The
b right to adduce and to challenge evidence.
c right not to be compelled to give incriminating evidence.111
) The
13. After the summary enquiry has been held, the court will proceed with the enquiry into the
judgment debtor’s financial affairs.112
14. If the court establishes that the debtor can afford to pay off a certain amount per month, it will
probably order him to do so.113
15. If the debtor disobeys the court’s order by refusing to pay the instalments, he will contravene s
106 of the Magistrates’ Courts Act.
16. In terms of s 106 of the Magistrates’ Courts Act, any person who wilfully disobeys, or refuses, or

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 16.
fails to comply with any judgment or order of a court, shall be guilty of contempt of court and
shall, upon conviction, be liable to a fine or to imprisonment for a period not exceeding six
months.

4 Juristic persons and the state

As mentioned above, the s 65 procedure can be used not only against natural persons who are
judgment debtors, but also against juristic persons. Section 65A(1)(a) explains that the judgment
creditor ‘may issue, from the court of the district in which the judgment debtor resides, carries on
business or is employed, or if the judgment debtor is a juristic person, from the court of the district
in which the registered office or main place of business of the juristic person is situated, a notice
calling upon the judgment debtor, or if the judgment debtor is a juristic person a director or officer
of the juristic person as representative of the juristic person and in his or her personal capacity’, a
notice to appear before court for a s 65 enquiry.
According to the High Court in Lombard v Minister van Verdediging,114 the provisions of s 65A(1)
are not applicable in circumstances where the state is the judgment debtor. In the quoted case, the
judgment debt arose from damages flowing from a collision between the plaintiff’s motor vehicle
and a motor vehicle driven by an employee of the Minister of Defence. Judgment in the amount of
R6 400 had been given in 1999 and the defendant – the Minister of Defence – did not ensure that the
judgment debt was paid, with the result that the plaintiff served a s 65A(2) notice on the defendant,
calling on the defendant to make payment within ten days. When the defendant defaulted, the
plaintiff issued a notice in terms of s 65A(1) requiring the defendant to appear in court for a
financial enquiry into the defendant’s department, the Department of Defence. The matter
eventually came on appeal to the High Court. According to the court, the proceedings in terms of s
65A were irregular for two reasons: s 65A(1) refers to natural persons and legal persons, but not the
state, and s 3 of the State Liability Act 20 of 1957 prohibits the issuing of a warrant of execution or
attachment or similar process against the state. According to the court, the plaintiff’s correct remedy
would have been to attempt a prosecution of the state for contempt of court.

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 PART 2: DEBT COLLECTION PROCEDURES

C: Administration orders
1 General overview
Administration orders are dealt with in terms of s 74 of the Magistrates’ Courts Act. In terms of the
section, a debtor who is unable to pay his debts may apply for an administration order, provided
that his debts do not exceed an amount of R50 000.115 Where such an application is granted, the
administration order then obliges the debtor to make regular payments to an administrator. The
administrator is obliged to draw up a list of creditors and must pay them from the amounts received
from the debtor. It is in this regard that the administration order might be considered part of the
‘debt-collection procedures’. While an administration order is a debt relief measure available to
debtors who find themselves in financial trouble (in as much as it provides them with an
opportunity to obtain a statutory rescheduling of debt, sanctioned by a court order), the order
operates as something of a debt collection mechanism for creditors who are entitled to a pro rata
distribution of the payments that the debtor has, in terms of the administration order, been obliged
to make to the administrator. The administration procedure is therefore a modified form of
insolvency, well-suited to deal with relatively small estates where the costs of sequestration would
exhaust the estate.116 The procedure should not be confused with debt review proceedings under
the National Credit Act.117

2 The procedure
The procedure for obtaining an administration order is described below.

2.1 The application for an administration order

First, the debtor who is in financial trouble drafts a document in which he makes application for an
administration order.118 Administration is only available to natural person debtors and not to
juristic persons. Attached to the application document must be a full statement of the debtor’s
financial affairs,119 including a list of all the debtor’s creditors and the amounts owed by him to each
of them severally.120 Upon completing the application, the debtor lodges the application with the
clerk of the court and delivers personally or by registered post to each of his creditors, at least three
days before the date appointed for the hearing, a copy of the application and the statement of his
affairs, containing the case number under which the original application was filed.121

2.2 The hearing

The application is heard by a magistrate with the debtor appearing in person or with his legal
representative before the court. Creditors, whether or not they have received notice in terms of s
74A(5), may attend the hearing.122
The debtor is then questioned, either by the court or by the creditors,123 in respect of the
circumstances having a bearing upon the envisaged administration order. During this examination,
the debtor may be examined only in regard to the following:

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 1. His assets and liabilities;
2. His present and future income and that of his spouse living with him;
3. His standard of living and the possibility of economising, and
4. Any other matter that the court may deem relevant.124

The debts that the debtor listed in his statement to the court are deemed to be proved, unless any
creditor raises an objection to a particular debt or the court rejects it or requires it to be
substantiated.125 Any creditor to whose claim an objection is raised by the debtor or by any other
creditor, or who is required by the court to substantiate the debt, must provide proof of the debt
allegedly due to him.126

2.3 The administration order

If the court grants the administration order, the order must take the prescribed form, the content
and form of which is regulated by s 74C and Annexure 1 Form 51, respectively. The salient parts of
the order are as follows:

1. An order that the debtor’s estate be placed under administration;

2. That the administrator is nominated and appointed; and
3. The amount that the debtor is obliged to pay weekly or monthly to the administrator.

As part of the administration order the court may authorise that an emoluments order or a
garnishee order is issued.127

2.4 The appointment of an administrator and his tasks

After issuing its order, the court nominates and appoints a person as administrator. The
administrator, after appointment, forwards a copy of the administration order by registered post to
every creditor whose name is mentioned by the debtor in his statement of affairs, or who has given
proof of a debt.128
The administrator then draws up a complete list of the names of creditors and the amounts
owing to them individually, as at the date on which the administration order was granted, and
lodges the list with the clerk of the court.129 This list of creditors lies for inspection by the creditors or
their attorneys at the office of the clerk of the court and the office of the administrator at any time
during office hours.130 The rule provides that creditors may object to any debt included in the list of
creditors, or may provide proof of a debt owing before the making of the administration order and
not listed in that order.131

2.5 Payment to the administrator and to the creditors

The debtor is then obliged to pay the administrator the amounts of the weekly or monthly or other
payments stipulated in the administration order.132 If he fails to do so, the court may undertake an
investigation into the debtor’s failure to make the payments due by him at a hearing to which the
debtor will have been summoned. The s 65 procedure is utilised in this regard.133
Where the debtor pays in terms of the administration order, the administrator collects the
payments and keeps an up-to-date list of all payments and other funds received by him from or on
behalf of the debtor. He then distributes these amounts pro rata among the creditors, at least once
every three months, unless the creditors agree otherwise or the court orders otherwise in a
particular case.134 He must undertake such distribution in accordance with the laws relating to
insolvency, so that claims that would enjoy preference under those laws are paid out in the correct
order.135

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 1 Act 32 of 1944.
2 De Crespigny v De Crespigny 1959 (1) SA 149 (N). See Herbstein and Van Winsen (2009), op. cit., at 1022.
3 Metropolitan Industrial Corporation (Pty) Ltd v Hughes 1969 (1) SA 224 (T) at 227. There are two exceptions to this
general rule: the first is when there has been a failure to comply with an order for the payment of maintenance or
a contribution towards costs in a matrimonial matter (see Dezius v Dezius 2006 (6) SA 395 (T) at 402–403; and the
second is possibly when there is a failure to a pay an order of costs de bonis propriis (see Hofmeyer v Fourie; BJBS
Contractors (Pty) Ltd v Lategan 1975 (2) SA 590 (C) at 597). See also SH v GF 2013 (6) SA 621 (SCA) and JC v DC
2014 (2) SA 138 (WCC) at paras[35]–[37].
4 See the section dealing with Anton Piller orders above in Section G: Drastic procedures.
5 Note that the common law and s 30 of the Magistrates’ Courts Act, which allowed for arrest tanquam suspectus de
fuga, were declared unconstitutional in Malachi v Cape Dance Academy International (Pty) Ltd and Others 2010
(7) BCLR 678 (WCC). The declaration in respect of s 30 of the Magistrates’ Courts Act was confirmed by the
Constitutional Court in Malachi v Cape Dance Academy International (Pty) Ltd and Others 2010 (6) SA 1 (CC)).
See further Stage Four.
6 34 of 2005.
7 Section 129, read with 130(1) of the National Credit Act 34 of 2005.
8 Act 10 of 2013.
9 High Court rule 45(1).
10 See Le Roux v Yskor Landgoed (Edms) Bpk en Andere 1984 (4) SA 252 (T) at 257. See also Wichmann v Standard
Bank van Suid-Africa Bpk en Andere [2002] 1 All SA 558 (T).
11 Ibid.
12 10 of 2013.
13 59 of 1959.
14 Section 2(1) of the General Pensions Act 29 of 1979.
15 Rule 45(1), amended by GN R981 of 19 November 2010. This was already the position at common law. See McNutt v
Mostert 1949 (3) SA 253 (T).
16 Rule 45(3) does not require that the debtor must be at his home or his place of employment or business in order for
the service to be proper. It was held in Wilken and Others NNO v Reichenberg 1999 (1) SA 852 (W) at 858–859 that
‘the Rule allows … service at such places in the absence of the debtor’.
17 See rule 45(5).
18 Rule 45(3)(c)(i).
19 Rule 45(3)(c)(ii).
20 Rule 45(6).
21 Rule 45(4).
22 Rule 45(7).
23 Ibid.
24 Ibid. Bear in mind that the Consumer Protection Act 68 of 2008 would apply to such auctions – see ss 18 to 33.
25 Rule 45(10).
26 2008 (5) SA 94 (CC).
27 Gundwana v Steko Development and Others 2011 (3) SA 608 (CC), which followed from the line of authority in
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC).
28 Rule 46(1)(a)(ii).
29 2011 (3) SA 608 (CC).
30 2005 (2) SA 140 (CC) (2005 (1) BCLR 78) (CC).
31 Standard Bank of South Africa Ltd v Bekker and Another and Four Similar Cases 2011 (6) SA 111 (WCC).
32 FirstRand Bank Ltd v Folscher and Another, and Similar Matters 2011 (4) SA 314 (GNP) and Nedbank Ltd v Jessa
and Another 2012 (6) SA 166 (WCC). See also, for example, para 26 of the KwaZulu-Natal Division of the High
Court Practice Manual.
33 Rule 46(1).
34 Rule 46(4).
35 Ibid.
36 Rule 46(5)(a).
37 Rule 46(5)(b).
38 Rule 46(7)(a).
39 Rule 46(7)(c).
40 Rule 46(8)(a).
41 Rule 46(7)(d).
42 See Todd v FirstRand Bank Ltd and Others [2013] 3 All SA 500 (SCA) as to the effect of noncompliance with this rule.
43 Rule 46(7)(c).

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 44 Rule 46(10).
45 Rule 46(14)(b).
46 Rule 42(1).
47 Rule 42(2).
48 Section 65E(4) of the Magistrates’ Court Act 32 of 1944.
49 Rule 36(1).
50 Section 17 of the Magistrates’ Courts Act.
51 Section 67.
52 Rule 41(1)(a).
53 Rule 41(3).
54 Rule 41(1)(a).
55 Rule 41(2).
56 Rule 41(1)(a).
57 Section 66(8) of the Magistrates’ Courts Act 32 of 1944.
58 Note too the SCA’s decision in Menqa and Another v Markom and Others 2008 (2) SA 120 (SCA), where the Court
clarified that sales in execution of immovable property (and subsequent sales) were invalid if the warrant of
execution pursuant to which the sales had taken place had been issued by the clerk of the Magistrates’ Court
without judicial supervision (as indicated in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005
(2) SA 140 (CC)), and the absence of this procedural safeguard imperilled a party’s s 26(1) constitutional rights,
even if they occurred prior to the Jaftha case (supra). See in particular paras [21]–[22] at 128H–129D.
59 Rule 41(4).
60 Rule 45(6) of the High Court Rules.
61 Rule 41(7)(a). Note that for the attachment of goods in security of rent, see the decision in Timmerman v Le Roux
2000 (4) SA 59 (W).
62 Paterson (2005), op. cit., 260.
63 Rule 41(9).
64 Rule 41(8)(c).
65 Stratgro Capital (SA) Ltd v Theodorus NO and Others [2009] JOL 24610 (SCA) paras [16]–[17].
66 Absa Bank Ltd v Van Eeden and Others 2011 (4) SA 430 (GSJ).
67 Rule 41(8)(a).
68 Foley v Taylor and Another 1971 (4) SA 515 (D) 519. However, the decision in Foley was not followed in Gouws v
Theologo and Another 1980 (2) SA 304 (W). See too the decision in Pienaar v Pienaar en Andere 2000 (1) SA 231
(O).
69 Rule 45(12)(a).
70 Ibid.
71 Rule 45(12)(b).
72 See Iscor Pension Fund v Jerling and Others 1978 (3) SA 858 (T) at 863B–864C. In the Iscor Pension Fund case Margo
J pointed out that the sub-rule concerned is mandatory and that the sheriff has to take possession of the
document evidencing the ownership of such property or right, or has to certify that despite diligent search, the
document could not be found. See also Badenhorst v Balju, Pretoria Sentraal, en Andere 1998 (4) SA 132 (T) at
140B–C.
73 Rule 45(8)(a).
74 Rule 45(8)(b).
75 Rule 45(9).
76 See South African Congo Oil Co (Pty) Ltd v Identiguard International (Pty) Ltd 2012 (5) SA 125 (SCA) at para 23,
read with Stratgro Capital (SA) Ltd v Lombard NO and Others 2010 (2) SA 530 (SCA)at paras [15]–[ 17].
77 1998 (4) SA 132 (T).
78 The case dealt with an application for the rescission of an attachment and sale in execution of the interest of
members in a close corporation. See, however, the decision in Carlzeil Properties (Pty) Ltd v Goncalves and
Others 2000 (3) SA 739 (T) where the High Court, without referring to the Badenhorst decision, found (on account
of the provisions of s 34A of the Close Corporations Act 69 of 1984) that a member’s interest in a close
corporation is now regarded as movable property, capable of attachment and sale in execution in a Magistrates’
Court. It seems, therefore, that a litigant may approach the court for attachment of such interest either as an
incorporeal (in terms of the Badenhorst case) or as a corporeal (in the light of the Carlzeil case).
79 In Badenhorst, supra, the court held that if such a certificate cannot be found or has been lost or was never issued, it
will be sufficient for the sheriff to attach the founding statement of the close corporation which has to be filed
with the Registrar of Companies and that such document, inter alia, represents and is proof of the incorporeal
right it represents (139E–F).
80 Badenhorst, supra, 139F.

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 81 Rule 45(8)(c).
82 Section 65J(1)(b)(i).
83 Section 65J(2)(a).
84 Section 65J(2)(b)(i), prior to the order of the Constitutional Court in University of Stellenbosch Legal Aid Clinic.
85 Section 65J(2)(b)(ii) See further Minter NO v Baker and Another 2001 (3) SA 175 (W) at 181B–182E/F.
86 University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others ;
Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others ; Mavava
Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others (CCT 127/15) [2016]
ZACC 32.
87 Section 65J(1)(a).
88 Ibid.
89 Section 65J(1)(b)(ii).
90 The Hire Purchase Act 36 of 1942 has been repealed and replaced by the Credit Agreements Act 75 of 1980.
91 Rule 58(5A). This rule refers to High Court rule 6(5)(b), which in turn makes reference to a distance of eight
kilometres, is out of kilter with other provisions of the rules (which were updated to require an address within 15
kilometres). The reference to eight kilometres was likely an oversight by the Rules Board and we anticipate that it
will be corrected in due course.
92 Rule 58(6)(a)–(e).
93 Rule 44(1)(c)(i)–(iii).
94 The other way being a s 65 procedure.
95 2015 (4) SA 329 (SCA); [2015] 3 All SA 1 (SCA).
96 Act 32 of 1944.
97 However, see the criticisms directed against the s 65 procedure by Yssel, R: ‘The resurrection of the long dead: the
“new” s 65 procedure’ (1998) May De Rebus 69 and Yssel, R: ‘Alice in the debtor’s court’ (1999) February De
Rebus 21.
98 In what follows we discuss the s 65 procedure as amended by the Constitutional Court’s decision in Coetzee v
Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison and
Others 1995 (10) BCLR 1382 (CC). Prior to the decision in Coetzee, s 65 provided that a judgment debtor who had
failed to satisfy a judgment debt could be required to attend a hearing at which a magistrate was entitled to issue
an order to commit him to prison for contempt of court for failure to pay the debt (s 65F). The provision for
imprisonment of judgment debtors was declared to be unconstitutional in Coetzee. Subsequent to this judgment,
s 65 was amended by the Magistrates’ Courts Amendment Act 81 of 1997, and the ‘new’ provisions became law
on 10 December 1997. The effect of this amendment is that imprisonment remains an option in terms of the
revised s 65.
99 Section 65A(2).
100 Ibid.
101 This notice is in accordance with Form 40.
102 See rule 45 of the Magistrates’ Courts Rules.
103 Section 65A(1)(a).
104 Ibid.
105 Section 65A(6).
106 Section 65A(7).
107 Section 65A(8).
108 Section 65A(9). In practice, it may be particularly difficult, however, to obtain a conviction in respect of the
debtor’s failure to appear, since such failure must be shown to have been ‘wilful’ (s 65A(9)) and the offence must
be proved ‘beyond reasonable doubt’ – s 65A(10)(a)(i).
109 Section 65A(10)(a).
110 Section 65A(10)(b).
111 Section 65A(10)(c)(i).
112 Section 65A(11).
113 Section 65D, as amended by s 172(2) of the National Credit Act 34 of 2005, deals with the financial enquiry.
114 2002 (3) SA 242 (T).
115 See s 74(1)(b) and GN 217 of 27 March 2014 in Government Gazette No. 37477.
116 Boraine, A: ‘Some thoughts on the reform of administration orders and related issues’, (2003) 36 De Jure 217 at
225. See also Fortuin and Others v Various Creditors 2004 (2) SA 570 (C).
117 34 of 2005.
118 The document must be in the manner prescribed in Annexure 1, Form 44 of the Magistrates’ Courts Act Forms.
119 Section 74A(1).
120 In this respect, Form 45 of the Magistrates’ Courts Act Forms may be used for the sake of convenience.

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 121 Section 74A(5). Creditors may provide proof of the claim due to them and may object to any debt listed by the
debtor in his statement of affairs.
122 Section 74B(1)(a).
123 Section 74B(1)(e).
124 Section 74B(1)(e) and Els v Els 1967 (3) SA 207 (T).
125 Section 74B(1)(b).
126 Section 74B(1)(c).
127 Section 74D.
128 Section 74F(2).
129 Section 74G(1).
130 Section 74G(10)(a).
131 See s 74G(10)(b) and s 74G(2) and (3).
132 Section 74I(1).
133 Section 74I(2).
134 Section 74J(1).
135 Section 74J(3).

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 STAGE FOUR:

ADDITIONAL PROCEDURES

A: Settlement
B: Provisional sentence
C: Interim relief pending judgment
D: Arrest tanquam suspectus de fuga
E: Multiple parties and actions
F: Interdicts
G: Drastic procedures
H: Declarations of rights and stated cases
I: Small Claims Court procedures
J: Other civil courts

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 ADDITIONAL PROCEDURES

A: Settlement
1 General overview
A dispute in a civil matter may be settled at any time prior to the institution of legal proceedings,
usually after demand has been made,1 and thereafter at any time right up to the time of judgment.
Many matters are settled before the institution of legal proceedings, and many others are settled
before the matter goes to court.2 This is to be expected for if the dispute is left in the hands of the
court, the parties to the dispute lose control over the matter, and are reliant on an ‘unpredictable’
third party (i.e. the judge) to decide their fate.
The process of reaching a settlement requires many and varied skills, such as negotiation and
mediation techniques, coupled with some knowledge of behavioural psychology and an insight into
human nature. A discussion of these skills is beyond the scope of this book – we focus only on the
making and acceptance of settlement offers in law, and the legal aspects incidental to these
settlement procedures.
Settlement procedures are essentially based on common law (especially the law of contract),
with a settlement agreement being an offer which is made by an offeror (who is usually the
defendant) and then accepted by an offeree (who is usually the plaintiff).3 These common law
contractual principles are supplemented by reliance on the Rules of Court, specifically High Court
rule 34 and Magistrates’ Court rule 18.4
The most important common-law principle relevant to reaching a settlement is the distinction
between unconditional offers to settle, and offers of compromise. These types of settlement may be
used in High Court and Regional and District Magistrates’ Courts matters.

2 Offers at common law: unconditional offer versus offer of compromise

Assume that you are an attorney attempting to negotiate a settlement on behalf of a client. One of
the most important points that you must bear in mind is the common-law distinction between an
unconditional offer and an offer of compromise.
Different consequences are attached to the acceptance of each of these types of offers. If you are
making an offer of settlement on behalf of your client, it is very important that you make it
absolutely clear to your opponent which type of offer you are making. Likewise, if you are
considering whether or not to accept an offer on behalf of your client, you must make sure which
type of offer is being put to you for acceptance.
Let us consider each type of offer in turn.

2.1 The unconditional offer

An unconditional offer is an admission of liability to the whole or part of the offeree’s claim.
By making such an offer, the offeror is acknowledging debt in respect of the part or the whole of
the claim to which it refers.5
If the unconditional offer relates to part of the offeree’s claim only, the offeree is entitled to
accept the unconditional offer in respect of that part of the claim only, and commence legal
proceedings against the offeror for the balance of the claim to which the unconditional offer did not

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 relate. In other words, by making the offer, the offeror is effectively saying the following to the
offeree:

I admit that I owe you that particular part of your claim and I’m prepared to pay it. I
deny that I owe you the rest of your claim and you’re welcome to take the risk of suing
me for it if you want to.

In order to qualify as an unconditional offer, it must be made animo solvendi. This means that it
must be clear that the intention of the offeror was to admit liability for the whole or part of the
offeree’s claim. The intention must be made clear: debtors who express themselves inadequately in
their intentions to achieve a compromise run the risk of having their words interpreted against them
6 and offers of compromise will be strictly interpreted.7

2.2 The offer of compromise

2.2 Introduction
.1
An offer of compromise (also known as a without prejudice offer, or tender with admission of liability
)8 is an offer made under denial of liability.9 In other words, the offeror denies that he is liable for
part or the whole of the offeree’s claim, but is nevertheless prepared to make an offer in order to
settle the matter for an amount less than the original claim. The essence of an offer of compromise
is that the defendant is asking the plaintiff to accept less than he is asking for in order to settle the
whole claim without the need for litigation. What the offeror is usually saying to the offeree is
something along these lines:

As far as I’m concerned, I don’t think your claim is valid and I don’t owe you anything.
I’m a busy person, however, and I don’t want to be tied up in expensive and
time-consuming litigation in relation to this matter. Why don’t you accept the following
partial payment in full and final settlement of your whole claim and we can call it quits.

When the offeror makes an offer of compromise, he does so animo contrahendi. This means that the
offer is made with the intention of entering into an agreement – that is a compromise agreement.
This intention must be clear from the wording of the offer. If it appears from the offer’s wording that
the intention of the offeror was to make an unconditional offer rather than an offer of compromise,
adding the words ‘without prejudice’ to the document containing the offer will not convert it into an
offer of compromise. (The pitfalls involved in wording an offer of compromise are considered
below.)
A consequence of the offeree’s accepting an offer of compromise is that transactio takes place
(i.e. a compromise is effected), and the entire original claim is extinguished. This means that a
novation occurs and the original cause of action is ended and replaced with a new cause of action,
which is the agreement to pay in terms of the offer of compromise. In the case of Gollach &
Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others,10 transactio was
described as an agreement between two or more persons, either to end litigation, or to prevent
litigation. Each party recedes from his previously held position and concedes something.11
By accepting the compromise offer, the offeree gives up his right to sue for any balance
outstanding. The offeree may, however, reserve his right to revert to his original cause of action
(which will allow him to sue for the whole of his original claim) if the offeror does not perform in
terms of the offer of compromise, by including a term to this effect in the compromise agreement.
If, however, the offeror does perform as agreed, the offeree is legally precluded from recovering
the balance of his claim.

2.2 Making an offer of compromise: possible pitfalls

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 .2
When drafting an offer of compromise on behalf of the offeror, the first and most important point to
clarify is that the offer is an offer of compromise, and not an unconditional offer.
The wording of the offer must be unambiguous, and the context in which the words are used
must not give rise to any doubts as to the nature and precise scope of the offer. In the case of Mulla v
Rajkumar,12 the court stated that ‘what is clear and unambiguous must prevail,’ and in Karson v
Minister of Public Works,13 the court ruled that an ambiguous offer will be construed contra
proferentem (i.e. given the interpretation most favourable to the party that did not draft the initial
offer).
Stating that an offer is made ‘without prejudice’ and that the lesser amount is being offered ‘in
full and final settlement’ of the claim are strong indications that an offer of compromise, as opposed
to an unconditional offer, is being made. There is no magic to these words, however, and the context
in which they are used will establish if the intention of the offeror was to make an offer of
compromise or an unconditional offer.14
Let us assume that Abel is claiming an amount of R100 000 from Ben. Ben now makes a
settlement offer to Abel as follows:

I offer R20 000 in full and final settlement of my debt.

The words ‘my debt’ imply that the offeror is only admitting liability for the amount which he
considers he owes to Abel. In other words, this could be interpreted as an unconditional offer. If so,
the offeror is entitled to accept the offer and sue for the outstanding balance of R80 000.
Assume, however, that Ben’s offer had read as follows:

I offer you R20 000 in full and final settlement of your claim.

This wording indicates that this is an offer of compromise as Ben is offering a lesser amount in
settlement of the whole claim. If Abel accepts this offer, he will not be entitled to sue for the
outstanding balance of R80 000.
Apart from making it absolutely clear that the offer is an offer of compromise as opposed to an
unconditional offer, the precise extent of the offer must also be specified. For example, it must be
stipulated whether the offer is being made in relation to the offeree’s principal claim alone, or
whether it is being made in relation to the principal claim, plus any claim for interest and costs.
Here is an example of a cautiously worded offer of compromise:

For the sole purpose of settling this matter, and without admitting my liability for any
part of your claim, I hereby offer, without prejudice, the amount of R50 000 in full and
final settlement of your present claim, and any future claims you may seek to bring
against me, including all related claims for interest and costs, arising out of the motor
vehicle collision which took place on 1 January 2016, at the corner of Jan Smuts Drive
and Lanchester Road, Johannesburg, between motor vehicles GP 7007 and BDH 069 GP.

2.2 Accepting an offer of compromise: possible pitfalls

.3
There are several important points to remember when deciding whether or not to accept an offer of
compromise on behalf of a client.
When you accept an offer of compromise on behalf of your client, you are effectively giving up
your client’s right to claim the full amount outstanding in terms of his claim, and restricting his
claim to the amount of the compromise offer. Therefore, before you do anything which may be
construed as an acceptance of the offer, you must explain the full legal consequences to your client,
and ascertain his wishes in the matter. If you are unsure of your client’s wishes, beware of accepting
any money offered, unless you are absolutely certain that the offer is unconditional as opposed to
an offer of compromise. The courts have held that the retention of a payment may be construed as

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 acceptance of an offer of compromise even if the offeree contends that he was under the mistaken
belief that the offer was unconditional.15
If you accept the offer unconditionally, your client’s original cause of action falls away, and is
replaced by a cause of action based on the offer of compromise.16 If the offeror fails to make good on
the offer, your client is restricted to claiming no more than the amount of the offer. Your client may
not revert to his original cause of action and claim the full amount originally demanded from the
offeror. In order to avoid this, it is wise to accept an offer of compromise on condition that if
payment is not made in full and on the due date in terms of the offer, the offeree is entitled to revert
to his original cause of action and to sue for the original amount demanded.17
If the offeror offers to pay the amount offered in instalments, it is important to remember that a
separate cause of action will arise each time an instalment is not paid, and will relate only to the
amount of the instalment not paid. It is not prudent to accept an offer of payment in instalments
unless an acceleration clause is included in the document containing the offer. Such a clause
permits the offeree to sue for the full balance outstanding if any single instalment is not made in full
on due date.

2.2 Proving an offer of compromise: responding to a claim

.4
Assume that you act for a client who made an offer of compromise which was accepted by the
claimant. He made good on the offer and expected the matter to be at an end. He then received a
summons claiming the balance of the original demand. In this case, you will defend the matter and
plead in your client’s defence that the plaintiff accepted an offer of compromise made by your
client. In general terms, your client will have to satisfy the court of the following:

1. He intended to make, and did make, an offer of compromise which was accepted by the plaintiff.
Of course, if the offer was unconditional (as opposed to an offer of compromise), the plaintiff is
entitled to sue for the balance outstanding, and your client’s plea will not be successful. As for the
acceptance of the offer by the plaintiff, this acceptance is often indicated by the fact that an
amount of money equal to the amount of money offered and paid to the plaintiff, was deposited
by the plaintiff into his bank account.
2. He made good on the offer (for example, if the offer was for the payment of money, that he paid
the amount offered in full on the stipulated date). Alternatively, if the date for payment has not
yet fallen due, he will make good on the offer.
3. His offer of compromise related to the whole of the plaintiff’s claim, plus interest and costs. In
other words, the offer disposed of the whole of the plaintiff’s claim, including interest and costs,
and there was no valid reason for the issue of summons.

3 Offers to settle during litigation

3.1 Introduction: offer to settle as a defensive weapon

Sometimes, all attempts to settle a matter without litigation fail. An aggrieved party may, for
example, refuse to accept an offer of compromise and proceed to issue summons or, having
accepted an offer of compromise, may decide to sue your client for the outstanding balance of his
original claim, despite the settlement agreement. In the sections that follow, we deal with the
specific procedures provided for in both the High Court and Magistrates’ Courts Rules for making
and accepting offers of settlement during litigation.18
The procedures for making and accepting offers during litigation are designed to encourage and
support defendants who are prepared to make an offer of compromise to settle matters without
further litigation. A well-calculated offer made in terms of these rules can take the wind out of the
sails of the plaintiff’s case, and effectively place the plaintiff on the defensive from the time the offer
is made.

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 3.2 Settlement procedures during litigation in the High Court

3.2 Written offers and tenders

.1
Offers of settlement in the High Court are covered by High Court rule 34.19
Rule 34 distinguishes between two types of claim:

1. Money claims: Actions in which a sum of money is claimed, either with or without a claim for
additional or alternative relief.
2. Performance claims: Actions in which the plaintiff claims the performance of some act by the
defendant, for example ejectment, the passing of transfer of property, or the delivery of specified
movable property.

The way in which you offer to settle the first type of claim is set out in High Court rule 34(1).
The defendant must provide a written offer to settle the plaintiff’s claim, which must be signed
either by the defendant himself, or by his attorney if the latter has been authorised thereto in
writing. The way you offer to settle the second type of claim is set out in High Court rule 34(2). The
defendant must provide a tender,20 stating in unambiguous terms that he will perform the act
demanded in the plaintiff’s claim. (If the act is one which can be performed by someone other than
the defendant, then the defendant must also provide an irrevocable power of attorney authorising
someone else to perform the act.)
Note that although rule 34 distinguishes between an ‘offer’ and a ‘tender’, in other contexts the
word ‘tender’ is often used to mean ‘offer’ (for example, in some cases dealing with common-law
settlement procedures).21 For present purposes the difference can be understood as follows: offers
concern money and are made in terms of rule 34(1) whereas tenders concern performance and are
made in terms of rule 34(2).
Note that settlements are used extensively in divorce proceedings and usually deal with matters
such as the division of the assets of the parties, the payment of maintenance, custody of, and contact
with, the children and the payment of the costs of the proceedings.22

3.2 The consequences of a ‘without prejudice’ offer or tender

.2
Rule 34 makes the important distinction between unconditional and without prejudice offers and
tenders. In our earlier discussion of the general contractual principles applicable, we referred to this
fundamental distinction as that between ‘unconditional offers’ and ‘offers of compromise’.23
An important difference between an offer or tender that is unconditional, and one that is made
without prejudice, is that the existence of a without prejudice offer or tender may not be revealed to
the court at any stage before judgment has been given in the matter, whereas the existence of an
unconditional offer may be disclosed to the court before judgment. No reference to the fact that a
without prejudice tender or offer has been made may appear on the court file. If a party discloses
that such an offer or tender was made, he or she will be liable for an adverse costs order, even if
successful in the matter.24
As far as the plaintiff is concerned, the real sting in the tail of the rule 34 procedure relates to costs
. Once the defendant makes a without prejudice offer in terms of rule 34, the plaintiff is potentially
at risk of forfeiting the costs he may normally recover from the defendant at the conclusion of the
matter. Assume, for example, that the plaintiff refuses the defendant’s without prejudice offer or
tender in terms of rule 34, and the matter proceeds to trial. If the court then gives judgment in
favour of the plaintiff, but for an amount less than that offered by the defendant, the court may
decide to penalise the plaintiff for not accepting the defendant’s offer when he had the chance. It

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 usually does this by refusing to award the plaintiff any of the legal costs which he incurred after the
offer was made (based on the obvious logic that had the plaintiff accepted the offer then, these
additional costs would not have been incurred).
As a without prejudice offer will not be before the court when it makes its decision, High Court
rule 34(12) provides as follows: ‘If the court has given judgment on the question of costs in
ignorance of the offer or tender and it is brought to the notice of the registrar, in writing, within five
days after the date of judgment, the question of costs shall be considered afresh in the light of the
offer or tender …’ Note that the court has a wide discretion in the awarding of costs and nothing in
rule 34 fetters the court’s discretion.
Costs incurred after the date of settlement (and hence not covered by the settlement) may be
dealt with in the court’s discretion.25
What this means if you are the attorney acting for the plaintiff, is that you have to give very careful
consideration to any without prejudice offer made to your client in terms of rule 34. Unless you are
confident that, at the end of the case, the court is bound to award your client more than the amount
of the offer, you should seriously consider recommending to your client that he accept the offer.

3.2 The contents of a written offer or tender

.3
High Court rule 34(5) sets out the requirements in respect of the written notice of offer or tender.
The notice must be given to all the parties to the action and must state:

1. whether it is unconditional or without prejudice;

2. whether or not it includes an offer to pay all or part of the other party’s costs;
3. whether the offer or tender was meant to be in settlement of both the claim and the costs, or of
the claim only; and
4. whether or not the defendant denies liability for the plaintiff’s costs, in which case the reason for
this denial shall be given, and the action may be set down on the question of costs alone.

3.2 Accepting an offer or tender

.4
In terms of High Court rule 34(6), the plaintiff has 15 court days from the date on which he received
the written notice of offer or tender within which to accept the offer or tender. During this 15-day
period, the defendant may not withdraw the offer or tender.
In terms of rule 34(8), the manner in which an offer or tender must be accepted is by notice of
acceptance. If more than 15 court days have elapsed since the plaintiff received the notice of offer or
tender, the plaintiff may ask the defendant to consent to his late acceptance of the offer. If the
defendant refuses to consent to the plaintiff’s accepting the offer or tender, the plaintiff may apply to
court to be allowed to accept the offer.26

3.2 Performance in terms of an offer or tender

.5
In terms of rule 34(7), once the plaintiff has accepted the defendant’s offer or tender (by delivery of
the notice of acceptance), the defendant has 10 court days within which to pay the amount offered,
or to perform the act as tendered.27
If the defendant fails to pay or perform as offered or tendered, the plaintiff may apply for
judgment to be granted in his favour against the defendant. The application for judgment is made
through the registrar to a judge in chambers. The defendant must be given five days’ written notice
that this application is going to be made.

3.2 Rule 41: settlement procedure

.6
In terms of rule 41(3) of the High Court Rules, if a settlement has been reached in any High Court

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 proceedings, the attorney acting for the plaintiff or applicant has a duty to inform the registrar
immediately by way of a Notice of Settlement. In terms of rule 41(4), any party to a settlement which
has been reduced to writing, and signed by the parties or their legal representatives, may apply for
judgment in terms of the settlement on at least five days’ notice to all interested parties. Note that
this procedure may only be used if the terms of the settlement agreement have not yet been carried
out, and where the proceedings have not been withdrawn.

3.3 Settlement procedures during litigation in the Regional and District Magistrates’
Courts
Rules 18 of the Magistrates’ Courts Rules essentially replicate rules 34 of the High Court Rules. All
existing case law applicable to High Court rules 34 will now, mutatis mutandis, be applicable when
interpreting the rules 18 when applied in the Regional or District Magistrates’ Courts. In addition,
rule 17 of the Magistrates’ Courts Rules replicates High Court rule 22, which means that pleading a
tender in the Regional or Magistrates’ Court will henceforth require compliance with the District
Magistrates’ Courts rule 17(5). This rule allows a tender to be pleaded in the defendant’s plea and,
unlike Magistrates’ Courts rule 18, may be disclosed before judgment.

4 Methods of recording agreements to settle

There are a number of ways to record a settlement agreement, and the choice of settlement method
will be determined largely by the ease with which the offeree is able to recover the debt if the offeror
fails to perform. A number of settlement options are available, which include:

1. a general settlement agreement or an acknowledgement of debt;28

2. confession to judgment in the High Court;29
3. sections 57 and 58 procedures for liquid amounts due in the Magistrates’ Courts;30 and
4. recording a settlement in terms of Magistrates’ Courts rule 27(6) to (10).31

P39 4.1 General settlement agreements and acknowledgements of debt

The general settlement agreement, or alternatively, the acknowledgement of debt, is the usual way
of recording the terms of an agreement to settle entered into before the start of the trial. The
settlement agreement or acknowledgement of debt may, where appropriate, be used in High Court,
Regional and District Magistrates’ Courts proceedings.
The agreement may take the form of a bilateral contract entered into between the parties and
signed by both sides (called a settlement agreement), or the form of a unilateral undertaking in
writing by one party to repay his opponent on certain terms (called an acknowledgement of debt).
The salient features of settlement agreements and acknowledgements of debt are the following:

1. Ordinary rules of contract apply: Whether the settlement agreement is made prior or subsequent
to the issue of summons, the agreement remains an ordinary common-law contract. There are
no specific provisions in the High Court or Magistrates’ Courts Rules of Court that provide for
acknowledgements of debt in settlement of civil disputes.
2. Order of court: The settlement agreement may contain a provision requesting a court to make the
agreement an order of court. This provision obviously ensures that the agreement is easier to
enforce.32
3. Full amount payable: The agreement should deal separately with the capital amount owing,
interest outstanding, and costs payable. Separate amounts as at the date of the agreement should
be allocated to each of these three headings, followed by the total amount owing in terms of the
agreement of settlement.
4.
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 4. Instalments: Agreements should specify whether the total amount owing is to be paid in one
lump sum or in instalments. Should the parties agree that the total amount owing be paid in
instalments, they must stipulate in detail exactly how these instalments are to be paid. This detail
shall include the amount of each instalment; the commencement date for payment of these
instalments; and the payment date and amount of the final instalment.
5. Acceleration clause: A settlement agreement should always contain an acceleration clause in
order to ensure that the plaintiff can sue for the total amount owing in terms of the settlement
agreement should the defendant breach his undertaking to pay any one of the instalments. If the
agreement does not contain an acceleration clause, the plaintiff will only be able to sue for each
instalment as it becomes due.
6. Payment details: The agreement should specify to whom the payments must be made (usually
the plaintiff’s attorneys); how the payments must be made (cash, bank cheque, debit order, stop
order, direct transfer, etc.); and where the payments must be made (i.e. physical address or
plaintiff’s bank account details). The agreement also usually specifies how payments made will
be allocated, for example, first to legal costs, then to outstanding interest, and finally to capital.
7. Signatures: The settlement agreement must be signed by the parties33 (i.e. the plaintiff and the
defendant(s)), and if the settlement agreement is entered into after the issue of summons (or the
institution of application proceedings), the legal representatives of the litigants usually sign the
agreement in their representative capacities.34 The confirmatory signatures of the representatives
do not make them parties to the agreement, and they cannot therefore be sued in terms of the
agreement.

4.2 Making settlement agreements orders of court

1. Settlement agreements may be made orders of court. This may be done either by cutting and
pasting the relevant terms of the settlement agreement into an order or by making an order
which, by reference, incorporates the provisions of the settlement agreement. The method of
wholesale incorporation of the settlement agreement has, however, not been the practice in
certain divisions of the High Court, such as in the KwaZulu-Natal Division.35 In its recent
decision in Eke v Parsons, which concerned the enforceability of settlement agreements which
are made into orders of court, the Constitutional Court expressed its misgivings (albeit obiter)
about this formalistic approach. It concluded that:36

[t]he … approach is formalistic and takes a narrow view of the efficacy and value of
court orders granted as a result of settlement agreements. In certain instances,
agreement – or lack of it – on certain terms may mean the difference between an end to
litigation and a protracted trial. Negotiations with a view to settlement may be so
wide-ranging as to deal with issues that, although not strictly at issue in the suit, are
related to it – whether directly or indirectly – and are of importance to the litigants and
require resolution. Short of mere formalism, it does not seem to serve any practical
purpose to suggest that these issues should be excised from an agreement that a court
sanctions as an order of court.

Based on this authority, it would seem that the practice of wholesale incorporation will become
uniform in the various divisions. This, however, does not mean that anything and everything agreed
to by parties will be made an order of court. The agreement (or the provisions that parties intend
incorporating into the order of court) must meet the following requirements:37

1. The provision must relate, directly or indirectly, to an issue or lis between the parties. It cannot
be a matter unrelated to the dispute.
2. The agreement must be capable, both from a legal and a practical point of view, of being
included in the order. This means, amongst other things, that its terms must accord with the

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 2.

Constitution and must not be at odds with public policy.

3. Finally, the agreement must hold some practical and legitimate advantage to the parties.

Once a settlement agreement has been made an order of court, it is an order like any other and will
be interpreted as such. It has the effect of changing the status of the rights and obligations between
the parties and bringing finality to the lis between the parties. Once a settlement agreement has
been made an order of court, the dispute between the parties becomes res judicata.

4.3 Confession to judgment in the High Court38

High Court rule 31 contains a quick and simple procedure to obtain a judgment against a defendant
in High Court matters. This method of recording a settlement allows for immediate enforcement
through warrant of execution or s 65 proceedings as the judgment obtained in this way has the same
status and effect as any other court judgment (the written acknowledgment of the debt or claim is
called the confession, but does not establish a contract between the plaintiff and the defendant).39
Note that rule 31 may be used in conjunction with a settlement agreement, as a way of ensuring
speedy and efficient enforcement of the agreement, and is particularly handy where the defendant
does not want to have a judgment in his name, if possible. In this case, a confession to judgment
may be signed when the settlement agreement is entered into on the condition that it will not be
relied on unless there is a default in the settlement agreement.
Note that the rule 31 procedure is only available to parties in pending action proceedings; it is not
available to parties in pending motion proceedings.40 (Parties to motion proceedings may use the
procedure provided for in rule 41(4) to obtain a judgment on a settlement agreement.)

P37 4.4 Admission of liability and consent to judgment in the Regional and District
Magistrates’ Courts

The procedures contained in ss 57 and 58 of the Magistrates’ Courts Act41 are essentially codified
alternatives to the common-law settlement procedures. The main differences between s 57 and s 58
procedures are as follows:

1. Section 57 provides for a written admission of liability by the defendant, combined with an
undertaking to pay in a single sum or instalments, and further combined with the undertaking
that, should he breach the agreement, the plaintiff may obtain judgment against him.
2. Section 58 provides for the defendant to consent immediately, in writing, to judgment in favour
of the plaintiff, after which the matter is directly referred to the clerk of the court for the obtaining
of judgment against the defendant. (This is the Magistrates’ Court equivalent of the High Court
confession to judgment procedure.)

The procedures in these sections, in essence, provide the claimant or plaintiff with a quick way to
obtain judgment. A written consent to judgment in terms of s 58 permits the court to order42 the
defendant to pay the plaintiff’s claim, with costs, in a single payment or in instalments. Sections 57
and 58 are both applicable where the demand is in the form of a letter of demand or in the form of a
summons.
The procedures to be followed to obtain judgment in terms of ss 57 or 58 are set out in detail
below.

4.4 Section 57: admission of liability procedure

.1
1. The debtor (i.e. the future defendant) receives a letter of demand or is served with a summons
demanding the payment of a debt.43

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 2. In terms of s 57(1) the defendant then does the following:
) He
a admits liability for the amount of the debt, (or any another amount) and costs;
) He
b offers to pay the amount admitted and costs (in full or in instalments);
) He
c undertakes to pay any collection fees applicable; and
) He
d agrees that, should he fail to pay, the plaintiff may obtain judgment against him.
3. Section 57(2) sets out the steps the registrar of the Regional Magistrates’ Courts, or the clerk of
the Magistrates’ Court must take in order to enter judgment against the defendant.

The procedure in s 57 is quick and simple. If your client, the plaintiff, accepts the debtor’s written
offer, by means of a registered letter to the debtor, and he at any stage thereafter fails to pay, you can
simply apply to the registrar or clerk of the court for judgment. There is no need for a summons and
trial at which you have to prove your client’s claim. The judgment is granted administratively, and
has the same effect as a default judgment. The application to the registrar or clerk of the court for
judgment under this section will follow Magistrates’ Court Form 5A.
Note that once the registrar or clerk of the court has entered judgment against the debtor, s 57(3)
requires that the plaintiff or his attorney inform the debtor by registered letter of the judgment.

4.4 Section 58: consent to judgment procedure

.2
Section 58 is similar to s 57 and provides that a person may, upon receipt of a letter of demand or
service upon him of a summons demanding payment of a debt, consent in writing to judgment for
the amount of the debt and costs claimed. The plaintiff will then be able to request, in writing,
judgment against the defendant for the amount of the debt and costs. As is the case with the s 57
procedure, the judgment is entered administratively by the clerk of the court (or the registrar of the
Regional Court).

4.5 Recording settlements during litigation in the Regional and District Magistrates’
Courts – rule 27

If the parties reach a settlement during litigation (i.e. after the entry of an appearance to defend, but
before judgment),44 an application, on notice or orally, during a hearing at which the other party is
represented (or when the other party’s written waiver of notice is produced), may be made to the
court hearing the matter to have the terms of the agreement of settlement recorded by the court. The
court does not enter a judgment at this stage, although, if the terms of settlement so provide, the
court may make the settlement an order of court.
At the hearing of an application, the applicant lodges with the court a statement of the terms of
settlement (which must be signed by all the parties to the proceeding) and, if there are no
objections, the court will note that the action has been settled on the terms set out in the statement,
and further proceedings in the matter will be stayed.45
The applicant’s remedy is contained in rule 27(9), which reads as follows:

(a) When the terms of the settlement agreement which was recorded in terms of subrule
(6) provide for the future fulfilment by any party of stated conditions and such
conditions have not been complied with by the party concerned, the other party
may at any time on notice to all interested parties apply for the entry of judgment
in terms of the settlement.
(b) An application referred to in this subrule shall be on notice to the party alleged to be
in default, setting forth particulars of the breach by the respondent on the terms of
settlement.

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 ADDITIONAL PROCEDURES

B: Provisional sentence
1 Introduction
Provisional sentence is an extraordinary procedure which is available to a creditor (the plaintiff)
who has liquid documentary proof of his claim against the debtor (the defendant).46
The purpose of the provisional sentence procedure is to provide a plaintiff – who, on the face of
it, has a cast-iron case in that his claim is based on a liquid document – with a shortcut to a kind of
provisional or temporary judgment, called provisional sentence. This provisional sentence becomes
final if the defendant fails to do anything about it for two months. It is a speedy procedure, which
allows plaintiffs whose claims are based on liquid documents to avoid the more lengthy and
expensive mechanics of an ordinary trial action. Provisional sentence is also extraordinary in that it
is actually a hybrid procedure: it starts by way of a summons (as in an action), but then proceeds by
way of affidavits (as in an application) and becomes an action again (if the ‘principal’ i.e. main case
is entered into). Note, however, that notwithstanding its hybrid nature, provisional sentence is
termed an action and the parties are called the plaintiff and the defendant, respectively. A plaintiff
uses a provisional sentence summons in order to initiate the provisional sentence procedure. A
provisional sentence summons is a special type of summons which is used in the High Court, and
the Regional and District Magistrates’ Courts.47

2 Requisites for provisional sentence

The court will grant provisional sentence if:
1. the plaintiff’s claim is based on a liquid document; and
2. a) where the onus is on the plaintiff, he can satisfy the court that the probabilities of success in the
principal case48 are in his favour;
or
3. b) where the onus is on the defendant, he is unable to produce sufficient proof to satisfy the court
that the probabilities of success in the principal case are against the plaintiff.

The basic principles applicable to provisional sentence procedure were reiterated in the case of
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture,49 where the court held that
provisional sentence:

… is granted on the presumption of the genuineness and the legal validity of the
documents produced to the Court. The Court is provisionally satisfied that the creditor
will succeed in the principal suit. The debt disclosed in the documents must therefore
be unconditional and liquid (‘zuiwer en klaar’).

The constitutionality of the provisional sentence procedure was considered by the Constitutional
Court in the case of Twee Jonge Gezellen (Pty) Ltd and Another v The Land and Agricultural
Development Bank of South Africa t/a The Land Bank and is discussed in Section 4.4 below.

3 What is a liquid document?

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 A liquid document has been defined in the case of Rich and Others v Lagerwey50 as a document
which evidences by its own terms, without the need for extrinsic evidence, an unconditional
acknowledgement of indebtedness in an ascertained sum of money, the payment of which is due.51
We provide a list of examples below, but for now note that typical examples of a liquid document
are cheques, acknowledgements of debt or even deeds of sale.52
Harms explains the concept of a liquid document by dividing it into five basic elements and
providing a useful five-point checklist in the process. According to him, a liquid document is
defined as:53

1. a written instrument;
2. signed by the defendant or his agent;
3. evidencing an acknowledgement of indebtedness;
4. which is unconditional; and
5. of a fixed amount in money.

1. Written instrument: Provisional sentence may only be claimed in respect of a liquid claim which
is contained in a written instrument (document).54 The fact that the claim is contained in a
document that has been signed by the defendant is what gives the claim its cast-iron or
water-tight nature, deserving of this specialised form of procedure.55
However, the reason for the indebtedness, the so-called causa debiti, does not have to be
stated in the liquid document.56 This is invariably the case, of course, with a liquid document
such as a cheque, although the reason for the indebtedness might occasionally appear, for
instance in an acknowledgement of debt. It should be remembered that the crux of the
provisional sentence procedure is that the defendant has unconditionally admitted, in writing,
that he owes a specified amount to the plaintiff. The reason for the indebtedness is irrelevant for
provisional sentence purposes. The point is that the defendant has signed a document in which
he has acknowledged his unconditional indebtedness to the plaintiff.
Harms points out that a document will still be liquid, even if it does not comply with the
formal requirements for documents of its ostensible nature. He gives the example of a mortgage
bond which has not been registered. Such a mortgage bond will still be a liquid document,
despite the fact that it is not registered.57
2. Signed by the defendant or his agent: Provisional sentence summons calls upon the defendant to
admit or deny his signature or that of his agent on the liquid document in question. It is a
fundamental aspect of the provisional sentence procedure that the liquid document in question
should be signed by the defendant. As we noted above, the defendant’s signature on a document
acknowledging his indebtedness is strong proof that he is liable, which is one of the reasons for
providing the extraordinary procedure of provisional sentence.58 Without the signature of the
defendant (or his agent), there is no readily apparent proof of an acknowledgement by him that
he is indebted to the plaintiff.
3. Evidencing an acknowledgement of indebtedness: The document must contain an
acknowledgement of indebtedness on the part of the defendant.59 This means that the defendant
should clearly admit that he owes the debt. Although the document should refer specifically to
the defendant (the debtor), it need not refer specifically to the plaintiff (the creditor). This is
because the plaintiff may have become entitled to claim as the creditor because the right to
payment in terms of the document was ceded to him, or, in the case of a cheque, that the cheque
was negotiated to him. Note that it is sufficient if the acknowledgement of debt is given in respect
of an undertaking by the creditor to advance an amount of money in the future, provided the
undertaking to advance the money is binding and unconditional in an amount confirmed by the
document. This is because the debt comes into existence at once, and is not suspended by the

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 fact that the promise is only to advance the money in the future. This extension of the definition
(of a liquid document) appears to be motivated by commercial necessity, for example to allow for
provisional sentence in the case of mortgage bonds.60
4. Which is unconditional: The definition of a liquid document includes the phrase ‘… one which
evidences by its own terms, without the need for extrinsic evidence, …’ This means that the
defendant’s acknowledgement of indebtedness should be apparent merely from reading the
document, i.e. ex facie the document (meaning ‘on the face’ of the document). No further
evidence should be required to prove this from sources external or extrinsic to the document. As
soon as any conditions are attached to the obligation to make payment in terms of a document,
however, then the document will no longer evidence the defendant’s indebtedness ‘by its own
terms’ because extrinsic evidence will be required to prove that the conditions have been fulfilled.
For this reason, the document will not be a liquid document. The exception to this rule is where
the condition only relates to when the debt is to be paid (as opposed to the defendant’s liability to
pay). Such a condition is a simple condition, and in such a case additional evidence will be
allowed to prove that the condition has been met. Erasmus points out that:

If a document expresses payment of a debt to be subject to a simple event or

condition, extrinsic proof of the happening of the event or compliance with the
condition is permitted, provided the act or event is indeed simple in the sense that it
is inherently capable of speedy proof by means of affidavit evidence.61

An example of a simple condition would be where payment, in terms of an acknowledgement of

debt, is conditional on the creditor’s giving a set period of notice that the money is due to the
person who owes him money.62 In such a case it can speedily be proved by affidavit that the
period of notice has been given by the creditor and that the simple condition has therefore been
complied with.
An important distinction must be kept in mind here. It is only where payment is subject to the
fulfilment of a simple condition that the document’s liquidity is not destroyed. Where the actual
indebtedness is subject to the fulfilment of a condition, no matter how simple, the document is
not liquid.63
5. Of a fixed amount in money: The claim referred to in the liquid document must be for an amount
of money,64 and this amount must be fixed or certain.65 If a liquid document refers to a certain
amount of money which is fixed and certain and another amount which is not, then the
document will only be liquid in respect of the amount which is fixed and certain.66

Examples of liquid documents are:

• a cheque;
• an acknowledgement of debt;
• a promissory note (e.g. an IOU, although these tend to have been replaced in modern usage by
post-dated cheques);
• a mortgage bond (this is really just an acknowledgement of debt where property has been put
up as security for the repayment of the debt);
• a bill of exchange;
• a guarantee, provided that the amount of the indebtedness is clear from the guarantee; and
• an architect’s certificate certifying that a builder has performed work in terms of a building
contract, provided that the architect acted as the duly authorised agent of the defendant.

4 Provisional sentence in the High Court

Provisional sentence is provided for in terms of rule 8 of the High Court Rules, which sets out the
procedure to be followed. The circumstances in which provisional sentence may be brought,

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 however, are not dealt with in the rule and must be read with the common law, as set out above.

P7 4.1 Provisional sentence summons

Should an attorney be instructed to sue, on the basis of a liquid document, for an amount in excess
of R400 000,67 he should issue a provisional sentence summons in the High Court as it provides a
speedy way for an attorney to obtain judgment. A plaintiff is not prevented from issuing another
type of summons, of course, but the advantages given to a plaintiff in provisional sentence
proceedings make the choice of conventional proceedings inadvisable in these circumstances. A
provisional sentence summons must be framed in accordance with High Court Form 3.68
The provisional sentence summons informs the defendant of what the plaintiff’s claim
comprises, and attaches a true copy of the liquid document on which the claim is based.69 The
summons then gives the defendant the following options:

1. He can either give up immediately and pay the claim plus interest;
or
2. He can decide to oppose the matter.

If he decides to oppose the matter, the summons tells him that he must do two things:

1. First, the defendant must come to court on a certain date in order to deny his liability in most
cases, although he is also entitled to come to court to admit his liability. (Presumably he will only
come to court to admit his liability if he does not have sufficient money to pay the plaintiff’s
claim.)
2. Second, if the defendant intends to come to court to deny his liability, then he must file an
affidavit, by not later than 12 noon, two days before the matter is to be heard.

The defendant’s affidavit must meet two basic requirements:

1. It must set out his defence; and

2. He must state whether he admits or denies his signature on the liquid document; or, in cases
where the liquid document was signed by his agent, whether he admits or denies either the
signature or the authority of his agent to sign.70

The summons then warns the defendant that if he fails to pay the plaintiff’s claim, and fails to file an
opposing affidavit and come to court, provisional sentence may be granted against him.
The summons finally informs the defendant that once provisional sentence has been granted, he
has the right to security from the plaintiff if he (the defendant) pays the amount for which
provisional sentence was granted, but still wishes to defend the matter.

4.2 Opposing and replying affidavits

Once the provisional sentence summons has been served on the defendant he can either pay the
amount claimed, or file an opposing affidavit containing the allegations set out in 4.1 above. If an
opposing affidavit is filed by the defendant, the plaintiff is entitled to a reasonable period to file a
replying affidavit if he wishes.71
In order to get the matter to court, the plaintiff has to set the matter down by delivering a notice
of set-down to the defendant and the registrar in terms of rule 8(4) of the High Court Rules.
When the matter comes before the court, the court will have before it:

1. the provisional sentence summons and annexures describing the plaintiff’s claim;

2.
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 2. the defendant’s opposing affidavit (if he decided to file one);
3. the plaintiff’s replying affidavit (if he decided to file one); and
4. in exceptional circumstances, a further set of affidavits allowed by the court.72

The court may also allow oral evidence to be led at the hearing with regard to the authenticity of the
defendant’s signature or that of his agent, or his agent’s authority to act on his behalf (if this has
been placed in dispute by the defendant).73

4.3 The evidentiary burden74

There is an evidentiary burden on the plaintiff to establish certain issues, while there is a burden on
the defendant to establish others. Broadly speaking, the burden of proof will be on the plaintiff
because the purpose of provisional sentence is the enforcement of liquid documents. If the
defendant denies liability on the basis of issues that are external to the document or its liquidity,
however, he will bear the burden of proving them. Issues relating to the document or its liquidity
will include a denial that the signature is that of the defendant or his agent, or that the document
does not contain an unconditional acknowledgement of debt, etc.
Issues external to the document, however, will usually involve the merits of the causa debiti or
reason for the indebtedness, in other words, the underlying transaction in respect of which the
liquid document was signed. A cheque might be issued by a defendant, for instance, as payment for
the purchase of a motor vehicle. In this case, the purchase and sale of the motor vehicle will be the
underlying transaction. If the defendant wishes to challenge the sale (and therefore the payment of
the cheque) on the basis that the motor vehicle was defective and not worth what he agreed to pay,
the burden would be on him to prove that the probabilities are against the plaintiff in the principal
case.
The burden borne by the defendant to prove that the probabilities are against the plaintiff in the
principal case75 is quite a heavy one. It is much harder to discharge, for instance, than the burden
placed on a defendant to ward off summary judgment. With summary judgment, the defendant has
merely to show that he has a prima facie defence. In order to ward off provisional sentence,
however, the defendant must show that the probabilities are that his defence will be successful. This
means, of course, that this particular burden is discharged on the normal civil burden of a
preponderance of probabilities.76 The defendant needs to show in his opposing affidavit and
documentary evidence that the probabilities favour his defence.
The case of Lesotho Diamond Works v Lurie77 illustrates how a defendant can discharge the
burden. In this case, the plaintiff received a cheque from the defendant and the defendant then
stopped payment. The plaintiff issued a provisional sentence summons. In his opposing affidavit
the defendant admitted that the signature on the cheque was his, but stated that he had stopped
payment because it was a material term of the agreement that he would receive flawless diamonds
from the plaintiff in return for the payment. He provided proof that the stones were flawed. The
court held that the probabilities were that the defendant’s defence would be successful, and
provisional sentence was refused.
The plaintiff bears the burden to prove the following issues78 (which, it can be seen, all relate to
the document itself in some way):

1. The authenticity of the defendant’s signature;79

2. The authenticity of the defendant’s agent’s signature;80
3. The authority of the defendant’s agent;81
4. Fulfilment of any relevant simple condition;82 and
5. The entitlement of the plaintiff to the claim evidenced by the liquid document83 – that he is the
party identified as creditor in the document, that he has obtained the right (by a negotiation or
cession or whatever) to payment – facts that are necessary for the completion of his cause of
action.

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 4.4 The consequences of provisional sentence
Should the defendant:

1. come to court and the plaintiff fail to satisfy the court in respect of any of the issues in respect of
which he bears the burden; or
2. satisfy the court that he has a defence on a balance of probabilities;
3. then the court will refuse provisional sentence and the defendant may be ordered to file a plea,
whereafter the matter will continue just as if it were a normal action.84

Should the defendant:

1. fail to pay the amount demanded in the provisional sentence summons and fail to file an
affidavit; or
2. fail to come to court on the day stipulated in the summons; or
3. come to court but fail to meet whatever burden he bears;
4. then the court will grant provisional sentence against the defendant, provided that the
provisional sentence summons itself was in order.

What are the consequences of a provisional sentence to the defendant?

As its name suggests, a provisional sentence is not a final judgment. If the defendant does
nothing about it, however, the provisional sentence will become a final judgment two months after
the date on which it was granted. The defendant therefore has two months from the date on which
provisional sentence is granted against him to decide whether or not he still wishes to fight the case.
If he wishes to fight the case (or ‘enter into the principal case’ as it is phrased), he must pay the
full amount of the provisional sentence judgment plus taxed costs to the plaintiff.85 If he does not do
this, he may not be allowed to continue to fight the case. When he pays the plaintiff, however, he is
entitled to demand that the plaintiff furnish him with security de restituendo86 (which means
security for the repayment to the defendant of the amount paid to the plaintiff if the defendant is
successful in his defence of the matter). The defendant’s right to security helps to balance, at least to
some extent, the advantages enjoyed by a plaintiff in provisional sentence proceedings, and the
prejudice suffered by the defendant.
What about when a defendant has a solid defence but is unable to establish his defence without
recourse to oral evidence or cross-examination of the plaintiff’s witnesses, but his prospects of
success are evenly balanced with the plaintiff? Applying the principles set out above, provisional
sentence would be granted and the defendant would be obliged to pay the full judgment debt if he
wished to enter into the principal case. Where the defendant is unable to pay, however, he cannot
enter into the principal case and the judgment will become final. The result is that, even though the
defendant had an equal chance of winning, the provisional sentence procedure would have
deprived him of his chance to successfully defend his case. The Constitutional Court held in Twee
Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa t/a
The Land Bank and Another 87 that in these narrowly described circumstances the provisional
sentence procedure constitutes a limitation of the defendant’s right to a fair hearing and the
Constitutional Court developed the common law so that courts will have a discretion to refuse
provisional sentence where the defendant can demonstrate the following:

1. An inability to satisfy the judgment debt;

2. An even balance of prospects of success in the main case on the papers; and
3. A reasonable prospect that oral evidence may tip the balance of prospective success in his favour.

A point to remember is that during the two-month period that the defendant is deciding whether or
not to continue fighting the case, the plaintiff need not sit back and do nothing. He is entitled to

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 issue a warrant of execution against the defendant’s property, and the defendant may be forced to
pay the amount of the provisional sentence judgment to the sheriff. The plaintiff will only be entitled
to be paid out by the sheriff, however, if he provides security de restituendo.88 If the plaintiff refuses
to provide security, he will not get paid, and the defendant will still be entitled to fight the case.
The way in which the defendant lets the plaintiff know that he wishes to continue fighting the
case, despite the fact that provisional sentence has been granted against him, is to send a notice to
that effect to the plaintiff within the two-month period after provisional sentence was granted.89 The
provisional sentence summons is then deemed to be a combined summons, and the defendant
must deliver his plea within 10 court days of giving notice of his intention to enter into the principal
case.90 If he does not deliver his plea within the ten-day period, the provisional sentence judgment
will become a final judgment.

4.5 Possible outcomes in provisional sentence matters

Here is a list of various outcomes in a provisional sentence matter:

1. If the defendant admits that he or she owes the debt, the court will grant final judgment to the
plaintiff.
2. If the plaintiff does not discharge the burden on him, for example, he fails to show that the
document on which he is relying is a liquid document, the provisional sentence proceedings will
be dismissed with costs, and the plaintiff will have to start afresh by issuing a normal summons.91
3. If the defendant does not oppose the provisional sentence proceedings in that he does not file an
opposing affidavit or appear at court, the court will grant provisional sentence against him.
4. If the defendant does oppose the granting of provisional sentence, and the plaintiff discharged
the onus on him, but the defendant does not manage to discharge the burden upon him, then the
court will grant provisional sentence against the defendant. (It is in these circumstances that the
Twee JongeGezellen situation might arise, i.e. if the defendant is unable to satisfy the judgment
debt; there are an even balance of prospects of success in the main case on the papers; and a
reasonable prospect that oral evidence may tip the balance of prospective success in the
defendant’s favour).
5. If both the plaintiff and the defendant discharge the burden upon them, the court will refuse
provisional sentence. The provisional sentence summons will stand as the summons in the
action, and the defendant will be entitled to enter into the principal case, and will be required to
file his plea within a period stipulated by the court.

5 Provisional sentence in the Regional and District Magistrates’ Courts

The provisional sentence procedure in the Regional and District Magistrates’ Courts is provided for
in rule 14A of the Magistrates’ Court Rules. Rule 14A of the Magistrates’ Court Rules is very similar
to rule 8 of the High Court Rules, being almost a direct copy of the High Court rule, with minor
adaptations to allow it to correspond with other Magistrates’ Courts Rules. Apart from further
subdivisions in the sub-rules, the numbering and substantive contents of the sub-rules are also
almost identical. Our discussion with regard to provisional sentence in the High Court is therefore
directly applicable to Regional and District Magistrates’ Courts practice and procedure.
The form which the provisional sentence summons takes in the Regional and District
Magistrates’ Courts is set out in Form 2A of the Magistrates’ Courts forms. Just as is the case with the
corresponding High Court Rules, Magistrates’ Courts Form 2A is very similar to High Court Form 3,
which sets out the form of the provisional sentence summons in the High Court. Having said this,
however, the Magistrates’ Courts Form 2A provides for certain requirements common to all
Magistrates’ Courts summonses in terms of rule 6 of the Magistrates’ Courts Rules and, unlike the
High Court summons, is addressed to the defendant directly.

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 ADDITIONAL PROCEDURES

C: Interim relief pending judgment

1 The two types of interim relief pending judgment
Litigation is often a painfully slow process. The plaintiff may well have a good case, but by the time
judgment is granted in his favour, he may be in dire financial straits. In two special instances,
however, it may be possible to obtain an advance payment from the defendant before the judgment
is finalised: the procedures are contained in rule 34A and rule 43 of the High Court Rules.

1.1 Interim relief: actions for bodily injuries – rule 34A of the High Court Rules and rule
18A of the Magistrates’ Courts Rules

Interim payments for damages claims resulting from bodily injuries or death are dealt with in terms
of rule 34A of the High Court Rules. Note that the provisions of rule 34A have been replicated in the
Magistrates’ Courts Rules. Thus, in terms of rule 18A in the Magistrates’ Courts Rules, a plaintiff in
an action for damages for personal injury or the death of a person may apply to the Magistrates’
Court for an order requiring the defendant to make interim payments in respect of a claim for
medical costs or loss of income. In what follows we discuss the procedure in rule 34A but mutatis
mutandis the same procedure applies in the Magistrates’ Courts under rule 18A.
The procedure set out in rule 34A, which provides for interim payments by the defendant in a
matter, permits the plaintiff to obtain payment from the defendant before the case has been
finalised. The reason for the existence of this procedure is to reduce the hardship which may be
suffered by a plaintiff who, due to his injury, is unable to work and is confronted with large medical
bills, or whose only breadwinner has been killed, and faces the prospect of a lengthy and expensive
trial, normally on the quantum, before he can expect to receive any compensation. The defendant
may have admitted causing the injury or death, but the process of determining the quantum (value)
of the damages may drag on for months. This is where the rule 34A procedure is useful.
A number of important features to note are as follows:

1. A person who has suffered bodily injuries or whose breadwinner has been killed may apply to
court for an interim payment.92
2. This procedure only applies to claims for certain special damages, namely medical costs and loss
of income arising from the death of a person or from personal injuries.93 This includes a claim for
loss of support,94 but will not include any claim in respect of general damages, such as pain and
suffering, and loss of the amenities of life.95 It is not possible to claim future medical expenses
and loss of support as interim payments under rule 34A.96
3. The application may be made at any time after the expiry of the period for the delivery of the
notice of intention to defend.97
4. The application may only be brought if:
a defendant has admitted in writing that he was responsible for the plaintiff’s injuries;98
) the
or
) judgment
b has been given against the defendant, but the quantum of damages has not yet been
determined.99
5. The application is brought in the normal manner prescribed by High Court rule 6, and the

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 5.
affidavit must contain the amount of the damages claimed, the grounds for the application,
giving particulars of the medical costs, loss of earnings, or loss of support. Documentary proof or
certified copies thereof should be attached to the affidavit, which will include, for instance,
medical accounts, pay slips or other evidence relating to the interim payment.100
6. The court will not make the order unless the defendant has the financial means to make the
interim payment.101 This means that the court must be satisfied that the defendant is insured in
respect of the damages, or that he has enough money of his own to pay for the damages.
7. The court may, if it thinks fit, order the respondent to make an interim payment of such amount
as it thinks just, which amount shall not exceed a reasonable proportion of the damages which,
in the opinion of the court, are likely to be recovered by the plaintiff, taking into account any
contributory negligence, set off or counterclaim.102
8. The fact that an interim order has been made may not be pleaded and no disclosure of that fact
may be made to the court at the trial or at the hearing of questions or issues as to the quantum of
damages until such questions or issues have been determined.103
9. In an action where an interim payment or an order for an interim payment has been made, the
main action may not be discontinued or the claim withdrawn without the consent of the court.
This is to prevent obvious abuse of the rule. If leave to withdraw is granted, and interim payment
has been made, the court may make an order that the plaintiff repay all or part of the interim
payment, or that payment be made by any other defendant in respect of any part of the interim
payment which the defendant, who made it, is entitled to recover by way of contribution or
indemnity, or in respect of any remedy or relief relating to the plaintiff’s claim.104

1.2 Interim relief: actions for divorce – rule 43 of the High Court Rules and rule 58 of the
Magistrates’ Courts Rules

It often happens in divorce cases that the spouse seeking the divorce does not control the marital
finances. The spouse will often lack the funds to bring the divorce action, or to maintain herself and
her children while the divorce action is pending.105 For this reason, rule 43 of the High Court Rules
provides a quick and inexpensive procedure whereby that spouse can obtain certain funds from the
other spouse while the divorce action is still pending. Note that a similar rule (rule 58) exists in the
Magistrates’ Courts Rules. Thus, in terms of rule 58 in the Magistrates’ Courts Rules, a Magistrates’
Court is empowered to grant interim relief pending the outcome of a divorce action. In what follows
we discuss the procedure in rule 43 but mutatis mutandis the same procedure applies in the
Magistrates’ Courts under rule 58.106
Because (a) rule 43 deals with most important aspects of divorce (barring the division of the
estates); and (b) the normal principles governing aspects such as ‘care’ of children (previously
custody) and maintenance are followed; and (c) the parties are obliged to air these issues prior to
and during the hearing, it often happens that the divorce as a whole is settled during rule 43
proceedings. It must be emphasised, however, that the divorce summons must nevertheless be
served, and rule 43 only affords a temporary regulation of various issues until the resolution of the
divorce action (a decree of divorce must be granted by a court and cannot be agreed by settlement).
In terms of rule 43(1) in the High Court, or rule 58(1) in the Magistrates’ Court, the spouse
seeking relief may apply for the following:

1. Maintenance pendente lite:107 Maintenance may be obtained by a spouse in respect of that

spouse personally, and any children in that spouse’s care.108 The normal criteria such as the
respondent’s ability to pay and the parties’ standard of living would apply in ascertaining the
amount of the maintenance.109
2. A contribution towards the costs of a pending matrimonial action: The respondent may, at a rule
43 hearing, be ordered to assist with the payment of the applicant’s legal costs for the divorce, if

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 needed. These costs are limited in that they do not include attorney-and-client costs,110 and are
generally awarded only up to the first day of trial as many matters settle at that stage.111 A further
application may be made if the matter does not settle on the first day.
3. Interim care of any child: The applicant may apply for care of any children pending the
finalisation of the divorce. The usual legal criteria apply for the granting of care, primarily the
best interests of the children, but including, inter alia, reluctance to upset the status quo;112
reluctance to separate siblings;113 the sex and age of the children;114 and the relative competence
of the parties as parents.
4. Interim access (or what is now called ‘contact’) to (or with) any child: The party who does not
have contact will usually be awarded access, unless the parent is abusive or some other reason
exists for refusing access. The frequency and length of contact periods may also be ordered at a
rule 43 hearing.

As far as the jurisdiction of a court to hear a rule 43 application is concerned, the application must
be brought in the court where the action is pending, and not in another court which by chance may
have jurisdiction to hear a divorce action between the parties.115

In terms of rule 43(2), the spouse seeking the relief must deliver to the other spouse:
1. a notice in accordance with Form 17;116
plus
2. a sworn statement, in the nature of a declaration, setting out:
3. a) the relief being claimed;
and
4. b) the grounds upon which she is claiming the relief.

While the procedure is by way of application, some of the terminology used is borrowed from
actions. A case in point is the sworn statement ‘in the nature of a declaration’. This is, in fact, an
affidavit, but apparently it is called a declaration because it is meant to be brief. In fact, brevity in the
document and modesty in the claim, which is only supposed to be of an interim nature, are
encouraged both by the rules and the authorities.117 Brevity is a tall order, however, seeing that, inter
alia, the respondent’s ability to pay maintenance must be detailed and proven, and the applicant’s
need to receive it must be established. Also, the fear must always exist that the amount requested at
this point of the proceedings will influence the final award.
The rule 43 notice and declaration must be delivered by the sheriff of the court, except in
circumstances of urgency where rule 6(12) applies and some other form of delivery is warranted.
In terms of rule 43(3), the spouse receiving the rule 43 notice and declaration has 10 days within
which to deliver his written reply. The reply must be on oath, and takes the form of a plea, although
it is also an affidavit, the title of ‘plea’ like that of ‘declaration’ showing that the document should be
brief. If the respondent spouse does not deliver his reply within the ten-day period, he will be
automatically barred from doing so.
The applicant spouse has no right to replicate to the respondent spouse’s reply.
In terms of rule 43(4), as soon as possible after the reply has been delivered (or the period within
which it ought to have been delivered expires), the registrar must bring the matter before the court
for summary hearing. The registrar must give both spouses 10 days’ notice of the date of the
hearing, but no notice need be given if the respondent spouse is in default.
In terms of rule 43(5), the court may hear viva voce evidence at the summary hearing, and may
make any order it deems fit. Usually, the procedure is that the court will hear argument based on the
application before it, and rarely does it hear oral evidence.118 Because of the nature of the
application (being an application for interim relief) where there are generally only two affidavits
before the court, it is seldom possible for the court to arrive at a comprehensive view of the relative

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 merits and demerits of the parties’ cases. As a result, the court usually takes a robust approach and
does its best to arrive at an order it thinks fit to ensure a just and expeditious decision. As Erasmus
puts it:

Maintenance pendente lite is intended to be interim and temporary and cannot be

determined with the same degree of precision as would be possible in a trial where
detailed evidence is adduced.119

In practice where the interim custody care of children is in issue, courts usually refer an application
to the family advocate in terms of s 4 of the Mediation in Certain Divorce Matters Act 24 of 1987.
Erasmus explains:

The function of the family advocate, in a matter in which the custody of minor children
is in issue, is to assist the court by placing facts and a balanced recommendation before
the court; the family advocate should not take sides in the dispute, nor create the
impression that he has taken a decision and wishes to prescribe to the court.120

Where the circumstances of the parties have changed, the order may be amended. In terms of rule
43(6):

The court may, on the same procedure, vary its decision in the event of a material
change taking place in the circumstances of either party or a child, or the contribution
towards costs proving inadequate.

This would occur, for example, where the supporting spouse has lost his job or is earning
significantly less than he was when the original order was made.
Attorneys and advocates are restricted by rules 43(7) and 43(8) to charging what amounts to
symbolic fees only in order to facilitate the moving of a rule 43 application:

43(7) No advocate or attorney appearing in a case under this rule shall charge a fee of
more than R426.00 if the claim is undefended or R1 066.00 if it is defended,
unless the court in an exceptional case otherwise directs.
43(8) No instructing attorney in cases under this rule shall charge a fee of more than
R1491.00 if the claim is undefended or R2130.00 if it is defended, unless the
court in an exceptional case otherwise directs.121

In terms of s 16(3) of the Superior Courts Act,122 a decision of a court in a rule 43 matter is not
appealable.

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 ADDITIONAL PROCEDURES

D: Arrest tanquam suspectus de fuga

1 The Malachi case: tanquam suspectus de fuga unconstitutional
Under our law for many years it had been the position that where a debtor owes money to a creditor
who holds no security for the payment of the debt, and there are reasonable grounds for believing
that the debtor is about to leave the country in order to avoid paying creditors, the creditor could
make use of a procedure known as arrest tanquam suspectus de fuga.123 This literally translated
meant ‘an arrest as if being suspected of being a fugitive’. The purpose of the procedure was to
prevent a person against whom a creditor intends to institute, or has already instituted, an action,
from fleeing from the jurisdiction of the court with the purpose of avoiding or delaying payment of
the claim.124 The object of the arrest was not to force the debtor to pay the claim but to ensure that
he remained within the jurisdiction of the court until the court had given judgment in the matter.
The common law and s 30 of the Magistrates’ Courts Act (which allowed for arrest tanquam
suspectus de fuga) were declared unconstitutional in the case of Malachi v Cape Dance Academy
International (Pty) Ltd and Others 2010 (7) BCLR 678 (WCC) and the finding of constitutional
invalidity of s 30 of the Magistrates’ Courts Act was confirmed by the Constitutional Court in
Malachi v Cape Dance Academy International (Pty) Ltd and Others125 in 2010.126
Following the judgment, the Magistrates’ Courts Act and Supreme Court Act (which has since
been repealed and replaced by the Superior Courts Act), as well as the High Court Rules and
Magistrates’ Courts Rules have been amended and no longer authorise arrest tanquam suspectus de
fuga.127

2 Going forward: the possibility of arrest tanquam suspectus de fuga?

It is not certain what alternative remedies will remain open to creditors who face the prospect of a
fugitive debtor.128 However, the Rules Board has published a ‘Proposed New Rule 56’ (of the
Magistrates’ Courts Rules) which includes an amended procedure for arrest tanquam suspectus de
fuga provision. This rule, if adopted, would provide:

1. Application may be made to the court for an order of arrest tanquam suspectus de fuga.
2. Every such application shall be upon affidavit stating the facts upon which the application is
made and the nature of the order applied for.
3. The court may, before granting an order upon such an application, require the applicant to give
security for any damages which may be caused by such order and may require such additional
evidence as it may think fit.
4. An order made ex parte for the arrest of a person shall call upon the respondent to show cause
against it at a time stated in the order, which shall be the first court day after service.
5. The return day of an order made ex parte for arrest may be anticipated by the respondent upon
12 hours’ notice to the applicant.
6. An order for the arrest of a person or the attachment of goods made ex parte shall ipso facto be
discharged upon security being given by the respondent for the amount to which the order
relates, together with costs.

It is, however, not clear when (or whether) this rule will be adopted by the Rules Board and, in the

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 meanwhile, no provision is made for such arrest.

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 ADDITIONAL PROCEDURES

E: Multiple parties and actions

1 General overview
Legal proceedings are not necessarily a one-on-one affair. Frequently, a matter will involve several
plaintiffs and defendants in an action (or several applicants and respondents in an application), and
more than a single cause of action. This section of the book deals with the joinder of parties and
causes of action, the consolidation of actions and applications, the intervention of persons as
plaintiffs or applicants and defendants or respondents, and the so-called third party procedure in
the High Court and its equivalent in the Magistrates’ Courts.
The main point to recognise under this head is that several plaintiffs (or applicants) may sue
several defendants (or respondents) in one action (or in one application). This is why when one reads
law reports, one notices occasionally that the name of only one party is referred to, followed by the
words ‘and another’ or ‘and others’. In our discussion below we will focus on joinder, consolidation,
intervention and the third party procedure in the context of an action. However, you should note
that the applicable rules (High Court rules 10, 11, 12 and 13), while only referring to actions, are
made applicable to applications by virtue of High Court rule 6(14). Rule 6(14) provides that the rules
on joinder, consolidation, intervention and the third party procedure shall mutatis mutandis (with
the necessary changes) apply also to applications. There is no rule that directly corresponds to rule
6(14) in the Magistrates’ Courts Act or rules, but joinder and intervention by third parties apply to
both actions and applications in the Magistrates’ Courts because of the wording of rule 28 of the
Magistrates’ Courts Rules. Rule 28 applies to ‘any proceedings’ and makes specific reference in rule
28(2) to both plaintiffs or applicants and defendants or respondents.

2 Joinder of parties and causes of action

2.1 Introduction
Joinder is a term which refers to the joining of more than one party, or more than one cause, in a
single action. The reason for joining parties or causes of action is most often one of convenience:
time, costs and effort are saved by joining parties or causes in one action instead of instituting
separate actions. Note, however, that while joinder is usually a matter of convenience, in certain
situations it may become essential that a party is joined in a matter because of the interest he or she
has in the case. In such situations, the court will demand that the party is joined and will not allow
the matter to proceed without joinder being applied for, or until the court is satisfied that the third
parties have consented to be bound by the judgment or have waived their right to be joined.129
As discussed below, the High Court Rules of Court and the Magistrates’ Courts Act have made it
possible for a number of plaintiffs with separate causes of action to join in one action against the
same defendant – this is called joinder. The High Court Rules and the Magistrates’ Courts Act have
made it possible also for a plaintiff in the High Court or a Magistrates’ Court, with separate causes of
action against two or more defendants, to sue them in one summons – that is, to consolidate the
action. These developments are significant because under common law it was not possible
generally to effect a joinder of plaintiffs130 or a consolidation of actions.131

2.2 Joinder in the High Court

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 2.2 Joinder of several causes of action
.1
Rule 10(2) of the High Court Rules allows a plaintiff to join several causes of action in the same
action. This means that several claims, each supported by a separate cause of action, may be set out
in the particulars of claim attached to a single summons. These claims will be listed in the
particulars of claim as ‘claim 1’, ‘claim 2’, etc.

2.2 Joinder of more than one plaintiff or defendant

.2
Rules 10(1) and 10(3) of the High Court Rules allow for the joinder of more than one plaintiff and
defendant in a single action. The general effect of these rules is that if two or more matters, arising
between two or more plaintiffs or defendants, involve substantially the same question of law or fact,
then such plaintiffs or defendants may be joined together in one action. These are useful provisions
since it is a waste of time to institute separate actions when, by joining the plaintiffs and/or the
defendants in one action, it is possible to kill two birds with one stone.
Rule 10 does not deal with, nor do its provisions alter, the common-law rules relating to the
compulsory joinder of parties. Note that whenever a party has a direct and substantial interest in any
order which a court may make in a matter, or if any such order cannot be put into effect without
prejudicing that party, then that party must be joined to the action, unless the party specifically
waives his or her right to be joined.132 For example, a co-owner of property would be an interested
party in respect of any litigation concerning that property.133
The effect of the above is that when a practitioner is contemplating instituting legal proceedings,
he must always consider who is likely to be affected by the order or relief which the court is being
asked to grant. Once this question is answered, each of the persons likely to be affected by the
outcome of the proceedings must be joined. If this is not done, the court will not deal with the
matter.134 The opposing party may also raise a special plea of non-joinder. Note also that the High
Court has inherent jurisdiction to order that necessary parties be joined to an action or application,
or even an appeal.135

2.2 Joinder of state authorities

.3
Note that in terms of High Court rule 10A:

[i]f in any proceedings before the court, the validity of a law is challenged, whether in
whole or in part and whether on constitutional grounds or otherwise, the party
challenging the validity of the law must join the provincial or national executive
authorities responsible for the administration of the law in the proceedings.

2.2 Separation of trials

.4
In terms of rule 10(5) of the High Court Rules, where there has been a joinder of causes of action or
of parties, the court may, on the application of any party at any time, order that separate trials be
held either in respect of some or all of the causes of action, or some or all of the parties.

2.3 Joinder in the Magistrates’ Courts

2.3 Joinder of several causes of action

.1
There are no specific sections dealing with the joinder of several causes of action in the Magistrates’
Courts, but s 43 of the Magistrates’ Courts Act makes reference to the ‘combination’ of claims when
providing for cumulative jurisdiction in certain cases. Section 43(1) allows the Magistrates’ Courts
to hear multiple claims in one summons, provided that these claims do not individually exceed its

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 jurisdiction. Thus, even though the total amount claimed on the basis of the different causes of
action may exceed the jurisdiction of the Magistrates’ Court,136 as long as the individual claims do
not exceed the Magistrates’ Courts jurisdiction, the court will still have jurisdiction to try each of the
claims in that summons. Put differently, the amounts sued for in each individual claim are not
added together for jurisdictional purposes.137 In terms of Magistrates’ Courts rule 28(3), ‘[a] plaintiff
may join several causes of action in the same action and the court may at the conclusion of the
proceedings make such order as to costs as it deems fit.’

2.3 Joinder of more than one plaintiff or defendant

.2
In the Magistrates’ Courts, joinder of plaintiffs is dealt with in s 41 of the Magistrates’ Courts Act, and
joinder of defendants is dealt with in s 42 of the Act. Section 41 deals with cases in which:

1. there are a number of plaintiffs who each have a separate claim against the same defendant; and
2. each of these separate claims relies upon a common question of law or fact – in other words, if the
claims were instituted separately, the same question of law or fact would arise in each case.

In such cases, the plaintiffs may join together in a single action against the same defendant.
Section 42 deals with cases in which a plaintiff has suffered damages, but is uncertain which of a
number of defendants are responsible for those damages. In such cases, the plaintiff may sue all the
defendants in one action. The plaintiff may either sue the defendants in the alternative, or both in
the alternative and jointly.138

2.3 Separation of trials

.3
While s 41 provides that any number of plaintiffs may join together in a single action against the
same defendant, and s 42 provides that several defendants may be sued by the plaintiff when the
plaintiff is uncertain which of the defendants are responsible for his damages, both s 41(1) and s
42(1) add a proviso which allows for a separation of trials after joinder. The proviso to s 41(1)
provides that if a joint action has been instituted by a number of plaintiffs against a single
defendant, that defendant may apply to court for an order directing that separate trials be held. The
proviso to s 42(1) provides that any of the defendants whom the plaintiff has decided to sue may
make an application to court for an order that separate trials be held. Rule 28(4) of the Magistrates’
Courts Rules provides that ‘[w]here there has been a joinder of causes of action or of parties, the
court may on the application of any party at any time order that separate trials be held either in
respect of some or all of the causes of action or some or all of the parties; and the court may on such
application make such order as it deems fit’.

3 Consolidation of actions

3.1 Consolidation of actions in the High Court

Consolidation of actions is covered by rule 11 of the High Court Rules and caters for the situation
where separate actions have already been instituted by different parties, and one of the parties to
one of the actions believes that it would make sense for the actions to be consolidated as one action.
That party may apply to court for an order of consolidation, and if the order is granted, the actions
proceed as one action. The test the court follows is whether the balance of convenience favours the
consolidation.139 One of the factors in this context is whether consolidation will cause substantial
prejudice to other parties – in exercising its discretion whether or not to order consolidation the:

Court will not order a consolidation of trials unless satisfied that such a course is
favoured by the balance of convenience and that there is no possibility of prejudice
being suffered by any party.140

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 Generally, the court will order consolidation if by doing so a multiplicity of proceedings and
attendant costs can be avoided.141

3.2 Consolidation of actions in the Magistrates’ Courts

Rule 28(5) of the Magistrates’ Courts Rules provides that:

[w]here separate actions have been instituted and it appears to the court convenient to
do so, it may upon the application of any party thereto and after notice to all interested
parties, make an order consolidating such actions, whereupon –
(a) the said actions shall proceed as one action;
(b) the provision of this rule shall mutatis mutandis apply with regard to the action so
consolidated; and
(c) the court may make any order which it deems fit with regard to the further
procedure, and may give one judgment disposing of all matters in dispute in the
said actions.

4 Voluntary intervention in a matter

4.1 Intervening in a High Court matter

Voluntary intervention as a plaintiff or defendant is covered by High Court rule 12, although the rule
does not displace the common law. It may seem odd that anyone would voluntarily intervene in
legal proceedings, but it will be appreciated that doing so makes sense if a matter is likely to affect a
party’s interests. The excluded party can best protect his or her interests by becoming party to the
proceedings, instead of remaining on the outside.
The test to determine whether or not a party is entitled to intervene in terms of High Court rule 12
is set out in the case of Minister of Local Government and Land Tenure and Another v Sizwe
Development and Others: In re Sizwe Development v Flagstaff Municipality:

The undermentioned principles apply to an application in terms of rule 12, or the

common law, for leave to intervene.
(a) The applicant must satisfy the Court that:
(i) he has a direct and substantial interest in the subject-matter of the litigation,
which could be prejudiced by the judgment of the Court (Henri Viljoen (Pty)
Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at 167; United Watch and
Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA
409 (C) at 415–16; Aquatur (Pty) Ltd v Sacks and Others 1989 (1) SA 56 (A) at
62C);
(ii) the application is made seriously and is not frivolous, and that the allegations
made by the applicant constitute a prima facie case or defence – it is not
necessary for the applicant to satisfy the Court that he will succeed in his
case or defence (Mgobozi and Others v The Administrator of Natal 1963 (3)
SA 757 (D) at 760G; Ex parte Moosa: In re Hassim v Harrop Allin 1974 (4) SA
412 (T) at 414B).
(b) A ‘direct and substantial interest’ means ‘… an interest in the right which is the
subject-matter of the litigation and … not merely a financial interest which is only
an indirect interest in such litigation’ (the Henri Viljoen (Pty) Ltd case supra at
169H; United Watch and Diamond Co case supra; Aquatur (Pty) Ltd case supra).
(c) The fact that a judgment or final order has already been issued is not a bar to leave to
intervene being granted (United Watch and Diamond Co case supra) if the

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 intervention is sought for some legitimate process which can be instituted
subsequent to the issue of the judgment or final order (Baard v Estate Baard 1928
CPD 505, in which the applicant was granted leave to intervene for purposes of
noting an appeal against the judgment).142

Although an applicant may show that he has a prima facie interest in the case, a court may allow
other considerations to weigh more heavily with it and refuse the application to intervene. For
instance, in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), Mr Mbeki and
other members of government sought leave to intervene in the Supreme Court of Appeal because
the reasons in the judgment in the High Court cast serious aspersions on them. While Harms DP
held that the parties applying for intervention had ample reason to be upset by the High Court’s
judgment, which made the applicants’ desire to intervene at the appeal stage understandable,
nevertheless the application to intervene was refused. The Supreme Court of Appeal held that to be
able to intervene in proceedings, a party must have a direct and substantial interest in the outcome
of the litigation, and concluded that the applicants had no interest in the order but only in its
reasoning. The court concluded that the applicants were in a position analogous to a witness whose
evidence has been rejected or on whose demeanour an unfavourable finding has been expressed.
Such a person has no ready remedy, especially not by means of intervention. 143 So, too, in
constitutional litigation, the Constitutional Court held in Gory v Kolver NO and Others (Starke and
Others Intervening) 144 that the Court always has an overriding power to grant or to refuse
intervention in the interests of justice, and that other considerations that could weigh with the Court
in exercising its discretion include:

the stage of the proceedings at which the application for leave to intervene is brought;
the attitude to such application of the parties to the main proceedings; and the
question, whether the submissions which the applicant for intervention seeks to
advance raise substantially new contentions that may assist the Court.

4.2 Intervening in a Magistrates’ Court matter

Magistrates’ Courts rule 28(1) deals with the situation in which a person wishes to intervene in
proceedings. In terms of the rule, such person must make application to court to intervene. Only a
person having an interest in the proceedings may make application to intervene. Having an interest
in the proceedings means having a direct and substantial interest in the proceedings.145

5 Forced intervention in a matter

5.1 The need for forced intervention

It often occurs in practice that one of the parties to an action will wish to draw an outside party into
a matter.

Example 1
A motor vehicle driven by A collides with a motor vehicle driven by B. The motor vehicle driven by A
is damaged. The motor vehicle driven by A is owned by C. C institutes action against B to recover
the cost of repairing his vehicle. B believes that A was at least partly to blame for the collision and
wants to pull A into the action so that the court may allocate a share of the blame for the collision to
A.

Example 2
A and B enter into a contract. B obtains an indemnity from C, which indemnifies B in the event that

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 he is sued for breach of contract by A. A sues B for breach of contract. B now wants to pull C into the
action between A and B so that the court may determine C’s liability in terms of the indemnity
provided to B.

In both examples, one would make use of either the joinder procedure in terms of Magistrates’
Courts rule 28A, or the third party procedure in terms of High Court rule 13 (previously third party
notices were dealt with in terms of Magistrates’ Court rule 28(2)). We shall deal with each of these
procedures in due course. Before we do so, however, it is necessary to discuss a procedural step
which, in delictual matters, should always be taken before drawing an outside party into a matter in
terms of Magistrates’ Courts rule 28(2) or High Court rule 13. This procedural step is taken in terms
of the Apportionment of Damages Act,146 and essentially involves inviting the outside party to
intervene voluntarily in the matter, even though Magistrates’ Courts rule 28(2) and High Court rule
13 allow for that person to be drawn into the matter against his will. The reason one should not
simply rely on either Magistrates’ Courts rule 28(2) or High Court rule 13 will become apparent from
the discussion which follows.

5.2 Inviting intervention in terms of the Apportionment of Damages Act 34 of 1956

The purpose of the Apportionment of Damages Act is to avoid a multiplicity of actions arising from
a single loss-causing event – the scheme of the Act contemplates a single determination of liability
by multiple wrongdoers and the apportionment of liability amongst them in single proceedings.147
Section 2 of the Apportionment of Damages Act148 deals with situations in which two or more
people are jointly or severally liable in delict to a third person (the plaintiff) for the same damage.
The persons liable for the plaintiff’s damage are referred to as joint wrongdoers.
If the plaintiff decides to sue only certain of the joint wrongdoers and not others, then in terms of
s 2(2) of the Act:

1. at any stage before the close of pleadings;

2. either the plaintiff or any of the joint wrongdoers who are part of the action;
3. may give a notice to any or all of the joint wrongdoers who were not sued;
4. informing them of the action and inviting them to intervene in the action.

If either the plaintiff or the joint wrongdoers sued by the plaintiff (i.e. who are part of the action) fail
to send the above notice, they could forfeit their right to take action at a later stage, against any of
the joint wrongdoers who were not sued by the plaintiff (i.e. who are not part of the action). Sections
2(4)(a) and (b) of the Apportionment of Damages Act state as follows:

2(4)(a) If a joint wrongdoer is not sued in an action instituted against another joint
wrongdoer and no notice is given to him in terms of paragraph (a) of subsection (2), the
plaintiff shall not thereafter sue him except with the leave of the court on good cause
shown as to why notice was not given as aforesaid.

2(4)(b) If no notice is under paragraph (a) or (b) of subsection (2) given to a joint
wrongdoer who is not sued by the plaintiff, no proceedings for a contribution shall be
instituted against him under subsection (6) or (7) by any joint wrongdoer except with
the leave of the court on good cause shown as to why notice was not given to him under
paragraph (b) of subsection (2).

Therefore, whenever a case involves joint wrongdoers, it is necessary to ensure that the required
notice in terms of s 2(2) of the Act is sent to those joint wrongdoers who have not been sued. Even
though these persons may be joined to the action as third parties (rule 13 of the High Court Rules)
or as defendants (rule 28(2) of the Magistrates’ Courts Rules), they still need to be sent the required

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 apportionment of damages notice. As will become apparent in the discussion which follows, the
only benefit of a joinder is to get a declarator (in the High Court) or a finding (in the Magistrates’
Court) as to the relative liability of the persons joined. It may still be necessary to institute a separate
action against those persons to actually recover the amount which corresponds to their degree of
liability in terms of the declarator or finding. This will be difficult if the apportionment of damages
notice in terms of s 2(2) of the Act has not been sent.

5.3 Magistrates’ Courts – joinder in terms of rule 28(2)

5.3 The grounds for joinder

.1
In the case of an application for joinder in terms of rule 28(2), it is not necessary to show that the
person to be joined has a direct and substantial interest in the matter. Where one of the parties to a
Magistrates’ Courts action/application makes an application to join an outsider to that action or
application, all that party needs to show is that it would be convenient and in accordance with the
interests of justice to join the outsider.
The above principle was set out in the important case of Khumalo v Wilkins.149 The case involved
a collision between two motor vehicles. The plaintiff was the owner of one of the two motor
vehicles, and the husband of the driver of that vehicle. The driver of the other vehicle (the
defendant) wanted to join the plaintiff’s wife as a defendant to the action in terms of Magistrates’
Courts rule 28(2). Milne J stated as follows:

I do consider, therefore, that the court has a discretion to permit the joinder of a
defendant in circumstances such as the present, notwithstanding that the person
sought to be joined does not have a direct and substantial interest in the proceedings
and notwithstanding that his rights would not be affected by the judgment of the court if
he were not joined.150

The court held that it would be ‘eminently convenient, and in accordance with the interests of
justice’ if the wife were indeed joined as the second defendant in the action by her husband against
the defendant.151

5.3 The procedure for effecting joinder

.2
The procedure for effecting a joinder is simply to make an application to court to have the outsider
joined as a plaintiff or defendant.

5.3 The effect of joinder

.3
Usually, it is the defendant in an action who seeks to join an outside party because he (the
defendant) feels that the outside party was partly to blame for the damage suffered by the plaintiff,
and wants the court to allocate a share of the blame to the outside party.
The effect of successfully joining an outsider to an action in terms of Magistrates’ Courts rule
28(2) is not to obtain an order that the person joined must pay part of the plaintiff’s damages. The
defendant who was originally sued by the plaintiff is still liable to pay all the plaintiff’s damages.
Although this may seem a bit unfair, it must be remembered that the plaintiff chose to sue that
defendant. If the court were to order the second defendant to pay a portion of the plaintiff’s
damages, it would amount to forcing the plaintiff to sue someone he did not wish to sue. In the
Khumalo v Wilkins case, for example, the person joined to the action was the wife of the plaintiff.
Obviously, the plaintiff did not want to claim against his own wife.
The following question may be asked: ‘If the original defendant is still liable to pay 100% of the
plaintiff’s claim, even though he (the original defendant) has successfully joined the outside party to

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 the action, what is the use of having joined the outside party?’ The answer is that the original
defendant may ask the court to make a finding as to the respective degrees in which he (the original
defendant) and the outside party, who has been joined as a co-defendant, are responsible for the
plaintiff’s claim. In other words, the magistrate may be requested to state the respective degrees of
blame carried by the original defendant and the outside party who has been joined as a defendant.
Although the original defendant will have to pay the plaintiff’s claim in full, the finding will be very
useful to the original defendant in helping him to recover from the party who was joined to the
action a portion of what he (the original defendant) paid to the plaintiff. Of course, this portion will
be calculated according to the degree of fault attributed by the magistrate to the party who was
joined to the action. In practice, it will usually not be necessary for the original defendant to
institute a separate action against the party who was joined to the action for the said portion. Once
the magistrate has made the finding, the writing is on the wall so to speak, and the party who was
joined to the action will usually settle out of court.
Milne J states as follows in Khumalo v Wilkins:

I think it is clear that the power of the court to order the joinder of a defendant cannot
and does not encompass a power to compel a plaintiff to claim relief against a
defendant whom he has not sued and does not wish to sue. That being so, the joinder
sought by the appellant cannot have the effect of compelling the plaintiff to make a
claim against the second respondent (in spite of the fact that the magistrate apparently
thought that this is the effect that a joinder would necessarily have). If the joinder is
allowed therefore it will only be upon the basis that the plaintiff’s claim continues to be
one against the appellant only … It is quite clear that one of the grounds upon which the
appellant sought the joinder was to enable a finding to be made which would be binding
on the second respondent on the question as to whether it was the appellant’s
negligence or the second respondent’s negligence that caused the collision or, if it was
the negligence of both of them, to what extent each was at fault. Admittedly, as Mr
Findlay pointed out, it seems that the appellant contemplates a further action for his
own damages and Mr Donnellan conceded that the joinder could not give him the right
to claim such damages in this action from the second respondent. Theoretically,
therefore, there will, in any event, have to be a further action and this somewhat
weakens the appellant’s claim to a joinder on the grounds of avoiding multiplicity of
actions. On the other hand, it is clear that in egard to the alternative plea of the
appellant to the effect that the accident was caused by the negligence of both himself
and the second respondent, a finding by the magistrate as to the respective degrees of
fault of the appellant and the second respondent would make a successful claim for a
contribution in terms of sec. 2(6) (a) of the Apportionment of Damages Act by the
appellant against the second respondent, virtually a foregone conclusion. Similarly
such a finding would confine the issue in any action by the appellant for his own
damages against the second respondent, to the quantum of the appellant’s damages.
This would have the desirable effect of, in all probability, reducing the costs of any such
action if, in fact, any further action were to be brought and the matter were not to be
settled out of court as it probably would be.152

In practice, if an attorney is acting for one of two wrongdoers, and the other wrongdoer has not been
sued by the plaintiff, the safest route to follow is to join the ‘co-wrongdoer’ in terms of rule 28(2).

5.4 High Court and Magistrates’ Court – third party procedure in terms of rule 13 of the
High Court and rule 28A of the Magistrates’ Courts Rules

5.4 Introduction

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 Assuming
.1 the existence of three parties – party A who has instituted action against party B for
damages, and party C who is an outsider to the action – the effect of rule 13 may be described as
follows:153 Rule 13 provides a procedure whereby an unnecessary multiplicity of separate actions
can be avoided by:

1. securing that a person who is not a party to the action (the proposed third party – party C),
against whom a party to the action (party B) claims a contribution or an indemnity, can be
brought before the court so as to have his obligation (if any) determined at the same time with
those of the other defendants who are being sued by the plaintiff or applicant (party A); or
2. providing for the determination, as between a litigant (party B) and a non-litigant (party C), of
any question or issue in an action, if substantially the same question or issue will arise or has
arisen between them.

Third party joinder was not previously provided for in the rules of the Magistrates’ Courts (although
it was held that the provisions of rule 28(2) are wide enough to allow such a joinder). Because it is
important that this type of joinder and its consequences are expressly regulated, rule 28A of the
Magistrates’ Courts Rules was introduced to deal with the third party process in the Magistrates’
Courts. Accordingly, in the discussion that follows, the same procedure as that which applies in the
High Court for joinder of a third party is now applicable in the Magistrates’ Court.154

5.4 The grounds for joinder of a third party

.2
The procedure applies in two situations which are set out in rules 13(1)(a) and 13(1)(b) of the High
Court Rules. We describe each of these situations as they usually occur in practice below:

Situation 1: The defendant in an action examines the claim which the plaintiff is making against
him. He concludes that an outsider to the action is liable to contribute towards settling the plaintiff’s
claim. Usually, this involves cases in which the defendant and the outsider have both contributed
towards damage suffered by the plaintiff, but the plaintiff has elected to sue the defendant alone.
The defendant will want to bring the outsider into the action to take his share of the blame for
causing the plaintiff’s damages. Alternatively, the defendant may conclude that an outsider to the
action is liable to indemnify the defendant from having to satisfy the plaintiff’s claim. Usually, this
situation arises when, previous to the plaintiff’s claim, the defendant and the outsider have entered
into a contract, in terms of which the outsider agreed to indemnify the defendant for any claims
brought against him in relation to specific actions carried out by the defendant.155 For example, the
defendant, a teacher, agrees to take a group of school children on an outing, provided that the
school indemnifies him in respect of any claims which might be brought against him as a result of
any of the children being injured during the outing. If one of the children is injured during the
outing, and the parent of the injured child sues the teacher, the teacher will want to join the school
as a third party on the basis that the school must indemnify him from liability for the parent’s claim
– in other words, the school should pay and not him.

Situation 2: One of the parties to an action (it could be either the plaintiff or the defendant, although
it is usually the defendant) claims that:

1. a question or issue in the action before the court;

2. is substantially the same;
3. as a question or issue which has arisen or will arise between that party and an outsider to the
action; and
4. the question or issue should properly be determined with the outsider as part of the action.

P20 446
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