Law of Civil Procedure

STUDY GUIDE
2024
(Subject to Copyright)

MODULE: LAW OF CIVIL PROCEDURE

MODULE CODES: CPR41Y0

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 ADMINISTRATIVE INFORMATION

Welcome to the module Law of Civil Procedure.

Introduction:

 This study guide contains important information about the module, and it is your go-
to source for details of the course contents, prescribed material, weekly lectures and
relevant study material, the lecturers, assessments, mark calculation, etc.
 Please read through the whole study guide in your own time.
 There are rules and requirements that are specific to this course and it is important that
you familiarise yourself with these.
 Consider the content carefully and contact the lecturers promptly with any questions or
aspects that you require clarity on.
 Make it a habit to consult with the lecturers/tutor early in the semester rather than
waiting for tests and/or exams to raise your concerns/any problems.
 You are welcome to consult weekly to discuss your progress or to address any questions
about the course, the lectures, or the course material.
 Keep up with the flow of lectures and aim to resolve any questions about a particular
week's lecture straightaway. Do not wait for tests/exams to initiate contact.
 Please note that this study guide is subject to copyright. This is to be used for your
personal study purposes only and may not be reproduced, published or distributed in
any format whatsoever. You may, for instance, not share the content or parts thereof on
a WhatsApp group or any other platform. The same applies to any summaries,
flowcharts, PowerPoint slides, or any other course material that we distribute
throughout the year.

1. LECTURERS & CONTACT DETAILS

There are two lecturers for this course. Their details are set out below:

Lecturer: MS MONIQUE DU PREEZ

Office: A-Ring 721 (Law Faculty, APK Campus)

Consulting hours: Please refer to Moodle for more details.

Telephone number/s: (011) 559 2897 (office)

083 690 2335 (cellular)
Email address: moniquedp@[Link]

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 &

Lecturer: DR YVETTE JOUBERT

Office: A-Ring 716 (Law Faculty, APK Campus)

Consulting hours: Please refer to Moodle for more details.

Telephone number: 011 559 2582

Email address: yjoubert@[Link]

Secretary: Mrs Esmirelda Booysen

Office: A-Ring 714 (Law Faculty, APK Campus)
Telephone number: 011 559 2837 (office)

Tutor: Ms Suzan Khensani

Consults at: A-Ring 721
Email address: To be provided

The lecturers’ consultation hours are available on Moodle.

You will also find the tutor’s information on Moodle.

You are encouraged to consult with the lecturers and/or the tutor as/when required.

2. PRESCRIBED MATERIAL

The prescribed material for this course is as follows:

2.1 Study guide:

This guide is made available on Moodle.

You are encouraged to print your own copy as you will need to refer to it
throughout the year.

2.2 Textbook:

The prescribed textbook is as follows -

“Fundamental Principles of Civil Procedure” (Fourth Edition, 2021)
Theophilopoulos and others

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 Do not purchase the first (2006), second (2012) or third (2015) edition of this
textbook as you need the latest (2021) edition. The court rules change rapidly
and this means that previous editions of the textbook are out of date and contain
irrelevant/incorrect information.

It is essential that you have access to the textbook. You are strongly advised to
purchase your own copy of the textbook.

Alternatively, there are some copies available on the reserve shelf in the law
library.

2.3 Other documents on Moodle:

A number of documents will be made available to you during the course of the
year. These include, for example: the prescribed reading list for each chapter,
case studies, summaries, flowcharts and diagrams, precedents of court
documents, assignments etc. This is in addition to the lecture slides.

We advise that you print copies of all these documents for purposes of preparing
for assessments and that you incorporate these as part of your study material.

2.4 Prescribed reading material:

We refer to case law, journal articles and legislation in the prescribed reading
list for each chapter. You must access and read the material set out it the reading
lists.
Of particular importance are the rules of court, ie:

 the Uniform Rules of Court, which apply in the High Court and
 the Magistrates' Court Rules, which apply in the Magistrates’
Courts.

Aim to obtain your own copy of the rules of court. This will form the basis for
all lectures and discussions. The rules of court are the most important element
in the prescribed material for this course.

Also consider that a thorough knowledge of the court rules is indispensable for
legal practice – we aim to prepare you for the future.

2.5 Pleadings bundle:

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 The pleadings bundle contains examples of court documents (ie applications
(notices and affidavits) and pleadings) and forms an integral part of your study
material.

You will be asked to draft various court documents and notices. All documents
should be drafted with reference to the examples in the pleadings bundle, rather
than extraneous sources. There are countless precedents on the internet, but you
should approach these with great caution, as they more often than not relate to
other jurisdictions/countries and thus contain details that are unfit/irrelevant for
our purposes.

Examples from the pleadings bundle that are relevant to the week’s lecture will
be uploaded as part of the content for each chapter on Moodle.

3. COURSE OVERVIEW

What? Where? Why? How?

In order to form a basis for your understanding of civil procedure in South Africa, the course
begins by introducing the pertinent civil procedures (namely the application and action
procedures) as well as the objectives of the law of civil procedure.

This is followed by an overview of the court structure/hierarchy in South Africa with reference
to important changes to the court structure and the jurisdiction of the various courts.

The emphasis of the course remains the civil procedure/s applicable to the Magistrates’ Court
and the High Court. Particular attention is given to the issue of jurisdiction and the parties or
litigants to civil litigation.

As the procedures in the Magistrates’ Court have become largely aligned with those found in
the High Court, it is no longer necessary to address procedures in each court separately. In
most instances therefore, procedures/steps that apply in the Magistrates' Court and the High
Court respectively are dealt with simultaneously.

The course also addresses current and relevant issues in the context of the law civil procedure,
for example:

Legislation i.e. The Superior Courts Act, 2013; The Traditional Courts Act,
2022, the Legal Practice Act, 2014, etc.
The Constitution The impact of the Constitution of the of the Republic of South
Africa, 1996, on the law of civil procedure

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 Decolonisation Decolonisation with reference to, for example, the influence of
English law
Technology The impact of technology on court procedures, e.g. electronic filing
of court documents, online case management; new practice
management tools
Class actions The development of class actions in South African law

The Constitution is of particular importance. Procedural law must be applied in the context of
the Constitution and you will see that civil procedure has changed over time in line with
constitutional imperatives. It is therefore important that you evaluate any procedural rules or
requirements within a constitutional framework. Of essence is that you appreciate the practical
impact and significance of the Constitution and that you are able to apply theoretical
constitutional principles to practical scenarios that arise in civil procedure.

When it comes to assessments, you will be asked to critically evaluate/comment on certain

procedural rules and requirements with reference to the Constitution and to express a view as
to whether a particular rule meets the requirements/standards of the Constitution.

Where relevant, we will refer to the Constitution, the Bill of Rights and the broader South
African context within which this branch of the law applies.

In this regard, the course covers, for example:

The doctrine of separation of The South African judicial The court hierarchy, with
powers system and judicial reference to the relevant
authority sections in the Constitution

We will consider the impact of the Constitution on the law of civil procedure, with reference to
specific examples such as:

 methods aimed at facilitating access to justice and to courts (Superior Courts Act);
 increased access to the legal profession (Legal Practice Act);
 instituting legal proceedings against the State (Institution of Legal Proceedings against
Certain Organs of State Act);
 the abolition of imprisonment for civil debt (Coetzee case);
 the abolition of arrest for purposes of jurisdiction (Bid case);
 emolument attachment orders (University of Stellenbosch Legal Aid Clinic case);
 provisional sentence proceedings (Twee Jonge Gezellen case);
 the amended procedure for attachment/execution of primary residences (Jaftha,
Gundwana and FirstRand Bank cases);
 the citation of female litigants in court documents/pleadings (Nedbank case);
 class actions and locus standi (Pioneer Foods case);

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  the procedure for purposes of claiming security for costs from litigants;
 the amended jurisdiction of the various civil courts in South Africa; and
 the impact of other, related legislation such as the National Credit Act, the Consumer
Protection Act and the Companies Act etc.

We will consider what happens:

After
litigation
During
litigation (After the
Before court has
litigation (Once legal dealt with the
(before the proceedings matter)
matter goes have been
to court) instituted)

You will have access to a document entitled Civil Procedure Placemat, which summarizes
these various stages and provides a useful overview of the various steps in the civil litigation
process.

In particular, the following topics will be covered during the course of this year:

3.1 Introduction
An introduction to the law of civil procedure with reference to the history,
underlying principles and sources of the law of civil procedure. We will
distinguish between the law of civil procedure on the one hand, and the law of
criminal procedure on the other, and discuss relevant terminology.

3.2 Court hierarchy

The court structure in South Africa with reference to the jurisdiction of the
various courts. In particular, we will focus on the jurisdiction of the High Court
of South Africa and, relative to the Magistrates' Courts or lower courts, the focus
will be on Regional Courts and District Courts. In addition, we will consider
the jurisdiction of certain specialized courts.

3.3 Pre-litigation phase

Consultation, establishment of mandate, legal representation, demand and
prescription. We will look at the main considerations the legal practitioner needs
to be mindful of in legal practice.

3.4 Jurisdiction
The authority/competency of the High Court and the Magistrate's Court.

3.5 The parties to civil litigation

Locus standi, joinder, intervention, consolidation etc. Citation
or description of parties in court documents.

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 When to use this procedure
Types of applications
The form of applications
3.6.1 Documents (Notice of Motion,
Application procedure Affidavits, Notice of Intention to
3.6
Oppose)
Litigation
Urgent matters
phase
Practical examples
When to use this procedure
3.6.2 The form of proceedings
Action procedure Documents (Notices and pleadings
Practical examples

The following phases are found in the action procedure:

The summons, particulars of claim and
declaration
Service of process/court documents and the
role of the sheriff of the court
The notice of intention to defend/appearance
to defend
Shortcut judgments (default judgment;
The pre-trial phase summary judgment)
(not to be confused Interim procedures (exception; application to
with the compulsory strike out and irregular steps)
Rule 37 pre-trial Court annexed mediation
conference that is Security for costs
held between parties Plea, counterclaim, replication, counterplea
during this phase) Close of pleadings
Amendment of pleadings
Preparation for trial – various steps and what
each entails, including application for a trial
date, discovery, appointment of experts, the
pre-trial conference, case management,
inspections in loco, etc.

The trial phase Trial itself and judgment

Contempt of court
The after trial phase
Appeal

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 Review
Execution/enforcement of judgment

3.7 Legal costs

 General rules
 Relevant terminology
 Contingency fees
 The impact of the Legal Practice Act on costs

3.8 The impact of the Constitution (and other legislation) on the law of civil
procedure
 See the discussion above.

3.9 Alternative dispute resolution (ADR) ie mediation and arbitration,

 Court-annexed ADR as encompassed in the court rules of the senior and
lower courts.

There are certain additional elements to mention in the context of the course overview:

LEGAL PRACTICE

The objective of this course is not primarily to train advocates or attorneys, but to introduce
students to the basic principles of the law of civil procedure in a manner that will prepare them
for legal practice.

The course aims to serve as a bridge between legal theory in an academic context and legal
practice.

The course encompasses both a theoretical foundation as well as practical application.

Students should be able to apply the theory that will be covered.

It is not sufficient simply to have a theoretical knowledge of the course content.

In order to facilitate this process (and, in other words, to assist students to apply their
knowledge), the course includes the following components:

Complete written assignments on a regular basis

Students are Interpret case studies and to draft court notices and pleadings
required to: Apply, for purposes of tests and exams, the law/rules of court to
factual scenarios and to advise a client

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 Draft written heads of argument and to participate in moot court
proceedings

In this sense, the law of procedure is integrated with principles of substantive law. The
intention is to illustrate, with reference to practical examples, the interaction between facts,
substantive law and procedure.

The course lends itself to the development of critical thinking and problem solving skills.
These skills are vital for any prospective legal practitioner.

The lawyer of the future will need to display skills such as: critical thinking; creativity;
communication and collaboration. We will refer to these skills when we talk about legal
practice and the requirement of being a “fit and proper person” to practise law.

Assessments (tests, exams and assignments) focus on application rather than theory.
Assessments aim to test critical thinking skills rather than rote learning. You will thus be
required to analyze legal problems/factual scenarios and to give practical advice to a client (in
the capacity of an attorney or legal advisor). Alternatively you will be presented with copies of
court documents and requested to analyze and criticize these documents, with reference to the
rules of court.

define relevant terms

distinguish between concepts and to compare procedures (i.e. point out
differences and not simply define)
explain or describe relevant concepts in your own words (no cut and paste!)
pay attention to detail
display a sound knowledge of the relevant legislation and rules of court
use your theoretical knowledge in practical situations by interpreting facts
and solving problems
Assessment
understand the application and implications of the various sections of the
for purposes
relevant acts/legislation and the rules of court and the ability to demonstrate
of this course
this in advising a client/litigant for purposes of court proceedings
requires the
analyse and interpret sets of facts and identify appropriate procedures
ability to:
distinguish between relevant and irrelevant facts
weigh up alternatives and to make a decision as to the appropriate course
of action, ie selecting the best option from various alternatives
solve problems
formulate an answer using the correct legal terminology, writing and
drafting skills
critically evaluate procedural steps
argue a client's case in civil moot court proceedings

Assessment for purposes of this course requires the ability to:

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 ETHICS

We can’t overemphasize the importance of ethical and professional conduct.

As a prospective legal practitioner, it is important that you know what your ethical obligations
entail, in other words, what you may and may not do. This is in addition to having a thorough
understanding of the rules of court and how/when to take procedural steps on behalf of your
client in a civil matter.

We will consider the importance of ethics and integrity as found in the professional duties of
legal practitioners (ie the prescribed Code of Conduct) with reference to the requirement of
being a “fit and proper person” to be admitted to the profession, as well as ethical rules when
faced with difficulties typical to the legal profession.

admission requirements
professional negligence
Assessments prescription
include
the attorney/client relationship and acting in terms of a mandate
questions on this
touting and marketing of legal services
topic, for
example: honesty and integrity
trust money and financial management, charging for legal services
regulatory requirements applicable to attorneys/advocates

ONLINE ASSESSMENTS
During Covid-19, it was necessary to move to online assessments. This brought unique
challenges in the area of student honesty and integrity. Please be aware that you must at all
times present your own work. This means that you may not work in a group, or communicate
on social media (eg a WhatsApp group, or video-call) with other students during an assessment.
It is very easy to spot when students have colluded in an assessment, due to the similarities in
their answers. Students found guilty of such behaviour will face the consequences of their
actions.

Further, for any online assessments, students have the obligation to ensure that they upload
their answer within the time provided and via the submission link that is provided on Moodle.
Late submissions, and submissions that are e-mailed or sent via WhatsApp, will not be marked.
No exceptions will be allowed.

TECHNOLOGY

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In his acclaimed 2010 bestseller The End of Lawyers author Richard Susskind lays down a
challenge to all lawyers and indeed to everyone in the professional services environment.

It seems as if the time has come to consider which elements of the work of an attorney can
potentially be done quicker, faster and better through, for example, advanced systems, standard
processes, self-help tools or even robots.

Going forward, technology will continue to have a profound impact on the legal profession
and, in particular, the skills set required to succeed in law. This is an important consideration
for any prospective legal practitioner. We will discuss some of the advancements in this regard.

We will also touch on technology as part of the litigation process, ie online discovery, online
case management, filing of documents, virtual hearings etc.

Finally, we will consider the impact of Covid-19 on legal proceedings.

4. LECTURES

Contact sessions are as follows:

Day: Tuesdays
Time: 80:00-8:45 am
Single lecture:
Venue: EL 100 (semester 1)
A Les G01 (semester 2)
Day: Thursdays
Double lecture: Time: 10:30am – 12 pm
Venue: B Les 101

GENERAL FORMAT OF LECTURES

 General overview;
 A brief introduction to the topic and the place thereof within the law of civil procedure;
 A discussion and explanation of the theory with reference to relevant principles, the
rules of court, legislation and case law;
 Practical work/application with reference to, for example, sets of fact; drafting of
documents/pleadings and the completion of assignments;
 Participation by students in discussions; and
 A high level summary/points to take away.

It is imperative for students to attend all lectures.

Attendance will be monitored.

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A large part of what will be discussed during lectures is not covered in the textbook. It is
therefore in your own interest to attend all lectures.

Please note that the lecture slides are not sufficient to study for tests/exams. The textbook is
crucial in this regard.

It is important to note that you may not simply cut and paste from the lecture slides and present
this as your work in an assessment.

We reiterate that the lecture slides and other content provided on Moodle are not to be
shared/published in any format or on any platform without the lecturers’ consent.

5. MARKS: TESTS AND EXAMINATIONS

SEMESTER ONE: Test (70%) and Assignments/Practical Work (30%).

&
SEMESTER TWO: Test (70%) and Assignments/Practical Work (30%).

ASSESSMENT DATES:

Please refer to the year programme on Moodle.

This shows the details of lectures, assessments etc.

YEAR MARK:

The year mark with which a student writes the November examinations is calculated by adding
the half year mark (following the June test) to the second semester mark and dividing the total
by two.

You must meet the prescribed requirements for purposes of exam entrance.

FINAL MARK:

The final mark is calculated by adding the year mark to the November exam mark and dividing
the total by two.

You must have a final mark of at least 50% to pass the course.

6. AEGROTAT TESTS AND EXAMS

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  Please take note of the general rules and regulations of the Faculty of Law in this regard
below.
 You are requested to ensure that they apply for aegrotat tests and exams timeously, in
line with the rules of regulations of the Faculty of Law.
 Please note that an aegrotat test/exam may take the form of an oral test/examination.
 Please also refer to the links below for additional information:

[Link]

[Link]

IMPORTANT:

RULES FOR AEGROTAT OR SPECIAL TESTS IN THE FACULTY OF LAW

The following rules apply in respect of students who wish to write aegrotat or special tests
in courses presented by the Faculty of Law. These rules for supplementary, aegrotat and
substitute examinations and assessment opportunities are also set out in the General
Regulations. You must take note of the content of these regulations. A student is entitled to
an aegrotat or special test as a result of illness or any other valid reason.

The following rules apply for students who wish to write an aegrotat or special test:

Notice of reason for non-appearance at the scheduled test or exam

 In the event of illness the prescribed form, Application for Aegrotat Test(s) must
be completed and submitted to the Law Faculty (not to the lecturer) not later than 96
hours (4 days) after the scheduled test was written.
 In other cases, written reasons (together with supporting documents) should be
submitted to the Law Faculty (not to the lecturer) not later than 96 hours (4 days)
after the scheduled test was written.
 The documentation submitted by a student is kept by the Faculty in order to maintain
a record of the number of applications for aegrotat or special tests submitted by a
student in the Faculty.
 The onus is on the student to furnish adequate proof in support of his or her
application.

Format and date of aegrotat and special tests

 It is the responsibility of the student to ascertain the time, scope and venue of the test.
 The format of an aegrotat or special test need not coincide with the format of the
scheduled test. Students must be prepared to be tested in any manner on their
knowledge of the work covered by the scheduled test, including an oral test.
 Grounds for refusing an aegrotat or special test

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  Failure to adhere to the rules as set out above.
 Failure by the student to follow the procedure set out in the rules above.
 If the reason for the student’s non-appearance at the scheduled test is, in the
opinion of the Faculty, not a valid reason.
 If the student has already written an unacceptably high number of aegrotat or
special tests in a given academic year.
 A student, whose application for an aegrotat or special test has been refused, can
make written representations to the Dean of the Faculty of Law within 24 hours after
having been informed that his/her application has been unsuccessful. The Dean (or
the Dean's representative) will make a final decision on whether or not the student
will be allowed to write the aegrotat or special test within 24 hours after having
received the representation.
 No student will be allowed to write a special test if the test time or date was read
incorrectly.

7. FORMAT OF TESTS AND EXAMINATIONS

7.1 General

As indicated above, assessments focus on application rather than theory.

knowledge of rules and procedures;

the ability to read and interpret problems;
The aim is to
problem solving skills;
test:
drafting skills; and
written communication skills.

Questions focus on application and interpretation rather than theory and restatement of rules.

"describe" concepts;
"differentiate between or compare" concepts;
While some "read and analyse" detailed sets of fact/hypothetical legal problems;
questions may "identify" the applicable rule of court;
require
"explain" or "criticize" a rule of court;
explanations,
"explain" the interaction of a particular rule or procedure with other
the remainder
legislation;
of the
"ask"' the right questions to get the relevant information from a client;
questions will
always require "set out/give advice" to a client;
students to, for "explain" a rule/procedural step to a client – using the correct legal
example: terminology;
"motivate" the advice to a client;
"identify the next step" to be taken during the course of civil litigation;

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 "interpret" facts and demonstrate the ability to apply theory;
"draft" a pleading or court notice with reference to a set of facts/legal
problem; and/or
"comment" on the content of a court document;
"critically evaluate"; and
"argue or defend" a particular position.

PAST EXAM PAPERS

Please refer to the past examination papers which are included on Moodle – this will give you
an idea of how you may be assessed in this course. Bear in mind however that you can't focus
exclusively on past papers.

7.2 The approach to be followed when answering questions

THEORY

It is of critical importance to know the theory well.

You should always attempt to provide reasons for your answer/s. It is unlikely that the question
will require you to only “name” or “list” something.

When motivating an answer, you should refer to the relevant sources/authority in support, in
the same way that a legal practitioner is required to do when presenting a case to court ie:

 the rules of court;

 legislation; and
 case law.

Please ensure that you refer to relevant authority when answering any question in a test/exam.

You should bear in mind that the law of civil procedure as applied in the High Court and
Magistrate’s Court is based on two principal sources:

 legislation/statutes and
 the relevant rules of court
 (ie the Superior Courts Act, 10 of 2013 (which repealed the Supreme Court Act of
1959 in its entirety) and the Uniform Rules of Court as well as the Magistrates’
Courts Act, 32 of 1944 and the Magistrates' Courts Rules).

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 DRAFTING OF PLEADINGS AND NOTICES

Drafting is integral to procedural law and legal practice. In order to build this particular skill,
students are required to draft various documents as part of this course.

These documents take the form of letters, court notices and pleadings.

Time is of the essence in assessments and it is not possible to ask you to draft complete
documents in all in stances. It is vital that you draft only the relevant sections of such documents
or pleadings. The basic rule is that the student should read each question carefully and draft
only what is specifically requested. The instructions will make it clear what is required of you.

To illustrate this:

 If students are requested to draft a notion of intention to defend, the full document
including the heading and the standard ending should be included unless the question
indicates that the heading may be omitted;
 If students are required to draft the citation of the parties to litigation, then only the
citation is to be provided, it is not necessary to draft the complete summons and or
particulars of claim.

Please also consider the Drafting Guidelines on Moodle.

Examples of short “direct” questions:

1. Explain the following terms: …

2. Define the following: …
3. Distinguish between the following, ie application and the action procedure. (In other
words, you can required to explain differences rather than simply define concepts.)

Examples of essay type questions:

1. Discuss, with reference to examples, the impact of the Constitution of 1996 on the law
of civil procedure.
[15]
2. Write a note on the summary judgment procedure as it applies in the High Court. You
are required to comment on the constitutionality of this procedure.
[10]
3. Write an essay on the recognition and application of class actions in South African law.
[15]

Examples of problem solving questions:

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 a) A, a peregrinus, institutes legal action against B, an incola of the Republic, for an
amount of R150 000. A owns a beach cottage in the Western Cape. B requires from A
to provide security for costs.
Set out you your advice to B. Indicate whether B will be successful with his request
under these circumstances. [5]

b) A’s motor vehicle is insured by the B Insurance Company. He is involved in a motor

vehicle accident caused by C’s negligence. A suffers damages in the amount of
R120 000 to his vehicle.
Advise the insurance company with regard to the institution of a claim against C (after
B has indemnified A). [4]
c) Indicate the parties to the subsequent suit in view of your advice in b) above. [4]
d) Which court will have jurisdiction in this matter? Motivate your answer. [2]
e) What type of summons will you use? [2]

Examples of questions in relation to case law:

Briefly discuss the principles laid down in BST Kombuise v Abrahams 1978 (4) SA 182 (T)
with regard to discovery.

Or

Briefly discuss the importance/significance of the decision in BST Kombuise v Abrahams 1978
(4) SA 182 (T) for the law of civil procedure.

Or

Discuss the ratio decidendi in the decision of ….

Drafting documents/pleadings:

Consider the following set of facts and answer the questions below in regard thereto -

Peter Smit is 20 years of age. He is a law student at UJ. He was recently involved in a motor
vehicle accident with Mr Sam Ndlovu. Sam is employed as a sales assistant at the Edgars store
in the Menlyn shopping centre in Pretoria. Sam allegedly skipped a red robot.
The incident took place at the corner of Duncan Street and Duxbury Road, Hillcrest, Pretoria.
Peter was driving his brother’s car (Jack Smit) at the time of the incident. The amount in respect
of damages to Jack’s vehicle is R15 000 (fifteen thousand rand). Peter subsequently obtained
a quotation from a panel beater, X. Both Peter and Jack reside at 10 Mitchell Street, Pretoria.
Sam resides at 20 Meer Street, Sunnyside, Pretoria.

You act on behalf of Peter and Jack.

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You advise them to institute legal action against Sam.
a) Draft the citation of the relevant parties as it will appear in the summons. [4]
b) Draft the particulars of claim. [10]
c) Draft the notice of intention to defend on behalf of Sam. [6]

How to deal with procedural errors in pleadings etc:

Students may be presented with a set of pleadings or, for instance, a document such as a
summons or the sheriff’s return of service and asked to indicate/identify the errors in the
document and to explain how to address these problems. This type of question has become
particularly useful in online assessments.

Again, this type of question is to be answered with reference to authority, ie the rules of court.

Examples of practical application:

Consider the following facts and answer the questions below in relation thereto:

Susan Daniels is a third year law student at UJ. During August 2020, she instituted an action
for damages against Star Supermarket (Pty) Ltd. It arose out of an incident that occurred on
the 24th of December 2019 in the store's Menlyn shopping centre branch in Pretoria.

On the particular day, employees were cleaning/washing the floor of the shop. Susan slipped
on the wet floor and fell. In the process, she sustained serious bodily injuries. In addition to
breaking a leg and injuring her fingers, she hit her head against a steel shelf. Aside from cuts
and bruises, she also sustained traumatic brain injuries. Her total medical expenses amount to
R905 000 (nine hundred and five thousand rand).

In the particulars of claim, it was alleged that the incident was caused by the sole negligence of
the defendant in that it failed to take reasonable steps to ensure that use of the floor by members
of the public was safe. In addition, the plaintiff alleged that the floor was cleaned without
warning signs alerting members of the public to the fact that the floor was wet and that they
could slip and fall.

The defendant denies negligence as well as the averments in connection therewith.

a) Draft the citation of both parties as this will appear in the particulars of claim. (2)
b) Draft the prayers as this will appear in the particulars of claim. (3)
c) Draft the defendant's notice of intention to defend. (5)
d) Accept that you act for the plaintiff. The defendant has delivered an appearance to
defend but fails to deliver a plea within the prescribed dies. Draft the next document to
be delivered on behalf of your client.
You should start with the tramlines. (5)
e) Accept that you act for the defendant.

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 Having perused the plaintiff's summons, you are of the view that the court does not have
jurisdiction to entertain the matter. The incident occurred in Pretoria and the defendant
resides in Pretoria. However, the plaintiff instituted action in the High Court in Durban,
which is where the Plaintiff resides.
Draft the defendant's plea in this regard. You should start with the tramlines.
It is not necessary to draft a plea on the merits. (3)
f) Accept that you act for the plaintiff and that pleadings have closed.
The plaintiff has obtained a trial date from the registrar of the court, ie 5 June 2021.
Draft the notice of set down to the defendant. You should start with the tramlines. (4)
g) The plaintiff intends to present six colour photographs of the scene of the collision as
evidence.
Draft the necessary notice in order to ensure that the photograph can form part at the
evidence at the trial. You should start with the tramlines. (5)
h) Accept that the photo was taken by a witness on the scene.
Will it be necessary for the plaintiff to call the photographer to testify? Indicate if and
when this will be necessary. (2)
i) Discuss whether the plaintiff will be able to rely on the photographs if she does not
deliver the notice referred to in question j) above. (1)
j) Accept that you act on behalf of the defendant.
The defendant denies that it's conduct is causally linked to the plaintiff's injuries.
The defendant wants Susan to attend a medical assessment by Dr Gumede, a
neurosurgeon based at the Sandton Hospital in Johannesburg, in order to determine the
nature, extent and duration of Susan's injuries.
Draft the necessary notice in order to advise the opponent of the proposed examination.
You should start with the tramlines. (9)
k) For purposes of her claim, the plaintiff intends to call Dr Beekman, a surgeon with some
20 years' experience to testify as to the nature and extent of her injuries.
Draw the necessary notice informing the opponent of this witness. You should start with
the tramlines. (3)
l) Identify the steps to be taken by the plaintiff to arrange a pre-trial conference. (3)
m) One the plaintiff's key witnesses is no longer available to attend the trial due to personal
circumstances beyond his control.
The witness will be overseas at the time of the trial.
Indicate whether, and if so, under which circumstances, the plaintiff will be allowed to
present the witness' testimony by affidavit. (2)
n) Assume that the matter has been finalised. The judge has found in favour of the
plaintiff. You act on behalf of the defendant.
Adv Kampepe, who was the defendant's counsel in the court a quo, advises that there is
a good chance that the defendant can have the matter overturned.
This is on the basis of the judge erring in not taking into account the evidence of the
eyewitness on the scene, Ms Susy Bollox.
Adv Kampepe is further of the opinion that the trial judge had erred in not taking into
account that Susan had contradicted her own evidence during cross examination. You
are required to draw the defendant’s Notice of Appeal. Make up/add your own facts to
the extent necessary. (5)

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 o) Assume that you are a candidate attorney.
Your principal gives you the following documents:
 a complete combined summons pertaining to the Smith divorce matter;
 a notice of intention to defend relating to the Moloi matter (claim for damages).
He instructs you to “issue” the combined summons and to ensure that it is sent
off to be delivered. He then instructs you to see to the delivery of the notice of
intention to defend.
i. Explain how you will issue the combined summons. (1)
ii. How will the combined summons be delivered? (1)
iii. In contrast to (iii) above, how will you see to the delivery of the notice of intention
to defend? You should deal with each of these actions/steps in detail.
(2)

8. USING THE STUDY GUIDE AND TEXTBOOK

The textbook “Fundamental Principles of Civil Procedure” serves as the basic source for tests
and examinations. Students should study from primarily from the textbook, and view the
lecture slides as additional material.

This study guide serves as a guideline.

The information contained herein is by no means exhaustive and must be supplemented
through self-study with reference to the lecture notes, textbook and prescribed reading
material. The lecturers reserve the right to supplement/amend the study guide as the year
progresses in order to ensure that the course material is kept up to date and relevant.

You will be referred to reading lists with other sources (ie case law, legislation, rules of court
and journal articles) during lectures. In addition, the reading lists are available on Moodle. It
is important to consult these other sources for purposes of tests and examinations. Each student
bears the onus to ensure that their study material is complete and up to date.

9. EXPLANATION OF STUDY INSTRUCTIONS

“prescribed Case law, legislation and/or articles that the student must study for material”
purposes of tests/exams.

“from the textbook” Sufficient for purposes of test/exam if studied from the textbook.

10. YEAR PROGRAMME: 2023

Please refer to the detailed year programme on Moodle.

Some important dates are set out below:

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 SEMESTER 1 SEMESTER 2

Test 1: Test 3:
Friday, 19 April 2024 Friday, 4 October 2024
(On campus) (On campus)
Time: TBA Time: TBA
Test 2: Exam:
Saturday, 15 June 2024 Monday, 11 November 2023
(On campus) (On campus)
8:30 am 12:30 am

Please refer to the scope document for this Please refer to the scope document for this
test exam.

LIST OF BASIC SOURCES

Rules of court
As has been indicated above, the rules of court form the foundation of procedural law. The rules
that govern cicil procedure and that are essential to your studies in this course are:

11.1 Magistrates’ Courts Act, 32 of 1944 as amended and Rules (Magistrates’ Court Rules
or MCR).
11.2 Superior Courts Act, 10 of 2013 (which repealed the Supreme Court Act, 59 of 1959 in
its entirety ) and Uniform Rules of Court (High Court Rules or HCR).
11.3 Rules of the Supreme Court of Appeal of South Africa (SCA Rules or SCAR).

ADDITIONAL RESOURCES

The following list of references to civil procedure textbooks is for reference purposes only.

The highlighted abbreviations will be used in this study guide.

It is not necessary to purchase these books/publications.

11.4 Bascerano, E. A basic guide to civil procedure in the Magistrates’ Courts (2012)
11.5 Du Plessis, Oxenham, Goodman, Kelly and Pudifin-Jones Class action litigation in
South Africa Juta 2017
11.6 Erasmus HJ and OJ Burrow Supreme Court Act and Magistrates’ Court Act (1999) Juta
(E&B)
11.7 Erasmus HJ Superior Courts Practice (2nd ed) (2015) Juta (Erasmus)
11.8 Faris and Hurter Student Handbook for Civil Procedure (7th ed) LexisNexis

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11.9 Harms LTC and Hugo JH Amler’s Precedents of Pleadings (8th ed) Butterworths
(Amler’s)
11.10 Harms LTC Civil Procedure in the Supreme Court Butterworths (Harms)
11.11 Harms LTC Civil Procedure in the Supreme Court (1998) Butterworths (Harms
Student Edition)
11.12 Harms LTC Civil Procedure in the Magistrates’ Court Butterworths ((Harms MC)
11.13 Pete, Hulme, du Plessis, Palmer and Sibanda Civil ProcedureL A Practical Guide
Oxford University Press (4th ed)
11.14 Van Winsen et al The Civil Practice of the Superior Courts in South Africa (5th ed) Juta
(2009) (Van Winsen)
11.15 Jones and Buckle The Civil Practice of the Magistrates’ Courts in South Africa (Vol I
& II) (10th ed) Juta (2012) (Jones & Buckle)
11.16 LAWSA Vol 4 and Vol 5 LexisNexis (LAWSA)
11.17 Marnewick, CG Litigation Skills for South African Lawyers (3rd ed) LexisNexis (2012)
11.18 Paterson, TJM Eckard’s Civil Procedure in the Magistrates’ Court (4th ed) Juta (2001).
11.19 Pretorius, D Pollak on Jurisdiction (2nd ed) Juta (Pollak).

11. IMPORTANT DEVELOPMENTS

A selection of important developments is highlighted below:

12.1 The Jurisdiction of Regional Courts Amendment Act, 31 of 2008

This legislation took effect on 9 August 2010.

The Department of Justice and Constitutional Development has amended the

Magistrate’s Courts Act of 1944 giving powers to Regional Courts to deal with civil
cases. Previously, these courts only dealt with criminal matters. The department has
indicated that the amendments increase access to justice to members of the public, in
particular, women and children who go to courts daily for the resolution of family
related disputes ie divorce; maintenance; adoption; and matters relating to custody of
minor children.

The regional courts have been authorised to deal with the following civil matters:

 Family disputes including: divorce; maintenance; adoption; and matters relating

to custody of minor children.
 Disputes over movable and immovable property which were dealt with by the
High Court before the amendment.
(Now R200 000 - R400 000)
 Credit Agreements
(Now R200 000 - R400 000)
 Road Accident Fund claims
(Now R200 000 - R400 000)

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  The benefits of this legislation are said to include the following:
o Reduced time of finalisation of cases: There are now 62 more Regional
Courts to deal with same workload that the 3 former divorce courts. This
will assist in reducing case backlogs at the level of the High Courts and
Magistrates’ Courts.
o Reduced costs: Proceedings in the High Court is complex to the extent that
attorneys and advocates are usually instructed resulting in high litigation
costs. Regional courts have a reduced scale of costs in relation to the High
Court, and simplified proceedings which include the use of mediation in
resolving civil disputes.
 The Act:
Confers on courts for regional divisions the same jurisdiction as the High Court
to:
o Hear and determine suits relating to the nullity of a marriage or a civil union
and any question arising therefrom;
o Hear and determine suits relating to divorce and any question arising
therefrom;
o Hear any matter and grant any order provided for in terms of the
Recognition of Customary Marriages Act 120 of 1998.
o Converts the divorce courts established under s 10 of the Administration
Amendment Act 9 of 1929 into Magistrates’ Courts for regional divisions.

You should take note that:

The rules of the divorce courts made under s 10 (4) of the Administration Amendment
Act 9 of 1929 and the rules regulating the conduct of the proceedings of the
Magistrates’ Courts were repealed and replaced by a comprehensive set of new rules
that has since taken effect.

12.2 The Superior Courts Act, 10 of 2013

 This legislation recognises that, "with the advent of the democratic

constitutional dispensation in 1994, we inherited a fragmented court structure
and infrastructure, which were largely derived from our colonial history and
were subsequently further structured to serve the segregation objectives of the
apartheid dispensation".
 This legislation rationalises the court structure with a view to establish a judicial
system suited to the requirements of the Constitution.
 The importance and impact of this legislation should not be underestimated as
it introduces an entirely revised court structure.
 Please study the summary of the Act and the courts on Moodle.

12.3 The Traditional Courts Act 9 of 1922

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  The Constitution recognises customary law as a legal system that lives side by
side the common law and legislation and recognises that customary law plays an
integral role in the resolution of disputes in communities between members of
those communities who observe the accepted practices and customs applicable
in their communities.
 A traditional court means a customary structure which resolves disputes and is
presided over by a traditional leader who is someone who holds such a position
in terms of the customs and practices of the community.
 The role of traditional courts are to promote co-existence, peace, harmony,
access to justice, preserve traditions, customs and cultural practices. Traditional
courts, in resolving disputes, must also embrace the values of the Constitution.
 A traditional court may not hear a matte that is being investigated by the South
African Police Service, or is pending before another court, or has been finalised
by another court.

12.4 Alternate dispute resolution and the court rules

In order to promote access to justice, to promote restorative justice and to facilitate expeditious
and cost-effective resolution of disputes the move has been to integrate alternative dispute
resolution systems into court procedures.

During Covid-19, the process of mediation has become even more topical. For instance, in
March 2020 it became compulsory to consider mediation for every new matter instituted in the
High Court. The parties have to file a statement that mediation has been considered and whether
the dispute can be resolved by means of mediation. If mediation is refused, the parties must
furnish reasons for the refusal. If the court considers the reasons unfounded, an adverse costs
order may follow.

In the Magistrate’s Court MCR 70 - 87 sets out a system of statutory induced court annexed
mediation which was introduced in 2013. We will compare this with the position in the High
Court, where a more recent Rule 41A deals with mediation.
.
12.5 Prescribed Rate of Interest Act 55 of 1975

Under section 1(2)(b) of the Prescribed Rate of Interest Act, 1975, the rate of interest is
published/gazetted from time to time for purposes of section 1(1) of the said Act. The rate is
not fixed.

We will consider the current rate that applies when drafting court document and having to
include a prayer for interest to be paid.

12.6 Court Online: Evidence Management (Caselines)

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Court Online: Evidence Management (Caselines) is a free online service offered to all Legal
Practitioners and Members of the public. It allows Judges and legal teams to prepare, upload,
share, and present evidence/legal bundles, documentary and video evidence in a single online
system.

In terms of the directive the Registrar “creates” a case on the system and thereafter “invites”
parties and/or their legal representatives to that case ie makes the case available online to those
parties.

All invited parties to the case can access the latest evidence, can prepare for hearing by making
private notes and have evidence arranged with automatic pagination and indexing. In Court
evidence can be presented by directing the Court to specific evidence online.

Each party is responsible for uploading their particular pleadings or documents into the
electronic court file (unless a party is unrepresented). Judge’s secretaries are responsible for
uploading the judge’s judgment at and any draft orders.

All legal representatives who litigate in the Gauteng Divisions of Pretoria and Johannesburg
have to register/enrol on the system.

During Covid courts had to use online procedures almost overnight and CaseLines facilitated
this process.

CaseLines has become indispensable. It is anticipated that it will remain so, and that it will
be improved and expanded.

12.7 The Lower Courts Bill (released in 2022)

The Lower Courts Bill aims to provide for the establishment of lower courts and to align
lower court systems with the Constitution. Once enacted, the Bill will replace the existing
Magistrates’ Courts Act of 1944.
 Historically Magistrates were public servants appointed from within the Department
of Justice. This has subsequently changed and Magistrates are currently appointed by
the Magistrates Commission with the concurrence of Parliament. The Lower Courts
Bill aims to ensure the autonomy of the lower courts judiciary from the Executive.
The Judge President of a Division of the High Court will also be responsible for the
co-ordination of the judicial functions of all Magistrates’ Courts falling within the
jurisdiction of that Division.
 Lower Courts will consist of Regional Courts, District Courts and Municipal Courts.
 S16(1) “any person has the right to appear on his or her own behalf in any proceeding
in any Lower Court”, but parties may also use legal representation in the form of legal
practitioners and candidate attorneys.

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12.8 The Rationalisation of Areas under the Jurisdictions of the Divisions of the High
Court and Judicial Establishments.

 A committee, entitled “The rationalisation of areas under the Jurisdictions of the

Divisions of the High Court and Judicial Establishments” has been appointed to
rationalise the jurisdiction of all the courts in South Africa. This Committee’s reports
states that:

The legacy of colonialism and apartheid continues to plague South Africa with spatial
injustices and to impede access to courts for communities that reside in the areas that
formed part of the defunct homelands and self-governing territories, as well as remote
rural villages.

 Rationalisation is defined as “a process by which the area of jurisdiction of each

division of the High Court is defined or re-defined in a manner that would advance or
procure access to courts and justice and a more efficient management of the court
establishment.
 It is expected that the Minister of Justice will change the jurisdictional areas of all
courts in line with the report in the near future.

Please also refer to the “New Developments” folder on Moodle. Additional information will
be shared here on a regular basis.

ASSIGNMENTS

Please note that there are various assignments to complete.

Assignments are available on Moodle and form part of the content for each chapter.

Students are required to complete a short online assessment each work. These will count
towards the semester mark.

Please ensure that you complete all assignments.

COURSE CONTENT:

CHAPTER 1 INTRODUCTION TO THE LAW OF CIVIL

PROCEDURE

LEARNING OUTCOMES

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At the end of this chapter, you should be able to:

1. Explain/describe what the law of civil procedure is/entails, in other words, define this
branch of the law and indicate its place within the legal system.
2. Distinguish/differentiate between the law of civil procedure and the law of criminal
procedure.
3. Indicate which basic principles underlie the law of civil procedure.
4. Identify the principal sources of the law of civil procedure.
5. Indicate which institutions/entities mainly apply the law/rules of civil procedure.
6. Distinguish between the basic civil procedures, ie action/application procedure.
7. Discuss the historical foundations and development of the law of civil procedure in
South Africa with reference to the impact of the Constitution of 1996 on civil procedure
and civil litigation.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

Please note:

 Students must, with the view to answer this question in the final examination, prepare
an essay on the following topic:
The impact of the Bill of Rights on the law of civil procedure.
 Aspects relating to this topic will be dealt with as part of lectures throughout the year.
 Your answer must refer to the abovementioned prescribed articles, in addition to other
journal articles and case law which may be of relevance.
 You must be able to analyse the impact of the Bill of Rights on this area of the law.
 You must incorporate your own examples to illustrate/demonstrate the impact of the
Bill of Rights on the law of civil procedure, ie:

 Debt collection procedures  Litigation involving organs of

state
 Locus standi  Citation of parties
 Arrest of foreign litigant to  Emolument attachment orders
found/confirm jurisdiction
 Provisional sentence  Attachment of debtor’s primary
residence
 Execution  Class actions
 Specific legislation: National  Other relevant examples
Credit Act, 34 of 2005 and

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 Consumer Protection Act, 68 of
2009

Please remember to complete the weekly assessment/s

online

CHAPTER 2 STRUCTURE OF THE COURTS AND OFFICERS OF

THE COURTS

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain/discuss the hierarchy of South African courts.

2. Explain/describe the composition and jurisdiction of the Constitutional Court, Supreme
Court of Appeal, High Court and Magistrates’ Courts respectively.
3. Identify the officers of the various courts and explain their functions.
4. Discuss the various so-called specialised courts in South Africa.
5. With regard to the Small Claims Court:
5.1 Discuss the jurisdiction of the Small Claims Court in relation to the following
aspects:
i) monetary; ii) substantive; iii) persons.
5.2 Apply the three-pronged test for the Small Claims Court’s jurisdiction to a
practical scenario.
5.3 Explain the procedure to be followed for purposes of instituting proceedings
in the Small Claims Court.
5.4 Indicate if a right of appeal and/or review exists in respect of proceedings in
the Small Claims Court.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

Please remember to complete the weekly assessment/s

online

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 CHAPTER 3 CONSULTATION, LEGAL REPRESENTATION,
DEMAND AND PRESCRIPTION

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Indicate what information a legal practitioner should obtain from a client during the
first consultation with the client.
2. Indicate which obligations FICA (the Financial Intelligence Centre Act, 38 of 2001)
places on accountable institutions (ie law firms/attorneys).
3. Explain how to be mandated to represent a person in civil litigation and how to
withdraw as a legal representative.
4. Draft a letter of demand.
5. Indicate/list which elements to include/address in a proper demand.
6. Indicate what the prescription periods are with regard to the institution of a civil action.
7. Explain the concept of superannuation.
8. Identify the preliminary questions the legal practitioner should consider and identify the
main pre-litigation issues.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Letter of demand

You will see that there are various considerations to be taken into account when drafting a letter
of demand. These issues will be discussed during the lecture. Please also refer to the example
below:

Example of a letter of demand (to be drafted on a letterhead)

(Details of writer ie)

Lochman and Partners

Address

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 (Details of addressee ie)

Mrs Hannah Cyrus

Address

Date

Dear Sir/Madam

(Heading, ie)

Motor vehicle collision/X v H Cyrus/Demand for payment/Damages to vehicle

1 (Introduction/mandate, ie)

We act for X / We address this letter to you on the instructions of X / We act on behalf
of our client, X.

2 (Reason for demand, ie)

Details of claim – no facta probantia, only facta probanda or basic facts to be set out, ie
cause of action – refer to parties, dates and amounts.

ie We are instructed that, on 2 January 2010, a motor vehicle collision occurred between
... at ..... We are instructed that the accident was caused by ..... The damages to our
client’s motor vehicle amounts to R...

3 (Action expected plus time for performance, ie)

We hereby demand that you .... (ie make payment of the amount of R99 000 into our
trust account by no later than ...)

4 (Consequences of failure to comply, ie)

failing which we are instructed to proceed with a summons to recover this amount
without further noti ication.

Yours faithfully

Name and signature

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 Please remember to complete the weekly assessment/s
online

CHAPTER 4 JURISDICTION: GENERAL PRINCIPLES

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain/discuss what "jurisdiction" means.

2. Explain the general principles relating to jurisdiction, namely actor sequitor forum rei;
effectiveness and consent.
3. Explain the following concepts:
3.1 incola
3.2 local peregrinus
3.3 foreign peregrinus
3.4 arrest ad fundandam jurisdictionem and
3.5 arrest ad confirmandam jurisdictionem.
4. Discuss the effect of foreign peregrini consenting to the jurisdiction of the court.
5. Indicate which procedure must be followed in the event of:
5.1 attachment ad fundandam jurisdictionem;
5.2 attachment ad confirmandam jurisdictionem.
6. Analyse sets of facts and identify, with reference to the relevant legislation, which
court/s will have jurisdiction.
7 Draft an application for attachment ad fundandam/ad confirmandam jurisdictionem.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

Please remember to complete the weekly assessment/s

online

CHAPTER 5 JURISDICTION: HIGH COURT

LEARNING OUTCOMES

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At the end of this chapter, you should be able to:

1. Explain what the “inherent jurisdiction” of the High Court refers to.
2. Explain the extent of the jurisdiction of the Supreme Court of Appeal.
3. Discuss the jurisdiction of the High Court with reference to:
3.1 claims for the payment of a sum of money;
3.2 claims regarding property;
3.3 matrimonial claims.
4. Analyse sets of facts and indicate, with reference to the relevant legislation, which
division of the High Court will have jurisdiction.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

SUMMARIES
You will find summaries on Moodle of the jurisdiction of
the High Court; specific scenarios; and different categories
of cases.

Some interesting questions to consider:

Remember: Attachment of property can only take place if the defendant is a peregrinus of the whole
SA. It serves either to found jurisdiction where no other jurisdictional connecting factor exists (ad
fundandam jurisdictionem) or to confirm the partial jurisdiction which a court has because the cause of
action arose within the jurisdictional areas of the court (ad confirmandam jurisdictionem). In terms of
s 28(1) of the Supreme Court Act attachment to found/confirm jurisdiction of a defendant who is resident
anywhere in RSA is prohibited.

1 X, a businessman from Jhb, goes to Cape Town on business for a week. While in Cape Town,
he is involved in a motor vehicle collision with Y, a resident of Bloemfontein who is on holiday
in Cape Town. Y owns a farm in Durban but does not live on the farm. X suffers damage as a
result of the collision in an amount of R90 000. The collision was due solely to the negligence
of Y. X wishes to institute action against Y to recover his damage.

Various cities are mentioned in the above set of facts. Indicate, in respect of the High Court in
each city, whether or not each court will have jurisdiction to hear the matter.

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2 X is resident in Pretoria. Y, an Italian citizen, who resides in Cape Town, makes a defamatory
statement about X which is published in a daily newspaper in Pretoria. X wishes to sue Y for
damages in an amount of R150 000. At the time X institutes the action, Y is on holiday in
Durban.
Which court/s has jurisdiction to deal with the matter?

3 Y, who lives in England, visits SA for purposes of his holiday. While sight-seeing in the Kruger
National Park, he damages the motor vehicle he rented from Avis Car Rentals. Avis’ registered
office is in Bloemfontein. The damage caused to the vehicle amounts to R60 000. Avis intends
to institute legal action against Y. At the time Avis institutes action against Y, he is continuing
his holiday in Cape Town. Y owns no assets in SA. Which court/s has jurisdiction to deal with
the matter.

4 Timberline Ltd is an American company with its registered office in New York. It owns
immovable property in KwaZulu-Natal, SA. The company enters into a contract with X, a SA
businessman who lives in Cape Town. The contract is concluded in Jhb and provides for X to
supply the company with various goods. X delivers the goods to Timberline in Jhb but
Timberline, despite demand, fails to make payment in terms of the contract. X intends to
proceed with legal action to recover the outstanding amount. Which court will have jurisdiction?

Please remember to complete the weekly assessment/s

online

CHAPTER 6 JURISDICTION: MAGISTRATES’ COURTS

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain the notion that a Magistrate’s Court has no inherent jurisdiction but that it is a
creature of statute.
2. Explain how to determine the jurisdiction of a specific Magistrate’s Court with
reference to: monetary limitations; jurisdiction in respect of persons; jurisdiction in
respect of causes of action; arrests and interdicts.
3. Distinguish between the jurisdiction of the High Court and the Magistrate's Court.
4. Distinguish between the jurisdiction of a Regional Court and a District Magistrate's
Court.

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5. Explain the jurisdiction of the Magistrates' Courts with reference to sections 29 and
46 of the Magistrates’ Courts Act 32 of 1944.
6. Explain the extension of Magistrates’ Courts jurisdiction in accordance with sections
38, 39 and 45 of the Magistrates’ Courts Act 32 of 1944 and apply these sections to a
practical situation.
7. Analyse sets of facts and indicate, with reference to relevant legislation, which
Magistrate's Court will have jurisdiction.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

SUMMARIES
You will find summaries on Moodle dealing with the
jurisdiction of the Magistrates’ Courts.

Please remember to complete the weekly assessment/s

online

CHAPTER 7 PARTIES

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain what locus standi is.

2. Explain the position with regard to class actions in South African law.
3. Distinguish between concepts, ie joinder of necessity and joinder of convenience;
nonjoinder and misjoinder.
4. Explain High Court rule 13 (the so-called third party procedure) and draft a third party
notice with reference to a given set of facts.
5. Distinguish between the third party procedure in terms of High Court Rule 13 and the
related procedure in terms of the Appropriation of Damages Act, 1955.
6. Cite the parties to a civil suit, ie:
individual minor; juristic person (close corporation and company) trust; partnership;
firm; association; the State; etc
7. Discuss the procedure for purposes of appointing a curator ad litem.

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 READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries of the parties to litigation
and how to cite the parties.

Please remember to complete the weekly assessment/s

online

CHAPTER 8 APPLICATION PROCEDURE

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Indicate what the difference is between the action and the application procedure.
2. With reference to case law, indicate,:
2.1 How a factual dispute arises and
2.2 What the court can do if a party institutes/makes use of the incorrect civil
procedure.
3. Distinguish between three main types of applications and explain each main type of
application with reference to:
3.1 the notice of motion
3.2 the founding affidavit
3.3 the opposing/answering affidavit.
4. Explain the principles applicable to urgent applications with reference to case law.
5. Give a brief explanation of the application procedure in the Magistrates’ Courts, ie
which steps are to be followed.
6. Indicate instances where the application procedure is usually used.
7. Indicate instances where the application procedure is mandatory.
8. Analyse sets of facts and draft the short and long form of the notice of motion.

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 READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

You will be referred to specific material with regard to interdicts (final and interim) and so-
called Anton Piller orders. It is important that you can distinguish between these remedies and
indicate what the requirements are for each type of relief.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries of the application
procedure.

Please remember to complete the weekly assessment/s

online

CHAPTER 9 ACTION PROCEDURE

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Indicate how the action procedure differs from the application procedure.
2. Explain what a pleading is.
3. Indicate the purpose and function of pleadings.
4. Discuss the requirements for pleadings in terms of HCR 18.
5. Distinguish between a pleading and other court documents, affidavits and notices.
6. Draft a basic Particulars of Claim in respect of the following: a motor vehicle accident
(damages to the body of the vehicle); a divorce action and a claim based on breach of
contract.
7. Critically analyse pleadings and court notices and comment thereon.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

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 DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries of the action procedure.

Please remember to complete the weekly assessment/s

online

CHAPTER 10 SUMMONS

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain what a summons is.

2. Distinguish between a simple and a combined summons in the High Court by way of
an example.
3. Explain what is meant by “citation” and provide the citation of parties to ligation.
4. Indicate the requirements for a High Court and Magistrate's Court summons.
5. Analyse sets of fact and identify the appropriate type of summons to be used.
6. Discuss lapsing of a summons.
7. Discuss the nature of and requirements for the Particulars of Claim.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries relating to summonses

Please remember to complete the weekly assessment/s

online

CHAPTER 11 SERVICE OF DOCUMENTS

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 LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain what the function of “service” is.

2. Distinguish between service and delivery of a document.
3. Fully explain the duties of the sheriff when serving a document and to apply such
knowledge to a practical situation.
4. Distinguish between substituted service and edictal situation and to apply such
knowledge to a practical situation.
5. Explain what is meant by judicial discretion in respect of service.
6. Draft an application for substituted service and for edictal citation.
7. Critically analyse a copy of a return of service and comment on whether it complies
with the prescribed requirements.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
You will find useful documents relating to service.

Please remember to complete the weekly assessment/s

online

CHAPTER 12 JUDGMENT AT AN EARLY STAGE AND STAY OF

PROCEEDINGS

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain the purpose of a notice of intention to defend.

2. Distinguish between a notice of intention to defend in the High Court and in the
Magistrates’ Court and draft a notice of intention to defend.
3. Indicate what default judgment entails.
4. Distinguish between the various types of default judgment and to explain what each
entails.
5. Distinguish between the procedures provided for section 57 and 58 of the Magistrates’
Courts Act 32 of 1944.

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6. Explain what a notice of bar is and draft a notice of bar.
7. Indicate how to bring an application for discharge of bar, extension of time or
condonation.
8. Indicate what an application to compel is.
9. Discuss the stay of proceedings.
READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries about when default
judgment may be applied for

Please remember to complete the weekly assessment/s

online

CHAPTER 13 SUMMARY JUDGMENT

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain the ratio/reasoning behind the summary judgment procedure.

2. Critically evaluate the procedure and argue whether it complies with constitutional
requirements.
3. Explain how to test whether a matter is susceptible to summary judgment with reference
to a practical situation.
4. Explain the procedure for:
4.1 a summary judgment application and
4.2 opposing a summary judgment application.
5. Draft an application for summary judgment.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

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 DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries relating to summary
judgment.

Please remember to complete the weekly assessment/s

online

CHAPTER 14 INTERIM PROCEDURES

LEARNING OUTCOMES

Exception - At the end of this chapter, you should be able to:

1. Explain what an exception is and when it can be raised in the High Court and
Magistrates’ Courts respectively.
2. Explain the exception procedure in the High Court and in the Magistrates'
Courts.
3. Draft an exception.

Striking out - At the end of this chapter, you should be able to:

1. Give examples of situations where the procedure of striking out could be used.
2. Explain the procedure for the striking out in the High Court and Magistrates’ Courts
respectively.
3. Draft a request for striking out.

Irregular Step - At the end of this chapter, you should be able to:

1. Provide examples of an irregular step in civil litigation.

2. Explain the procedure for the setting aside of the irregular step in the High Court.
3. Draft a notice of application in terms of HCR30.
4. Distinguish between an exception and an irregular step.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

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 DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries relating to interim
pleadings.

Please remember to complete the weekly assessment/s

online

CHAPTER 15 SETTLEMENT COSTS/TENDERS, SECURITY FOR

COSTS AND MEDIATION

LEARNING OUTCOMES

Settlement - At the end of this chapter, you should be able to:

1. Distinguish between a conditional and unconditional settlement offer.

2. Explain the procedure for the settlement offer in the High Court.

Security for costs – At the end of this chapter, you should be able to:

1. Explain the ratio behind security for costs.

2. Distinguish between security for costs in the High Court and the Magistrates’ Courts.
3. Draft a request for security for costs.
4. Explain the rules regarding security for costs in case of a company or close corporation,
with reference to new legislation.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries relating to this topic.

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 Please remember to complete the weekly assessment/s
online

CHAPTER 16 PLEA, COUNTERCLAIM, REPLICATION,

COUNTERPLEA AND CLOSE OF PLEADINGS

LEARNING OUTCOMES

Plea - At the end of this chapter, you should be able to:

1. Explain what a plea is.

2. Explain the following concepts with reference to the practical implications/effect of
each:
2.1 admit;
2.2 deny;
2.3 confess and avoid; and
2.4 non-admission.
3. Distinguish between a plea on the merits and a special plea.
4. Explain the procedure for filing a plea in the High Court and Magistrates' Courts
respectively.
5. Draft a plea and a special plea.

Replication - At the end of this chapter, you should be able to:

1. Explain what a replication is.

2. Distinguish between a replication in the High Court and the Magistrates' Courts.
3. Explain what the effect is of a failure to deliver a replication.
4. Draft a replication.

Counterclaim - At the end of this chapter, you should be able to:

1. Explain what a counterclaim is.

2. Differentiate between the concepts “convention” and “reconvention”.
3. Explain the function of the term “brevitas causa”.
4. Distinguish between the counterclaim in the High Court and Magistrate's Courts.
5. Explain the consequences of not delivering a plea to the counterclaim.
6. Draft a counterclaim.

Plea to Counterclaim - At the end of this chapter, you should be able to:

1. Indicate what the plea to the counterclaim is.

2. Draft a plea to a counterclaim.

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3. Discuss subsequent pleadings.

Close of Pleadings - At the end of this chapter, you should be able to:

1. Indicate the importance of ascertaining the time when the pleadings are closed.
2. Distinguish between the close of pleadings in the High and Magistrates’ Courts.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries on Moodle of various
methods of pleading.

Please remember to complete the weekly assessment/s

online

CHAPTER 17 AMENDMENT OF PLEADINGS

LEARNING OUTCOMES

At the end of this chapter, you should be able to:

1. Explain the ratio behind the amendment procedure.

2. Fully describe the considerations and procedure applicable to amendments in the High
Court and the Magistrates' Courts respectively.
3. Draft a notice of intended amendment and an application for amendment.
4. Explain the procedure to be followed after the court has granted a party leave to amend
his/her pleadings.
5. Critically analyse an example of an application to amend.

READING LIST
Please refer to Moodle for the reading list

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 You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
SUMMARIES
You will find useful summaries on amendments on Moodle.

CHAPTER 18 PREPARATION FOR TRIAL

LEARNING OUTCOMES

At the end of this unit, you should be able to:

1. Explain what is meant by “set down” for trial.

2. Fully distinguish between discovery in the High Court and the Magistrates' Courts (in
respect of theory and procedure) and discuss the consequences of failure to discover.
3. Explain the ratio behind expert testimony and indicate which procedure must be
followed if a person wishes to present the evidence of an expert witness at a trial.
4. Explain the procedure for-
4.1 A request that a party submits himself to a medical examination.
4.2 A request that a party makes an item available for inspection.
4.3 Using photographs or a plan at a trial.
4.4 Requesting further particulars for purposes of trial.
5. Give a detailed explanation of the pre-trial conference in
5.1 The High Court.
5.2 The Magistrates’ Courts.
6. Indicate the relevance of obtaining detailed witness statements well in advance of the
trial for purposes of preparation for trial.
7. Indicate what is meant by “subpoena”/ “subpoena duces tecum”.
8. Draft the following documents:
8.1 Notice of Set Down.
8.2 Request for discovery.
8.3 Discovery Affidavit.
8.4 Expert notice and summary.
8.5 Request for submission to medical inspection.
8.6 Request for inspection of an object.
8.7 Notice that photo’s will be used at the trial.
8.8 Pre-trial Notice.

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 READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings
You will find useful documents relating to the trial
preparation process and notices.

Please remember to complete the weekly assessment/s

online

CHAPTER 19 THE TRIAL AND JUDGMENT

LEARNING OUTCOMES

At the end of this unit, you should be able to:

1. Fully explain the chronological course of a civil trial.

2. Distinguish between:
2.1 examination in chief
2.2 cross-examination
2.3 re-examination
3. Explain the test for absolution of the instance:
3.1 at the end of the plaintiff’s case
3.2 at the end of the whole case.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings

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 Please remember to complete the weekly assessment/s
online

CHAPTER 21 APPEAL AND REVIEW

LEARNING OUTCOMES

At the end of this unit, you should be able to:

1. Distinguish between appeal and review.

2. Indicate which judgments can be appealed against.
3. Explain the procedure for appeal against a Magistrate's Court's decision.
4. Indicate the grounds and procedure for review of a Magistrate’s Court's decision.
5. Draft the following documents:
5.1 Request for reasons for judgment
5.2 Notice of appeal
5.3 Application to rescind a judgment.
6. Discuss the principles underlying rescission of a judgment.
7. Discuss the procedure for the rescission of a judgment in the High Court and the
Magistrates' Courts respectively.
8. Indicate how you will deal with an application for rescission of a judgment when you
are out of time with such application.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings.
You will find examples of a Notice to Appeal.
SUMMARIES
You will find useful summaries on Moodle showing the
differences between appeal and review.

Please remember to complete the weekly assessment/s

online

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 CHAPTER 22 EXECUTION

LEARNING OUTCOMES

At the end of this unit, you should be able to:

1. Explain what "execution" refers to.

2. Distinguish between execution against movable and immovables in the High Court and
in the Magistrates' Courts.
3. Distinguish between a writ and a warrant.
4. Distinguish between an execution creditor and an execution debtor.
5. Summarize the execution process with reference to the various steps to be taken.
6. Explain what is meant by “interpleader” and how to apply this procedure.

READING LIST
Please refer to Moodle for the reading list
You will also find other useful information about this topic
on Moodle.

DRAFTING
Pleadings Bundle – please refer to Moodle for the
prescribed notices/pleadings

Please remember to complete the weekly assessment/s

online

CHAPTER 24 COSTS

LEARNING OUTCOMES

At the end of this unit, you should be able to:

1. Explain the general rules with regard to legal costs as well as the exceptions thereto.
2. Give an explanation of the terminology relevant to legal costs as listed in this chapter.
3. Explain the principles applicable to taxation and how the court will exercise its
discretion in awarding a cost order.
4. Explain the relevance of the prescribed tariffs in the High Court and the Magistrates’
Courts respectively. (See HCR 48; 67; 68 and 70 with regard to party-and party costs;
attorney-and-client-costs; and attorney-and-own client costs)

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5. Explain the provisions relating to the taxation of costs in High Court and Magistrates’
Courts matters respectively.
6. Explain the provision regarding the review of taxations in the High Court and
Magistrates’ Courts respectively.

SUMMARIES
You will find useful summaries on Moodle of the different
types of legal costs.

Please remember to complete the weekly assessment/s

online

“The leading rule for the lawyer, as for the person of every calling, is diligence.”
- Abraham Lincoln

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