This document provides an overview of civil procedure in South Africa. It discusses that civil procedure is used to resolve private disputes through the court system when parties cannot resolve issues themselves. The stages of civil procedure include before litigation, litigation, and after litigation. Additional procedures may also be used. Civil cases are generally action proceedings involving plaintiffs and defendants, or application proceedings when facts are not disputed between applicants and respondents. The pleading stage involves the exchange of documents between parties, followed by a trial where oral evidence and legal principles are presented to a judge or magistrate for a judgment.
This document provides an overview of civil procedure in South Africa. It discusses that civil procedure is used to resolve private disputes through the court system when parties cannot resolve issues themselves. The stages of civil procedure include before litigation, litigation, and after litigation. Additional procedures may also be used. Civil cases are generally action proceedings involving plaintiffs and defendants, or application proceedings when facts are not disputed between applicants and respondents. The pleading stage involves the exchange of documents between parties, followed by a trial where oral evidence and legal principles are presented to a judge or magistrate for a judgment.
This document provides an overview of civil procedure in South Africa. It discusses that civil procedure is used to resolve private disputes through the court system when parties cannot resolve issues themselves. The stages of civil procedure include before litigation, litigation, and after litigation. Additional procedures may also be used. Civil cases are generally action proceedings involving plaintiffs and defendants, or application proceedings when facts are not disputed between applicants and respondents. The pleading stage involves the exchange of documents between parties, followed by a trial where oral evidence and legal principles are presented to a judge or magistrate for a judgment.
This document provides an overview of civil procedure in South Africa. It discusses that civil procedure is used to resolve private disputes through the court system when parties cannot resolve issues themselves. The stages of civil procedure include before litigation, litigation, and after litigation. Additional procedures may also be used. Civil cases are generally action proceedings involving plaintiffs and defendants, or application proceedings when facts are not disputed between applicants and respondents. The pleading stage involves the exchange of documents between parties, followed by a trial where oral evidence and legal principles are presented to a judge or magistrate for a judgment.
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THEME 11
Civil Procedure
Introduction A private-law dispute arises when one party violates the subjective right of another or threatens to do so. If the parties cannot solve the dispute themselves, they must make use of the prescribed civil procedure in order to solve their dispute. The solution will be given by the court. Section 34 of the Constitution – Access to courts: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’ The law of civil procedure does not only assist a legal subject in the case of violation of subjective right. It can be used for the following purpose: To obtain a declaratory order To prevent damage or injury To make damage or injury good To claim specific performance The rules of the law of civil procedure are found in common law, rules of practice, legislation and in the Uniform Rules of Court laid down in terms of legislation. The most important legislation is the Superior Courts Act 10 of 2013 (complemented by the Uniform Rules of Court – called the High Court Rules) and the Magistrate’s Court Act 32 of 1944 (complemented by the Magistrate’s Court Rules) Map of civil procedure
STAGE 1 Before Litigation
STAGE 2 Litigation
STAGE 3 After Litigation
STAGE 4
Additional Procedures General principles Action proceedings Fundamental differences between parties with respect to the facts of the case. Parties are the plaintiff and the defendant. The plaintiff initiates the case (dominus litis) and institutes action to claim performance Defendant is the person against whom the action is instituted and who may raise a defence against the action The procedure is more time-consuming and expensive than the application procedure. Example: Payment for damages.
Application proceedings No Fundamental differences between parties with respect to the facts of the case. Parties are the applicant and respondent. Applicant is person who initiates the case and approaches the court for a particular kind of relief. Respondent is the person against whom the relief is sought. Application proceedings are also used to obtain a declaratory order. Example: X and Y are involved in a car accident. Both feel aggrieved and blame each other for the accident. Applications before court in form of affidavits Ex parte application: application without notice to respondent On-notice application: application with notice to respondent Stages of proceedings Pleading stage In the hands of the parties and their legal representatives. Pleadings are documents that parties exchange These documents contain the facts of the case and not applicable to legal principles. Purpose of pleadings: To reduce dispute between the parties to a condensed and abbreviated version. To prevent parties from surprising each other in court. To make the judge or magistrate familiar with the case beforehand.
Trial Pleading stage is followed by the trial. Proceedings are accusatorial and not inquisitorial. Accusatorial system: two parties oppose each other. The parties collectively decide on which documents and witnesses to present to the court. The judge acts as a referee and supervises the court. Action proceedings: Oral evidence is presented. Application proceedings: No oral evidence is needed. The judge or magistrate applies the relevant legal principles to the facts and gives judgement.
