General Introduction:

FIRAC Notes: Civil Procedure Foundations

1. Civil vs Criminal Law

• Facts:
o Criminal: State prosecutes accused; public in nature.
o Civil: Plaintiff vs defendant / applicant vs respondent; private in nature.
• Issue: What distinguishes civil procedure from criminal procedure?
• Rule:
o Criminal guilt must be proved beyond reasonable doubt.
o Civil liability must be proved on a balance of probabilities.
• Application:
o Criminal punishment = retribution, deterrence, rehabilitation, incapacitation.
o Civil remedies = damages, specific performance, interdicts, ejectment, divorce,
sequestration.
• Conclusion: Civil procedure governs private disputes, focusing on claims and liability
rather than guilt and punishment.

2. Dominus Litis Principle

• Facts: In civil matters, the plaintiff/applicant initiates and drives the case.
• Issue: Who controls litigation in civil procedure?
• Rule: Plaintiff/applicant is dominus litis (lord/master of litigation).
• Application:
o No case proceeds unless the plaintiff/applicant takes steps (summons, notice of
motion, trial set-down).
o Even if the state is a party, it is on equal footing with private parties.
• Conclusion: Civil procedure is party-driven, unlike criminal procedure where the state
initiates prosecution.

3. Nature of Remedies

• Facts: Civil remedies include monetary compensation, specific performance, and

prohibitory interdicts.
• Issue: What outcomes does civil procedure aim to achieve?
 • Rule: Civil procedure enforces private rights through court orders.
• Application:
o Example: “Smash and bash” damages claim for vehicle repairs.
o Example: Specific performance in contract enforcement.
o Example: Interdict preventing harmful conduct (e.g., tree felling).
• Conclusion: Civil procedure provides diverse remedies, often monetary but also
performance-based or preventative.

4. Civil Procedure as Adjectival Law

• Facts: Civil procedure = “nuts and bolts” of enforcing substantive law.

• Issue: How does civil procedure fit into the broader legal system?
• Rule: Substantive law (contract, delict) defines rights; procedural law enforces them.
• Application:
o Civil procedure is wider and more complex than criminal procedure.
o Evidence law heavily influences both civil and criminal procedure.
• Conclusion: Civil procedure is indispensable for legal practice, forming the backbone of
litigation.

FIRAC Notes: South African Court System

1. Magistrates’ Courts

• Facts: Entry-level courts (District and Regional). Presiding officers are magistrates.
• Issue: What role do Magistrates’ Courts play in civil procedure?
• Rule: They handle less serious civil and criminal matters; jurisdiction limited by statute.
• Application:
o Civil claims capped at monetary thresholds.
o Magistrates addressed as Your Worship.
o Clerks/registrars manage administration.
• Conclusion: Magistrates’ Courts provide accessible justice for smaller disputes, forming
the foundation of the system.

2. High Court of South Africa (HC)

• Facts: Senior courts with divisions across provinces. Presiding officers are judges.
• Issue: What is the High Court’s role in civil litigation?
 • Rule: Unlimited jurisdiction in civil matters; hears appeals from Magistrates’ Courts.
• Application:
o Judge President (JP) leads each division.
o Judges addressed as My Lord/My Lady.
o Registrars handle administration; sheriffs deliver documents and enforce orders.
• Conclusion: The High Court is the main forum for complex civil disputes and appeals.

3. Supreme Court of Appeal (SCA)

• Facts: Located in Bloemfontein; appellate jurisdiction only.

• Issue: How does the SCA fit into the hierarchy?
• Rule: Historically the highest appeal court (Appellate Division → SCA). Now
intermediate after Constitutional Court reforms.
• Application:
o President (P), Deputy President (DP), Judges of Appeal (JA).
o Post-2007: judges addressed as Justice [Surname].
o Appeals from High Court except certain labour/competition matters.
• Conclusion: The SCA unifies appellate jurisprudence but is no longer the apex court.

4. Constitutional Court (CC)

• Facts: Sits in Johannesburg; Chief Justice + Deputy Chief Justice + 9 judges.

• Issue: What is the Constitutional Court’s jurisdiction today?
• Rule: Highest court for all matters (constitutional and non-constitutional) since the 17th
Amendment.
• Application:
o Retains exclusive jurisdiction in certain constitutional matters.
o Must confirm declarations of invalidity from lower courts.
o New Directions (2023) impose strict oral argument time limits, similar to US
Supreme Court practice.
• Conclusion: The CC is now the apex court, balancing constitutional oversight with
general appellate authority.
FIRAC Notes: Judicial Officials
1. Chief Justice

• Facts: Head of judiciary; chairs Judicial Service Commission.

• Issue: What is the Chief Justice’s role?
• Rule: Administers justice across all courts; supported by Office of the Chief Justice.
• Application:
o Publishes binding Norms and Standards (2014).
o Current Chief Justice: Raymond Zondo.
• Conclusion: The Chief Justice ensures uniformity and accountability in the judiciary.

2. Deputy Chief Justice

• Facts: Second-in-command at CC.

• Issue: What is the Deputy Chief Justice’s significance?
• Rule: Assists Chief Justice; presides when CJ unavailable.
• Application:
o Current DCJ: Mandisa Maya (first female in this role).
• Conclusion: Symbolic and practical leadership role in the apex court.

3. Other Judicial Officers

• High Court Judges: JP (Judge President), J (Judge).

• SCA Judges: P, DP, JA.
• Magistrates: Addressed as Your Worship.
• Officials:
o Registrars/clerk of court → administration.
o Sheriffs → serve documents, enforce judgments.
o Taxing master → handles bills of costs.

FIRAC Notes: Sources of Civil Procedure Law

1. Statutory Framework

• Facts: Civil procedure is governed by statutes, rules, and practice directions.

 • Issue: Where do we find the core sources of civil procedure law?
• Rule:
o Superior Courts Act (replaced Supreme Court Act + Constitutional Court
Complementary Act).
o Magistrates’ Court Act.
o Small Claims Court Act.
• Application:
o Each court has its own rules (e.g., Uniform Rules of Court for High Court).
o Practice Manuals/Directions supplement rules in each division.
o Forms attached to rules serve as precedents for drafting documents.
• Conclusion: Statutes + Rules + Practice Directions form the backbone of civil procedure,
requiring constant updates and practitioner vigilance.

2. Rules and Amendments

• Facts: Rules are dynamic and can be amended more easily than statutes.
• Issue: How are rules and practice directions updated?
• Rule:
o Rules Board for Courts of Law Act empowers amendment/repeal of rules for
High Court and Magistrates’ Courts.
o Practice Directions issued by Judge Presidents; amendable at any time.
• Application:
o Acts amended only by Parliament (slow process).
o Rules amended by Rules Board (faster, responsive).
o Practice Directions tailored to divisions (e.g., CC and SCA also issue directions).
• Conclusion: Practitioners must stay current with amendments across Acts, Rules, and
Directions.

FIRAC Notes: Constitutional Impact on Civil Procedure

1. Litigation Against Organs of State

• Facts: Historically, strict notice and short prescription periods applied (e.g., 6 months for
SAPS/Defence).
• Issue: How did the Constitution reshape litigation against the state?
• Rule: Institution of Legal Proceedings Against Organs of the State Act (2002)
aligned procedure with constitutional values.
 • Application:
o CC emphasized fairness and access for vulnerable litigants.
o State departments held to standards of justice and competence.
• Conclusion: Constitutional values transformed state litigation, ensuring fairness and
access.

2. Access to Courts (s38 Constitution)

• Facts: Access traditionally limited to those with direct interest (locus standi).
• Issue: How did s38 broaden access?
• Rule: s38 allows:
o Own interest.
o Acting for another.
o Acting for group/class.
o Acting in public interest.
o Associations acting for members.
• Application:
o Twee Jonge Gezellen v Land Bank (CC): Provisional sentence procedure
limited right to fair hearing (s34). Court developed common law to allow
discretion.
o SAHRC v Standard Bank (CC): Plaintiff chooses forum; High Court must hear
matter if jurisdiction exists.
• Conclusion: Access broadened to protect rights, reinforcing substantive justice.

3. Civil Arrests and Debtor Protections

• Facts: Old practices allowed civil arrests (suspectus de fuga, peregrini arrests, debtor
imprisonment).
• Issue: Are these practices constitutional?
• Rule: BOR prohibits arbitrary deprivation of liberty and protects dignity.
• Application:
o Civil arrests abolished.
o Debtors cannot be imprisoned for inability to pay (only for contempt).
• Conclusion: Civil procedure now prioritizes dignity and fairness over harsh enforcement.
4. Debt Collection and Housing Rights

• Facts: Emolument attachment orders and execution against homes scrutinized.

• Issue: How did constitutional values reshape debt enforcement?
• Rule:
o University of Stellenbosch Legal Aid Clinic v Minister of Justice (CC):
Judicial oversight required for emolument attachment orders.
o Jaftha v Schoeman; Gundwana v Steko Development (CC): Execution against
homes must respect s26 housing rights.
• Application:
o Safeguards added to Magistrates’ Court Act.
o Courts must ensure orders are just and equitable.
• Conclusion: Debt enforcement now balanced against dignity and housing rights.

5. Equality in Civil Procedure

• Facts: Old High Court Rule 17(4) required summons to state defendant’s sex and marital
status.
• Issue: Is this requirement constitutional?
• Rule: Equality provisions in Constitution prohibit discrimination based on sex, gender,
marital status.
• Application:
o HC judgment struck down Rule 17(4) as unconstitutional.
o Rule amended to remove discriminatory requirement.
• Conclusion: Civil procedure must align with equality and dignity imperatives.

FIRAC Notes: Stages of Civil Procedure

Stage 1: Before Litigation

• Facts: Preliminary stage before the court is involved. Attorneys consider fundamental
questions when briefed on a new matter.
• Issue: What must be addressed before initiating litigation?
• Rule: Attorneys must evaluate:
o Whether the client has a valid claim (substantive law).
o Which court has jurisdiction.
o Costs, risks, and alternatives (e.g., settlement, mediation).
 • Application:
o Plaintiff/applicant as dominus litis decides whether to proceed.
o Consider prescription periods, notice requirements (especially against organs of
state).
• Conclusion: Stage 1 ensures litigation is viable, strategic, and procedurally sound before
court involvement.

Stage 2: Litigation (Applications vs Actions)

• Facts: Litigation begins once the court is formally involved. Two main procedures:
applications and actions.
• Issue: How do applications differ from actions in civil procedure?
• Rule:
o Application procedure: Motion proceedings, decided on affidavits (written
evidence).
o Action procedure: Trial proceedings, decided on oral evidence and cross-
examination.
• Application:
o Applications used for urgent matters, interdicts, declaratory relief.
o Actions used for disputes of fact, damages claims, contract enforcement.
o Choice of procedure depends on nature of dispute and evidence required.
• Conclusion: Stage 2 is the “heart” of litigation, with applications and actions as the two
vehicles to bring matters before court.

Stage 3: After Litigation

• Facts: Post-judgment stage; deals with appeals, reviews, and debt collection.
• Issue: What happens after a case is finalized?
• Rule:
o Appeals: Challenge correctness of judgment (law or fact).
o Reviews: Challenge fairness/regularity of proceedings.
o Debt collection: Enforce judgment if debtor refuses to pay.
• Application:
o Appeals go to higher courts (HC → SCA → CC).
o Reviews often involve procedural irregularities (e.g., bias, jurisdiction errors).
o Debt collection uses writs of execution, garnishee orders, emolument attachment
orders (subject to constitutional safeguards).
 • Conclusion: Stage 3 provides remedies for dissatisfied litigants and mechanisms to
enforce judgments.

Stage 4: Additional Procedures

• Facts: Specialized procedures supplement the basic litigation framework.

• Issue: How do additional procedures fit into civil procedure?
• Rule: These include:
o Class actions.
o Consolidation of cases.
o Joinder and intervention.
o Specialized remedies (e.g., sequestration, divorce, ejectment).
• Application:
o Additional procedures are layered onto the basic stages once foundational
concepts are understood.
o They refine litigation strategy and address complex disputes.
• Conclusion: Stage 4 adds depth and flexibility, ensuring civil procedure can handle
diverse and complex matters.
Cause of Action:

FIRAC Notes: Cause of Action

1. Definition and Requirements

• Facts: A cause of action must allege all material facts to (a) constitute a lawful claim,
and (b) allow the other party to respond.
• Issue: What makes a cause of action valid in civil procedure?
• Rule:
o Must set out material facts, not just conclusions.
o Must be grounded in substantive law (contract, delict, etc.).
o Must entitle the plaintiff/applicant to relief if proved.
• Application:
o Contract: allege valid contract + breach.
o Delict: allege conduct, unlawfulness, fault, causation, damage.
• Conclusion: A cause of action is the legal foundation of a claim; without it, litigation
cannot proceed.
2. Preliminary Question for Attorneys

• Facts: Attorneys must assess validity of cause of action when consulting new clients.
• Issue: How does cause of action affect litigation strategy?
• Rule:
o If no valid cause of action, matter cannot proceed.
o If valid, its nature determines procedure (application vs action).
• Application:
o Attorney listens to client’s problem → identifies possible cause of action.
o Integrates substantive law (rights/elements) with procedural law (steps to
enforce).
• Conclusion: Evaluating cause of action is the first step in deciding whether litigation is
viable.

3. Elements of a Cause of Action

• Facts: Like criminal charges, civil causes of action have elements that must be alleged
and proved.
• Issue: What elements must be included in pleadings?
• Rule:
o Elements vary by substantive law:
▪ Contract: Agreement, capacity, legality, breach, damages.
▪ Delict: Conduct, unlawfulness, fault, causation, damage.
▪ Property: Ownership, infringement, remedy sought.
• Application:
o Pleadings must allege each element clearly.
o Failure to allege = exception for lack of cause of action.
• Conclusion: Elements are substantive law requirements, but civil procedure ensures they
are properly pleaded and proved.

4. Integration of Substantive and Procedural Law

• Facts: Cause of action determined by substantive law; procedure enforces it.

• Issue: How do substantive and procedural law interact?
• Rule:
o Substantive law defines rights.
o Procedural law provides mechanisms to enforce rights.
 • Application:
o Attorney must know both: e.g., delict elements + summons procedure.
o Without procedural compliance, even valid substantive claims fail.
• Conclusion: Effective litigation requires integration of substantive cause of action with
procedural steps.

Delictual Claims
Motor Vehicle Collision

• Facts: Taxi driver runs red light, crashes into client’s car.
• Issue: Does the client have a valid delictual claim?
• Rule (Elements of Delict):
o Wrongful act – unlawful conduct causing prejudice.
o Fault – intention or negligence.
o Causation – link between conduct and damage.
o Damages – patrimonial loss (value of car, repair costs).
o Vicarious liability – employer liable if driver acted in course of employment.
• Application:
o Wrongful act: collision unlawful.
o Fault: negligence (ignored red light).
o Causation: negligence caused collision and damage.
o Damages: quantified via market value and repair costs.
o Vicarious liability: company liable since driver was on duty.
• Conclusion: Husband sues driver + employer for damages to car; RAF handles bodily
injury claims.

Assault

• Facts: 16-year-old punched by bouncer, nose broken, scarred, missed rugby matches.
• Issue: What elements must be proved for assault claim?
• Rule (Elements of Delict):
o Wrongful act – unlawful punch (unless self-defence).
o Fault – intention to cause harm.
o Causation – punch caused broken nose and scarring.
o Damages – medical costs, pain and suffering, loss of amenities, disfigurement.
 o Vicarious liability – nightclub liable if bouncer acted in scope of employment.
• Application:
o Minor sues with guardian’s assistance.
o Both father (medical bills) and son (injuries) claim damages.
• Conclusion: Father and son sue bouncer + nightclub for patrimonial and general
damages.

Contractual Claims
Sale on Credit (Ownership Passed)

• Facts: Seller sells bakkie for R40 000, student pays R5 000, promises balance, crashes
bakkie.
• Issue: What must be proved for seller’s claim?
• Rule (Elements of Contract Claim):
o Valid contract – agreement to buy and sell.
o Agreement on item – bakkie.
o Agreement on price – R40 000.
o Delivery/performance – seller delivered bakkie.
o Breach – buyer failed to pay balance.
o Remedies – specific performance (R35 000) + damages (taxi costs).
• Conclusion: Seller enforces contract and claims damages.

Sale for Cash (Ownership Reserved)

• Facts: Seller keeps ownership until full payment. Student fails to pay, damages bakkie.
• Issue: What remedies are available?
• Rule (Elements of Contract Claim):
o Valid contract – agreement to buy and sell.
o Breach – failure to pay purchase price.
o Right to cancel – breach material.
o Remedies:
▪ Cancellation + restitution (return bakkie + damages).
▪ Rei vindicatio (prove ownership + possession).
▪ Actio ad exhibendum (if buyer disposes of bakkie mala fide).
• Conclusion: Seller may cancel, reclaim, or claim damages depending on circumstances.
Buyer’s Remedies (Latent Defect)

• Facts: Student pays full price, brakes fail, bakkie crashes, surfboard destroyed.
• Issue: What elements must be proved for buyer’s remedies?
• Rule (Elements of Buyer’s Claim):
o Defect type: latent (hidden) vs patent (obvious).
o Seller’s knowledge: knew or didn’t know.
o Contract terms: voetstoots clause or not.
o Remedies:
▪ If seller knew → damages OR cancellation + restitution + damages.
▪ If neither knew →
• Voetstoots clause → no remedy (unless CPA applies).
• No voetstoots clause → actio redhibitoria (cancel if unfit for
purpose) OR actio quanti minoris (reduce price).
• Conclusion: Buyer remedies depend on defect type, seller’s knowledge, and contract
terms.

FIRAC Notes: Divorce Actions & Liquid Documents

Divorce Actions

• Facts: Divorce cases are procedurally different from ordinary civil claims. They involve
special jurisdiction rules, personal service of documents, and possible interim relief (e.g.,
care/contact of children).
• Issue: What must be alleged and proved in a divorce action?
• Rule (Elements of Divorce Claim):
o Valid marriage – proof that a lawful marriage exists.
o Jurisdiction – court has authority to hear the matter.
o Marital regime – in community of property, antenuptial contract, accrual system.
o Children under 18/dependants – welfare provisions must be made.
o Guardianship/care/contact – allegations about parental rights and
responsibilities.
o Maintenance for children – amount claimed or offered.
o Compliance with Mediation in Certain Divorce Matters Act & HC Rule 41A.
o Grounds for divorce – usually irretrievable breakdown of marriage.
o Spousal maintenance – claim or offer.
o Settlement agreement – division of property, arrangements for children.
 o Division of joint estate / asset transfer / accrual.
o Forfeiture of benefits – s9 Divorce Act, if one spouse would be unduly enriched.
• Application:
o Plaintiff must allege all above elements in pleadings.
o Proprietary claims may include division of estate, redistribution (s7(3)), forfeiture
(s9), accrual calculation.
• Conclusion: Divorce actions require multiple causes of action (divorce itself,
maintenance, property division, children’s care), each with specific elements to be
proved.

Liquid Documents

• Facts: A liquid document is a written, unconditional acknowledgement of debt for a

fixed amount. Common examples: acknowledgements of debt, mortgage bonds, cheques.
• Issue: What must be proved to enforce a claim based on a liquid document?
• Rule (Elements of Liquid Document Claim):
o Defendant acknowledged debt in writing (e.g., R40 000 + interest).
o Copy of document attached to pleadings.
o Debt became due and payable on specific date.
o Defendant failed to pay despite demand.
• Application (Acknowledgement of Debt):
o Plaintiff proves existence of document, amount, due date, non-payment.
o May use provisional sentence procedure for quicker enforcement.
• Application (Cheque):
o Defendant drew cheque (signed it).
o Plaintiff is lawful holder/payee.
o Cheque presented for payment.
o Cheque dishonoured (refer to drawer / payment stopped).
o Notice of dishonour given (unless excused under Bills of Exchange Act).
o Defendant failed to pay despite demand.
o Copy of cheque attached.
• Conclusion: Liquid document claims are easier to prove because the debt is fixed and
acknowledged in writing, allowing use of provisional sentence procedure.

Locus Standi:
FIRAC: Locus Standi
🔹 Facts
• Problem 1: Candidate attorney wants to sue for damages on behalf of a friend (who
chose not to litigate) and also wants the court to decide a hypothetical legal question.
• Problem 2: A six-year-old boy wants to sue his teacher, and a mentally unstable man
wants to sue the President.

These illustrate two distinct aspects of locus standi:

• Adequate interest (Problem 1).

• Legal capacity (Problem 2).

🔹 Issue
• Does the litigant have legal standing (locus standi) to bring the matter before court?
• Specifically:
o Do they have an adequate interest in the subject matter (direct, real, current, not
hypothetical)?
o Do they have the legal capacity to litigate (not barred by age, mental health, or
representative authority)?

🔹 Rule

Common Law

• A litigant must show a direct and substantial interest in the relief sought.
• Interest must be:
o Direct, not remote
o Actual, not abstract or academic
o Current, not hypothetical
• Locus standi is a point in limine (threshold issue) raised by special plea, separate from
merits.
• Onus is on the party instituting proceedings to prove locus standi.
Constitutional Framework (Section 38 of the Bill of Rights)

Standing is broadened:

• Own interest (s38(a))

• On behalf of another unable to act (s38(b))
• On behalf of a group/class (s38(c)) → requires certification (Rule 11A, Nkala v
Harmony Gold Mine).
• Public interest (s38(d))
• Associations acting for members (s38(e))

🔹 Application (with Case Law)

1. Adequate Interest

• Problem 1: The attorney has no direct interest in the damages claim — it belongs to the
friend. He also cannot litigate a hypothetical question.
• Case Law:
o Giant Concerts CC v eThekwini Municipality (2012): Giant Concerts tried to
challenge a land sale, claiming a commercial interest but failed to provide
concrete evidence (no plan, price, or proposal). The Constitutional Court held that
Giant lacked locus standi because its interest was hypothetical and
unsubstantiated.
o Principle: Interest must be real, direct, and substantiated, not speculative.

2. Legal Capacity

• Problem 2:
o Six-year-old lacks capacity — must be represented by a guardian.
o Mentally unstable man lacks capacity — must be represented by a curator.
• Case Law:
o This aligns with the general rule that minors and mentally incapacitated persons
cannot litigate without representation.
3. Constitutional Expansion

• Ferreira v Levin NO (1996): Chaskalson P emphasized a broad approach to standing

in constitutional cases. Courts should not adopt a narrow view because constitutional
rights require full protection.
o Principle: Standing in constitutional matters is interpreted generously.
• Ngxuza v Permanent Secretary, Department of Welfare (2001): Recognized the
utility of class actions in SA, especially where many individuals have small claims that
would be impractical to pursue individually.
o Principle: Class actions simplify litigation and ensure access to justice.
• Mukaddan v Pioneer Foods (2013): Constitutional Court required certification of class
actions to ensure they serve justice and avoid oppression. Certification acts as a
safeguard.
• Nkala v Harmony Gold Mine (2016): Gauteng Local Division certified a class of tens
of thousands of mineworkers suffering from silicosis and TB due to dust exposure.
o Principle: Demonstrates how s38(c) enables large-scale litigation in the interests
of justice.

🔹 Conclusion
• Common Law: Standing is narrow — requires direct, real, current interest.
• Constitutional Law: Standing is broadened under s38 — own interest, public interest,
class actions, associations. Courts adopt a generous approach to ensure rights are
protected.
• Case Law Principles:
o Giant Concerts: Interest must be real, not hypothetical.
o Ferreira v Levin: Broad approach to constitutional standing.
o Ngxuza: Class actions promote access to justice.
o Mukaddan: Certification ensures fairness in class actions.
o Nkala: Example of large-scale class action certification.

📊 Comparison Table: Common Law vs Constitutional

Standing
Aspect Common Law Constitutional (s38)
Interest Direct, real, current, not Broader: own interest, public interest,
required hypothetical group/class, associations
Must have legal capacity (no
minors/mentally Same requirement, but broader categories
Capacity
incapacitated without of who may act
representation)
Ferreira v Levin (broad approach), Ngxuza
Case Giant Concerts (failed due to
(class actions), Mukaddan (certification),
Examples hypothetical interest)
Nkala (mineworkers class action)
Approach Narrow, technical Generous, pragmatic, justice-oriented
Raised by special plea, point Certification required for class actions
Procedure
in limine (Rule 11A)

FIRAC: Capacity to Litigate – Children

🔹 Facts
• Children under 18 are defined as minors in terms of s17 of the Children’s Act.
• They cannot litigate on their own and must either be:
o Duly assisted by a guardian (child is cited as plaintiff, guardian assists), or
o Represented by a guardian (guardian is cited as plaintiff in representative
capacity).
• Children under 7 must always be represented.
• Children 7 and older may either be duly assisted or represented.
• Guardians may sometimes sue both eo nomine (in their own name) and nomine officio
(in representative capacity).
• If no guardian is available, or there is a conflict of interest, a curator ad litem must be
appointed.
• Children may litigate unassisted in limited statutory situations (e.g., applying for curator
ad litem, marriage consent applications, or where statute permits).
• The Children’s Act (s15, s14) and Constitution (s28(1)(h)) broaden children’s locus
standi and guarantee legal representation at state expense where substantial injustice
would result.
🔹 Issue
• Do children have the legal capacity to litigate in civil proceedings, and under what
circumstances can they act directly or through representation?
• How do statutes and constitutional provisions broaden children’s standing and protect
their rights in litigation?

🔹 Rule

Statutory Framework

• Children’s Act s17: Majority attained at 18.

• Children’s Act s18(3)(b) & s18(4): Guardians are competent to assist or represent
children.
• Children’s Act s14: Every child has the right to bring and be assisted in bringing a
matter to court.
• Children’s Act s15: Extends locus standi to children, persons acting in their interest,
groups, and public interest actors.
• Constitution s28(1)(h): Every child has the right to legal representation at state expense
in civil proceedings if substantial injustice would result.

Representation vs Assistance

• Under 7 years: Must be represented (guardian sues in own name, in representative

capacity).
• 7–17 years: May be either represented or duly assisted (child sues in own name, guardian
assists).
• Guardian’s liability: Guardian is not personally liable for costs/damages unless
litigation is reckless/frivolous.

Curator ad litem

• Appointed where:
o No guardian exists,
o Guardian refuses to act,
o Guardian cannot be found,
o Conflict of interest arises.
 • Application usually made before proceedings, but can be made after if in child’s best
interests.

Case Law

• Durban & Coast Local Division (Wallis J): Held that a child may apply directly to the
Legal Aid Board for legal representation. Consent of guardian not required.
o Principle: Ensures “the child’s voice is heard.”
• This case enforces s28(1)(h) of the Constitution and the Legal Aid South Africa Act.

🔹 Application
• Children under 7: Cannot sue in their own name. Must be represented by guardian.
Example citation: “Peter Smith… acting in his representative capacity as father and
natural guardian of John Smith.”
• Children 7–17: May sue in their own name, duly assisted by guardian. Example citation:
“John Smith… duly assisted by his father and natural guardian, Peter Smith.”
• Guardian suing both eo nomine and nomine officio: Example: Guardian claims
medical expenses (own claim) and pain and suffering (child’s claim). Must distinguish
clearly in pleadings.
• Curator ad litem: If guardian is absent, unwilling, or conflicted, court appoints curator
ad litem. Example citation: “John Smith… duly assisted by Peter Ngcobo… in his
capacity as curator ad litem.”
• Unassisted litigation: Child may apply for curator ad litem, marriage consent, or where
statute permits.
• Children’s Act & Constitution: Broaden standing — children can approach court
directly, and Legal Aid Board can assign lawyers without guardian consent.

🔹 Conclusion
• Children lack independent capacity to litigate until 18.
• Under 7 → must be represented.
• 7–17 → may be represented or duly assisted.
• Guardians act either eo nomine or nomine officio depending on claims.
• Curator ad litem ensures representation where guardianship fails or conflicts.
 • Statutes and Constitution broaden children’s standing and guarantee access to justice,
ensuring children’s voices are heard.
• Case law (Wallis J, Durban & Coast Local Division) confirms that children may directly
access Legal Aid without guardian consent, reinforcing constitutional protections.

FIRAC: Capacity to Litigate – Special

Categories

1. Mentally Disabled Persons

🔹 Facts

• A person who cannot appreciate the nature of legal proceedings due to mental disorder
lacks capacity to litigate.
• Must be represented by a curator ad litem.
• Applications usually brought ex parte by family/friends.
• Requires affidavits from two medical professionals and one person who knows the
patient.
• Suggested curator ad litem’s name and consent letter attached.
• Curator ad litem investigates and reports on mental illness, assets, liabilities, and affairs.

🔹 Issue

• Does a mentally disabled person have capacity to litigate, and what procedure ensures
representation?

🔹 Rule

• High Court Rule 57(1)–(10): Procedure for declaring a person of unsound mind.
• Rule 57(13): Allows appointment of curator bonis without declaration of unsound mind,
if person cannot manage affairs.
• Curator ad litem appointed first, then curator bonis/ad personam later.
• Mental Health Care Act provides cheaper mechanism if estate is small.
🔹 Application

• If client is mentally disabled → check if declared unsound mind.

• If not, apply for curator ad litem (affidavits required).
• Curator ad litem investigates and reports → supports later appointment of curator
bonis/ad personam.
• Example: Road Accident Fund claims often require curator ad litem for mentally
impaired claimants.

🔹 Conclusion

• Mentally disabled persons lack capacity to litigate.

• Representation ensured through curator ad litem under Rule 57.
• Safeguards protect both legal and financial interests.

2. Insolvents

🔹 Facts

• Insolvent’s estate is sequestrated → trustee appointed.

• Insolvent’s capacity curtailed but not completely removed.
• Trustee represents estate in litigation.

🔹 Issue

• Can an insolvent litigate, and when must trustee act?

🔹 Rule

• s23 Insolvency Act: Insolvent may sue/be sued in own name in certain matters (e.g.,
status issues).
• In matters relating to estate → trustee must sue/be sued in representative capacity.
• If insolvency declared during litigation → proceedings stayed until trustee appointed,
then trustee substituted.
• s75 Insolvency Act: Proceedings against insolvent lapse after 3 weeks unless plaintiff
gives notice to continue.
🔹 Application

• Insolvent litigant → check if matter relates to estate or personal status.

• Estate matters → trustee cited nomine officio.
• Example citation: “X, trustee in the insolvent estate of Y.”

🔹 Conclusion

• Insolvent’s capacity limited.

• Trustee represents estate in litigation.
• Insolvent retains limited capacity in personal matters.

3. Deceased Estates

🔹 Facts

• Deceased persons cannot litigate.

• Executor represents estate.

🔹 Issue

• Who litigates on behalf of deceased estate?

🔹 Rule

• Executor sues/defends in representative capacity.

• If multiple executors → all must be cited.

🔹 Application

• Example citation: “Z, executor in the estate of the late Y.”

🔹 Conclusion

• Executor holds capacity to litigate for deceased estate.

4. Trusts

🔹 Facts

• Trusts are sui generis (unique legal institutions).

• No legal personality.
• Trustees hold assets/liabilities and litigate.

🔹 Issue

• Who litigates for a trust?

🔹 Rule

• Trustees sue/be sued in representative capacity.

• Must cite trustees nomine officio (NO/NNO).
• Example citation: “X, trustee of the ABC Trust.”

🔹 Application

• Unless authorized, all trustees must be cited.

• Trustees act in official capacity, not personal.

🔹 Conclusion

• Trusts cannot litigate.

• Trustees litigate in representative capacity.

5. Partnerships, Firms, Associations

🔹 Facts

• Partnerships/firms/associations often lack legal personality.

• At common law → stricter requirements (partnership could not sue/be sued in own
name).
🔹 Issue

• How do partnerships/firms litigate?

🔹 Rule

• Must sue/be sued through members/partners in representative capacity.

🔹 Application

• Example citation: “X and Y, partners in the firm XYZ.”

🔹 Conclusion

• Partnerships/firms without legal personality litigate through members in representative

capacity.

FIRAC: Partnerships, Firms, Associations

and the Like

🔹 Facts
• Partnerships, firms, and associations generally lack legal personality — they are simply
groups of individuals.
• At common law, partnerships cannot sue or be sued in their own name; all members
must be cited.
• This creates practical difficulties (e.g., discovering names of partners).
• HC Rule 14 and MC Rule 54 provide procedural relief by allowing these entities to sue
or be sued in their own names, but do not confer legal personality.
• Litigation is still ultimately against the individuals behind the entity.
• Execution of judgment: partnership assets excussed first, then partners’ assets if
insufficient.
 • Associations: Rule 14 and Rule 54 allow notices to compel disclosure of constitution and
office bearers.
• Sole proprietorships: judgment only against the owner at the time cause of action arose.
• Matrimonial Property Act s17: spouse married in community of property requires written
consent of other spouse to litigate, but lack of consent does not remove legal capacity.

🔹 Issue
• How can partnerships, firms, and associations litigate despite lacking legal personality?
• What procedural mechanisms (HC Rule 14, MC Rule 54) allow them to sue or be sued in
their own names?
• What are the consequences of using these rules compared to common law?

🔹 Rule

Common Law

• Partnerships cannot sue/be sued in own name.

• All partners must be cited individually.
• Failure to cite correctly = misjoinder.
• Associations without universitas personarum (corporate character: perpetual succession
+ ability to own property) lack legal personality.

High Court Rule 14

• Partnerships, firms, associations may sue/be sued in own name.

• Still procedural only — does not create legal personality.
• Plaintiff may:
o Request disclosure of partners/proprietors.
o Serve Form 8 notices to bring individuals into litigation.
• Judgment execution: partnership assets first, then partners’ assets if identified.
• Associations: may be compelled to disclose constitution and office bearers.

Magistrates’ Court Rule 54

• Equivalent to HC Rule 14 but with differences in definitions:

 o Partnership: 2+ persons contributing to profit enterprise.
o Association: unincorporated body not a partnership.
o Firm: unincorporated business.
o Sole proprietorship: business under name other than owner’s.
• Plaintiff must serve notice requiring disclosure of partners/proprietors/members.
• Defendant must comply within 10 days.
• Plaintiff then serves Form 59 notices to individuals, pulling them into litigation.
• If defendant fails to comply:
o Option 1: Apply to strike out defence and get judgment against entity’s assets.
o Option 2: Apply to declare specific persons as partners/proprietors and serve them
with summons.
• Associations: Rule 54(4) allows request for constitution and office bearers.

Matrimonial Property Act s17

• Spouse married in community of property requires written consent of other spouse to

litigate.
• Exceptions: litigation between spouses, separate property, damages for non-patrimonial
loss, professional/trade matters.
• Lack of consent does not remove legal capacity, but may have cost consequences.

🔹 Application
• Partnerships:
o At common law → must cite all partners.
o Under HC Rule 14/MC Rule 54 → may sue in partnership name, but must
identify partners to attach private assets.
o Example: Plaintiff sues “XYZ Partnership” under Rule 14, then serves Form 8
notices to partners.
• Firms:
o Business under trading name.
o Judgment only against owner at time cause of action arose.
o Example: “Leo’s Shoes” sued → judgment enforceable against proprietor at
relevant time.
• Associations:
o Plaintiff may compel disclosure of constitution and office bearers.
o Example: Hockey club sued → must provide constitution and office bearers list.
• Sole Proprietorships:
 o If ownership changes after cause of action arose, judgment only against previous
owner.
• Spouses (Matrimonial Property Act):
o Written consent required but lack of consent does not invalidate proceedings.
o Example: Husband sues for pain and suffering after accident → no consent
needed.

🔹 Conclusion
• Partnerships, firms, and associations lack legal personality but may litigate under HC
Rule 14 and MC Rule 54.
• These rules are procedural only — litigation is ultimately against individuals behind the
entity.
• Proper identification of partners/proprietors/members is crucial to enforce judgments
against private assets.
• Associations must disclose constitution and office bearers.
• Sole proprietorships: judgment enforceable only against owner at time cause of action
arose.
• Spouses married in community of property require consent under s17, but lack of consent
does not remove legal capacity — only affects costs.

📊 Comparison Table: HC Rule 14 vs MC Rule 54

Aspect HC Rule 14 MC Rule 54
Partnerships, firms, associations, sole
Scope Partnerships, firms, associations
proprietorships
Effect Procedural only, no legal personality Same — procedural only
Plaintiff may request names of Plaintiff must request disclosure
Disclosure
partners/proprietors (mandatory)
Notices Form 8 served on partners/proprietors Form 59 served on partners/proprietors
Non- Plaintiff may strike out defence or
Court may compel disclosure
compliance declare persons
Associations Must disclose constitution + office bearers Same, with 10-day compliance rule
Partnership assets first, then partners’
Execution Same principle
assets if identified
Perfect, let’s break your jurisdiction notes into a FIRAC structure so they’re exam-ready and
easier to digest.

🧾 FIRAC on Jurisdiction

Facts

• Jurisdiction = the power/competence of a court to hear and determine a matter.

• Determined by:
o Monetary value of claim (cut-off points for different courts).
o Nature of matter (some claims must go to HC regardless of value).
o Geographical link (residence of defendant, cause of action, property location).
• Jurisdiction is fixed when proceedings are instituted (service of summons/application).

Issue

• Which court (HC, MC, Small Claims, Constitutional Court, SCA, etc.) has jurisdiction
over a matter?
• Subsidiary issues:
o What is the value of the claim?
o What is the nature of the claim?
o Which division/area of the court system is competent?

Rule

• Small Claims Court: ≤ R20 000; only natural persons sue; no appeals/legal
representation.
• Magistrates’ Courts:
o District MC: ≤ R200 000
o Regional MC: ≤ R400 000
o Certain matters excluded by s 46 MCA (e.g., wills, specific performance) → must
go to HC.
• High Court (HC): unlimited monetary jurisdiction; hears excluded matters.
• Supreme Court of Appeal (SCA): never first instance; only appeals.
 • Constitutional Court (CC): exclusive jurisdiction in s 167(4) Constitution matters (e.g.,
disputes between organs of state, constitutionality of Bills, amendments, failure to fulfil
constitutional obligations, certification of provincial constitutions). May allow direct
access if urgent/serious.
• Geographical jurisdiction: tied to defendant’s residence/work or where cause of action
arose.
• Consent/abandonment/deduction exceptions: parties may consent to MC jurisdiction
even if claim exceeds limits; plaintiff may abandon/deduct part of claim to fit within
limits.

Application

• If claim is R150 000 → District MC or HC (but HC may penalize costs if MC

competent).
• If claim is R350 000 → Regional MC or HC.
• If claim is R500 000 → HC only.
• If claim involves interpretation of a will → HC, even if < R400 000.
• If defendant resides in Bloemfontein → Free State HC or local MC depending on
value/nature.
• If plaintiff sues in wrong court → defendant can raise special plea of lack of
jurisdiction, ending matter.

Conclusion

Jurisdiction depends on value, nature, and geographical link. Always check cut-off points,
statutory exclusions, and whether HC or MC is competent. If in doubt, HC has concurrent
jurisdiction but may penalize costs. Correct jurisdiction must be established at institution of
proceedings to avoid dismissal.

Great, let’s untangle your Magistrates’ Court (MC) notes into a clean FIRAC structure with
all the statutes, constitutional provisions, and cases included. This way, you’ll have a
structured, exam‑ready framework.
🧾 FIRAC on Magistrates’ Court Jurisdiction

Facts

• Magistrates’ Courts are creatures of statute (MCA 32 of 1944, ss 26–50).

• Jurisdiction depends on:
o Value of claim (s 29 MCA).
o Nature of claim (s 46 MCA exclusions).
o Geographical link (s 28 MCA).
• Exceptions: abandonment (s 38), deduction of admitted debt (s 39), consent (s 45).
• Jurisdiction is determined at institution of proceedings (service of summons/application).

Issue

• When must a matter be brought in the District MC, Regional MC, or HC?
• Subsidiary issues:
o What is the monetary value of the claim?
o What is the nature of the claim?
o Which particular MC has jurisdiction (geographical)?

Rule

Statutes & Constitutional Provisions

• Section 29 MCA:
o District MC ≤ R200 000; Regional MC ≤ R400 000.
o Specific categories: delivery/transfer of property (s 29(1)(a)), ejectment (s
29(1)(b)), right of way (s 29(1)(c)), liquid document/mortgage bond (s 29(1)(d)),
credit agreements (s 29(1)(e)), Matrimonial Property Act consent (s 29(1)(f)),
liquidation of close corporations (s 29(1)(fA)), all other actions (s 29(1)(g)),
divorce/nullity (s 29(1B)).
• Section 46 MCA: exclusions → wills, mental capacity, perpetual silence, specific
performance without damages (with exceptions).
• Section 28 MCA: geographical jurisdiction (residence, business, employment, cause of
action).
• Section 40 MCA: splitting claims prohibited.
• Section 43 MCA: combining claims allowed.
 • Section 37 MCA: interest/costs excluded from jurisdictional calculation.
• Section 169 Constitution: MCs may decide any matter except those excluded by
legislation.
• Section 21 Superior Courts Act 10 of 2013: HC jurisdiction.

Case Law

• McKenzie v Farmers’ Co‑op → defined “cause of action” as every fact necessary to

prove right to judgment (facta probanda vs facta probantia).
• Kings Transport v Viljoen → clarified distinction between probanda and probantia in
jurisdiction disputes.
• Re Pennington Health Committee → Howard J: MC jurisdiction generally in actions
(summons), applications only if specifically authorized.
• Jurisdictional grounds:
o Ratione domicilii (actor sequitur forum rei – plaintiff follows defendant to
domicile/residence).
o Ratione res gestae (cause of action arose).
o Ratione rei sitae (property location).

Application

• Monetary value:
o Claim of R215 000 → plaintiff may abandon R15 000 (s 38) to fit District MC
jurisdiction.
o Apportionment of Damages Act: percentage applied to pre‑abandonment amount,
but capped at jurisdictional limit (A entitled to R200 000).
• Nature of claim:
o Interpretation of will → excluded by s 46, must go to HC.
o Divorce/nullity → Regional MC (s 29(1B)), same jurisdiction as HC.
o Credit agreements → unlimited jurisdiction in MC (s 29(1)(e)), concurrent with
HC.
• Geographical jurisdiction:
o Defendant resides/works in area → MC competent.
o Cause of action arose wholly in area → MC competent.
o Example: collision in Somerset West (Kings Transport v Viljoen): vicarious
liability claim → jurisdiction based on cause of action arising wholly in Somerset
West, not employment contract elsewhere.
• Consent/deduction:
o Parties may consent in writing (s 45).
 o Plaintiff may deduct admitted debt (s 39).

Conclusion

Jurisdiction in MCs is strictly statutory:

• Value (s 29 MCA cut‑offs, exceptions in ss 38–39–45).

• Nature (s 46 exclusions, divorce in Regional MC).
• Geography (s 28 MCA, rationes jurisdictiones).
• Case law (McKenzie, Kings Transport, Re Pennington) clarifies cause of action and
probanda/probatia distinctions.
• Constitutional and Superior Courts Act provisions ensure MC jurisdiction is limited to
matters not expressly excluded.
• Always plead jurisdictional basis in particulars of claim to avoid dismissal on special
plea.

Perfect — let’s FIRAC your High Court jurisdiction notes (including the peregrinus
material) into a neat, exam‑ready structure. I’ll integrate all statutes, constitutional
provisions, and cases mentioned.

🧾 FIRAC on High Court Jurisdiction

Facts

• Section 169 Constitution: High Court may decide any matter except those
specifically excluded.
o Excluded: matters assigned to another court by Act of Parliament (s 169(b));
matters reserved for Constitutional Court (s 167(4)).
• Section 21 Superior Courts Act 10 of 2013: jurisdiction over persons
residing/being in its area and causes arising therein.
• Jurisdiction rests on common law rationes:
o Ratione domicilii (domicile/residence).
o Ratione rei gestae (cause of action arose).
o Ratione rei sitae (property location).
• Doctrine of effectiveness: judgment must be enforceable.
• Additional doctrines: consent/prorogatio and inherent jurisdiction.
 • Special categories: claims against foreign peregrini, matrimonial claims (Divorce
Act), interdicts, and single claims spanning multiple jurisdictions.

Issue

• When does the High Court have jurisdiction over a matter?

• Subsidiary issues:
o Can jurisdiction be founded on domicile/residence, cause of action, or
property location?
o How are constitutional matters allocated between HC and CC?
o What happens when defendant is a foreign peregrinus?
o How do statutory provisions (Divorce Act, Superior Courts Act) modify
common law?

Rule

Statutes & Constitution

• s 169 Constitution: HC jurisdiction except matters reserved for CC or assigned

elsewhere.
• s 167 Constitution: defines “constitutional matter”; s 167(4) lists CC exclusive
jurisdiction (e.g., disputes between organs of state, constitutional amendments,
failure to fulfil obligations).
• s 21 Superior Courts Act: jurisdiction over persons residing/causes arising in area.
• s 42(2) Superior Courts Act: civil process runs throughout SA (local peregrini).
• Divorce Act s 2(1): jurisdiction if either party domiciled or ordinarily resident in area
(radical departure from actor sequitur forum rei).

Case Law

• Bannatyne v Bannatyne (2003 (2) SA 363 (CC)) → enforcement of maintenance

orders, HC jurisdiction.
• Doctors for Life International v Speaker of NA (2006 (6) SA 416 (CC)) → CC exclusive
jurisdiction over parliamentary process.
• Women’s Legal Centre Trust v President (2009 (6) SA 94 (CC)) → CC exclusive
jurisdiction.
 • Fredericks v MEC for Education (2002 (2) SA 693 (CC)) → Parliament may restrict HC
jurisdiction only by assigning to similar status courts.
• Einwald v German West African Co (seminal judgment, De Villiers CJ) → threefold
grounds: domicile, contract/performance, property location.
• Bisonboard Ltd v Braun Woodworking Machinery (1991 (1) SA 482 (A)) →
domicile/residence sufficient for jurisdiction.
• Chinatex Oriental Trading Co v Erskine → domicile of choice requires physical
presence + intention to remain indefinitely.
• Abrahamse & Sons v SA Railways → cause of action = entire set of facts giving rise to
enforceable claim.
• Veneta Mineraria Spa v Carolina Collieries (1987 (4) SA 883 (A)) → contractual
jurisdiction: forum contractus and forum solutionis.
• Thomas v BMW → delict jurisdiction: locus determined by qualitative/quantitative
criteria of delict elements.
• Hugo v Wessels (1987 (3) SA 837 (A)) and Ward v Burgess (1976 (3) SA 104 (T)) →
property jurisdiction, forum rei sitae.
• Gallo Africa Ltd v Sting Music (2010 (6) SA 329 (SCA)) → exclusive jurisdiction of
forum rei sitae for immovable property title.
• Sciacero & Co v Central SA Railways (1910 TS 119) → actor sequitur forum rei.
• Bid Industrial Holdings v Strang (2008) → attachment to confirm jurisdiction against
foreign peregrini.
• American Flag plc v Great African I-Shirt Corp → consent to jurisdiction suffices for
foreign peregrini, attachment impermissible.
• Utah International Inc v Honeth → consent/prorogatio recognised.

Application

• Domicile/residence: If defendant domiciled in Bloemfontein → Free State HC has

jurisdiction (Bisonboard).
• Contract: If contract concluded in Johannesburg but performed in Durban → both
Gauteng and KwaZulu-Natal HCs have concurrent jurisdiction (Veneta Mineraria).
• Delict: Car accident in Cape Town → Western Cape HC jurisdiction (Thomas v BMW
criteria if elements spread).
• Property: Title to immovable property in Pretoria → only Gauteng HC (forum rei
sitae) has jurisdiction (Gallo Africa).
 • Foreign peregrinus: German tourist causes accident → attachment ad fundandam
jurisdictionem required (Bid Industrial Holdings).
• Divorce: Wife domiciled in Durban, husband in Cape Town → Durban HC has
jurisdiction under Divorce Act s 2(1)(a).
• Consent: Foreign company consents to SA jurisdiction → attachment impermissible
(American Flag).
• Inherent jurisdiction: HC may regulate proceedings, prevent abuse, ensure justice
(e.g., Ngxuza case).

Conclusion

High Court jurisdiction is grounded in constitutional provisions (s 169, s 167), statutes

(Superior Courts Act, Divorce Act), and common law rationes (domicile, cause of
action, property). Case law clarifies each ground:

• Bisonboard and Chinatex on domicile.

• Veneta Mineraria and Abrahamse on contracts.
• Thomas v BMW on delicts.
• Gallo Africa on property.
• Bid Industrial Holdings and American Flag on foreign peregrini.
• Ngxuza on inherent jurisdiction.

Jurisdiction must always ensure effectiveness (judgment enforceable), with

consent/prorogatio and inherent jurisdiction supplementing statutory and common law
rules.

This FIRAC integrates all statutes, constitutional provisions, and cases from your
High Court + peregrinus notes.

Would you like me to now build a comparison table (Magistrates’ Court vs High Court vs
Constitutional Court) with statutes and leading cases side‑by‑side? That would give you a
quick revision snapshot.