Civil Procedure Study Notes

Learning Unit 2
Stage One: Before Litigation
Part One: Preliminary Questions

Theme 1: Cause of action

LO1: Define the term “Cause of action”.

Cause of Action:

On one level, cause of action simply means the cause of the plainti ’s or applicant’s complaint.

 But just as, in a criminal matter, a crime has elements which must be alleged in the
charge sheet and proved in court, so it is with a civil cause of action.
 It is made up of di erent elements which must be alleged in the papers and proved in
court.
 In other words, cause of action simply means the elements your client will have to prove
in order to be entitled to whatever relief he is seeking.

Cause of Action thus means:

 The material facts which a plainti or applicant must prove in order to win his case.
 The term “cause of action” might also be used more loosely to describe the cause, or
reason, which gives rise to the plainti ’s or applicant’s complaint.

LO2: Distinguish between various causes of action with reference to a given scenario, where
they relate to:

 Delictual claims.
 Contractual claims.
 Divorce Actions.
 Claims based on a liquid document.

Delictual claims:

Delictual claims are claims that arise from a civil wrong.

 A person who has su ered loss, caused by the wrongful act of another, which was
committed either intentionally or negligently, is entitled to institute a delictual claim for
damages against the wrongdoer.
 Claims arising as a result of motor vehicle collisions and assaults are two of the most
common delictual claims.
 Examples are on page 62-65 of the textbook [GO READ THROUGH IT]

Contractual claims:
Contractual claims are claims that arise from a breach of contract.

 When a party breaches a contract, and another party files a claim, the injured party will
have access to a variety of remedies, including monetary damages and enforcement of
the contract.
 Claims based on contract are very common in practice and one of the most common
types of contract is a contract of purchase and sale (particularly sale on credit, sale for
cash and buyer’s remedies).
 Examples are on page 65-68 of the textbook [GO READ THROUGH IT]

Divorce Actions:

Divorce actions is an action by which:

 a decree of divorce or other relief in connection therewith is applied for.

Divorce actions are common in practice and are procedurally di erent from other types of
action in at least three ways:

1. Special rules apply to jurisdiction in these cases.

2. The courts demand that the legal documents initiating action in these matters be served
in a certain way (i.e. by means of personal service only).
3. It is possible to apply for a special type of interim relief while the divorce action is still
pending (e.g. interim care of or contact with the children).

With divorce matters, there are usually several claims, each constituting a separate cause of
action.

 Of course, the most important claim will relate to the divorce itself, namely that the
marriage has irretrievably broken down, but usually there are further claims related to
the future maintenance of the plainti or defendant spouse;
 and/or the division of the estate;
 and/or the forfeiture of the benefits of the marriage;
 and/or the sharing of pension benefits;
 and/or the redistribution of the assets of the marriage;
 and/or the future care, maintenance and guardianship of the couple’s children.

In very general terms, a person claiming a divorce must satisfy the court of the following:

1. There was a valid marriage between the parties which still exists.
2. The court has jurisdiction.
3. The marital regime under which the parties are married (e.g. are they married in
community of property or by antenuptial contract with or without accrual?).
4. Whether or not there are children under the age of 18, or children who are still
dependent on the parties; and, if so, that satisfactory provisions have been made to
ensure the welfare of such children.
5. Whether or not the person suing for divorce wants to claim sole guardianship, the right
to care for or maintain contact with any children, in which case allegations must be
made in support of this claim.
6. The amount of maintenance required for the children.

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 7. That the regulations promulgated in terms of the Mediation in Certain Divorce Matters
Act 24 of 1987 have been complied with.
8. The grounds upon which the divorce is being sought. The most common ground is that
the marriage has irretrievably broken down.
9. Whether maintenance is being claimed by the person seeking the divorce, or whether
the person seeking the divorce is o ering to pay maintenance to the defendant.
10. Whether or not the parties have drawn up a settlement agreement before the
proceedings started.

The following proprietary claims may be encountered:

1. If the parties have jointly owned assets (e.g. they are married in community of property),
then a division of the joint estate will be claimed.
2. Specific performance of any outstanding obligation created by the antenuptial contract.
3. Redistribution of assets in terms of ss 7(3) to (6) of the Divorce Act. These subsections
basically deal with marriages out of community of property which were entered into
before the new accrual system became the norm.
4. Forfeiture of patrimonial benefits in terms of s 9 of the Divorce Act 70 of 1979.

Claims based on a liquid document:

A liquid document is a document which refers to a liquid sum.

 The characteristics of a liquid document are that it is an unconditional, written

acknowledgment of liability for a specified amount of money, payment of which is due to
the creditor.

Some common examples of a liquid document are the following:

1. A cheque;
2. A written acknowledgment of debt; and
3. A mortgage bond (which is really just a special type of acknowledgment of debt where
the security for the debt is a piece of land).

Examples are on page 70-71 of the textbook [GO READ THROUGH IT]

Theme 2: Locus Standi

LO3: Define the term “Locus Standi”.

Locus Standi:

The full expression is locus standi in iudicio (meaning ‘legal standing to litigate’).

 In order to possess locus standi, a person must have both legal capacity as well as a
direct and substantial interest in the right which is the subject matter of the litigation.

A person who has a right to sue or be sued in a particular matter is said to possess locus standi
in iudicio (i.e. legal standing) in that matter.

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LO4: Name the two tests for locus standi.

Two tests for locus standi:

There are two tests to determine the locus standi of a party:

1. Firstly, whether or not the party concerned has a direct and substantial interest in the
matter and,
2. Secondly, whether or not that party has legal capacity to litigate in the matter.

In depth explanation on page 72 [GO READ THROUGH IT].

LO5: Discuss the common law position in relation to “direct and substantial” interest.

Direct and Substantial interest – The common-law position:

A person wishing to institute or defend legal proceedings must have a direct and substantial
interest in the right that is the subject matter of the litigation, and in the outcome of the
litigation.

 In other words, you cannot take over someone else’s legal battle simply because you
wish to litigate for the fun of it or for some other reason.
 Your legal standing should be determined first.
 Legal standing is concerned with whether or not the particular litigants in a matter are
entitled to prosecute or defend the matter in court.
 The issue of standing is divorced from the substance of the case and arises as a point in
limine (at the outset) before the merits are considered.

Furthermore, a financial interest alone is not su icient. Jones and Buckle sum up the
requirements for a direct and substantial interest as follows:

a) the plainti /applicant for relief must have an adequate interest in the subject matter of
the litigation, which is not a technical concept but is usually described as a direct
interest in the relief sought;
b) the interest must not be too far removed;
c) the interest must be actual, not abstract or academic;
d) the interest must be a current interest and not a hypothetical one.

LO6: List the parties who have legal standing in terms of section 38 in the Constitution, 1996.

Section 38 of the Constitution:

In terms of s 38 of the Constitution, which is often referred to by practitioners as the ‘standing

clause’ (i.e. the clause which determines whether or not someone has legal standing) in a
matter, relief may be sought by:

a) anyone acting in their own interest;

b) anyone acting on behalf of another person who cannot act in their own name;
c) anyone acting as a member of, or in the interest of, a group or a class of persons;
d) anyone acting in the public interest; and
e) an association acting in the interest of its members.

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LO7: Analyse the notion of the class action in terms of section 38 (c) of the Constitution, 1996.

Class actions in terms of section 38(c) of the Constitution:

Section 38(c), which allows for so-called ‘class actions’, is worthy of particular focus and has
been the subject of much judicial attention.

 While class actions have always been enshrined in s 38(c), nothing was done to regulate
the bringing of class actions and the courts have had to regulate the bringing of such
actions using court-made rules.

In Permanent Secretary, Department of Welfare, Eastern Cape and Another v Ngxuza and
others in the Supreme Court of Appeal, Cameron JA pointed out the value of such actions in a
country such as South Africa:

 The class action was until 1994 unknown to our law, where the individual litigant’s
personal and direct interest in litigation defined the boundaries of the court’s powers in
it.
 If a claimant wished to participate in existing court proceedings, he or she had to
become formally associated with them by compliance with the formalities of joinder … .
 The class action cuts through these complexities.
 The issue between the members of the class and the defendant is tried once.
 The judgment binds all and the benefits of its ruling accrue to all.
 The procedure has particular utility where a large group of plainti s each has a small
claim that may be di icult or impossible to pursue individually. …
 The reason the procedure is invoked so frequently lies in the complexity of modern
social structures and the attendant cost of legal proceedings.

In Mukkadam v Pioneer Foods (Pty) Ltd and Others the Constitutional Court explained the
reasons for requiring certification:

 Courts must embrace class actions as one of the tools available to litigants for placing
disputes before them.
 However, it is appropriate that the courts should retain control over class actions.
 Permitting a class action in some cases may, as the Supreme Court of Appeal has
observed in this case, be oppressive and as a result inconsistent with the interests of
justice.
 It is therefore necessary for courts to be able to keep out of the justice system class
actions which hinder, instead of advancing, the interests of justice.
 In this way prior certification will serve as an instrument of justice rather than a barrier to
it.

L08: Analyse the notion of “own interest standing” with reference to section 38(a) of the
Constitution, 1996.

Own interest standing:

As to the issue of standing under s 38(a), Chaskalson P (as he then was) stated as follows in the
Constitutional Court case of Ferreira v Levin NO:

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  Whilst it is important that this Court should not be required to deal with abstract or
hypothetical issues and should devote its scarce resources to issues that are properly
before it, I can see no good reason for adopting a narrow approach to the issue of
standing in constitutional cases.
 On the contrary, it is my view that we should rather adopt a broad approach to standing.
 This would be consistent with the mandate given to this Court to uphold the
Constitution and would serve to ensure that constitutional rights enjoy the full measure
of the protection to which they are entitled.

Key to establishing constitutional own-interest standing is that a litigant must show that his or
her rights or interests are directly a ected by the challenged law or conduct.

The Constitutional Court summarised the factors to establish own-interest standing under the
Constitution as follows:

1. A litigant need not show the same ‘su icient, personal and direct interest’ that the
common law requires but must still show that a contested law or decision directly
a ects his or her rights or interests(or potential rights or interests).
2. This requirement must be generously and broadly interpreted to accord with
constitutional goals.
3. The interest must be real and not hypothetical or academic.
4. A purely financial self-interest may not be enough – in such a case, the interests of
justice must also favour a ording standing.
5. Standing is not a technical or strictly-defined concept and there is no magical formula
for conferring it. It is a tool a court employs to determine whether a litigant is entitled to
claim its time and to put the opposing litigant to trouble.
6. Each case depends on its own facts. There can be no general rule covering all cases. In
each case, an applicant must show that he or she has the necessary interest in an
infringement or a threatened infringement.
7. A measure of pragmatism is called for in determining standing.

L09: Examine the notion of “capacity to litigate” with reference to the following persons:

 Children.
 Married women.
 Mentally disabled persons.
 Prodigals.
 Insolvents.
 Fugitives from justice.
 Alien enemies.
 Diplomats and the like.
 Judges.
 Members of Parliament, provincial legislatures and municipal councils.
 Trusts.
 Partnerships, firms, associations and the like.

Capacity to litigate:

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1. Children:

A child does not have locus standi and must be either:

1. duly assisted by his guardian or

2. represented by his guardian.

The di erence between ‘duly assisted by’ and ‘represented by’ may be illustrated by the two
distinct ways in which the child and his guardian will be referred to (cited) in legal documents,
depending upon whether the child is duly assisted by or represented by the guardian.

Children under the age of seven:

 A child under the age of seven must be represented by, rather than assisted by his
guardian in civil litigation.
 In other words, actions and applications are brought and defended in the name of the
guardian who acts in a representative capacity on behalf of the child.

Children of seven years and older:

 With a child who is seven or older, you have a choice whether to institute the action in
the name of the guardian in his representative capacity, or in the name of the child, duly
assisted by the guardian.

Dual capacity:

An interesting situation arises when a guardian is involved in a matter both on his own behalf,
and as a representative of his child.

 In Latin legalese, you would say that he is involved eo nomine (i.e. on his own behalf),
and nomine o icio (i.e. in a representative capacity).
 Typically, this type of situation arises where a child has su ered injuries in an accident
caused by the negligence of another party.
 Usually, both the child and the guardian su er damages as a result of the child’s injury.
 The guardian might have to pay for his child’s medical expenses and may take time o
work to go to the hospital, thereby forfeiting a day’s wages.

Appointment of a curator ad litem:

In cases where:

1. a child has no guardian; or

2. the guardian refuses to act on the child’s behalf;
3. the guardian of the child cannot be found; or
4. there is a conflict of interest between the child and the guardian;

you must make an application to court to appoint what is called a curator ad litem, to act on the
child’s behalf during the legal proceedings.

Litigation without assistance

A child may litigate unassisted by his guardian or a curator ad litem in the following instances:

1. when applying for the appointment of a curator ad litem;

2. if the court grants him permission to sue unassisted;

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 3. when applying for permission to marry without a parent’s or guardian’s consent; and
4. when the proceedings are permitted by statute.

2. Married women:

Abolition of the marital power:

The last vestiges of the ‘marital power’ which gave husbands certain legal rights and
responsibilities in respect of their wives were abolished on 1 December 1993.

 Before this date, the issue of locus standi in relation to married women was a complex
one.
 Women who were married before the Matrimonial Property Act 88 of 1984 came into
e ect, and who did not specifically enter into an antenuptial contract to exclude the
marital power, were, by operation of law, married in community of property and subject
to the marital power of their husbands.
 Thus, they did not have locus standi to sue or be sued without the assistance of their
husbands.

The Matrimonial Property Act 88 of 1984 abolished the marital power for those marriages
entered into after the Act came into operation.

 So, in general terms, wives married after the1984 Act were freed from the marital power,
but many wives who were married before the 1984 Act were still subject to the marital
power.
 On 1 December 1993 the entire issue became much less complicated when the
Matrimonial Property Act was amended so as to abolish the marital power in respect of
all marriages, including those entered into before the Matrimonial Property Act 88 of
1984 came into operation. All married women now possess locus standi.

A remnant of the sexist past remained for a number of years in that High Court rule 17(4)
requires the marital status of a female plainti or defendant to be stated in a summons.

 However, the High Court in the case of Nedcor Bank Ltd v Hennop and Another found
that the reference to the defendant’s sex and women’s marital status as required by the
rule is outmoded and anachronistic.
 It also o ends against the equality provisions contained in the Constitution, inasmuch
as the preamble speaks of equality between men and women, and s 9(1) provides that
every person shall have the right to equality before the law, and s 9(3) is emphatic that
no person shall be unfairly discriminated against, directly or indirectly, on the grounds of
sex, gender or disability.
 Accordingly, the court found that ‘in these enlightened times, the omission to state the
defendants’ sex and, in the case of a woman, her marital status in the summons, is of no
consequence and certainly not amenable to render the plainti ’s application for
summary judgment to be fatally defective.’

The rule was amended in 2014 to remove any reference to the marital status of woman,
although rule 17 still requires the plainti ’s gender to be stated.

Consent to litigate – marriages in community of property:

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Although the problems with regard to the locus standi of married women were solved by the
amendment to the Matrimonial Property Act on 1 December 1993, there is another aspect that
you have to bear in mind when dealing with actions by persons who are married in community of
property.

 In terms of s 17(1) of the Matrimonial Property Act, a spouse who is married in

community of property, whether husband or wife, may not institute or defend legal
proceedings against another person without the written consent of the other spouse.

Such written consent is not required, however, in respect of legal proceedings:

1. between spouses;
2. in respect of a spouse’s separate property;
3. for the recovery of damages, other than damages for patrimonial loss, by reason of the
commission of a delict against him.
4. in respect of a matter relating to his profession, trade or business.

3. Mentally disabled persons:

A person who is mentally ill and cannot appreciate the nature of legal proceedings because of
some mental disorder does not possess locus standi.\

High Court rule 57 provides a procedure whereby a person may be declared to be of unsound
mind and as such incapable of managing his own a airs.

 The ultimate purpose behind such a declaration is to allow a curator bonis or curator ad
personam to be appointed to manage that person’s a airs.
 Before that is done, however, the rule requires that a curator ad litem (i.e. a curator
appointed for the purpose of legal proceedings) is appointed to represent the person’s
interests. In other words, the appointment of a curator ad litem usually precedes the
appointment of a curator bonis or curator ad personam.
 The application for the appointment of a curator ad litem is typically brought by a family
member or close friend who has the patient’s well-being at heart.
 The applicant must establish his locus standi to bring the application and must provide
su icient evidence that the patient is of unsound mind and incapable of managing his
a airs.
 A idavits of two medical professionals are required in support of the application.
 In the application, the name of a person will be put forward as a suggestion for
appointment as the curator ad litem (usually an advocate) and a consent letter from the
suggested person will be attached to the application.
 The powers of the curator ad litem are set out in the court order appointing him or her.
 These powers typically include the power to investigate and report on the nature and
extent of the patient’s mental illness, the patient’s assets and liability, and any other
a airs of the patient.
 This information will be prepared by the curator ad litem in a report which will be placed
before the court and relied on in any subsequent application for the appointment of a
curator bonis and/or curator ad personam.

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  The appointment of a curator ad litem is frequently required for Road Accident Fund
claims where claimants have su ered mental impairment as a result of the road
accident.

4. Prodigals:

In general terms, a prodigal is a spendthrift who is unable to keep his finances in order.

 The High Court may be approached to declare a person to be a prodigal, and, as such,
incapable of managing his a airs.
 The appointment of a curator ad litem is not necessary unless there is reason to believe
that the prodigal does not understand the nature and e ect of the proceedings.
 The order of the court will specify in what respects the legal capacity of the prodigal is
limited, and he will retain his legal capacity in those areas not covered by the order.

5. Insolvents:

Once a person has been declared insolvent and his estate sequestrated by the court, the
person’s estate is placed in the hands of the master of the High Court and a trustee will be
elected to administer his estate.

 Although the locus standi of the insolvent is curtailed, he may sue or be sued in his own
name, without reference to the trustee of his estate, in a range of circumstances which
are set out in s 23 of the Insolvency Act

6. Fugitives from justice:

The general approach of our courts has been that fugitives from justice have no locus standi.

 A fugitive from justice may not institute proceedings in the courts of this country but is
entitled to defend proceedings brought against him or her.
 If default judgment has been taken against a fugitive from justice, he is entitled to apply
for rescission of that judgment so that he may defend the action against him.
 A fugitive from justice may not enforce a judgment in his favour by means of a writ of
execution.

7. Alien enemies:

While a war is in progress, persons who voluntarily reside or carry on business in enemy territory
(including South African citizens) may not sue in South African courts.

 They can, however, be sued in South African courts, and will then be allowed to defend
the matter.
 If, during a war, an enemy national is living in South Africa under state protection, that
person has the right to sue in South African courts.
In other words, the test for locus standi is not dependent on your nationality, but rather
on where you reside or carry on business.

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8. Diplomats and the like:

The Diplomatic Immunities and Privileges Act confers certain immunities and privileges upon
the following general categories of persons and bodies:

1. Diplomatic missions and consular posts, and the members of such missions and posts;
2. Heads of state, special envoys and certain representatives;
3. The United Nations, certain specialised agencies as defined in the Act, certain other
international organisations, and their o icials in the Republic; and
4. O icials and experts of the United Nations, of any specialised agency and of any
organisation, and representatives of any state, participating in an international
conference or meeting convened in the Republic.

9. Judges:

In the unlikely event that you want to institute civil legal proceedings against a judge or serve a
subpoena on a judge in connection with civil legal proceedings – whether it be one of the judges
of the Constitutional Court, Supreme Court of Appeal, or the High Court – you will first need
consent to do so.

Section 47(1) of the Superior Courts Act109 provides that:

 No civil proceedings by way of summons or notice of motion may be instituted against

any judge of a Superior Court, and no subpoena in respect of civil proceedings may be
served on any judge of a Superior Court, except with … consent

This section is aimed at ensuring the independence of the judiciary by protecting judges against
improper and spurious interruptions of their judicial functions.

 It seeks to protect judges from non-meritorious civil actions.

Section 47 of the Superior Courts Act111 applies to civil proceedings instituted by way of action
or application (i.e. summons or notice of motion) and civil suits against judges for damage
caused both in their judicial or nonjudicial capacity.

 You will need the consent of the head of the particular court or division concerned.
 Where the matter concerns a judge of the Constitutional Court, the consent of the Chief
Justice is required.
 Where the matter concerns a judge of the Supreme Court of Appeal, the consent of the
President of the Supreme Court of Appeal is required.
 Where the matter concerns a judge of any one of the divisions of the High Court, the
consent of the Judge President of the division concerned is required.
 Finally, with regard to courts that have a status similar to the High Court – such as the
Labour Court – the consent of the most senior judge of the court is required.
 In the case of civil proceedings against any of the above-mentioned heads of court –
other than the Chief Justice – the consent of the Chief Justice must be obtained.
 In the case of proceedings against the Chief Justice, the consent of the President of the
Supreme Court of Appeal must be obtained.

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10. Members of Parliament, provincial legislatures and municipal councils:

When contemplating civil (or criminal) proceedings against any of the above, be careful, since
special rules apply.

 In terms of s 58 of the Constitution, members of the Cabinet, Deputy Ministers and

members of the National Assembly are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for anything they have said in, produced before, or submitted
to Parliament or any of its committees.
 Furthermore, if what they have said, produced or submitted leads to a revelation of
some sort, they are still protected from liability.
 In terms of ss 71 and 117 of the Constitution, this protection is also extended to
delegates of the National Council of Provinces and to members of the provincial
legislatures.

11. Trusts:

Trusts are strange legal entities and are di icult to compare to other legal entities such as
companies or close corporations.

 Because of their strange nature, they are usually referred to as sui generis, in other
words, something di erent and unique.
 A trust does not have a legal persona like a company or close corporation.
 Trusts have become increasingly popular.
 Many family trusts are formed in an e ort to reduce liability for estate duty.
 A trust is a legal institution in which a group of persons known as ‘trustees’ holds and
administers property separately from their own, on behalf of and for the benefit of
someone else or for the furtherance of a charitable or other purpose.
 The trustees of a trust, in their capacity as such, have no beneficial interest in the
property of the trust.
 However, the assets and liabilities in a trust vest in the trustees.

12. Partnerships, firms, associations and the like:

Very often, in practice, you will find yourself dealing with a partnership, a firm, or an association
of some kind.

 In most cases, these bodies have no legal personality of their own, but are simply groups
of individuals who associate with each other in order to achieve certain lawful
objectives.
 They do not exist apart from or in extension to the individuals who make up the group,
and because of this do not possess locus standi.
 At common law, for example, a partnership cannot sue or be sued in its own name.
 Common law requires every individual member of a partnership to be joined and cited
by name in any action involving the partnership, failing which the summons is bad for
misjoinder.

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As is clear from the following quotation, the life of an attorney who decides to stick to common
law when suing a partnership may become rather complicated:

 Where it is desired to sue a partnership and the names of the partners are not known,
the plainti must ordinarily take steps to discover these names before he causes
summons to be issued.
 He can try to discover the names by applying to any known member of the partnership to
disclose them, but if the information is refused, he is obliged to apply to court, after
notice to such member, for an order compelling him to disclose them … and ordinarily a
plainti in the magistrate’s court would have to move [the] High Court for relief.

Fortunately, both the High Court and Magistrates’ Courts Rules make special provision for such
cases, but these provisions are not without complications of their own.

 In general terms, these special rules provide procedural relief by allowing bodies such
as partnerships, firms and associations to sue or be sued in their own name, without in
any way conferring legal personality on such bodies.

High Court – rule 14:

High Court rule 14 begins by defining, inter alia, an ‘association’ and a ‘firm’ as follows:

 An association is defined as ‘any unincorporated body of persons, not being a

partnership.
 You may think of an association as a group of people who get together for a certain
purpose, without forming themselves into a partnership or incorporating themselves
into a company or close corporation.
 For example, your local hockey club or soccer club may be an association.

A firm is defined as ‘a business, including a business carried on by a body corporate, carried on

by the sole proprietor thereof under a name other than his own.’

 You may think of a firm as a ‘one-man business’ which is carried on under a trading
name.
 For example, if you start a shoe making business and call it Leo’s Shoes, then that
business may be defined as a ‘firm’ in terms of rule 14(1).

High Court rule 14 goes on to provide that a partnership, a firm or an association may sue or be
sued in its own name.

 This is quite a radical provision since, as mentioned previously, at common law only an
entity which has legal personality may sue or be sued in its own name.
 In order to acquire legal personality at common law, an entity must possess a certain
corporate character.

An entity which possesses such a corporate character is referred to as a universitas

personarum, the chief characteristics of which are:

1. perpetual succession (i.e. the association continues to exist, even though its members
change); and
2. the ability to acquire rights and incur obligations independently of its members, in
particular the ability to own property.

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In allowing a partnership, firm or association to sue or be sued in its own name, rule 14 clearly
goes beyond common law.

 However, the rule does not turn these entities into legal personae.
 When you sue a partnership, a firm or an association, you are still in e ect suing the
individuals behind the partnership, firm or association.
 The rule is simply an aid to procedure, which allows you to sue these individuals in the
name of the firm, partnership or association.

Magistrates’ Courts – rule 54:

Magistrates’ Courts rule 54 is the equivalent of High Court rule 14, but there are significant
di erences between the two rules.

 In terms of rule 54, persons who were partners in a partnership at the time a particular
cause of action arose, may sue or be sued in the name of their partnership business
(referred to as a ‘firm’ in this rule).
 An individual person who is at present conducting business in a name other than his or
her own may also sue or be sued in the name he is using to conduct the business.
 The provisions of rule 54 are also applicable in the case of unincorporated companies,
syndicates, and associations (bodies with no legal personality of their own).

If you are suing or being sued by such an entity, you are entitled to send a notice demanding that
you be provided with the names and places of residence of the partners (who were partners
when the cause of action arose), the present proprietor, or members (as the case may be) of the
entity.

 The statement of names and addresses must be provided within ten days.
 The action then proceeds as if the persons listed in the statement had been named in
the summons.

LO10: Discuss all concepts and principles that relate to a “power of attorney” and draft a
“power of attorney” based on a given scenario.

Power of Attorney:

 A power of attorney is a written document which confers authority upon an agent to act
for his principal. There are two kinds of power of attorney.
The first kind is called a special power of attorney and authorises the agent to act in a
specific matter or matters.
 The second kind gives the agent a general authority to perform all acts on behalf of the
principal, which the principal might normally perform himself.
 Usually, a general power of attorney is given to an attorney, a family member or a trusted
friend, when the principal plans to travel or is incapacitated in some manner and needs
to have his financial a airs dealt with in his absence.

In the context of civil procedure, a special power of attorney may be given to an attorney by his
client, authorising the attorney to initiate or defend a specific legal proceeding on his behalf,
and to perform those functions that are incidental to such legal proceeding.

 The purpose of a power of attorney is to protect both attorney and client.

14
  On the one hand, it prevents a client who wishes to avoid paying an attorney’s legitimate
fees from denying that he gave the said attorney authority to act.
 On the other hand, it may serve to protect a client from an unscrupulous attorney who
knowingly exceeds his authority in order to earn extra fees.
 Should an attorney conduct litigation without the authority of his client, he will not be
entitled to recover his fees from the client and may even be ordered to pay the costs of
the proceedings personally.

Usually, a special power of attorney giving authority to a firm of attorneys to institute or defend
legal proceedings should include the following details:

1. A general description of the nature of the particular action to be instituted or defended,

for which authorisation is given;
2. The nature of the relief claimed or to be claimed;
3. The names of the parties to the matter; and
4. The names of the attorneys (including both partners and professional assistants)
authorised to act on the client’s behalf.

When a juristic person such as a company, close corporation or local authority wishes to
institute or defend legal proceedings, it is not su icient for you to take instructions from a
director, member, or o icial of the particular entity.

 You, as the attorney, must be o icially instructed by the company, close corporation or
local authority to institute or defend legal proceedings on behalf of the company, close
corporation, or local authority.
 Usually, in the case of a company or a close corporation, you will request the board of
directors of the company or the members of the close corporation to pass a resolution
authorising you to institute or defend the legal proceedings.
 In the case of bodies such as local authorities, there are often standing resolutions
which delegate the power to institute or defend legal actions to certain o icials of that
body.
 You may accept a written instruction to act from such o icial, together with the relevant
extracts from the standing resolutions of the local authority concerned.
 All written instructions conferring authority upon you to act in such matters should be in
the form of an a idavit by the o icial or o ice bearer concerned, together with a copy of
the supporting documentation, for example the relevant resolution of the juristic body
concerned.

LO11: Compare representation of parties in the High Court and in the Magistrate’s Court.

Representation of parties in the High Court:

A natural person who becomes involved in legal proceedings in the High Court, and who has
locus standi, is entitled to conduct his own case and to appear in person at the hearing.

 Alternatively, he may be represented by an attorney and advocate (or by an attorney

alone, if that attorney is entitled to appear in the High Court), whom he has instructed to
represent him.
 He may not be represented by anyone else.

15
  As far as juristic persons such as companies are concerned, the general rule is that they
must be represented by an advocate and an attorney (or by an attorney alone if that
attorney is entitled to appear in the High Court) and may not be represented by one of
their o icials.

The authority of anyone acting on behalf of a party may be disputed at any time before
judgment.

 This must be done within 10 days of the date on which the person disputing the authority
learned that the person whose authority he is disputing was acting in the matter.
 If more than 10 days have passed, the leave of the court must be obtained on good
cause shown.
 A person whose authority has been disputed may not act in the matter until he satisfies
the court that he is authorised so to act.
 One way in which he may satisfy the court that he is authorised to act is to produce a
valid power of attorney.

If you are an attorney and a client appoints you to act on his behalf, the first thing you must do is
notify all the other parties involved that you are acting on your client’s behalf in the matter and
provide your name and address.

 Your client may at any time terminate your authority to act.

 If he intends to deal with the matter further by himself, then he must notify the registrar
of the court which is considering the matter and all the other parties by written notice.
 The written notice must include a service address which is within eight kilometres of the
registrar’s o ice,171 where the other parties are able to serve further documents in the
matter upon him.
 If, instead of dealing with the matter further himself, he decides to appoint another
attorney to continue acting on his behalf, he must notify the registrar and all the other
parties, by written notice, of the name and address of his new attorney.
 His new attorney’s address will become his new service address.

The attorney who is no longer acting must forthwith deliver a notice to his former client, the
registrar, and all other parties, stating that he is no longer the attorney of record.

 In practice, this notice is known as a notice of withdrawal as attorney of record.

 After the notice of withdrawal as attorney of record has been sent out, the former client
of that attorney has 10 days to send the notice referred to in the previous paragraph,
informing the parties of his new address for service.
 If he does not do this, then the other parties may well not have an address upon which to
e ect service of documents upon him. In such a situation, the other parties need not
serve any further documents upon him, unless the court orders otherwise.
 So, the lesson is that parties must be careful if they decide to fire their attorneys.
 Also, attorneys may not simply withdraw from a case at the last minute.
 They have a duty towards both their client and the court to withdraw in good time.

Representation of parties in the Magistrates’ Courts:

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In terms of Magistrates’ Courts rule 52(1)(a):

 A party may institute or defend and may carry to completion any legal proceedings
either in person or by a practitioner.

The term ‘practitioner’ includes an advocate, an attorney and a candidate attorney.

 Attorneys are clearly entitled to fully represent parties in the Magistrates’ Courts.
Advocates, however, are prohibited from doing the work of an attorney in the
Magistrates’ Courts by the Attorneys Act 53 of 1979.
 Advocates are not entitled to sign pleadings in Magistrates’ Courts matters, nor any of
the Magistrates’ Courts forms prescribed in Annexure 1 to the Magistrates’ Courts Rules.
 The work of advocates in the Magistrates’ Courts is essentially restricted to the drafting
of pleadings and applications, and appearances in court.
 Before an advocate may perform work in the Magistrates’ Courts, an attorney must duly
brief him. As far as candidate attorneys are concerned, there is some debate as to their
precise powers. It is clear that, subject to certain restrictions set out in s 8(1) of the
Attorneys Act, a candidate attorney who has satisfied certain legal requirements is
entitled to appear in any court, other than any division of the High Court, and before any
board, tribunal or similar institution in or before which his principal is entitled to appear.
 A candidate attorney appears instead of, and on behalf of, his principal, who is entitled
to charge fees for such appearances as if the principal himself had appeared.
 Whether or not a candidate attorney’s powers go beyond this to enable him to carry to
completion any legal proceeding is open to debate.

In Magistrates’ Courts, a local authority, company, or other incorporated body may act through
one of its o icers who has been nominated to act in the legal proceedings.

 A partnership or group of persons associated for a common purpose may act through
one of its members who has been nominated to act for the partnership or group in the
legal proceedings.

No power of attorney need be filed by the person who is appointed to act, but the authority of
that person to act may be challenged by any other party to the proceedings at any time before
judgment.

 The challenge to authority must be raised within 10 days of the date on which the person
challenging the authority learned that the person whose authority he is challenging was
acting in the matter.
 If more than 10 days have passed, the leave of the court must be obtained on good
cause shown.
 A person whose authority has been disputed may not act in the matter until he satisfies
the court that he is authorised so to act.
 One way in which he may satisfy the court that he is authorised to act is to produce a
valid power of attorney.

LO12: Compare the following in respect of representation of indigent persons:

 In forma pauperis proceedings in the High Court of South Africa.

 Pro Deo proceedings in the Magistrate’s Court.

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Representation of indigent person:

1. In forma pauperis proceedings in the High Court:

If a person wants to bring or defend proceedings in the High Court, but does not have su icient
money to do so, he may turn to High Court rule 40 for assistance.

 Rule 40 sets out the rules for what are called in forma pauperis proceedings; in other
words, proceedings where one of the parties does not have enough money to pay for his
case.
 In forma pauperis proceedings are not the only option available to a person who does
not have enough money to institute or defend legal action.
 The growth of legal aid has made in forma pauperis proceedings much less common,
but it is a procedure which is still used.

In order to qualify for the provisions of rule 40, a person may neither possess property which is
worth more than R10 000, nor be able to obtain that amount from his earnings within a
reasonable time.

 Household goods, clothing and tools of trade are not included in this calculation.
 The procedure that is adopted is that the person wanting to proceed in forma pauperis
makes an application to the registrar. If the registrar is satisfied that the person qualifies,
he will refer that person to an attorney (whose name appears on a roster in the registrar’s
o ice) and will at the same time inform the Society of Advocates.
 The attorney looks into the case and into the financial position of the applicant.
 If he is satisfied with the merits of the case, and with the lack of means of the applicant,
he will request the Society of Advocates to nominate an advocate to act with him in
forma pauperis in the matter.
 The obligation in this regard rests on the attorney to inquire into the merits and, only if
satisfied of the merits, to request an advocate to be nominated.
 The Society of Advocates is not required to appoint an advocate if the attorney
recommends that the prospects of the matter are poor.

Three documents then have to be drafted:

1. When the proceedings are instituted, an a idavit must be lodged with the registrar on
behalf of the person who is proceeding in forma pauperis. The a idavit must set out that
person’s financial position and state that, except for household goods, wearing apparel
and tools of trade, that person does not possess property worth more than R10 000.
2. The advocate and the attorney must also lodge a statement to the e ect that they are
acting gratuitously in the matter.
3. Finally, the advocate must lodge a certificate probabilis causa; in other words, a
certificate stating that the person has a fair or reasonable hope of success.

The matter then goes ahead as normal, except that all pleadings, processes and documents
filed of record by the party proceeding in forma pauperis must be headed accordingly.

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  The only ray of light for the legal practitioners who are doing all this work for no monetary
reward is that, upon the conclusion of the proceedings, the litigant in forma pauperis
may be awarded costs.

2. Pro deo proceedings in the Magistrates’ Courts:

The equivalent of in forma pauperis proceedings in the Magistrates’ Courts is set out in
Magistrates’ Courts rule 53.

 A person who does not possess su icient means to institute or defend legal
proceedings in the Magistrates’ Court may apply to court for leave to sue or defend as a
pro deo litigant.
 Without going into the procedure in detail, we note simply that it is di erent to the in
forma pauperis procedure followed in the High Court, and advise that you consult
Magistrates’ Courts rule 53, should you wish to advise someone desiring to sue or
defend as a pro deo litigant in a Magistrates’ Court.

Theme 3: Jurisdiction
LO13: Define “Jurisdiction”.

Jurisdiction:

Jurisdiction may be defined as follows:

 The power or competence which a particular court has to hear and determine an issue
between parties brought before it.

In practical terms, determining jurisdiction in a matter means deciding:

 firstly, which general type of court may hear the particular matter (e.g. High Court,
Magistrates’ Court, Labour Court, Income Tax Court, Admiralty Court etc.); and,
 secondly, within that general type of court, which particular court or courts may hear the
matter (i.e. which particular High Court, which particular Magistrates’ Court etc.).

LO14: Distinguish between jurisdiction in the High Court and in the Magistrate’s Court with
reference to:

 Focus points of jurisdiction.

 Main issues relating to jurisdiction.

Focus points of jurisdiction relating to the High Court and Magistrates’ Courts:

1. Specialist courts:

Certain of the di erent types of courts mentioned above may be termed ‘specialist’ courts. In
other words, they deal only with certain types of matters.

 Magistrates’ Courts sitting as Children’s Courts, District Magistrates’ Courts sitting as

Maintenance Courts and Labour Courts would be examples of such courts

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  If you become a ‘specialist’ in one of these areas of law, you will need to acquire the
knowledge required to practise in the particular court concerned, including the
jurisdictional principles applicable to that court.

2. Small Claims Courts:

Some characteristics of the Small Claims Courts are as follows:

 Generally speaking, the amount involved in matters before these courts may not exceed
R15 000.
 Only natural persons may sue, although juristic persons (e.g. companies and close
corporations) may be sued.
 The state may not be sued.
 No cross-examination of witnesses is allowed. Instead, the presiding o icer proceeds
inquisitorially (in other words, by asking questions himself) to establish the relevant
facts.
 There is no appeal against the judgments of these courts.
 Legal representation is not allowed.

3. Supreme Court of Appeal:

As its name suggests, the Supreme Court of Appeal is a court of appeal. This means that you do
not have to worry about the jurisdiction of this court when a matter is first handed to you. We
will deal with the jurisdictional principles applicable to this court later on when we deal with
appeals.

4. Constitutional Court:

As in the case of the Supreme Court of Appeal, most matters which come before the
Constitutional Court do so on appeal, although the Constitutional Court does have exclusive
jurisdiction in the following cases:

1. Disputes between organs of the state in the national or provincial sphere concerning the
constitutional status, powers or functions of those organs of state;
2. The constitutionality of any parliamentary or provincial Bill, in certain circumstances;
3. Applications by members of the national Parliament, or one of the provincial
legislatures, to declare all or part of an Act of Parliament or the particular legislature to
be unconstitutional;
4. The constitutionality of any amendment to the Constitution; and
5. Whether or not Parliament or the President has failed to fulfil a constitutional obligation.
6. Certification of a provincial constitution.

Main issues relating to jurisdiction of the High Court and Magistrates’ Courts:

In practice, it is the Magistrates’ Courts and the High Court that deal with the great bulk of
general civil litigation in South Africa.

 It is for this reason that we need to focus on the jurisdiction of these courts.

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Let us start by rephrasing the two central jurisdictional questions in a more focused way:

 Question 1: What general type? - ‘Must I bring this matter in the High Court or a
Magistrates’ Court?’
 Question 2: Which particular one? - ‘In which particular division of the High Court, or in
which particular Magistrates’ Court, must I bring the matter?’

1. Question 1: High Court or Magistrates’ Court?:

We have already pointed out that the answer to this question depends upon the answer to two
subsidiary questions, which relate to the value of the claim and the nature of the claim.

Question 1.1: What is the value of the claim?:

The general rule is that matters involving a claim for more than R400 000 are heard in the High
Court, whereas matters which involve a claim for not more than R400 000 are heard in the
Magistrates’ Courts.

 In relation to matters heard in the Magistrates’ Courts, those which involve claims for
not more than R200 000 are heard in Magistrates’ Courts for Districts (hereafter referred
to as ‘District Magistrates’ Courts’), whereas those which involve claims for more than
R200 000 but not more than R400 000 are heard in Magistrates’ Courts for Regional
Divisions (hereafter referred to as ‘Regional Magistrates’ Courts’).
 Generally speaking, a matter in which a Magistrates’ Court has jurisdiction may also be
heard in the division of the High Court within whose area of jurisdiction that Magistrates’
Court is situated.
 However, If you elect to proceed with a matter in a division of the High Court, despite the
fact that a Magistrates’ Court has jurisdiction to hear the matter, then even if you win the
case, the High Court may decide to ‘punish’ you by only granting you costs calculated on
the Magistrates’ Courts’ scale, which is less than costs calculated on the High Court
scale .
 There are certain important exceptions to the general rule that matters which involve
claims for more than R400 000 belong in the High Court [PAGE 54]

Question 1.2: What is the nature of the claim?:

The value of a claim is not the only determinant of whether it belongs in the High Court or in the
Magistrates’ Courts.

 The nature of the claim is also important.

 Certain claims involve amounts of R400 000 or less but, due to their nature, are not
allowed in the Magistrates’ Courts.
 A matter involving the interpretation of a will is a good example. Such a matter must be
brought in the High Court, even if R400 000 or less is at stake in the case.
 Another example is a claim for specific performance without the alternative of damages
which – barring certain exceptions – must always be heard in the High Court.

21
  The personal nature of such claims serves to exclude them from the jurisdiction of the
Magistrates’ Courts, even though they may involve amounts of R400 000 or less.

2. Question 2: Which particular division of the High Court or Magistrates’ Court must hear the
matter?:

Once you have established the general type of court in which the matter must be heard (the
High Court or Regional Magistrates’ Court or District Magistrates’ Court), you must decide which
particular division of the High Court, or which particular Magistrates’ Court is competent to hear
the matter.

Generally speaking, you need to tie some aspect of the matter to a particular geographical area
in order to establish that the court which controls that area has jurisdiction. Usually, this is done
in one of two ways:

1. You may be able to show that the person against whom you are instituting action either
lives or works in that area.
2. You may be able to show that the incident or incidents which gave rise to the claim
happened in that area.

LO15: Apply the relevant principles and concepts of jurisdiction in relation to the High Court and
Magistrate’s Court with reference to a set of facts.

Principles and concepts of jurisdiction:

When is jurisdiction determined?

 Jurisdiction is determined at the time that the proceedings are instituted.

 Proceedings are only deemed to have been instituted once the papers initiating those
proceedings have been served on the other party.
For example, an action cannot be said to have been instituted until summons has been
served on the defendant.
 As long as jurisdiction exists at the start of the proceedings, it will continue to exist until
the proceedings end, even should the particular grounds or basis upon which
jurisdiction was founded, fall away during the proceedings.

Why is it important to get jurisdiction right?

 If you start legal proceedings against a person in a court which does not have
jurisdiction, your opponent will be in a position to defeat your client’s claim on this point
alone without even dealing with the substance of the claim.
 In an action, your opponent will be entitled to raise a special plea of lack of jurisdiction,
which e ectively will bring the matter to an end.
 In an application, the court will not hear the matter if it is not satisfied that it has
jurisdiction, based on the facts stated in the papers.

It is important to keep in mind that if you are acting for the applicant or plainti in a matter, it is
up to you to make sure that you set out the grounds upon which jurisdiction is based.

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LO16: Discuss what is meant by the Magistrate’s Court being a “creature of statute” and two
questions to be asked when determining its jurisdiction.

Magistrates’ Courts – “creatures of statute”:

The Magistrates’ Courts are creatures of statute, which means that they have no jurisdiction
apart from that which is conferred upon them by statute.

 The relevant sections of the Magistrates’ Courts Act dealing with jurisdiction are ss 26 to
50.

The manner in which certain of these sections relate to the two fundamental questions
(discussed earlier) which arise when deciding upon jurisdiction:

 Question 1: High Court or Magistrates’ Court? The answer to this question depends
upon the answers to two subsidiary questions:
o ‘What is the value of the claim?’ and ‘What is the nature of the claim?’
 Question 2: Which particular Magistrates’ Court?

LO17: Elaborate on the concept of inherent jurisdiction in the superior courts.

Inherent Jurisdiction:

Inherent jurisdiction is a discretionary power possessed by our superior courts. Writing in the
period before the advent of South Africa’s present constitutional dispensation, it was described
by one South African academic as follows:

 The inherent jurisdiction of the Supreme Court [i.e. High Court] may be described as the
unwritten power without which the Court is unable to function with justice and good
reason.

The power was originally derived from English law and the following useful definition of the
concept was put forward in a Canadian case:

 … the reserve or fund of powers, a residual source of powers, which the court may draw
upon as necessary whenever it is just or equitable to do so, and in particular to ensure
the observance of the due process of law, to prevent improper vexation or oppression, to
do justice between parties and to secure a fair trial between them.

Traditionally, courts would make use of their inherent jurisdiction to avoid a procedural injustice
from occurring, either by overriding the rules of court or providing some procedural remedy
where none existed.

 Despite a perception that inherent jurisdiction was the power of superior courts to do
whatever they wished, provided that it was not prohibited by law, Taitz pointed out that:
the court … does not enjoy the inherent power to change or otherwise create
substantive rights which previously were not part of our law

Although inherent jurisdiction was usually regarded as a procedural power, it was not entirely
procedural in nature.

 The power was discretionary in nature, and a court was not obliged to use its inherent
jurisdiction in any particular situation.

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  Asking the court to exercise its inherent jurisdiction was therefore unlike asking it to
enforce a right.

Let us look at some practical examples in which superior courts have traditionally exercised
their inherent jurisdiction:

1. To regulate its proceedings and prevent an abuse of its process.

2. To protect its dignity, repute and authority, and compel observance of its lawful orders.
3. To control and supervise its o icers.
4. To restrain irregularities in the proceedings of inferior courts.
5. To restrain irregularities in the proceedings of administrative (and like) authorities.
6. To create or modify remedies.

Detailed information on page 138 – 141.

Theme 4: Magistrates’ Court Jurisdiction

LO18: Examine in detail the sections that deal with the “value of the claim” in terms of section
29 of the Magistrates’ Courts Act 32 of 1944.

The value of the claim - section 29 :

1. The general rule:

As a general rule, if the claim or the value of the matter in dispute is over R400 000, the matter
falls within the jurisdiction of the High Court.

 If the claim or the value of the matter in dispute is over R200 000 but not over R400 000,
the matter falls within the jurisdiction of the Regional Magistrates’ Courts.
 If the claim or the value of the matter in dispute is R200 000 or less, the matter falls
within the jurisdiction of the District Magistrates’ Courts.

2. Section 29(1)(a) – delivery or transfer of property:

District Magistrates’ Courts possess jurisdiction in respect of actions234 in which is claimed the
delivery or transfer of any property, movable or immovable, not exceeding R200 000 in value.

 Regional Magistrates’ Courts possess jurisdiction in respect of actions in which is

claimed the delivery or transfer of any property, movable or immovable, exceeding R200
000 but not exceeding R400 000 in value.

3. Section 29(1)(b) – ejectment:

District Magistrates’ Courts possess jurisdiction in respect of actions of ejectment against the
occupier of any premises or land within the relevant district, provided that where the right of
occupation of any such premises or land is in dispute between the parties, such right does not
exceed the amount of R200 000 in clear value to the occupier.

 Regional Magistrates’ Courts possess jurisdiction in respect of actions of ejectment

against the occupier of any premises or land within the relevant regional division;
provided that where the right of occupation of any such premises or land is in dispute

24
 between the parties, such right exceeds the amount of R200 000 but does not exceed
the amount of R400 000 in clear value to the occupier.

4. Section 29(1)(c) – right of way:

Magistrates’ Courts possess jurisdiction in respect of actions for the determination of a right of
way, notwithstanding the provisions of s 46 (i.e. matters beyond the jurisdiction of the
Magistrates’ Court).

 The value of the right of way is not relevant to jurisdiction.

 The Magistrates’ Courts have jurisdiction not only to confirm an existing right of way, but
to create a via necessitatis (i.e. a necessary access route).

5. Section 29(1)(d) – liquid document or mortgage bond:

District Magistrates’ Courts possess jurisdiction in respect of actions on or arising out of a liquid
document or a mortgage bond where the claim does not exceed R200 000.

 Regional Magistrates’ Courts possess jurisdiction in respect of actions on or arising out

of a liquid document or a mortgage bond where the claim exceeds R200 000 but does
not exceed R400 000.

Broken down in formal terms, a liquid document is one that indicates, without the need to resort
to extrinsic evidence:

1. an acknowledgement of indebtedness;
2. in an ascertained amount of money;
3. the payment of which is due to the creditor.

6. Section 29(1)(e) – credit agreements:

Magistrates’ Courts possess jurisdiction in respect of actions on or arising out of any credit
agreement as defined in s 1 of the National Credit Act 34 of 2005.

 Section 1 of the National Credit Act defines a credit agreement as an agreement that
meets all the criteria set in s 8 of the Act.

Section 29(1)(e) of the Magistrates’ Courts Act read with s 172(2) of the National Credit Act
appears to give the Magistrates’ Courts unlimited monetary jurisdiction in relation to matters
falling under the National Credit Act.

7. Section 29(1)(f) – Matrimonial Property Act:

District Magistrates’ Courts possess jurisdiction in respect of actions in terms of s 16(1) of the
Matrimonial Property Act (explained in the next paragraph), where the claim or value of the
property in dispute does not exceed R200 000.

25
  Regional Magistrates’ Courts possess jurisdiction in respect of actions in terms of s
16(1) of the Matrimonial Property Act, where the claim or value of the property in dispute
exceeds R200 000 but does not exceed R400 000.

Sections 15(2) and (3) of the Matrimonial Property Act require a spouse, who is married in
community of property, to obtain the consent of the other spouse if he or she wishes to deal
with the community property in certain ways.

 Section 17 of that Act requires such a spouse to obtain the consent of the other spouse
before instituting or defending legal proceedings (except in certain cases).

Section 16(1) of the Matrimonial Property Act allows the spouse who is being frustrated by the
lack of consent to apply to court for the consent needed.

 In such cases, if the claim or value of the property in dispute is more than R400 000,
then proceedings will have to be brought in the High Court.
 If the claim or value of the property in dispute is more than R200 000 but not more than
R400 000, then proceedings will have to be brought in a Regional Magistrates’ Court.
 If the claim or value of the property in dispute is R200 000 or less, then proceedings will
have to be brought in a District Magistrates’ Court.

8. Section 29(1)(fA) – Close Corporations Act:

Magistrates’ Courts possess jurisdiction in respect of actions, including an application for

liquidation, in terms of the Close Corporations Act 69 of 1984.

 Although matters involving liquidation and insolvency are generally restricted to the High
Court, the Magistrates’ Courts possess jurisdiction to wind up close corporations,
irrespective of the amounts involved.
 This fits in with the idea that close corporations are tailored to meet the needs of smaller
business entities. The High Court does, however, possess concurrent jurisdiction

9. Section 29(1)(g) – all other actions:

District Magistrates’ Courts possess jurisdiction in respect of actions other than those
discussed above, where the claim or the value of the matter in dispute does not exceed
R200 000.

 Regional Magistrates’ Courts possess jurisdiction in respect of actions other than those
discussed above, where the claim or the value of the matter in dispute exceeds R200
000 but does not exceed R400 000.

Section 29(1)(g) is a ‘catch-all’.

 Where a plainti claims delivery of property, alternatively damages, then if either the
value of the property or the damages exceed R400 000, the claim will have to be brought
in the High Court.
 Similarly, in the case of an interdict, if the value of the subject matter in dispute exceeds
R400 000, such interdict will have to be sought in the High Court.

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  Matters in which the values in question exceed R200 000 but do not exceed R400 000
belong in the Regional Magistrates’ Courts, whereas matters in which the values in
question do not exceed R200 000, belong in the District Magistrates’ Courts.

10. Section 29(1B) – divorce and related matters – Regional Magistrates’ Courts:

In terms of s 29(1B)(a) of the Magistrates’ Courts Act –

 the Regional Magistrates’ Courts are granted jurisdiction to hear and determine suits
relating to the nullity of a marriage or a civil union and relating to divorce between
persons and to decide upon any question arising therefrom, and to hear any matter and
grant any order provided for in terms of the Recognition of Customary Marriages Act.

Section 29(1B)(b) makes it clear that a Regional Magistrates’ Court hearing a matter referred to
above shall have the same jurisdiction as any division of the High Court in relation to such a
matter.

 Therefore, that what we have called the ‘general rule’, which stipulates a R400 000 limit
for most types of claims which may be dealt with by the Regional Magistrates’ Courts
(and a R200 000 limit for the District Magistrates’ Courts), does not apply to the types of
claims referred to in s 29(1B)(a) discussed above.

Section 29(1B)(c) provides that the presiding o icer of a Regional Magistrates’ Court hearing a
matter referred to above may, in his or her discretion, summon to his or her assistance two
persons to sit and act as assessors in an advisory capacity on questions of fact.

LO19: Analyse how the limits for monetary jurisdiction in the Magistrate’s Court are calculated.

How to calculate the R200 000 and R400 000 limits:

1. Splitting of single claims not allowed – section 40:

In terms of s 40, a substantive claim exceeding the jurisdiction of the particular Magistrates’
Court concerned may not be split with the object of recovering the same in more than one
action if the parties to all such actions would be the same and the point at issue in all such
actions would also be the same

 A substantive claim in the context of s 40 is a claim arising out of a single cause of

action, meaning that you cannot get around the monetary limits set for jurisdiction in the
Magistrates’ Courts by artificially dividing up a claim arising out of a single cause of
action.
 This rule against the splitting of claims may give rise to certain di iculties in practice.
 Example is on page 101.

2. Combining separate claims is allowed – section 43(1):

27
In terms of s 43(1), if two or more claims, each based upon a di erent cause of action, are
combined in one summons, the court shall have the same jurisdiction to decide each such
claim as it would have had if each claim had formed the sole subject of a separate action.

 In other words, if you have a number of separate claims, each of which is based on a
separate cause of action, these claims may be combined in one summons.

3. Only the amount in issue is considered – sections 37(1) and 37(2):

In terms of s 37(1), in actions wherein the sum claimed, being within the jurisdiction, is the
balance of an account, the court may enquire into and take evidence if necessary upon the
whole account, even though such account contains items and transactions exceeding the
amount of the jurisdiction.

4. Interest and costs not considered – section 37(3):

In terms of s 37(3), when considering whether or not a claim is within the jurisdiction of the
Magistrates’ Courts, no prayer for interest on the principal sum claimed, or for costs, or for
general or alternative relief, shall be considered.

LO20: Discuss the exceptions to the general rule with reference to following:

 Consent.
 Abandonment.
 Deduction of an admitted debt.

Consent – section 45:

One possible way in which a claim for over R200 000 or for over R400 000 may be brought within
the jurisdiction of the District Magistrates’ Courts or the Regional Magistrates’ Courts, as the
case may be, is for the parties to consent to such jurisdiction.

 In terms of s 45(1), subject to the provisions of s 46, the Magistrates’ Courts shall have
jurisdiction to determine any action or proceeding otherwise beyond their jurisdiction if
the parties’ consent in writing thereto.
 This is provided that no court other than a court having jurisdiction under s 28 – except
where such consent is given specifically with reference to particular proceedings
already instituted or about to be instituted in such court – shall have jurisdiction in any
such matter.

The first point to note is that the parties must consent in writing.

 This written consent need not, however, take the form of an express agreement which is
signed by the parties.

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  All that is required is some sort of writing or writings which amount to proof that each of
the parties has consented to jurisdiction.

The second point to note is that there are certain limitations:

1. First limitation:

By their nature, certain claims must be heard in the High Court.

 These claims are set out in s 46.

Parties cannot seek to override the provisions of s 46 by means of a written consent in terms of s
45.

 For example, the parties to a dispute in relation to a will are not entitled to consent to the
jurisdiction of the Magistrates’ Courts.
 Section 46 provides that such a matter must be heard in the High Court. Matters
excluded from the jurisdiction of the Magistrates’ Courts by s 46 remain excluded, no
matter what the parties agree to.

2. Second limitation:

Section 45 allows parties to consent to the jurisdiction of the District Magistrates’ Courts or the
Regional Magistrates’ Courts in general, i.e. to bring the matter within the jurisdiction of either
the District Magistrates’ Courts or the Regional Magistrates’ Courts in general, even though the
value of the claim may be over R200 000 or over R400 000, as the case may be.

 It does not, however, allow them to consent to the jurisdiction of a particular

Magistrates’ Court unless that particular Magistrates’ Court has jurisdiction over the
person of the defendant in terms of s 28 of the Magistrates’ Courts Act.

However, if proceedings have already been instituted or are about to be instituted, the parties
are entitled to consent to the jurisdiction of any particular Magistrates’ Court, even though that
particular court does not exercise jurisdiction over the defendant in terms of s 28 of the
Magistrates’ Courts Act.

Abandonment – section 38:

A second possible way in which a claim for over R200 000 or for over R400 000 may be brought
within the jurisdiction of the District Magistrates’ Courts or the Regional Magistrates’ Courts (as
the case may be) is:

 for the plainti to abandon that part of his claim which is over R200 000 or over R400
000 (as the case may be).

In terms of s 38(1), in order to bring a claim within the jurisdiction of the Magistrates’ Courts, a
plainti may in his summons or at any time thereafter explicitly abandon part of such a claim.

 As to the manner in which the abandonment is a ected, assume that your client’s claim
is for R205 000, and he wishes to abandon R5 000.

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  You may include the following paragraph in your client’s particulars of claim: The
defendant is indebted to the plainti in the amount of R205 000.
 In order to bring his claim within the jurisdiction of the District Magistrates’ Courts in
terms of s 38(1) of the Magistrates’ Courts Act 32 of 1944, the plainti hereby abandons
the amount of R5 000 of his claim.
 In terms of s 38(2), if any part of a claim is abandoned in terms of s 38(1), it is thereby
finally extinguished; provided that if the claim be upheld in part only, the abandonment
shall be deemed first to take e ect upon that part of the claim which is not upheld.

Deduction of an admitted debt – section 39:

A third possible way in which a claim for more than R200 000 may be brought within the
jurisdiction of the District Magistrates’ Courts, or a claim for more than R400 000 may be
brought within the jurisdiction of the Regional Magistrates’ Courts, is:

 for the plainti to deduct from her claim a debt which she owes to the defendant.

In terms of s 39, in order to bring a claim within the jurisdiction of the Magistrates’ Courts, a
plainti may, in her summons, or at any time after the issue thereof, deduct from her claim,
whether liquidated or unliquidated, any amount admitted by her to be due by herself to the
defendant.

LO21: Examine in detail the section that deal with the “nature of the claim” in terms of section
46 in the Magistrate’s Court Act 32 of 1944.

The nature of the claim – section 46:

Section 46 of the Magistrates’ Courts Act is very important because it sets out certain types of
claims which, by their nature, may not be brought in the Magistrates’ Courts.

 Such claims must be brought in the High Court, even though they are for R400 000 or
under.
 If a claim is one of those listed in s 46, it is beyond the jurisdiction of the Magistrates’
Courts.
 Even if the parties wish to consent to the jurisdiction of the Magistrates’ Courts, they are
not entitled to do so.
 The matter must be heard in the High Court.295 If a matter which falls under s 46 is
brought before a Magistrates’ Court, that court must, mero motu, decline jurisdiction,
even though the issue has not been raised in the defendant’s plea.

In simple terms, s 46 may be said to involve two types of claims – status claims and specific
performance claims.

1. Status claims:

Certain of the claims listed in s 46 a ect the personal status of people in some way or another.

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  Such claims are sensitive in nature, and it makes sense that they receive the special
consideration which the High Court is able to a ord them.

a) Wills – section 46(2)(a):

In terms of s 46(2)(a), the Magistrates’ Courts shall have no jurisdiction in matters in which the
validity or interpretation of a will or other testamentary document is in question.

 It is clear, therefore, that matters relating to the validity or interpretation of a will or other
testamentary document must be heard in the High Court.

b) Mental capacity – section 46(2)(b):

In terms of s 46(2)(b), the Magistrates’ Courts shall have no jurisdiction in matters in which the
status of a person in respect of mental capacity is sought to be a ected.

c) Perpetual silence – section 46(2)(d)

In terms of s 46(2)(d), the Magistrates’ Courts shall have no jurisdiction in matters in which is
sought a decree of perpetual silence.

2. Claims for specific performance:

In terms of s 46(2)(c), the Magistrates’ Courts shall have no jurisdiction in matters in which is
sought specific performance without an alternative of payment of damages, except in:

1. the rendering of an account in respect of which the claim does not exceed R200 000;
2. the delivery or transfer of property, movable or immovable, not exceeding R200 000 in
value;
3. the delivery or transfer of property, movable or immovable, exceeding R200 000 in value,
where the consent of the parties has been obtained in terms of s 45.

a) The general rule:

The general rule is that the Magistrates’ Courts have no jurisdiction in matters where the plainti
claims specific performance without an alternative of payment of damages.

 For example, I agree to paint your house and you agree to pay me R25 000 for my labour.
 You pay me the R25 000 but I refuse to paint your house.
 I o er to return the R25 000 to you, but you insist that I must carry out the painting job as
agreed.
 Your claim amounts to a claim for specific performance without the alternative of
payment of damages.

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LO22: Discuss the exceptions to the general rule with reference to “the nature of the claim” in
the Magistrate’s Court.

Exceptions to the general rule:

There are three exceptions to the general rule that claims for specific performance without an
alternative of payment of damages are beyond the jurisdiction of the Magistrates’ Courts.

1. Exception 1 – rendering of an account:

If the claim for specific performance without an alternative of payment of damages is for the
rendering of an account, in respect of which the claim does not exceed R200 000, the matter
may be heard in the Magistrates’ Court.

 A duty to account may arise in di erent circumstances.

 For example, this duty may form part of a contract between the parties, or it may arise
out of the fact that the parties stand in a fiduciary relationship to one another, as in the
case of partners in a partnership.
 However, that a duty to account does not arise simply because a debtor–creditor
relationship exists between the parties.

2. Exception 2 – delivery or transfer of property valued at or under R200 000:

If the claim for specific performance without an alternative of payment of damages is for the
delivery or transfer of property, movable or immovable, which does not exceed R200 000, the
matter may be heard in the Magistrates’ Courts.

 This exception covers many claims which arise in practice.

 For example, you agree to sell me your car for R150 000.
 I pay you the R150 000, but you refuse to deliver the car to me.
 You o er to pay the R150 000 back to me, but I insist that I want the car as we agreed.
 This is a claim for specific performance without an alternative of payment of damages.
 However, since I am asking for the delivery of movable property, the matter is not
beyond the jurisdiction of the Magistrates’ Courts.

3. Exception 3 – delivery or transfer of property valued at over R200 000:

If the claim for specific performance without an alternative of payment of damages is for the
delivery or transfer of property, movable or immovable, which exceeds R200 000, the matter
may be heard in the Magistrates’ Courts, provided that the parties consent to the jurisdiction of
the Magistrates’ Courts in terms of s 45.

LO23: Analyse which Magistrates’ Court(s) have jurisdiction to hear a matter, that is, the area to
which a claim can be linked, in terms of section 28 of the Magistrate’s Court Act 32 of 1944.

The area to which the claim may be linked – section 28:

32
Once you know that a matter may be brought in the Magistrates’ Courts, the next question you
need to ask yourself is:

 Which particular Magistrates’ Court or Courts has/have jurisdiction to hear this matter?

This issue is addressed by s 28 of the Magistrates’ Courts Act 32 of 1944 and involves tying the
matter in question to the area of jurisdiction of a particular Magistrates’ Court or Courts.

In most cases, the jurisdiction of a particular Magistrates’ Court is established by asking the
following questions:

1. Does the defendant reside, carry on business, or is he employed within this particular
court’s area of control?
2. Did the cause of action arise wholly within this particular court’s area of control?

If the answer to either of these two questions is ‘yes’, then the court in question does have
jurisdiction.

1. Defendant’s residence, business, or employment – section 28(1)(a):

Section 28(1)(a) states that a Magistrates’ Court will have jurisdiction over any person who
resides, or carries on business, or is employed within the district or regional division over which
that particular Magistrates’ Court exercises jurisdiction.

a) Where does a natural person reside?:

There has been much debate over what is meant by the term ‘residence’ when it applies to
natural persons.

 For example, Harry is a ‘gentleman of the road’ who sleeps on a di erent park bench
every night.

Where does he ‘reside’?

 The courts have not given a definitive answer to this question since it is a practical issue
to be decided on the particular facts of each case.

The general approach of the courts is clear enough, as is evident in the following extract from
the case of Beedle & Co v Bowley:

 When it is said of an individual that he resides at a place it is obviously meant that it is

his home, his place of abode, the place where he generally sleeps after the work of the
day is done.
 When it comes to determining jurisdiction, it is not possible for a person to claim that he
does not reside anywhere.

b) Where does a company or close corporation reside?:

As strange as it may seem, for legal purposes, companies and close corporations are said to
‘reside’ at a particular place.

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  In the case of certain close corporations, it is even possible for the close corporation
concerned to ‘reside’ at two di erent places at the same time.
 The best way to understand this somewhat confusing area of the law is to examine the
legal position before and after the enactment of the Companies Act 71 of 2008.

Prior to the enactment of the said Act, both companies and close corporations were said to
reside at either of two places:

1. the place of central control of the company or close corporation as well as

2. the place where the registered o ice of the company or close corporation was located.

The ‘place of central control’ of a company (referred to in point 1 above) was taken to mean: …

 the place where its general administration is located, i.e. at the seat of its central
management and control, from where the general superintendence of its a airs takes
place, and where, consequently, it is said that it carries on its real or principal business.

The ‘registered o ice’ of a company or close corporation (referred to in point 2 above) was (and
still is) the o ice listed in the o icial forms used when a company or close corporation was
registered.

c) Where does a partnership reside?:

Unlike a company or close corporation, a partnership is not a legal person.

 One would think, therefore, that it is not possible for a partnership as such to have a
residence, but this is not the case.
 In terms of s 2 of the Interpretation Act, a partnership is defined as a ‘person’.
 Although this does not make a partnership a legal or juristic person, the Supreme Court
of Appeal has held that if the principal place of business of a partnership (i.e. the place
of its central management and actual control) is located within the area of jurisdiction of
a particular court, that should be su icient to confer jurisdiction on that court.

A partnership ‘resides’, for jurisdictional purposes, at the place where its principal place of
business is situated.

d) Where does the state reside?:

It may be argued that the residence of the state is Pretoria, but there is at present no absolute
certainty on this point.

e) What does ‘carries on business’ mean?:

There is no general test to determine where a defendant ‘carries on business.’

In each case the operations of the defendant must be considered to determine what the
business is (i.e. what it does).

34
  For example, a logistics company and a manufacturing business conduct very di erent
operations, and, in determining where each ‘carries on business’, di erent
considerations will be relevant.

According to Jones and Buckle, the phrase ‘carries on business’ in s 28(1)(a) implies that
business is conducted in a particular place from day to day, which involves regularity.

 Although a person may carry on business in more than one district or regional division at
a time, a person whose permanent place of business is situated in one district or
regional division, but who temporarily carries on business in another district or regional
division, cannot claim that the latter district or regional division is his or her place of
business.

f) What does ‘is employed’ mean?:

Here we are dealing with people who are employed by others, rather than those who carry on
business for their own account. Some permanence is required.

 For example, a person who is normally employed in one district, but who goes to
another district for a day or two to perform some task or other, cannot be said to be
employed in the latter district, for jurisdictional purposes.

The date of the service of summons, and not the issue of summons, is the time at which the
incidence of jurisdiction is determined.

2. Cause of action arising ‘wholly’ – section 28(1)(d):

Section 28(1)(d) states that a Magistrates’ Court will have jurisdiction over:

 any person … if the cause of action arose wholly within the district or regional division …

The phrase, ‘if the cause of action arose wholly within the district’ was defined as follows by the
Appellate Division in the case of McKenzie v Farmers’ Co-operative Meat Industries Ltd:

 Every fact which it would be necessary for the plainti to prove, if traversed, in order to
support his right to the judgment of the court.
 It does not comprise every piece of evidence which is necessary to prove each fact, but
every fact which is necessary to be proved.
 It does not matter if certain pieces of the evidence which are necessary to prove those
facts arose outside the district or regional division of the particular Magistrates’ Court.

Therefore, it is important to distinguish between:

1. the facts which must be proved in order to constitute a valid cause of action. In Latin,
these are called the facta probanda; and
2. all the di erent bits of evidence that must be led to prove the facta probanda. In Latin,
these are called the facta probantia.

LO24: Discuss other grounds of territorial jurisdiction.

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Other grounds of territorial jurisdiction:

1. Partnerships – section 28(1)(b):

A Magistrates’ Court possesses jurisdiction over ‘any partnership which has business premises
situated or any member whereof resides within the district or regional division’ of that
Magistrates’ Court.

2. Incidental proceedings – section 28(1)(c):

A Magistrates’ Court has jurisdiction over ‘any person whatever, in respect of any proceedings
incidental to any action or proceeding instituted in the court by such person himself or herself.

In other words, if you start legal proceedings in a particular Magistrates’ Court, you cannot
object to the jurisdiction of that court in respect of any proceedings which are incidental to
those proceedings.

Deciding whether or not proceedings are incidental to the proceedings originally instituted may
be di icult, especially in the case of counterclaims.

You may be tempted to think that a counterclaim is always incidental to the original action, but
this is not the case.

According to Paterson, it is settled that ‘incidental’ means ‘arising out of the same facts.’

3. Interpleader proceedings – section 28(1)(e):

Section 28(1)(e) relates to jurisdiction in respect of interpleader proceedings.

 An interpleader is a procedure for dealing with the situation in which one person (the
‘stakeholder’) has possession of property, which is not his, but which is being claimed
by two other people (the ‘claimants’), each of whom claims exclusive ownership of the
property.
 The stakeholder is not sure to which claimant he should give the property, and the
stakeholder then uses the interpleader procedure to ask the court to decide this issue.

In practice, the sheri of the court often finds himself in the position of a stakeholder.

 What happens is that the sheri goes out and attaches the property of a judgment
debtor on behalf of a judgment creditor.
 Someone then pops out of the woodwork and claims that the property which has been
attached does not belong to the judgment debtor, but in fact belongs to him or her.

In terms of s 28(1)(e)(i), if the person who had the goods attached (i.e. the execution creditor), as
well as all the claimants to the goods (i.e. the spouse of the execution debtor in our example),
reside, or are employed, or carry on business within the district or regional division of a
particular Magistrates’ Court, then that court will possess jurisdiction to hear interpleader
proceedings in relation to the goods attached.

 In terms of s 28(1)(e)(ii), the court out of which the warrant of execution was issued will
possess jurisdiction to hear the interpleader claim.

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  Section 28(1)(e)(iii) relates to interpleader proceedings taken under s 69(2) of the
Magistrates’ Courts Act, i.e. those situations in which ‘two or more persons make
adverse claims to any property in the custody or possession of a third party …’ .
 In terms of s 28(1)(e)(iv), if all parties to an interpleader matter consent to the
jurisdiction of a particular Magistrates’ Court, that court will possess jurisdiction to hear
the matter.

4. Consent – section 28(1)(f):

If you are the defendant or respondent in a Magistrates’ Court matter and you enter an
appearance to defend or oppose the matter, and then take no objection to the jurisdiction of
that court, it will be assumed that you consent to the jurisdiction of the court.

 This section gives recognition to the common-law principle of submission to

jurisdiction. Note that by simply entering an appearance to defend or oppose a matter,
you are not consenting to the jurisdiction of the court.
 If you believe that the court does not possess jurisdiction, usually you will first enter an
appearance to defend or oppose (to stop the other side taking default judgment against
your client), and then follow up with a special plea (which will be included with your plea
on the merits) claiming that the court lacks jurisdiction.

However, jurisdiction cannot be conferred under s 28(1)(f) where the matter is one which falls
under s 46.

 Furthermore, it would seem that s 28(1)(f) may not be used to circumvent the
requirement that where the amount claimed is over R200 000 or R400 000 (as the case
may be), in terms of s 45(1) the parties must consent in writing in order to bring the
matter within the jurisdiction of the Magistrates’ Courts.
 The matters listed in s 46, as well as those matters where over R200 000 or R400 000 (as
the case may be) is being claimed and no written consent has been given, remain
beyond the jurisdiction of the Magistrates’ Courts.
 Even though the defendant does not object to the jurisdiction of the court in such a
case, the matter remains beyond the jurisdiction of that court. The court itself (mero
motu) must decline jurisdiction in such a case.

Section 28(1)(f) is thus restricted in its application.

 Despite this, the subsection may provide you with a very useful fall-back position if you
are acting for a plainti or applicant in a matter. In such a case you will, of course, have
relied on one of the other grounds of jurisdiction set out in s 28(1) of the Magistrates’
Courts Act.
 It may happen that, for some reason or other, the ground of jurisdiction upon which you
were relying falls away, for example, it turns out that the defendant does not reside in the
district or regional division as you thought he did; or that the cause of action did not
arise wholly in the district or regional division as you believed.
 If the defendant enters an appearance to defend or oppose the matter, and then takes
no objection to the jurisdiction of the court, you may be able to rely on s 28(1)(f) for
jurisdiction.

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5. Immovable property – section 28(1)(g):

A Magistrates’ Court has jurisdiction over any person who owns immovable property within the
district or regional division served by that court, in actions in respect of such property or in
respect of mortgage bonds thereon.

 The learned authors of Jones and Buckle submit that ‘for the purposes of the section a
direct relationship between the action and the immovable property or mortgage bond
thereon is required.

Theme 5: High Court Jurisdiction

LO25: Explain the doctrine of e ectiveness.

The doctrine of e ectiveness:

The doctrine of e ectiveness is the most important general principle underlying the jurisdiction
of the High Court in the majority of cases.

 The basic idea behind this doctrine is that you should not waste a court’s time by
bringing a particular matter before it if it is clear from the outset that the court’s
judgment will not be e ective.

The second edition of Pollak on Jurisdiction emphasises the fundamental importance of the
doctrine of e ectiveness, quoting the court in Thermo Radiant Oven Sales (Pty) Ltd v
Nelspruit Bakeries:

 Save for the principle of voluntary submission to jurisdiction and possibly in the case of
the exclusive competency of the court of domicile in an action a ecting status, the
basic principle of jurisdiction in our law is that of e ectiveness.

An e ective judgment is one which can be enforced.

 To enforce its judgment, a court needs to have control over the judgment debtor’s
person or property.
 In most cases, judgments are enforced by means of a writ of execution in terms of which
the sheri of the court attaches and sells the defendant’s property to secure payment
(in part or in full) of the judgment debt.
 In some cases, judgments are enforced by means of a writ of arrest in terms of which
the judgment debtor is arrested and charged with contempt of court.
 Although the doctrine of e ectiveness is the most important doctrine underlying High
Court jurisdiction, it is not the only such doctrine.
 The doctrine of voluntary submission to the jurisdiction of the court (prorogatio) may
also be regarded as underpinning High Court jurisdiction, although to a much more
limited extent.

LO26: Discuss the three most common grounds of High Court Jurisdiction.

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The three most common grounds of High Court jurisdiction:

At the outset, it is worth quoting from the seminal judgment of De Villiers CJ in the case of
Einwald v The German West African Company, in which the learned former Chief Justice
commented as follows on the various rationes jurisdictiones recognised by our common law:

 What then are the grounds upon which the jurisdiction of this Court can be exercised, in
respect of any contract over any defendant without his consent, express or implied?
 The grounds are threefold; viz by virtue of the defendant’s domicile being here, by virtue
of the contract either having been entered into here or having to be performed here, and
by virtue of the subject matter in an action in rem being situated in this Colony.

1. Ratione domicilii:

In terms of the general common-law principle expressed by the Latin term actor sequitur forum
rei, the plainti /applicant must follow the defendant/respondent to their place of domicile or
residence, and institute action against him there.

 The court which exercises territorial jurisdiction over the area within which the
defendant/respondent is either resident or domiciled is known as the forum domicilii.
 In order to claim jurisdiction by virtue of the ratione domicilii, you must institute legal
proceedings against the defendant/respondent in the forum domicilii.

When dealing with High Court jurisdiction, it is important to note that either domicile or
residence is su icient to constitute a particular court as the forum domicilii.

This was definitively decided by the Appellate Division in the case of Bisonboard Ltd v K Braun
Woodworking Machinery (Pty) Ltd, in which Hoexter JA stated as follows:

 Provided that the defendant is an incola389 of the court’s area of jurisdiction, the court
will be prepared to hear the case …
 Accordingly, if the defendant is either domiciled or resident in the area, this will be a
su icient jurisdictional connecting factor.
 Neither of these requirements predicates the actual physical presence of the defendant
within the court’s area.
 If the defendant is present, he may be brought to court by summons in the ordinary
manner; if he is absent, then, subject to the Rules of Court, summons may be a ected
by edictal citation or substituted service, as the case may be.
 Domicile and residence suggest no more than a notional connection with the court’s
area.
 Absence is relevant only in regard to the procedural matter of service.

According to Chetty J in the case of Chinatex Oriental Trading Co v Erskine, a domicile of

choice may be acquired if the following two elements are satisfied:

1. Physical presence (an objective fact); and

2. An intention to remain indefinitely (a subjective test).

2. Ratione rei gestae:

39
The term res gestae simply means ‘thing done’, although the term is generally used in a
somewhat narrower sense to refer to the act/s or transaction/s in issue in a particular case, or
the critical events – in essence, the facta probanda.

 The idea behind the ratione rei gestae is that a court will have jurisdiction to hear a
particular matter if the critical events relating to that matter took place within its area; in
other words, if the relevant cause of action arose in that area.
 The court which exercises jurisdiction over this area is known as the forum rei gestae.

As pointed out earlier, the term ”cause of action” has been defined in numerous cases. In the
case of Abrahamse & Sons v SA Railways and Harbours, for example, it was described as
follows:

 The proper legal meaning of the expression “cause of action” is the entire set of facts
which give rise to an enforceable claim and includes every fact which is material to be
proved to entitle a plainti to succeed in his claim.
 It includes all that a plainti must set out in his declaration in order to disclose a cause
of action.

It is beyond the scope of this book to do more than allude to the di iculties involved in this area
of the law, and you would be wise to conduct thorough research before litigating in practice.

For practical purposes, however, it is submitted that for jurisdictional purposes:

1. A contractual cause of action arises:

1. where the contract was concluded (the locus contractus); and

2. where the contract was to be performed, either in whole or in part (the locus solutionis).

2. You may therefore proceed in the forum contractus (i.e. the court of the place in which the
contract was concluded) or the forum solutionis (i.e. the court of the place in which the contract
was to be performed).

3. In accordance with the above, in matters involving breach of contract, you would be wise – for
jurisdictional purposes – to proceed either in the court within whose area of jurisdiction the
contract was concluded, or in the court within whose area of jurisdiction the contract was to be
performed.

4. A delictual cause of action arises where the delict was committed or occurred.

 The court which exercises jurisdiction in this area is termed the forum delicti commissi
and it is said to have jurisdiction by virtue of the ratione delicti commissi.
 In the vast majority of delictual cases, the damage follows the wrongful act directly and
materialises at the same place.

In the case of other causes of action, jurisdiction is determined according to where the res
gestae occurred and whether there are su icient connecting factors between the matter in
question and the relevant court to enable the court to hear and determine the matter.

The term ratione rei gestae is sometimes used in a narrow sense and may be distinguished from
the more specific rationes contractus and delicti commissi.

 At other times, the term ratione rei gestae is used in a broad sense, which includes these
two specific grounds of jurisdiction.

40
  It is not entirely clear which is the more appropriate use of the term, but it is as well to be
aware of the di erent ways in which it is used.

3. Ratione rei sitae:

The court which exercises territorial jurisdiction over the area within which is situated movable
or immovable property constituting the subject matter of the claim is known as the forum rei
sitae.

 In order to claim jurisdiction by virtue of the ratione rei sitae, the movable or immovable
property constituting the subject matter of the claim must be situated within the forum
rei sitae.

LO27: Analyse the two most common types of claims in the High Court.

The two most common types of claims:

1. Claims relating to property:

a) What is a claim relating to property?

In these cases, the court is asked to make an order which directly a ects specifically identified
property.

 In practice, there are many di erent types of claims relating to property, but we shall
restrict ourselves to those claims dealing first with title to property, and second with
transfer or delivery of property.
 We shall deal with these two types of claims both in respect of movable and immovable
property:

Claims involving title to immovable property include claims for ownership or possession of
immovable property.

 For example: I have occupied this piece of land for a continuous period of 30 years.
 Therefore, I have become the owner due to acquisitive prescription.
 I want the court to order the Registrar of Deeds to alter the title deeds to reflect that I am
now the owner of the property.

Claims for the transfer of immovable property in terms of a contract entered into between two
parties are common in practice.

 For example: I have bought and paid for this piece of land in terms of a contract entered
into between us, but you refuse to sign the necessary documents to enable the property
to be transferred into my name.
 I shall ask the court to order that the property be transferred into my name.

Claims involving title to movable property are also common in practice.

 For example: I am the owner of this motor vehicle. You borrowed it from me, but now
refuse to return it.
 I shall ask the court to order that the motor vehicle be returned to me.

41
Claims for the delivery of movable property are probably the most common of all claims relating
to property in practice.

 For example: We agreed that I would buy your car for R110 000.
 I have paid you the R110 000, but you have not delivered the car to me.
 I shall ask the court to order that you deliver the car as agreed.

b) Which of the grounds of jurisdiction apply?:

(i) Immovable property – claims involving title:

As far as claims involving the title to immovable property are concerned, it is clear that the
forum rei sitae will possess jurisdiction to hear such claims.

Further, despite some evidence to the contrary in the cases of Hugo v Wessels and Ward v
Burgess, it would seem that the forum rei sitae is the only court which will possess jurisdiction
in such matters.

(ii) Immovable property – claims for transfer:

In relation to claims for the transfer of immovable property, once again it is clear that the forum
rei sitae will possess jurisdiction to hear such claims.

 As to the question of whether or not any other court or courts will possess jurisdiction in
such matters, the answer seems to depend upon whether the action is in rem or in
personam.

(iii) Movable property – claims involving title:

As far as claims involving title to movable property are concerned, it is clear that the forum rei
sitae will possess jurisdiction to hear such claims.

 Note that although the property must be situated within the area over which the court
exercises jurisdiction at the time legal proceedings are instituted, the court will not be
deprived of jurisdiction if the property is then removed from its area of jurisdiction.

(iv) Movable property – claims for delivery:

In relation to claims for the delivery of movable property, once again it is clear that the forum rei
sitae will possess jurisdiction to hear such claims.

 The forum rei sitae does not, however, possess exclusive jurisdiction in such matters.
 Provided that the property is situated within the Republic, the forum domicilii of the
defendant will also possess jurisdiction in a claim for delivery of movable property.

2. Claims sounding in money:

42
a) What is a claim sounding in money?:

In these cases, a plainti is seeking payment of money.

It is probably safe to say that the vast majority of actions brought in our courts ‘sound in money’.
In some cases, the claim for money will be brought on its own.

 For example (contractual claim): We agreed that you would buy my car for R410 000.
 I have given you the car, but you have not paid me for it.
 Please pay me what you owe me.

Or (delictual claim):

 You crashed into my car and damaged it.

 The fair and reasonable cost of repair amounts to R410 000, and this is less than the
di erence between the pre- and post-collision value of the vehicle.
 Please pay me the fair and reasonable cost of repair.

In certain cases, the claim for money will be brought as an alternative to some other claim.

 For example (as an alternative to a claim for specific performance): We agreed that I
would buy your car for R410 000.
 I have paid you the R410 000, but you have not given me the car.
 Either give me the car as agreed (claim for specific performance) or else give me my
money back (claim sounding in money as an alternative).

In some cases, a claim for specific performance will be brought without a claim for money.

 For example: You agreed to build me a house for R620 000.

 I gave you the R620 000, but now you refuse to build the house. I insist that you build the
house as agreed.

b) Which of the grounds of jurisdiction apply?:

The grounds of jurisdiction that apply to claims sounding in money depend, however, upon
whether the defendant/respondent is an incola or a peregrinus of South Africa.

 An incola is a person who is either resident or domiciled within the court’s area of
jurisdiction.
 A peregrinus is the opposite of an incola and is thus a person who is neither domiciled
nor resident within the court’s area of jurisdiction.

It is necessary to distinguish between two kinds of peregrini:

1. The first kind of peregrinus (who may be referred to as a local peregrinus)is a person who
is a peregrinus of the court in question but is resident or domiciled within the borders of
South Africa.
o For example, a person who is resident and domiciled in Cape Town is an incola
of the Western Cape Division, but a peregrinus of all the other divisions of the
High Court in the country. Such person is, of course, an incola of South Africa.

43
 2. The second type of peregrinus (who may be referred to as a foreign peregrinus) is a
person who is resident and domiciled in a foreign country and is a peregrinus of South
Africa as a whole. Note that nationality has nothing to do with it.
o For example, a citizen of France who has permanent residence rights in South
Africa and is living in Cape Town, is an incola of the Western Cape Division, and
is not a peregrinus of South Africa.

The majority of matters brought before our courts involve defendants and respondents who are
incolae of South Africa.

 In such matters (i.e. where the defendant or respondent is an incola of South Africa), in
the case of a claim sounding in money, you may use either the ratione domicilii or the
ratione rei gestae (including the ratione contractus and the ratione delicti commissi) to
ground jurisdiction.

LO28: Discuss the jurisdictional principles applicable to certain additional claims.

The jurisdictional principles applicable to certain additional claims:

1. Claims sounding in money against foreign peregrini:

In terms of s 42(2) of the Superior Courts Act, the civil process of a division runs throughout the
country.

 This means that the process issued by a particular division (e.g. a summons or notice of
motion) may be served within the jurisdiction of any other division in the Republic.
 It also means that the judgment or order of a particular court is enforceable in the
jurisdiction of any other division in the Republic.
 The result is that even if a defendant or his property is situated outside the jurisdiction of
a particular division, that court is able to exercise control over the person or property of
the defendant, provided that he is an incola of South Africa.

a) Attachments to found and confirm jurisdiction:

Before you are permitted to institute a claim sounding in money against a

defendant/respondent who is a peregrinus of South Africa (i.e. a foreign peregrinus), it is usually
necessary to acquire some sort of hold over that person.

 This is usually done by attaching his property.

In order to understand why such attachment is necessary, think carefully about the category of
persons who are classified as peregrini of South Africa.

 It is very important to remember that these persons are foreigners who are neither
domiciled nor resident in South Africa.
 A true peregrinus of South Africa is a person who is just passing through. His home is not
here (i.e. he is not resident here) and he does not intend to stay here indefinitely (i.e. he
is not domiciled here).

44
  An example of such a person would be a German tourist who is travelling around the
country for a few weeks, or a member of a visiting Ugandan sports team which is in
South Africa to take part in a sporting competition.

Now let us assume that you want to bring a claim sounding in money against a person who may
properly be said to fall into the category of ‘peregrinus of South Africa’ (i.e. a foreign peregrinus).

 For example, a German tourist who is here on holiday crashes into the back of your
client’s car.
 Before a court takes on this kind of case, it will want to be sure that its judgment will be
e ective.
 One way to ensure that the court’s judgment will be e ective is to attach the property of
the German tourist before he returns to Germany.
 However, that if the foreign peregrinus has no property to attach, there must be service
on him while he is in South Africa and there must be a su icient connection between the
suit and the court’s area of jurisdiction.
 This ‘exception’ is a fairly recent development to the common law, undertaken by the
Supreme Court of Appeal in the case of Bid Industrial Holdings (Pty) Ltd v Strang and
Another (Minister of Justice and Constitutional Development, Third Party).

For the purposes of your mind map you may divide attachments to found and confirm
jurisdiction into four simple steps:

Step 1:For jurisdictional purposes, you are only required to make an application to attach the
property of a defendant to found or confirm jurisdiction if he or she is a peregrinus of South
Africa. If the defendant is a local peregrinus, attachment is impermissible. According to s 28 of
the Superior Courts Act:No attachment of property to found jurisdiction shall be ordered by a
division against a person who is resident in the Republic.

Step 2:Once you know that you are dealing with a defendant who is a peregrinus of South Africa
(i.e. foreign peregrinus – which means that you are entitled to carry out an attachment to found
or confirm jurisdiction) you must ask yourself the following two questions:

1. Within the territorial jurisdiction of which court/s did the cause of action arise?
2. Within the territorial jurisdiction of which court/s is the plainti domiciled and/or
resident?

Step 3:Depending on the answers to the two questions set out in step 2, you will then make an
application to court to order an attachment of the defendant’s goods to either found or confirm
jurisdiction:

 An application for an attachment to confirm jurisdiction (ad confirmandam

jurisdictionem) may be brought in any court which exercises territorial jurisdiction over
an area within which part of the cause of action arose.
 An application for an attachment to found jurisdiction (ad fundandam jurisdictionem)
may be brought in the court which exercises territorial jurisdiction over the area within
which the plainti is either domiciled or resides(unless part of the cause of action also
arose in that area, in which case the application will be for an attachment to confirm
jurisdiction).
 You may choose whichever court is most convenient to your client.

45
  If your application is successful, the attachment may be carried out in any part of South
Africa.

Step 4:In order for the attachment to be carried out, the defendant’s property must be
somewhere within the Republic of South Africa.

b) Consent to jurisdiction:

As pointed out in the introduction to this section dealing with High Court jurisdiction, consent to
jurisdiction may be regarded as a fundamental common-law principle of jurisdiction.

 Although consent to jurisdiction may be of relevance to cases other than those in which
the defendant is a foreign peregrinus, it is in relation to this last-mentioned category of
cases that the principle finds much of its practical application.
 It is for this reason that we deal with the principle of consent to jurisdiction in
conjunction with the principles relating to claims against foreign peregrini.

As discussed in the previous section, when dealing with a claim sounding in money against a
foreign peregrinus, an attachment ad confirmandam or ad fundandam jurisdictionem is usually
required.

 The principle of consent to jurisdiction is of relevance in these cases because, should

the foreign peregrinus defendant consent to jurisdiction, such consent renders an
attachment impermissible.

What happens, however, if the foreign peregrinus defendant consents to jurisdiction after the
order of attachment has been granted?

 The answer appears to be that if he consents to jurisdiction after the order of

attachment has been granted, but before it has been put into e ect, then he is entitled
to a discharge of the order.
 If, however, he consents to jurisdiction only after the writ of attachment has been
executed, then he is not entitled to a discharge of the order.

2. Claims for divorce and associated relief:

The most important point to note in relation to claims for divorce and associated relief is that
this area of the law is regulated by statute.

In terms of the Divorce Act, a ‘divorce action’ is defined as:

 … an action by which a decree of divorce or other relief in connection therewith is

applied for, and includes:
a) an application pendente lite for an interdict or for the interim custody of, or access
to, a child of the marriage concerned or for the payment of maintenance; or
b) an application for a contribution towards the costs of such action or to institute
such action, or make such application, in forma pauperis, or for the substituted
service of process in, or the edictal citation of a party to, such action or such
application.

46
Although the Divorce Act does not derogate from the common-law jurisdiction of the courts in
respect of such claims,447 the provisions of the Act o er important additional grounds of
jurisdiction.

The most important subsection of the Divorce Act relating to jurisdiction reads as follows:

1. A court shall have jurisdiction in a divorce action if the parties are or either of the parties
is –
a) domiciled in the area of jurisdiction of the court on the date on which the action is
instituted; or
b) ordinarily resident in the area of jurisdiction of the court on the said date and have
or has been ordinarily resident in the Republic for a period of not less than one year
immediately prior to that date.

Jurisdiction is not restricted to the court within whose area the defendant spouse is domiciled
or resides.

 The domicile and residence of the plainti also become relevant for jurisdictional
purposes, since the subsection speaks of ‘either of the parties…’
 In other words, if a wife is suing her husband for divorce, she may do so where she is
domiciled, or where she is ordinarily resident (provided that she has been ordinarily
resident in South Africa for at least a year immediately before this date).
 This is a radical departure from the common-law principle of actor sequitur forum rei.

3. Claims for interdicts:

An interdict is an order by the court that a person either perform some action (a mandatory
interdict) or refrain from performing some action (a prohibitory interdict).

 A good example of a prohibitory interdict would be where you want the court to order
your neighbour to stop digging a large hole next to your common boundary fence, which
is threatening to undermine your house.

When deciding whether or not a particular High Court division has jurisdiction to hear particular
interdict proceedings, two questions should be asked:

1. Is the respondent an incola or a peregrinus of the court concerned?

2. Is the act you are trying to force the respondent to perform, or refrain from performing,
linked to the territorial area of jurisdiction of the court concerned?

Three di erent possibilities then arise in relation to jurisdiction:

1. Respondent is an incola + act is either within or outside area of jurisdiction:

a. In such cases, the court has jurisdiction to grant an interdict (whether
mandatory or prohibitory) in personam against the incola, whether the act in
question is to be performed or restrained within or outside the area of
jurisdiction of the court.

Respondent is a peregrinus + act within area of jurisdiction:

2. Because the court has power to compel or prohibit acts within its area of jurisdiction, it
has jurisdiction to grant either a mandatory or a prohibitory interdict.

47
 a. It does not matter if the respondent is a citizen of Outer Mongolia; the court may
still compel him to perform or desist from performing an act within the
jurisdiction of the court.

Respondent is a peregrinus + act outside area of jurisdiction:

3. Because the court has no power over either the respondent or the act, it has no
jurisdiction to grant either a mandatory or a prohibitory interdict.
a. This applies whether the respondent is a local or a foreign peregrinus.

4. Single claims involving two or more jurisdictions:

Occasionally, you may be confronted with a situation in which you are dealing with what you
believe to be a single case, but you find that two or more courts exercise jurisdiction in respect
of di erent parts of this single case.

 Since it does not make sense for two or more courts to deal with a single matter, you
may wish to turn to the ground of jurisdiction known as the ratione causae continentiae,
which may allow one of the courts involved to exercise jurisdiction in respect of the
whole matter.

Harms provides the following useful summary:

 More than one claim may be joined in one process before a court against di erent
persons or in respect of di erent things in di erent jurisdictional areas if, together, they
really constitute one case.
 An indivisible obligation in respect of an indivisible thing, which is situated in two
di erent jurisdictional areas, may be enforced in any of the areas concerned.

The causae continentia doctrine was extended by the Supreme Court of Appeal in the Ngxuza
judgment.

 Application was brought on behalf of a class of persons consisting of tens of thousands

of recipients of social disability grants, whose grants had been terminated, unilaterally
and without notice, by the Eastern Cape provincial authorities.
 Not all of the persons of this class resided within the jurisdictional area of the High
Court before which the application was brought, i.e. the Eastern Cape Division of the
High Court.

LO29: Draft an application for an “attachment to found jurisdiction” (ad fundandam

jurisdictionem) based on a given scenario.

LO30: Draft an application for an “attachment to confirm jurisdiction” (ad confirmandam

jurisdictionem) based on a given scenario.

48
 Learning Unit 3
Stage One: Before Litigation
Part Two: Pre-litigation Issues

Theme 1: Demand
LO1: Define the concept of demand.
Demand:

A demand is a request for payment, or a request for the performance of a legal obligation.

 A demand is made before legal proceedings start, as it is an attempt to obtain

satisfaction without incurring the expense of formal litigation.
 The need to demand payment or performance is, of course, due to a failure to respond
to informal requests for payment or performance.
 A valid demand may be made by a person (i.e. the future plainti or applicant) himself,
or later by his attorney.

LO2: Analyse the forms and contents of a demand.

Forms of demand:

The demand for payment or performance can take many forms.

 It may be made orally; it may be made in writing in the form of a letter of demand; or
demand may even be constituted by the institution of legal action (i.e. by the service of
summons on a defendant, or by launching an application against a respondent).
 As the summons itself may constitute a legal demand, it need not be preceded by a
letter of demand.

A number of other forms of demand, such as sending a statement of account or invoice to the
person allegedly in default, have also been recognised in our law.

 In such cases, however, the principle is that it must be clear to the recipient that a
demand for payment or performance is, in fact, being made.

In terms of certain statutes, it is a legal requirement to send a letter of demand giving notice to
the recipient that you intend taking legal action. In such cases, the letter of demand is also
called a notice.

The contents of the demand:

The general rule is that the demand, whichever form it takes, has to contain su icient detail to
inform the recipient of the whole cause of action.

49
  In the case of a letter of demand, for example, it means that the recipient must receive
information covering all the elements of the alleged claim (e.g. the four elements of a
delictual Aquilian Action).
 The recipient must be put in possession of all the information necessary to determine
his liability so that he can decide whether to defend or settle the claim.

In addition, the letter must contain a paragraph (sometimes called the demand clause) in which
the actual demand for payment or performance is made, usually also indicating the time period
within which payment or performance must occur, and the consequences of not complying with
the demand.

LO3: Discuss the circumstances where demand must be made.

Circumstances where demand must be made:

A demand is always necessary in the following circumstances:

1. Where legislation requires that notice be given, or a letter of demand be delivered prior
to litigation; and
2. Where demand must be made to complete a cause of action.

1. Demand (or notice) required by statute:

The most important statutes requiring that demand16 be given prior to the institution of
litigation are the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002;
the General Law Amendment Act 62 of 1955; the Customs and Excise Act 91 of 1964; the
National Credit Act 34 of 2005; the Small Claims Court Act 61 of 1984; and Road Accident Fund
Act 56 of 1996.

 The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 will
now be considered in some detail, followed by a brief overview of some of the more
important of the other statutes mentioned

a) The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (‘the
Act’):

This Act, which has been e ective from 28 November 2002, consolidates the notice and time
limit requirements contained in various other statutes that have to be complied with when
initiating civil actions against various state organs.

 Any civil action brought against any national, provincial or local government
department, any institution exercising a function in terms of the Constitution, the South
African Maritime Safety Authority, the South African National Roads Agency Ltd, or even
any person for whose debt an organ of state is liable, must comply with the provisions of
the Act.
 In terms of Part 2 of the Act, no legal proceedings for the recovery of a debt may be
instituted against an organ of state unless the creditor has given the organ of state

50
 notice in writing of the intention to institute legal proceedings, or the organ of state has
consented in writing to the institution of those proceedings.
 In terms of s 3(2)(b) the notice must briefly set out the facts giving rise to the debt, and
the particulars of the debt (e.g. amount, parties involved, date incurred, etc.) that are
within the knowledge of the creditor. These requirements, in e ect, make the notice a
letter of demand.

The notice must be served on the organ of state concerned within six months from the date on
which the debt became due.

 The various methods of service of the notice are contained in s 4 of the Act, which even
allows for the service of the notice by electronic mail.
 By contrast, the methods of service of court process for the purposes of this Act are
contained in s 5.
 No court process may be served on the organ of state concerned before the expiry of a
period of 30 days after the date on which the notice was served on that organ of state.
 If any court process is served on an organ of state before the expiry of the 30-day period,
the process will be regarded as having been served on the first day after the expiry of the
30-day period.

Service before the expiry of the period will therefore not interrupt prescription.

b) Interim interdicts against the government: the General Law Amendment Act 62 of 1955:

Section 35 of this Act provides that no court is permitted to issue a rule nisi that operates as an
interdict against any branch of national or provincial government, or any o icial as defined in
the Act, unless notice of the intention to apply for such a rule is served on the defendant
concerned at least 72 hours before the hearing of the application.

c) The Customs and Excise Act 91 of 1964:

In terms of s 96 of this Act, legal action must be taken against the department within one year of
the debt becoming due or the cause of action arising, and written notice of the intention to
institute legal proceedings must be given at least one month before the legal proceedings are
actually instituted.

d) The National Credit Act 34 of 2005:

This Act, which came into force on 1 June 2007, specifies various legal requirements that have
to be complied with relating to the giving of notice and the commencement of legal proceedings
to enforce a credit agreement to which the Act applies.

 Example on page 164

e) The Small Claims Court Act 61 of 1984

51
Section 29 of the Small Claims Court Act 61 of 1984 provides that a letter of demand must be
delivered by the plainti to the defendant by hand or registered post before legal action may be
taken.

 Section 29 further provides that a period of 14 days must elapse after receipt of this
letter by the defendant before the Small Claims Court summons may be issued.

2. Demand essential to complete a cause of action:

Here, unlike the section above where the making of a demand was a statutory precondition to
commencing legal proceedings, the making of a demand for payment or performance is
required as it forms part of the cause of action.

 For example, the parties to a contract may agree in the written contract that a cause of
action will not arise for breach of a term of that contract until a demand has been sent.

a) Payable on demand:

Many contracts contain a clause which states that a certain amount is payable on demand.

 Until the amount has been demanded, it is not due and payable, and no cause of action
will arise for failure to pay the amount.
 Demand is thus necessary to complete one’s cause of action.

b) Notice of breach clauses:

Certain contracts contain a stipulation to the e ect that the parties to the contract are not
permitted to commence action for breach of a term of the contract, unless the party who
intends to commence action has given written notice of his intention to do so.

 No cause of action will arise until such notice has been sent.

c) Placing a debtor in mora:

In some cases, the contract between the parties may not stipulate a specific time for the
performance of an obligation, or it may not be clear from the terms of the contract exactly when
performance is due.

 In such cases, performance must be demanded, and a reasonable time for the
performance of the contract given, for a cause of action to be established.
 For example, where a debtor has failed to pay an account that was delivered to him for
goods sold, you will have to send the debtor a letter of demand in which he is given a
stipulated time period in which to pay.
 If the debtor then does not pay after the expiry of the stipulated time period, he will be in
mora from the date on which the period expires.
 (Mora interest on the debt then begins to run from this date.)

52
d) Demand to give right of cancellation:

If the contract is clear on the date of performance, or it is clear from the nature of the contract
precisely when performance is due (e.g. a contract to bake a cake for a wedding which is due to
take place on a certain date), and there is no express stipulation in the contract that a specific
form of demand is required before action is commenced, it is not necessary to send a letter of
demand.

LO4: Elaborate on the other consequences of demand, namely costs and interest.

Other consequences of demand: costs and interest:

The decision whether or not to deliver a demand for payment or performance prior to the
institution of legal action may also a ect the interest on the debt that may be claimed, and the
legal costs that may be recovered.

1. Costs relating to the issue of summons:

Should the plainti decide to issue summons without first delivering a letter of demand to the
defendant, he may incur unnecessary costs in two ways.

 In the first place, the defendant may very well have paid on receipt of the demand,
thereby saving the plainti the costs of issuing and serving the summons (i.e. the
payments the plainti would have to make to his own attorney for issuing and serving
the summons).
 Secondly, the defendant could argue that he would have paid had he received a letter of
demand prior to the summons, and the court may then refuse to allow the plainti to
recover the cost of the summons.

The danger of a cost order against the plainti in these circumstances is heightened if the debt
was an unliquidated debt as the defendant could argue that he was not aware of the exact
amount payable until a demand had been received.

2. Unliquidated debts: delivering demand to start the running of interest:

If your action is to recover an unliquidated debt (e.g., a delictual claim for damages), the
delivery of a letter of demand or summons to the debtor is su icient to start the running of
interest.

It is quicker and easier to draft and deliver a letter of demand than to draft, issue and serve a
summons.

Therefore, as a general rule, it makes sense always to send a letter of demand before drafting
particulars of claim and preparing summons.

LO5: Draft a letter of demand based on a given scenario.

The section 29 letter of demand:

53
1. Planning the letter of demand:

Step 1:Objectives:

1. To issue a formal demand for payment in the amount of R5 600 in order to repair Abel’s
car.
2. To attempt to persuade Ben to pay this amount; and
3. To ensure that the letter of demand complies with the Small Claims Court Act. (Note
that maintaining a good relationship with Ben is no longer an objective.)

Step 2:Strategy and tactics:

1. Ensure that all the elements of the delict committed by Ben are covered in the letter of
demand.
2. Use a formal tone – ensure that the salutation, body of the letter and its ending are
consistent in tone.
3. Give Ben su icient information to enable him to make a settlement o er. Note that the
letter of demand may become an item of evidence at the Small Claims Court hearing.
Ensure, therefore, that not too much information is divulged in the letter (for example,
the letter may mention that an independent eyewitness saw the incident, but the name
of the witness should not be disclosed – this would be tactically unwise as Ben may
approach this witness prior to the day of the hearing). Also, do not indicate anywhere on
the letter of demand that you intend to proceed in the Small Claims Court – the fear of
incurring legal costs in the Magistrates’ Court may be su icient to persuade Ben to pay
the R5 600 claimed by Abel.

Step 3:Read from recipient’s point of view:

1. Read your draft from Ben’s point of view to ensure your three objectives have been met.
Then make the necessary alterations.

2. The final letter of demand:

BY HAND

Oxford Road

Rosebank

Johannesburg

4001

Mr B Baxter

3 Oxford Road

Rosebank

Johannesburg

2096

22 December 2016

54
Dear Sir

DEMAND FOR PAYMENT: R5 600 LOSS INCURRED DUE TO DAMAGE CAUSED TO MOTOR
VEHICLE GP113 189

I refer to the incident that occurred on 4 September 2016, when the branch of a tree you cut fell
on my car, GP113 189, causing extensive damage to it.

The damage caused to my car was entirely your fault as you were negligent in not taking proper
care when cutting the branch.

The branch you cut badly damaged the front of my car, also smashing its windscreen and
cracking its dashboard.

On 9 September 2016, I obtained three quotations for the repair of the damage caused by the
branch to my car. These quotations are attached to this letter. As you can see, the lowest
quotation is for an amount of R5 600 (five thousand six hundred rand). I have also attached to
this letter an a idavit from an expert motor assessor, Mr Sello Mothibe, in which he assessed
the pre-collision market value of my car to be R18 000.

It is clear that the market value of the car far exceeds the reasonable cost of repair of R5 600.

I, therefore, demand that you pay me the amount of R5 600 (five thousand six hundred rand)
within 14 days of receipt of this letter. Should you fail to do so, I shall proceed, without further
notice to you, with legal action against you to recover this money.

Yours faithfully,

(Signed)
ABEL ACHEBE

Theme 2: Calculation of time limits

LO6: Apply all concepts and principles governing the calculation of time limits to a given
scenario, with reference to:

• Time periods within a certain period.

• Time periods after a certain period.
• Service of court process.

Time periods within a certain period:

Most of the time periods mentioned in the High Court and Magistrates’ Courts Acts and Rules
require things to be done within a certain period.

1. FOLI: first out last in:

The first point to note is that when a section or rule requires something to be done within a
certain period, you exclude the first day and include the last day.

55
  (Remember the acronym FOLI, which stands for ‘first out last in’.)
 Using the student’s essay example, what this means is that if you are told today that you
must hand in an essay within five days, then the five-day period starts running tomorrow,
and ends at the end of the last day of that five-day period.

2. Court days and calendar days:

The FOLI rule does not solve all your problems, because certain days must be excluded from
(i.e. not counted as part of) the five-day period reflected in the example above.

 Precisely which days must be excluded from the five-day period will depend upon
whether you are dealing with a period stipulated in the Acts or the rules.
 When the Acts refer to days the reference is to normal calendar days.
 But when the rules refer to days, the reference is to court days.
 When, for example, the Superior Courts Act 10 of 2013 refers to five days, it means five
calendar days, but when you see the same reference to five days in one of the High
Court Rules, it means five court days.

Time periods after a certain period:

Sometimes a section or rule provides that something may only be done after the lapse of a
certain period.

 For example, if you were told that you had to hand in a 20-page essay after five days had
elapsed, exactly when would you have to hand in your essay?
 In this case, you would exclude both the first and last days of the five-day period.
 Whether or not you should exclude Saturdays, Sundays or public holidays from the five-
day period indicated above would, of course, depend upon whether you were dealing
with court days or calendar days.

Practical note: service of court process:

There is one further factor that you must bear in mind when it comes to time limits.

 Although a particular time period only expires at midnight on the final day (as calculated
in terms of the calculation rules in paragraphs 2 and 3 above), you must remember that
many time periods relate to the time within which legal documents are to be served.
 It is futile to have your document ready at one minute to midnight on the final day of a
particular time period, but not be able to serve the document at that hour.
 If you have to serve the document on a business, ensure that the document is ready for
service before the close of business on the final day of the time period allowed.
 Also keep in mind court operating hours.

Theme 3: Service of legal documents

LO7: Analyse the issue of process and duties of the Sheri .

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The issue of process and duties of the sheri :

Before you are legally permitted to serve a court document, it must be issued.

 Historically, the ‘issuing’ procedure involved the attorney sticking revenue stamps on the
top right-hand corner of the relevant court document and sending it to the court where
the revenue stamps were date stamped and cancelled, and the document signed.

Documents that initiate legal proceedings such as a summons or notice of motion are given a
case number (a consecutive number for the year during which it is filed), and a court file is
opened.

 (Note that if, after issuing the document, it is discovered that the address was wrong, it
is necessary to amend the document, sign the amendments, and then send the
document back to court where the registrar or the clerk of the court, as the case may be,
will reissue the document by signing the amendments.)

After being issued, the following documents will be sent to the sheri for service:

1. The original document (which will be returned to the court file);

2. The number of copies of the document which need to be served (e.g. if there are three
defendants then you will need three copies for service); and
3. An extra copy of the document (which will be returned to you to place on your o ice file).

The sheri has various duties he must perform when serving court process:

1. He must explain the nature and contents of the document to the person being served
(and state in his return that he has done so).
2. The sheri must then hand a copy of the document to that person. (If the document is a
summons or a notice of motion, the sheri must warn the defendant or respondent of
the consequences of failing to defend the action or oppose the application.
o Also, if requested to do so, the sheri must show the original or a certified copy
of the document to the person being served.
o The purpose of this is to allow the person to compare the original with the copy
of the document being served on him.)
3. The extra copy of the document will be returned to the attorney who requested that the
service be carried out, together with the sheri ’s return of service.
o (A return of service is a written report from the sheri stating when, where and
how he served the document.
o The ‘return of service’ constitutes prima facie proof of service. It is therefore
essential to always check that the return has been properly signed by the
relevant sheri .)
o Where the sheri is unable to successfully serve a summons or notice of motion
in terms of the rules, he completes what is called a return of non-service.

Rule 4A provides that all process, other than process which initiates application proceedings,
may be served by hand at the physical address for service provided, registered post to the
postal address provided, or facsimile or electronic mail to the respective addresses provided.

 Rule 4A explicitly provides that service under this rule need not be e ected through the
sheri .

57
Furthermore, court documents which initiate interlocutory applications (e.g., an application to
compel the other side to discover) need not be served by the sheri .

 The reason is that an interlocutory application is an application which is a part of

proceedings that are already pending before the court, and addresses for the service of
these documents are already indicated in the documents relating to those pending
proceedings.

LO8: Elaborate on the usual methods of service in the High Court and in the Magistrate’s Court
(District and Regional).

The usual methods of service in the High Court:

The di erent methods of service in the High Court are set out in rule 4(1)(a) of the High Court
Rules:

1. Personal service:

Personal service should be used whenever possible, and the other methods of service provided
for in the rules should only be used where the defendant or respondent is elusive or
untraceable.

 Here the court process is delivered to the person personally, by which it is meant that
the sheri is actually in the defendant or respondent’s presence, and hands the
relevant document to him.
 Where the person to be served is a child (younger than 18 years), or is under some form
of legal disability, the process must be delivered to that person’s guardian, or tutor, or
curator, as the case may be.

2. Leaving a copy at the place of residence or business:

With this type of service, the document may be left with a person at the place of residence or
business of the defendant or respondent, provided that the person is apparently in charge of the
premises and is apparently not younger than 16 years old.

 Both these requirements must be satisfied for the service to be e ective.

3. Service at the place of employment of the person to be served:

Here service is a ected by delivering the document to a person who is apparently in authority
over the person to be served and is apparently not younger than 16 years old.

 Both these requirements must be satisfied for the service to be e ective.

4. Service at the domicilium citandi et executandi of the person to be served:

A person’s domicilium citandi is an address which has been chosen by that person for service of
documents upon him.

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  Many contracts contain a clause appointing a domicilium citandi, and you will usually
find the term domicilium citandi et executandi used, which means the address for the
purposes of service (citandi) and execution (executandi).
 Once a person chooses a domicilium citandi, service at that place will usually be good,
despite the fact that the person to be served no longer resides there; or has abandoned
the property; or is not known at that address; or even if it is a vacant piece of land.
 Service must be a ected strictly in accordance with the relevant domicilium clause.

5. Service on a company or a close corporation:

If you want to serve court documents on a company or close corporation, you may serve the
process at its registered o ice, or at its principal place of business within the court’s
jurisdiction, or in any manner provided by law.

 Service has to be a ected by handing the process to a responsible employee, or, if none
of the employees wants to accept service, by a ixing the document to the main door of
the registered o ice or principal place of business.

6. Service on an agent duly authorised in writing to accept service:

The agent must produce a written authorisation to accept service of the process.

7. Service on a partnership, firm or voluntary association:

In these cases, the process may be left at the place of business of the partnership, firm or
voluntary association with a person who is apparently in charge of the premises and is
apparently over 16 years old.

 If there is no place of business, then the process may be served on a partner of the
partnership; or the proprietor of the firm; or the chairman or secretary of the managing
body of the association.
 Remember that in the case of a partnership, this only applies if you are acting against
the partnership as such.
 If you are acting against partners in their individual capacities, the process will have to
be served on each partner, using one of the methods laid down in the rules.

8. Service on a local authority or a statutory body:

In the case of local authorities (including municipalities), process must be delivered to the town
clerk, or city manager, or mayor of the local authority.

 In the case of statutory bodies, service may be a ected by delivering the process to the
secretary, or to a member of the board, of the statutory body.

9. Service on two or more persons being sued in their joint representative capacity:

59
Here service must be a ected on each of these persons individually.

10. Service in legal proceedings against the state, a province, or a Minister or Deputy Minister in
his or her o icial capacity:

In these cases, the process may be served at the o ice of the State Attorney situated in the area
of jurisdiction of the court out of which the process was issued.

 The o ice of the State Attorney of KwaZulu-Natal, for example, is situated in the MetLife
Building at 391 Anton Lembede Street, Durban.
 This information can be easily gleaned from the Department of Justice and
Constitutional Development’s website and should be checked regularly for any
changes.

11. Service on prisoners:

In these cases, the process may be served on the inmate personally.

 The o icial of Correctional Services who is in charge of the prison in which the inmate is
detained must assist to facilitate the service of the process upon the inmate personally.

12. Service on foreign diplomats:

See the case of Portion 20 of Plot 15 Athol (Pty) Ltd v Rodrigues 2001 (1) SA 1285 (W).

In terms of High Court rule 4(1)(b), service must be a ected as near as possible between seven
o’clock in the morning and seven o’clock at night, and in terms of rule 4(1)(c), service may not be
a ected on a Sunday unless the court or a judge gives permission.

 The only exception to this rule is that a warrant of arrest may be validly served on a
Sunday.

Section 44(1)(a) of the Superior Courts Act 10 of 2013 also provides for the service of process of
court by means of fax or any other electronic medium ‘as provided by the rules’.

 However, the High Court Rules do not, as yet, provide for such means of service, and we
anticipate that these rules will be amended to give e ect to this provision of the
Superior Courts Act in due course.

The methods of service in the Regional and District Magistrates’ Courts:

The methods of service in Regional and District Magistrates’ Courts matters are set out in rule 9
of the Magistrates’ Courts Rules which, with minor variations, is a duplicate of the
corresponding High Court Rule.

A summary of the various methods of service follows:

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1. Personal service:

In terms of rule 9(3)(a), as in the case of the High Court, personal service makes provision for
service on a guardian, tutor, or curator when the person is a child (younger than 18 years) or
under some form of disability.

2. Service upon a duly authorised agent:

This also takes place in terms of rule 9(3)(a).

3. Service at the residence, or place of business of the defendant, in terms of rule 9(3)(b):

The person served must be apparently 16 years or older.

4. Service at the defendant’s place of employment in terms of rule 9(3)(c):

Note that a person apparently in charge at the defendant’s place of employment need not be a
person who is also apparently in authority over the defendant.

 For example, one of the defendant’s co-workers may be in charge of the premises when
the sheri arrives to e ect service but does not have any authority over the defendant.
 Service on such person would be permissible in a Regional or District Magistrates’
Courts matter, but not a High Court matter. In High Court matters, service must be
a ected on a person ‘apparently in authority over the defendant’.

5. Service at the defendant’s domicilium citandi in terms of rule 9(3)(d):

The sheri may serve at the defendant’s domicilium citandi by delivering or leaving a copy at the
chosen domicilium.

6. Service upon a corporation or company:

In terms of rule 9(1)(e), service may be a ected on a corporation or a company either at its
registered o ice, or at its principal place of business, situated within the area of jurisdiction of
the court concerned, on a responsible employee, or if they refuse to accept service, by a ixing a
copy to the main door.

7. Service upon state organs and state o icials:

Where the defendant is a state or provincial department, or a Minister, Deputy Minister or

Premier in his o icial capacity, rule 9(3)(g) permits you to serve process on the national or local
o ices of the State Attorney.

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8. Service by a ixing a copy of the document to the outer or principal door or security gate or
placing a copy in the post-box:

Service in this way is allowed if the person who is going to be served with the process or
document keeps his residence or business closed, thereby preventing the sheri from serving
the process upon him (in terms of rule 9(5)).

9. Service upon a partnership:

In the case of a partnership, the sheri may, in terms of rule 9(7)(a), serve at the o ice or place
of business of the partnership.

 If the partnership does not have an o ice or place of business, then the sheri may
serve upon any member of the partnership (service on the member must be a ected in
any matter prescribed in rule 9).

10. Service upon curators, executors, guardians, liquidators and trustees:

If two or more curators, executors, guardians, liquidators or trustees of an insolvent estate are
being summonsed in their capacity as such, then service may be a ected by serving on any one
of them (rule 9(7)(b)).

11. Service upon clubs, societies and similar bodies:

In the case of a syndicate, unincorporated company, club, society, church, public institution or
public body, the sheri may serve at the local o ice or place of business of that body.

 Otherwise, he may serve on the chairman or secretary or similar o icer of the body (rule
9(7)(c)).

Magistrates’ Court rule 9(9)(a) makes provision for service of any notice, request, statement or
other document which is not process of the court to be a ected by hand delivery or by sending
the document through registered post.

 Rule 9(9)(a) further provides that such process may also be served by sending it by
facsimile or electronic mail, provided the plainti has so requested and the defendant
has consented thereto in writing.
 Where service is a ected by facsimile or electronic mail, Chapter III, Part 2 of the
Electronic Communications and Transactions Act 25 of 2002 would be applicable to
such service.
 Rule 9(14) provides for service in foreign countries.

LO9: Discuss all concepts and principles that relate to substituted service and edictal citation.

Substituted service and edictal citation:

1. Substituted service in general:

62
If you have documents that need to be served (e.g. a summons or a notice of motion) and you
are unable to serve by one of the usual methods of service, you will have to make an application
to court for authority to serve these documents in some other way.

 This is known as an application for substituted service.

The Magistrates’ Courts rule 9(10) provides for substituted service (service inside South Africa’s
borders) in the Regional and District Magistrates’ Courts, and reads as follows:

 Subject to rule 10, where the court is satisfied that service cannot be a ected in any
manner prescribed in this rule, and that the action is within its jurisdiction, it may make
an order allowing service to be e ected by the person and in the manner specified in
such order.

For edictal citation (service outside South Africa’s borders), Magistrates’ Courts rule 10 is relied
on (which substantially replicates High Court rule 5).

Thus, substituted service may be used only where the defendant or respondent is known or
believed to be inside the country (and where service by one of the normal or required forms
cannot be a ected), while service on persons outside South Africa’s borders must be e ected
by way of edictal citation in the District Magistrates’, Regional Magistrates’ and High Court.

Note that it is only service of documents commencing legal process on persons outside South
Africa’s borders which must be a ected by way of edictal citation.

2. Service of legal process outside the country:

a) High Court, Regional and District Magistrates’ Courts: application for edictal citation:

In terms of Magistrates’ Courts rule 10 or High Court rule 5, if you want to serve documents
instituting High Court proceedings outside the Republic, then you first have to make an
application to court for leave to institute proceedings by means of edictal citation.

 For example, if you want to institute an action in the KwaZulu-Natal Local Division in
Durban against a defendant living in London, then you will first have to apply to that
court for leave (i.e. permission) to sue by means of edictal citation.
 This is the case whether or not the defendant or respondent’s address in the foreign
country is known to you.
 If the precise address is unknown, then your application will be a dual one; in e ect: (a)
to ask for leave to proceed by way of edictal citation and (b) to ask leave to use a method
of substituted service.

An edictal citation (also called just an edict or citation) is merely a special type of summons
similar in almost every respect to a normal summons except that it is addressed to the
defendant directly, and not to the sheri as is normally the case.

 This is because there may not be a sheri , or similar o icer, serving legal process in the
foreign country in which you wish to have the document served.

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Let us now consider the allegations you would have to include in the a idavits supporting your
application (these are substantially the same allegations that would have to be made in an
application for substituted service):

1. The nature and extent of the claim;

2. The grounds upon which the claim is based;
3. The grounds upon which the court has jurisdiction to hear the claim;
4. The method of service you are asking the court to authorise;
5. The last known whereabouts of the person to be served;
6. The enquiries that have been made to find out where that person currently is; and
7. Any other information which may assist the court to decide.
8. In relation to the manner of service which the court is being asked to authorise, the
a idavit must set out a proposal for service, and motivate why this particular method of
service is being proposed.

In relation to the steps taken to establish the person’s whereabouts, you have to satisfy the
court that every reasonable step has been taken, but to no avail.

 Reasonable steps would usually include engaging tracing agents to do a search.

 A copy of their report indicating their lack of success would be annexed to the founding
a idavits.

Depending on the circumstances of the particular case, you may also include the following
details in this regard:

1. The defendant’s last known place of residence;

2. The last place from which news of the defendant was obtained;
3. The defendant’s last known domicile;
4. The residences of the defendant’s spouse or partner, parents and other near relatives;
5. The defendant’s place of birth;
6. Details of all the enquiries made to ascertain the defendant’s present whereabouts, for
example:
a. His spouse or partner, parents and relatives have been approached in order to
ascertain his present whereabouts, but to no avail;
b. His last known place of employment has been contacted but they have no idea
where he is;
c. O icial sources such as the Department of Labour have no record of his present
address; and
d. Tracing agents have been appointed but have been unable to trace him; and
7. Details indicating that all possible sources of information about the defendant’s
whereabouts have been fully investigated, and all necessary steps have been taken to
locate the defendant.

Finally, note that both an application for substituted service and an application to serve by
edictal citation are brought ex parte.

b) Substituted service via electronic media: pg177

A court may order any manner of substituted service as is likely to bring the proceedings to the
notice of the party to be served.

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  The internet has brought about a substantial shift in the way people communicate and
in how they access news and information.
 This has an on-going and significant impact on communication within the law.

In 2008, an Australian court took the bold step of authorising substituted service using
Facebook, allowing service of a notice of default judgment on a defendant via Facebook.

 The same issue arose in the South African case of CMC Woodworking Machinery (Pty)
Ltd v Pieter Odendaal Kitchens.
In this instance, the KwaZulu-Natal High Court in Durban held, inter alia, that it was not
unreasonable to expect the law to recognise and accommodate technological change
and thus authorised substituted service of a notice of set down by way of a Facebook
message addressed to the inbox of the defendant’s Facebook page.
 In reaching its decision, the court examined several risks and pitfalls of such service.
 These included: whether it constituted an invasion of privacy; whether the identity of the
defendant could be established; whether the Facebook profile was genuinely that of the
defendant (and not a hoax profile); whether it complied with the Electronic
Communication and Transactions Act 25 of 2002; whether there was any legal certainty
of service; and whether proof of service could be provided.
 Although the court was – understandably enough – extremely cautious (ordering
publication in a newspaper as well), it nevertheless concluded that service on the
defendant’s Facebook page was permissible as an alternative method when none of the
prescribed methods were available, provided that certain factors were met.

LO10: Draft applications for substituted service and edictal citation based on a given scenario.

65
 Learning Unit 4
Stage Two: Litigation
Action and Application Proceedings – Main focus: Applications

Theme 1: Introduction
LO1: Compare essential di erences between action and application procedures and the courts
they are heard in.

Action Procedures:

Action proceedings are characterised by a clear separation between the pleading stage, and the
trial and evidence stage.

 The pleadings consist of written statements made by and delivered between the parties,
setting out the material facts on which the parties (i.e. the plainti , who initiates the
action, and the defendant, who defends the action) rely in support of their claim or
defence, as the case may be.
 It is important for you to note that only the material facts are set out in the pleadings.
 This means that the main allegations on which the claim is based are set out by the
plainti , and the defendant sets out the main allegations on which the defence is based.
 The various kinds of evidence that may be relied upon to support these allegations will
not be referred to at this stage.

Once the process of pleading has been completed, the action is set down for trial and at the
trial the parties try to prove, by means of evidence, the allegations and responses contained in
the pleadings.

 This is done through witnesses who appear in person and give the evidence, or by
handing in other evidence such as documents.
 The witnesses are examined-in-chief, cross-examined and then re-examined.
 After the evidence has been completed, argument is addressed to the court by the
parties’ legal representatives, after which the court gives judgment.

Application Procedures:

In application proceedings (also called motion proceedings, or just motions), the entire
procedure is paper-based (i.e. no leading of witnesses), and there is no separation between the
pleadings stage and the evidence stage.

 Here, the evidence is not oral but in writing, in the form of a idavits (i.e. statements
sworn under oath or a irmation).
 Further documents supporting the evidence contained in the a idavits may be attached
to the a idavits as annexures.
 The a idavits, with their annexures, are then attached to the document that sets out the
order sought from the court (i.e. the notice of motion).

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  So, the a idavits not only set out the issues of fact between the parties (as would
pleadings in an action), but also contain the evidence which the respective parties need
to adduce in proof of their factual allegations (these factual allegations are also called
averments).
 The result is that when the matter is set down for hearing, the court is already in
possession of both the pleadings and the evidence.
 The hearing of an application therefore consists exclusively of legal argument by the
legal representatives of the parties, and it is only in exceptional cases that oral evidence
is permitted.

LO2: Elaborate on how one chooses to pursue action and application procedures.

Making the choice: action or application?:

In all civil courts, you may now use application proceedings rather than action proceedings in
urgent matters – where the application procedure is required by statute, and where no real
dispute of facts is anticipated.

 The leading case on the question is Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd, in which it was held that three possible situations exist:

1. On the one hand, you have certain types of proceedings that must, in terms of statute, be
brought by way of application.

 Examples would be an application to liquidate a company; or sequestrate a debtor; or

rehabilitate an insolvent.

2. On the other hand, there are certain types of matters which the court is prohibited by statute
from deciding on application.

 Examples would be an action for divorce; or an action to recover damages which are
unliquidated (i.e. damages which are not fixed, and which require evidence to establish
their precise quantum or amount).

3. In between these two classes of cases, there is a grey area in which you must choose whether
to proceed by way of action or application.

 The criterion which you must use to make this decision is whether or not there is any
real dispute between the parties on any material question of fact.
 If there is such a dispute, then it is necessary to proceed by way of action in order to
properly test and challenge the evidence.
 This is because it will be necessary for the parties to lead the evidence of witnesses, and
for such witnesses to be cross-examined, for the court to decide whose version is the
more probable.
 The court has to make a credibility finding after hearing and seeing the witnesses testify
– this cannot be achieved merely by reading the respective versions contained in the
a idavits of the parties.

LO3: Examine what is meant by a “real dispute of fact”.

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A real dispute of fact:

Whether or not a real dispute of fact exists is not always easy to determine.

 Often the respondent has a weak case, and is tempted to play for time, delaying matters
by raising disputes of fact where no disputes actually exist.
 Remember that not all disputes of fact are real disputes of fact.
 It is easy for a respondent to take issue with arbitrary points in an applicant’s a idavit
and claim that a real dispute of fact exists.
 So, when you are deciding whether to proceed by way of action or application, you must
ask yourself whether or not it is likely that the respondent will be in a position to dispute
the substance of what you are claiming in your application papers.
 Very few matters proceed without some sort of interchange and correspondence
between the parties or their legal representatives before the matter is ready to begin.
 Usually, you should have at least some idea of your opponent’s case as a result.
 If you are happy that your case is clear-cut, and that the facts which are material to your
case cannot be disputed, you may proceed by way of application.

If there is no real dispute of fact, and the respondent is just wasting time or being di icult, then
the applicant should have nothing to fear – at the end of the day the court will be satisfied that
the application procedure was the correct procedure to use.

In the Room Hire case, Murray AJP pointed to a number of di erent ways in which a dispute of
fact may arise:

1. ‘When the respondent denies all the material allegations made by the various
deponents on the applicant’s behalf, and produces or will produce, positive evidence by
deponents or witnesses to the contrary.’
2. ‘The respondent may admit the applicant’s a idavit evidence but allege other facts
which throw a di erent light on the applicant’s allegations, which fact the applicant
disputes.’
3. The respondent ‘may concede that he has no knowledge of the main facts stated by the
applicant, but may deny them, putting applicant to the proof and himself giving or
proposing to give evidence to show that the applicant and his deponents are biased and
untruthful or otherwise unreliable, and that certain facts upon which applicant and his
deponents rely to prove the main facts are untrue.’

Theme 2: Application procedure

LO4: Elaborate on the various types of applications and their distinguishing characteristics.

Distinguishing Characteristics of applications:

The normal procedure involved in bringing an application before court entails giving notice to
your opponent.

 These applications are called on notice applications in this book.

 Sometimes, however, applications are brought without giving notice to the other side at
all – these are called ex parte applications.

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  Ex parte applications are often brought on an urgent basis, which may result in
noncompliance with certain rules of court.
 Such applications are known as urgent ex parte applications.
 Finally, note that certain types of applications are brought to achieve certain objectives
during existing application or action proceedings – these are called interlocutory
applications.

1. Interlocutory applications:

Interlocutory applications do not initiate proceedings but are incidental to proceedings that are
already pending.

 Let us assume that you are suing by way of action and are busy with the pre-trial
procedure.
 You request the other side to discover (i.e. disclose all relevant documents) in terms of
High Court rule 35(1), but they fail to deliver their discovery a idavit within the required
period of 20 days.
 In terms of rule 35(7), you may now make application to court to compel the opposing
side to discover.
 This application will be an interlocutory application because it does not initiate
proceedings but is part of proceedings that are already pending.
 Since it relates to a matter that is already pending, an interlocutory application will be
made under the existing case number.
 The documents in such applications may be delivered to the service addresses provided
for in the main proceedings.

Interlocutory applications may be distinguished from normal applications, which are not
incidental to other proceedings, but stand on their own as the main legal vehicle for obtaining
relief in a particular matter.

 On notice applications consist of a notice of motion together with supporting a idavits

which must be served on the respondent by the sheri , while ex parte applications may
be brought without giving prior notice to your opponent.

2. Urgent applications:

An urgent application is just like any other application but because it is urgent, it may not be
possible for the applicant to comply strictly with the rules of court relating to service and notice
periods.

 Obviously, the court will not allow the normal rules relating to applications to be
disregarded without good reason, and the applicant must always strive to comply with
the normal rules as far as possible, taking into account the urgency of the particular
situation.

The applicant must inform the court fully of the reasons why the application is urgent, and why
he cannot wait in order to obtain relief by making the application in the normal way.

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  An applicant launching an urgent application may formulate his own time periods for the
respondent to file an answering a idavit, which the respondent is obliged to obey until
the hearing of the application.
 At the hearing, the respondent may object to the time periods given by the applicant.
 It is then for the applicant to convince the court that the matter is so urgent that it
justifies those time periods.

Depending on the urgency of the matter, a progressive deviation from the rules will be
permitted.

 For example, the urgency of the matter may only be such that it is not possible to comply
with the full notice requirement, meaning that the notice period will be shortened
somewhat.

In more urgent matters, it may not be possible to give notice at all.

 In other words, there may not be su icient time to have the application papers served
on the respondent.
 In the most urgent matters, there may not even be enough time to draft the application
papers, or to have the matter heard within normal court hours.
 In such cases, the application will have to be made orally to a judge or magistrate after
hours and may even have to take place at the judge’s home (or other venue outside of
the court).

3. Ex parte applications vs on notice applications:

In general, if you want to make an application to court that might a ect the interests of someone
else, you must give notice to that person that you are going to make the application.

 Obviously, the reason for this is to give that person a chance to put his side of the story
before the court (audi alteram partem).
 As a result, most applications are brought on notice.

In some cases, however, no one else may have an interest in the application, or there may be
some compelling reason why it is undesirable or impossible to give notice of the application to
the respondent.

 These applications brought without notice are known as ex parte applications.

The rules of the High Court provide for a short-form and long-form notice of motion (Form 2 and

 Form 2(a) of the High Court Rules, respectively).

 Whether a long-form or a short-form notice is to be used, depends on whether the
application is brought ex parte or on notice.

LO5: Explain the general principles in relation to a Notice of Motion.

Notice of motion – general principles:

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When lawyers talk about ‘bringing a notice of motion’, they mean that they are ‘making an
application to the court’.

 A notice of motion is therefore a notice that a motion (in other words, an application) is
going to be made to court.
 The party bringing the application is known as the applicant and the party against whom
the application is brought is known as the respondent.
 A notice of motion performs the same function for an application that a summons does
for an action, i.e. it calls upon the respondent to come to court to answer the applicant’s
claim.

In the High Court, the notice of motion contains several items of information.

 Firstly, the identities and addresses of the applicant and the respondent are set out.
 Secondly, it gives the respondent certain time limits within which to act.
 In the notice, the applicant states a date – which may not be less than five days after
service of the notice on the respondent – on or before which the respondent is required
to notify the applicant in writing that he intends to oppose the application.
 Furthermore, it warns the respondent that if he does not give notice of his intention to
oppose, the matter will be set down for hearing on a day not less than 10 days after
service on the respondent of the notice of motion.
 Finally, it informs the respondent of the relief or remedy sought by the applicant (i.e. the
order sought by the applicant).

LO6: Discuss the general principles in relation to a idavits.

A idavits – general principles:

1. Form and content of a idavits:

In applications procedure, the notice of motion will be supported by the founding a idavit as
well as any supporting a idavits that are necessary.

 An a idavit is a statement made under a irmation or oath (also called a sworn

statement), which is signed and a irmed, or sworn to, by the person making the
statement (known as the deponent) before a commissioner of oaths.
 The oath or a irmation is administered because the information contained in an
a idavit constitutes evidence.
 In the same way a witness taking the witness stand in action proceedings has to take the
oath or a irmation before giving evidence, a deponent testifying on paper has to take the
oath or a irmation to give the written statement the status of testimony.
 An a idavit should be drafted in the first person (i.e. from the deponent’s point of view),
and, while formal and temperate, it should not be burdened with legalese.
 Once an a idavit is deposed to, a deponent cannot ‘amend’ it using the rules of court –
rather, he must seek the leave of the court to submit a further a idavit to explain and
correct the incorrect statement in the earlier a idavit.
 Formalities relating to a idavits are on page 193.

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In terms of the contents of founding and supporting a idavits:

1. Locus standi:

The first substantive paragraph of the founding a idavit usually contains the full name and
address of the applicant, and the second paragraph contains the same information in respect of
the respondent.

2. Legal capacity:

The legal capacity of the applicant must also be shown.

 If a legal guardian is assisting a child, the a idavit should state that the party suing is
‘duly assisted to the extent that it is necessary’; persons suing in a capacity other than
personal – such as executors of estates or an agent acting on behalf of a principal –
should also indicate that they are acting ‘for and on behalf of’ another, and in what
capacity.

3. Jurisdiction:

The founding a idavit must contain su icient facts to establish the court’s jurisdiction, for
instance, that the respondent lives within the jurisdiction of the court, or that the cause of
action has arisen within its jurisdiction.

 These facts need not be alleged expressly if they emerge from the facts as contained in
the founding a idavit.

4. Urgency:

If the application is an urgent application, the founding a idavit must set out the grounds of
urgency in accordance with Magistrates’ Courts rule 55(5), or rule 6(12)(b) of the High Court
Rules.

5. Grounds for relief:

The founding and supporting a idavits will set out the grounds upon which the relief is claimed.
In other words, su icient facts must be set out to disclose and prove a cause of action.

 This comes from the substantive law (e.g. elements of a delict).

 The founding a idavit in an application matter combines both pleadings (which set out
the cause of action) and evidence (which prove the cause of action).
 If the founding and supporting a idavits fail to disclose a cause of action, the
respondent is entitled to ask the court to dismiss the application on the basis that it
discloses no grounds on which the relief may be granted (in other words, the respondent
has no case to meet).

2. Inadmissible evidence in a idavits:

We shall now consider some of the kinds of evidence founding and supporting a idavits may
not contain.

a) Hearsay:

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The a idavits may not, as a general rule, contain hearsay evidence.

 Where a deponent includes in his a idavit facts of which he does not have first-hand
knowledge, this is hearsay, and he must annex to the a idavit a supporting a idavit
(here called a verifying a idavit) by someone who does have first-hand knowledge of the
facts.

In the case of urgent applications, however, it may be impossible to obtain verifying a idavits in
the limited time available.

 As the situation is urgent, and only temporary relief is sought prior to a further hearing
when the matter will be finally decided by a court, hearsay evidence will usually be
permitted.
 In such urgent matters, the applicant may not state the hearsay matter as if it were
direct evidence but must indicate to the court that the allegations are hearsay by stating
that the deponent ‘… is informed of and verily believes’ the facts upon which he is relying
for temporary relief.
 The applicant must set out the facts on which he bases the grounds for his belief, and
how he obtained the information, as the opposing party must be able to check the
source of the hearsay information in order to verify its truth.

b) Privileged communications:

Privileged communications are privileged from disclosure in all circumstances and are
accordingly inadmissible in a idavits as well.

 They include statements made or written ‘without prejudice’; communications between

attorney and client; certain communications between husband and wife; and state
privilege.

c) Matter excluded by the rules of court:

(i) Scandalous, vexatious or irrelevant matter:

In terms of Magistrates’ Courts rule 55(9), and High Court rule 6(15), the a idavits may not
contain matter that is scandalous, vexatious or irrelevant.

The meaning of each of these terms has been defined as follows:

1. Scandalous matter: Allegations that may or may not be relevant but are worded in such
a way as to be abusive or defamatory.
2. Vexatious matter: Allegations that may or may not be relevant but are worded in such a
way as to convey an intention to harass or annoy.
3. Irrelevant matter: Allegations that do not apply to the matter in hand and do not
contribute to the making of a decision in the matter. This has the e ect of burdening the
papers by making them unnecessarily prolix (i.e. long-winded).

(ii) Inadmissible new matter:

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The applicant’s case stands or falls by the contents of his founding a idavit.

 New information or issues that have not been included in the founding a idavit may not
be raised in a replying a idavit.
 The purpose of the replying a idavit is to rebut issues raised by the respondent in his
answering a idavit, and do not constitute an opportunity to include issues or
information that the applicant forgot to include in the founding a idavit.
 All the facts needed to support a claim for relief must be set out in the founding a idavit,
and new issues may only be raised in limited circumstances.

d) Matter excluded by the use of inherent jurisdiction:

The matters excluded by the rules of court do not comprise an exhaustive list and the High
Court may use its inherent jurisdiction to exclude other matters in order to grant relief in cases
where rule 6(15) is silent.

The following are examples:

1. Irrelevant attacks on credibility: An attack on the credibility of a person is generally

regarded as irrelevant and is in most cases excluded by the law of evidence.
2. Argumentative matter: Only the facts of the matter should be stated, and parties
should not embark on an argument on paper in relation to the facts or the law.
a. In other words, the a idavits should not contain any legal arguments attempting
to convince the court to reach the conclusion that the facts given by the other
side are wrong, or that there is no legal basis for the claim or relief.

3. Striking out inadmissible evidence:

If the a idavits do contain inadmissible matter, the other party may make an application for the
court to strike out the portions of the a idavits being objected to (i.e. an order that the
objectionable material in the a idavits concerned are considered deleted, rendering them
inadmissible as evidence).

 The court will only grant such an application, however, if it is satisfied that the applicant
will be prejudiced in his case if the application to strike out the evidence is not granted.
 An application to strike out objectionable matter is an example of an interlocutory
application and, as it is based on an objection to evidence, it is heard when the merits of
the matter are argued.

Theme 3: Applications by notice

LO7: Set out the circumstances when it is appropriate to bring an on-notice application/
application by notice.

When is it appropriate to bring an on-notice application?:

Generally speaking, when you are seeking final relief against someone, or when someone’s
rights or interests will be a ected by the order you are seeking, the application should be made
on notice to that person.

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  Therefore, other than in those limited cases where it is permissible to bring an
application ex parte, you are obliged to bring the application on notice.

In all civil courts, the application is brought by notice of motion, supported by a idavits.

 In terms of Magistrates’ Courts rule 55(4)(a), interlocutory applications must be brought

on notice, whereas in terms of High Court rule 6(11), High Court interlocutory
applications may be brought on notice, supported by a idavits.
 Remember that with a High Court application on notice, every single person who has a
legal interest in the matter must be cited as a respondent.
 What follows below are the steps (in sequence) that must be followed in preparing,
serving, responding to, and hearing an on-notice application.

LO8: Analyse in detail the various steps to be followed with an application by notice in both the
High Court and Magistrate’s Court as follows:

 Step 1: Notice of motion.

 Step 2: Applicant’s founding and supporting a idavits.
 Step 3: The service of the application.
 Step 4: Respondent’s notice of intention to oppose.
 Step 5: Respondent’s answering a idavits.
 Step 6: Applicant’s replying to a idavits.
 Step 7: Further a idavits.
 Step 8: setting the matter down for hearing.
 Step 9: The hearing.
 Step 10: Optional further steps: counter – applications and joinder applications.

Step 1: Notice of motion:

1. High Court: notice of motion:

High Court Rules Form 2(a) sets out the details which must be contained in a notice of motion in
an on notice High Court application.

 If you look at the bottom of Form 2(a), you will see that it is addressed to the
respondent/s and the registrar, which means that copies of the application papers have
to be served on the respondent/s as well as the registrar.
 In the notice of motion, the applicant must state the order that he wishes the court to
make. The order prayed must be set out in such a way that the court can make it an
order of court without any amendments.
 The first part of the order requested sets out the main order you want the court to make.
 For example, you may ask the court for an order prohibiting your neighbour from
undermining your property by digging within 10 metres of your common boundary wall.
 The order should not be ambiguous or open-ended. This is usually followed by a request
for costs and, finally, a prayer asking for ‘further and/or alternative relief’.

Form 2(a) then goes on to set out an address at which the applicant will accept service of
documents in the matter.

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  The service address must be within 15 kilometres of the o ice of the registrar.
 This is very important in practice since it ensures that parties do not have to go running
all over the country to serve documents.
 If you are a Durban attorney who has been asked to act in a matter that is being heard in
the Gauteng Local Division, Johannesburg, for example, you will have to appoint an
attorney in Johannesburg who has a service address within 15 kilometres of the Gauteng
Local Division, Johannesburg, to act as your correspondent (i.e. the attorney in
Johannesburg acts as your agent to receive documents on your behalf).

The next part of Form 2(a) sets out the respondent’s options: what he must do if he wants to
oppose the application, and what will happen if he does not do so.

 These options will be examined in detail later.

Finally, the notice of motion is signed by the applicant or his duly appointed attorney

2. Regional and District Magistrates’ Courts: notice of motion:

Magistrates’ Courts Rules Form 1A of Annexure 1 sets out the details that must be contained in
a notice of motion in a Regional or District Magistrates’ Court matter.

 In the notice of motion, the applicant must state the order that he wishes the court to
make in such a way that the court can make it an order of court without any
amendments.
 The first part of the order sets out the main order you want the court to make, followed
by a request for costs and a prayer asking for ‘further and/or alternative relief’.
 The form also requires you to state the names of the persons who have deposed to
a idavits in support of the notice of motion, and to state an address at which the
applicant will accept service of documents in the matter.
 The service address must be within 15 kilometres of the o ice of the registrar (Regional
Magistrates’ Court) or clerk of the court (Magistrates’ Court).
 The form then indicates the respondent’s options and has to be signed by the applicant
or his duly appointed attorney.

Step 2: Applicant’s founding and supporting a idavits:

The main evidence in support of the notice of motion will be contained in an a idavit by the
applicant called the founding a idavit.

 If there are other witnesses who support the applicant’s version, their a idavits are
called supporting a idavits.
 Sometimes, a witness may make an a idavit merely agreeing with the version of another
deponent – this kind of supporting a idavit is also called a confirming a idavit.

The founding and supporting a idavits must cover all the elements of the area of law on which
the applicant is relying and must also contain all the evidence supporting these elements.

 Relevant documents (e.g., copies of invoices) may also be attached to the a idavits as
annexures.

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The equivalent provisions for the Regional and District Magistrates’ Courts are contained in rule
55(1) of the Magistrates’ Court Rules.

 Once all the founding and supporting a idavits have been drafted, they must be
attached to the notice of motion and sent to the sheri for service.

Step 3: The service of the application papers:

1. Service in the High Court, and District and Regional Magistrates’ Courts:

Once you have drafted the notice of motion and a idavits and have had all the a idavits duly
signed before a commissioner of oaths, you will deliver the original and at least two copies of
the notice of motion and founding a idavits to the registrar (or clerk) of the court to be issued
(i.e. given a case number and date-stamped).

 If there is more than one respondent, you will include an extra copy of the notice of
motion and a idavits for each additional respondent.
 Once the application has been issued, a copy of the papers will be served on each
respondent by the sheri .
 Thereafter, the sheri will file the original notice of motion and a idavits with the
registrar of the court and deliver the remaining copy of the papers to you, together with
his return of service.

Step 4: Respondent’s notice of intention to oppose:

Once the application papers have been served on the respondent, the following will happen:

1. High Court procedure:

If the respondent intends to oppose the application, he must file a notice of opposition.

 This notice states that the respondent intends to oppose the application and sets out an
address at which the respondent will accept service of documents in the matter.

In terms of High Court rule 6(5)(b), the respondent must be allowed at least five days after he
receives the application papers to deliver his notice of opposition to the applicant.

 Because this time period is stipulated in the High Court Rules, the days referred to are
court days, and must be calculated as such.

If the notice of motion is served on the respondent at a place outside the jurisdiction of the
division of issue, the respondent is allowed more than five days within which to deliver his/her
notice of opposition.

 A period of two weeks is allowed if the place of service is less than 150 km from the
court, and one month is allowed if, in addition to being outside the jurisdiction of the
division that issued the notice of motion, it is more than 150 km from the court.
 In terms of High Court rule 6(13), if the application is against a Minister, Deputy Minister,
Premier, o icer or servant of the state, in his capacity as such, the state or the

77
 administration of any province, then 15 court days must be allowed within which to
deliver the notice of opposition.

If you look at Form 2(a), you will see that the respondent is informed that if he does not deliver a
notice of opposition, the application will be set down for hearing by the court on a stipulated
day.

 In terms of High Court rule 6(5)(b), the date of the hearing may not be less than 10 court
days after the service of the notice of motion on the applicant.

2. Regional and District Magistrates’ Courts procedure:

If the respondent intends to oppose the application, he must file a notice of opposition in terms
of Magistrates’ Courts rule 55(1)(g).

 This notice states that the respondent intends to oppose the application and sets out an
address within 15 kilometres of the Regional Magistrates’ Court’s registrar or clerk of the
court, in the case of the District Magistrates’ Court, at which the respondent will accept
service of documents in the matter.
 In terms of Magistrates’ Courts rule 55(g)(i) and (ii), the respondent must deliver his
notice of opposition to the applicant, and within 10 days of this notice, deliver his
answering a idavit.
 Because this time period is stipulated in the Magistrates’ Courts Rules, the days referred
to are court days, and must be calculated as such.
 If the respondent fails to deliver a notice of opposition timeously, the applicant may
place the matter on the roll for hearing by the court on a stipulated day, giving at least
five days’ notice (in terms of rule 55(1)(f)).

Step 5: The respondent’s answering a idavits:

If the respondent, in a High Court matter, delivers a notice of opposition in time, he must deliver
his answering a idavit within 15 court days (10 court days in Regional and District Magistrates’
Courts matters) of the delivery of the notice of opposition.

 The answering a idavit should be supported, as far as may be necessary, by other

a idavits deposed to by witnesses who have direct knowledge of the events.
 In his answering a idavit, the respondent must deal paragraph by paragraph with the
allegations and evidence contained in the applicant’s a idavits, and state which of the
allegations he admits and which he denies.
 He must also set out his version of the relevant facts.

Step 6: The applicant’s replying to a idavits:

The applicant may deliver a replying a idavit within 10 days after the respondent’s answering
a idavit has been served upon him.

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  In the replying a idavit, the applicant deals paragraph by paragraph, as far as may be
necessary, with the allegations and evidence set out in the respondent’s answering
a idavit.
 The purpose of the replying a idavit is to rebut any averments made in the answering
a idavit.
 New matter may not be introduced at this stage, and the court will strike out any new
matter contained in the replying a idavit, which should have been contained in the
founding a idavit.

Step 7: Further a idavits:

After receipt of the applicant’s replying to a idavit, further a idavits by either of the parties are
permitted only at the discretion of the court.

 This means that an oral application will have to be made in court, requesting the court to
authorise the filing of further a idavits.

The reason generally for not permitting further a idavits is that the applicant is expected to set
out the grounds and evidence for his claim fully in his founding a idavits, while the respondent
is expected to set out the grounds and evidence for his defence fully in his answering a idavits.

 The applicant then has the opportunity to respond to anything new that has been raised
in the respondent’s answering a idavit, by way of a replying a idavit.
 The court will therefore allow the filing of further a idavits only in exceptional
circumstances and will expect an explanation as to why the filing of further a idavits is
necessary.

Examples where the courts have held that special circumstances exist for justifying further
a idavits are:

1. where a new matter or something unexpected has been raised in the replying a idavits;
2. where the courts instruct that further a idavits be filed;
3. where new evidence has come to the parties’ attention at a late stage; and
4. generally, where there is the possibility of prejudice to the respondent if further a idavits
are not allowed.

Step 8: Setting the matter down for hearing:

The application must be set down for hearing by the delivery of a notice of set down.

 The notice of set down instructs the registrar to place the matter on the court roll for
hearing.
 In the case of opposed applications, the court will normally require the filing of heads of
argument

Step 9: The hearing:

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 The matter will come before the court on the date on which it has been set down. The court
then has a number of options, depending on the contents of the papers.

1. The court’s order if no real dispute of fact has arisen on the papers:

If no real dispute of fact is apparent on the papers, and the applicant’s papers are in order (i.e.
they set out a valid cause of action, supported by the evidence needed to prove the cause of
action), the court will hear argument from both sides.

 If the court is of the view that a case has been made for the relief sought, the court will
grant the order as prayed in the notice of motion.
 With ex parte applications, the court may grant the order prayed if it is satisfied that the
rights of no other person will be a ected by the order, and that the papers are in order.
 If the order sought in an ex parte application will a ect the rights of third parties, the
court will, at most, only be prepared to grant a rule nisi together with temporary relief.

2. The court’s order if a real dispute of fact has arisen on the papers:

If a real dispute of fact is apparent on the papers, the court may deal with the matter in one of
four ways.

a) The court may decide the matter on the a idavits alone:

Unless one of the parties requests the court to refer the matter for oral evidence or for trial, the
court will usually deal with the matter on the basis of the undisputed facts.

 If the undisputed facts in the applicant’s a idavits are not su icient to persuade the
court on a balance of probabilities that the applicant is entitled to the relief sought, the
court will likely dismiss the application.

b) The court may refer the matter to oral:

Referral to oral evidence is usually done only where the disputed facts are restricted to a narrow
range of issues.

 These issues may be referred for oral evidence.

 This will happen when one fact, or only a few disputed facts, cannot be decided on the
a idavits; when the issues are comparatively simple and clearly defined; and when the
evidence in question has a narrow scope.
 The matter will usually be placed on the expedited roll and will be heard sooner than a
trial brought in the usual course, depending on the case load of the division.
 However, the court will not refer a matter to oral evidence when complicated issues are
involved, and it is not possible to know how wide a field of evidence the disputed issues
will cover.
 The court will not usually exercise its discretion to refer the matter to oral evidence when
a dispute of fact was within the contemplation of the applicant when he instituted the
application and may, as a sign of its displeasure, dismiss the application (with or
without costs).

80
c) The court may refer the matter to trial:

If the disputed facts cover a broad range of issues, or are relatively complicated, the court will
usually refer the matter to trial.

 In referring a matter to trial, the court may order that the founding a idavit should stand
as the summons and will give directions regarding the further exchange of pleadings.
 It will often treat the three sets of a idavits as pleadings and, if the answering and
replying to a idavits have not yet been exchanged, limit the normal time periods by
instructing that the a idavits be served with only a day or so separating the exchanges.
 Alternatively, the court may define the issues to be decided at trial, and the matter will
proceed to trial as if the pleadings were closed. In such a case, no further trial pleadings
will be exchanged between the parties.
 The court often orders a referral to trial where the matter, although involving a dispute of
fact that is wide ranging in scope, has properly been brought by way of application
because of its urgency.
 For example, the referral of an application to trial is often the result in cases where
urgent interdicts are brought ex parte.

d) The court may dismiss the matter, with costs:

If a real dispute of fact should have been foreseen by the applicant, the court may dismiss the
application, with costs.

 If the court dismisses the application because the plainti failed to make out his case,
the order is equivalent to a final judgment in favour of the respondent.
 However, if the application is dismissed because of the existence of a factual dispute,
the order does not operate as a final judgment.
 If the applicant’s negligence is not clear-cut, the court will usually refer the matter to
oral evidence or to trial.
 In the latter case, the court may still show its disapproval of the applicant’s lack of
diligence by awarding costs in favour of the respondent.

3. In certain cases, the court may decide to make no order:

The court may decline to make any order on the application itself, and give the applicant leave
to renew the application on the same papers or postpone the application sine die (i.e. without a
return date) with leave to file further a idavits.

 The court will usually indicate the shortcomings of the pending application so that the
applicant knows what evidence to obtain to supplement the existing a idavits.
 The e ect of this order (or rather, the lack of an order) is that the applicant may bring the
application again, but costs will normally be awarded to the respondent

Step 10: Optional further steps – counter-applications and joinder applications:

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High Court rule 6(7) and Magistrates’ Courts rule 55(2)(a), require respondents to use the
counterclaims procedure in actions as a guide when bringing a counter-application, or when
joining another party to the application.

 A counter-application must be made if the respondent seeks relief beyond the mere
dismissal of the applicant’s application.
 Usually, the answering a idavit serves as the founding a idavit of the respondent’s
counterclaim, and the counterclaim’s prayers may be included in this a idavit.
 The applicant’s replying to a idavit then has the dual function of serving as the replying
a idavit in the application-in-convention, and the answering a idavit in the application-
in-reconvention.
 To prevent possible confusion, however, it is preferable for the respondent to file a
separate notice of motion (counter-application provisions are not peremptory).

LO9: Draft applicant’s notice of motion with founding a idavit and supporting a idavits with
reference to a given scenario.

Notice of motion:

NOTICE OF MOTION, ON NOTICE APPLICATION: HIGH COURT FORM 2A

(LONG FORM)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case No:

In the matter between:

LINDIWE NGCOBO Applicant

and

JOHN DOE Respondent

________________________________________________________________________________________

NOTICE OF MOTION

_________________________________________________________________________________________

KINDLY TAKE NOTICE THAT the above-named Applicant intends to make application to this
Honourable Court for an order in the following terms:

[Here set out the terms of the order which the applicant is seeking]

and that the accompanying a idavit of [insert name of deponent] will be used in support
thereof.

TAKE FURTHER NOTICE that the Applicant has appointed the address of her attorneys set out
here below at which she will accept notice and service of all process in these proceedings.

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TAKE FURTHER NOTICE that if you intend opposing this application you are required:

1. to notify Applicant’s attorney in writing on or before the [insert date] and;

2. within 15 (fifteen) days after you have so given notice of your intention to oppose the
application, to file your answering a idavit, if any;

and further that you are required to appoint in such notification an address referred to in rule
6(5)(b) at which you will accept notice and service of all documents in these proceedings.

If no such notice of intention to oppose be given, the application will be made on

_________________ at 10h00.

_______________________________________

REGISTRAR OF THE KWAZULU-NATAL DIVISION

Dullah Omar Grove
DURBAN
_______________________________________

ATTORNEY FOR APPLICANT

Founding a idavit:

FOUNDING AFFIDAVIT

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case No:

In the matter between:

LINDIWE NGCOBO Applicant

and

JOHN DOE Respondent

________________________________________________________________________________________

FOUNDING AFFIDAVIT

_________________________________________________________________________________________

I, the undersigned

LINDIWE NGCOBO

8902277892071

83
Hereby declare under oath as follows:

1.

Applicant

2.

Who the parties are

3.

Locus Standi

4.

Jurisdiction

5.

Nature of the Application: The relief sought

6.

Background Facts

7.

Legal Position to be determined/adjudicated

8.

Costs

9.

Conclusion

_______________________________________

REGISTRAR OF THE KWAZULU-NATAL DIVISION

Dullah Omar Grove
DURBAN
_______________________________________

ATTORNEY FOR APPLICANT

LO10: Draft respondent’s notice of intention to oppose and further a idavits with reference to a
given scenario.

Notice of intention to oppose:

NOTICE OF INTENTION TO OPPOSE: HIGH COURT

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

84
 Case No:

In the matter between:

LINDIWE NGCOBO Applicant

and

JOHN DOE Respondent

________________________________________________________________________________________

NOTICE OF INTENTION TO OPPOSE

_________________________________________________________________________________________

TAKE NOTICE that the Respondent hereby gives notice of his intention to oppose the above
application.

TAKE NOTICE FURTHER that the Respondent appoints the address of his attorney below, where
he will accept service of all further documents in the matter.

Respondent’s Attorney

Address:

_______________________________________

_______________________________________

85
Theme 4: Ex parte applications
LO11: Discuss the circumstances under which ex parte applications can be brought in the High
Court and in the Magistrate’s Court.

Ex parte applications in the High Court:

Ex parte applications may be brought in the following circumstances:

1. When the applicant is the only person interested in the relief claimed, for example, an
application for admission as a sworn translator (a person authorised by the court to translate
legal documents from one language to another, as opposed to a court interpreter who does not
need to be as highly qualified).

 Sworn translators are hired by attorneys or businesses for the translation of legal
documents that will be recognised by the courts as being accurate unless proven
otherwise.

2. When the relief sought is a preliminary step in the proceedings, for example an application to
sue by edictal citation, an application for substituted service, or an application to attach a
person or property in order to found or confirm jurisdiction.

 All these applications simply prepare the way for the legal proceedings that are to follow
and cannot be said to take away the respondent’s right to put forward his side of the
story.

3. When the nature of the relief sought is such that giving notice may defeat the purpose of the
application, for example, an application to freeze someone’s bank account.

 The purpose of this application is to prevent a person from dissipating the funds. Giving
notice to the debtor of this impending application would simply encourage him to
transfer the funds!

4. When immediate relief is essential because the harm is imminent, for example, an urgent
application for a temporary interdict.

 If, for example, you see that a ship which has an unpaid lien will be leaving the harbour
at 16h00 that day, you need to stop it almost immediately and arrest it in order for the
South African courts to exercise jurisdiction over the ship. In those circumstances, you
may proceed to courts to get an order without giving the ship owner (and other
interested parties) notice.
 The urgency is such that you do not even have enough time to give the ship owner
notice, let alone wait for the required notice period in terms of the rules before bringing
your application

5. Where the application is usually brought ex parte in terms of established court practices.

 For example, applications for provisional sequestration and liquidation are brought ex
parte in some divisions.
 Harms’ Civil Procedure in the Superior Courts, however, expresses the view that these
practices should not be followed unless special circumstances exist.

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6. Where the identity of the respondent is not readily ascertainable, for example, if an
application may a ect the interests of some or all of the people living in a certain suburb, you
cannot cite every single person living in the suburb in your papers.

 This kind of application has occasionally been brought to eject the occupants of
informal settlements, but even here where the respondents cannot be precisely
identified, the courts will often insist that some kind of notice be given.

LO12: Explain how ex parte applications are prepared in the High Court and in the Magistrate’s
Court.

Preparing ex parte application papers:

1. High Court: notice of motion:

High Court Form 2 sets out the basic format for the notice of motion in an ex parte application in
the High Court.

Form 2 requires the following information to be included in the notice of motion:

1. Who the applicant is;

2. The date and time when the application will be made;
3. What order the court will be asked to make;
4. That the application is supported by an a idavit or a idavits attached to the notice of
motion; and
5. The name and address of the applicant’s attorney. The form also contains an instruction
to the registrar to set the matter down on the roll for hearing.

2. Regional and District Magistrates’ Courts: notice of motion:

The Magistrates’ Courts Rules do not prescribe a particular form for ex parte applications in
Regional and District Magistrates’ Courts, and the format of High Court Rules Form 2 should be
followed

LO13: Analyse final orders, rules nisi, intervention and the requirement of utmost good faith in
ex parte applications.

The court’s options: final orders and rules nisi: pg206

1. Final Order:

In the High Court, where the court is satisfied that the rights of no other person will be a ected
by the ex parte relief the applicant is seeking, it will grant a final order (provided, of course, that
the court is satisfied the applicant has made out a case on the papers).

 Sometimes, however, the ex parte application, in the opinion of the court, may a ect the
rights of the eventual respondent or other persons.
 In these cases, the court will not grant a final order, but will issue a rule nisi.

87
(In Regional and District Magistrates’ Courts, however, the courts have no discretion: rule
55(3)(c) states that an ex parte order ‘shall’ be of an interim nature – a rule nisi is peremptory.)

2. Rule nisi:

A rule nisi is a court order calling upon named respondents, other interested parties, a specified
class of persons, or even the world at large, to give reasons (i.e. to show cause), on a date set by
the court, why the order sought by the applicant should not be made a final order.

 Sometimes the applicant will need some form of relief before the return date.
 If this is the case when the applicant asks the court to issue a rule nisi, he will also ask
the court to order some form of temporary relief (for example, in the form of an interim
interdict), which will take e ect until the return date.
 Another way for the court to give temporary relief is to order that the final order sought
by the applicant will have interim e ect.
 This means that the order sought will operate against the respondent until the return
date, on which day the court will decide whether to make it a final order.

Note that in High Court, Regional and District Magistrates’ Courts the respondent may
anticipate the rule nisi return day (ask that the matter be dealt with before the return date of the
rule nisi) by giving not less than 24 hours’ notice.

Intervention in ex parte applications:

In terms of rule 6(4)(b) of the High Court Rules, any person having an interest in an ex parte
application may apply to the court for permission to intervene in the application.

 This application to intervene must be in the form of a notice of motion requesting leave
to intervene and must be supported by an a idavit setting out his interest in the matter.
 Notice of the proposed intervention must also be given to the applicant, who may wish
to file an a idavit opposing the proposed intervention.
 The Magistrates’ Courts Rules do not contain a similar provision, but rule 55(1)(c)
provides that notice of any application must be given to any person (not party to the
proceedings) if it is ‘necessary or proper’ to do so.

The requirement of utmost good faith in ex parte applications:

An applicant bringing an ex parte application has a duty to be completely open and honest with
the court and has to reveal all facts that may be relevant to the matter, even those facts which
may be detrimental to his case.

 Any breaches of this duty of utmost good faith could have extremely harmful
consequences for the applicant’s case as the court may dismiss the application on this
ground alone, irrespective of the general merits of the case.
 In deciding whether there has been a breach of the duty of good faith, the court will take
various factors into account, such as doing justice between the parties, the interests of
innocent third parties, and the extent to which the court was influenced by the breach.

88
  Even where the breach of good faith has not been too serious, and the court does not
dismiss the application, the court may nevertheless make an adverse costs order
against the applicant.

LO14: Draft an ex parte application based on a given scenario.

Ex Parte Application:

NOTICE OF MOTION – EX PARTE APPLICATION - HIGH COURT FORM 2

(SHORT FORM)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case No:

In the matter between:

LINDIWE NGCOBO Applicant

________________________________________________________________________________________

NOTICE OF MOTION

_________________________________________________________________________________________

KINDLY TAKE NOTICE THAT application will be made on behalf of the above-named Applicant
on [insert date] at 10:00 or as soon thereafter as counsel may be heard for an order in the
following terms:

[Here you would set out the order which the applicant is seeking]

and that the a idavit of [insert name of deponent] annexed hereto will be used in support
thereof.

Kindly place the matter on the roll for hearing accordingly.

_______________________________________

REGISTRAR OF THE KWAZULU-NATAL DIVISION

Dullah Omar Grove
DURBAN
_______________________________________

ATTORNEY FOR APPLICANT

89
 Learning Unit 5
Stage Two: Litigation
Action and Application Proceedings – Main focus: Actions

Theme 1: The stages of the action procedure

LO1: Elaborate on the stages of the action procedure.

The stages of the action procedure:

1. The pleadings stage:

The pleadings stage is the stage during which the parties define the issues that are in dispute
between them.

 Unlike an oral argument between two friends, with action proceedings all the issues are
defined in writing and set out in documents called pleadings.
 Once a party has set down the points he wishes to make, he sends the document to the
opposing side, which then replies.
 These documents go back and forth between the parties in a certain order.
 You may think of it as a paper war between the parties which takes place according to
strict rules.
 Each of the pleadings has a di erent legal name, for example ‘particulars of claim’,
‘plea’, ‘replication’, ‘rejoinder’, ‘surrejoinder’, ‘rebutter’, ‘surrebutter’ and so on.
 But these names are merely labels for the di erent stages in the argument.
 By the end of the pleadings stage, the parties should be clear as to the issues which will
be in dispute at the trial.

2. The pre-trial stage:

Once the pleadings close (in other words, once the issues in dispute are clearly defined), the
pre-trial stage begins.

 During this stage the paper war between the parties continues, but not for the purpose
of determining what is in dispute between them.
 That part of the argument is over.
 During the pre-trial stage the parties will be preparing for the trial.
 For example, they will be arranging a trial date (set-down), having a look at each other’s
documents (discovery), ordering their witnesses to court (by issuing subpoenas),
organising a pre-trial conference (to discuss the upcoming trial), and so on.

3. The trial stage:

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By the time the trial stage is reached, the paper war between the parties is over, and the ‘talking’
war begins.

 This happens in court and involves the hearing of evidence from the witnesses and legal
arguments from the parties’ legal representatives.
 Usually, both the legal argument and the evidence are given viva voce (orally) and there
is a comprehensive set of rules determining who talks when, and the precise manner in
which the trial is run.

4. The judgment stage:

At the end of the trial, the court will give its judgment.

 It is at this point that the parties finally discover which side (if any) has won the
argument.
 We begin by looking at the pleadings stage.

LO2: Discuss the amendments to the Magistrate’s court rules in relation to action proceedings.

Amendments to the Magistrates’ Courts Rules:

Before beginning this section on actions, it is important to note that fundamental changes were
e ected to the Magistrates’ Courts Act and Rules, which came into e ect on 15 October 2010.

 The intention behind the amendments was that the two sets of rules should become
more uniform, the general approach being that the Magistrates’ Courts Rules should
conform to the High Court Rules.
 Therefore, the 2010 Magistrates’ Courts Rules standardised Magistrates’ Court and High
Court practice in many instances, with a near substitution of the relevant High Court
rule for the previous Magistrates’ Courts rule in many cases.
 Examples of the harmonised practice include the abolition of further particulars for the
purposes of pleading, a common set of summonses, including combined and simple
summonses, the introduction of irregular proceedings and the adoption of the High
Court discovery rules in the Magistrates’ Court.
 Although many of the Magistrates’ Courts Rules have been fundamentally altered, most
of the rule numbers still relate to their original topics, and indeed, much does remain
the same.
 The draftsmen have kept the same numbering and structure by consolidating topics in
some instances, or utilising the numbers of obsolete rules in others.
 Thus Magistrates’ Courts rules 5 and 6 still apply to summonses, for instance, but their
contents are very di erent from the original rules, now incorporating rules 17 and 18 of
the High Court Rules.
 To the extent still relevant, we point out various changes e ected by the 2010
amendment.
 Furthermore, there continues to be regular updates and revisions to both sets of rules.
 In particular, the Magistrates’ Courts updates have aimed to bring the rules in line with
the High Court rules, and to fill lacunas that the 2010 amendments created.

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LO3: Name the two most important documents in the action procedure.

The two most important documents:

Of all the documents exchanged during the course of pleadings, it is probably fair to say that the
two most important are:

1. The particulars of claim (in which the party who is claiming relief [known as the
plainti ] sets out the details of his claim); and
2. The plea (in which the party from whom relief is sought [known as the defendant]
sets out his defence to the claim).

LO4: Analyse in detail the steps and concepts for pleadings in the action procedure, namely:

 Step 1: Plainti ’s Summons and Particulars of Claim (or Combined Summons).

 Step 2: Defendant’s Notice of Intention to Defend.
 Step 3: Defendant’s plea and counter – claim.
 Step 4: Plainti ’s replication (and subsequent steps).
 Step 5: Close of pleadings (Litis Contestatio)
 Possible extra steps: further particulars and declarations.

Step 1: Plainti ’s Summons and particulars of claim:

1. What is a summons?:

Actions are commenced by way of summons.

 A summons is a written judicial demand, issued by the registrar of a division of the High
Court, the registrar of a Regional Magistrates’ Court, or the clerk of a District
Magistrates’ Court.
 A summons is directed at the sheri of the court or his lawful deputy, rather than at the
defendant.
 The summons orders the sheri to command the defendant to enter an appearance to
defend by a fixed day, in order to answer the claim made by the plainti .
 In addition, it provides all sorts of information such as who the parties are, which court
is involved, what the case number is and so on.
 All summonses are signed by an attorney, or by the plainti personally if he is not
represented by an attorney.

All summonses contain three main elements:

1. Citation of parties: The citation identifies the parties to the action. Generally, the
names, addresses and occupation of the plainti and defendant (if known) are required.
If either party acts in any representative capacity, the summons should set forth such
capacity, and if the plainti is a natural person, the plainti ’s gender must also be
stated.
2. Warning to defendant: The defendant must be warned that he has a limited time within
which to take steps to defend the action, or to take some other specified action, failing
which the plainti may take default judgment against him.

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 1. Dies induciae: Dies induciae is the name given to the limited period of time given
to the defendant during which he must enter an appearance to defend, or take some
other specified action, failing which default judgment may be taken against him.

2. Address for service: The defendant is warned that if he intends to defend the
matter, he must give notice of his intention to both the court and the plainti within
the period of the dies induciae.

3. Particulars of claim: The details of the plainti ’s claim are either included in the body of
the summons itself or attached to it.

2. What are particulars of claim?

The plainti ’s cause of action is set out in the particulars of claim. There are five aspects or
elements that every set of particulars of claim should contain.

a) Citation of parties:

Each of the parties is identified by means of a citation.

 The citations provide the names and addresses as well as the occupation of the plainti
and also of the defendant, if known to the plainti .

b) Locus standi:

Facts must be averred which show the plainti ’s interest in the matter.

c) Jurisdiction of the court:

Facts must be averred which show that the court from which the summons has been issued has
jurisdiction.

 Depending on the ground for jurisdiction that the plainti relies on (for instance, the
defendant’s place of residence or domicile), the court’s jurisdiction may be apparent
from the addresses provided in the citation.
 In some circumstances, the Magistrates’ Courts Rules specifically require this aspect to
be pleaded.

d) Cause of action:

This refers to the merits of the matter.

 The plainti should set out the material facts on which he bases his case, i.e. the facta
probanda.
 It is important to bear in mind, however, that the identity of the parties, together with
locus standi and jurisdiction, also form part of the cause of action in a broader sense.

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e) Prayer:

The prayer comprises a list located at the end of the particulars, which indicates the relief that
the plainti seeks from the court.

 The plainti may only request the relief for which a case has been made or pleaded in
the main body of the particulars of claim.

3. Di erent forms of summons:

There are three kinds of summonses:

1. Combined summons;
2. Simple summons; and
3. Provisional sentence summons.

a) Combined summons:

The combined summons is the most important form of summons and may be used for any kind
of claim.

 It is mandatory to use a combined summons in the case of an unliquidated claim such

as a claim for damages or an illiquid claim, such as divorce.

It consists of two parts:

1. The summons, which is really just a kind of notice from the plainti to the defendant via
the sheri , telling him that action has been instituted, and giving him various formal
details about the matter, which are discussed in detail below. Remember that a
summons is a process of court. It is issued by the registrar or clerk of the court (which
basically means that the registrar checks that the formalities have been complied with,
gives it a case number, opens a file and stamps it with an o icial stamp). It is then
served (together with the particulars of claim) by the sheri of the court.
2. The particulars of claim, which are attached to the summons. The particulars of claim
contain the material facts on which the plainti relies for his cause of action. These
facts are set out in a concise and logical way in a separate annexure (with the heading
‘Particulars of claim’) which is attached to the summons. While the summons itself is
drafted and signed by an attorney, the particulars of claim are usually drafted by an
advocate and signed by both an advocate and an attorney in the High Court,13 and
must comply with rule 18 of the High Court and the similarly worded rule 6 of the
Magistrates’ Courts, which relate to pleadings generally.

The combined summons derives its name from the fact that it combines a summons and a full
statement of claim in one document.

b) Simple summons:

A simple summons is simpler than a combined summons in that it does not have a separate
particulars of claim attached to it.

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  The particulars of claim are included, in abbreviated form, in the body of the simple
summons itself.
 A simple summons may only be used for those cases in which the plainti ’s claim is for
a debt or liquidated demand, in other words, where the claim is for a fixed, certain or
ascertained amount or thing.
 Clearly, a claim for a specified amount of money owed (e.g. a claim for the purchase
price of goods sold and delivered) will qualify as a claim for a debt or liquidated
demand.
 Note, however, that such claims are not restricted to claims for a specified amount of
money, but also include claims for a fixed and specified thing.
 For example, assume that a carpenter agrees to make a table for a dining room but fails
to perform the work.
 A claim against the carpenter for specific performance (i.e. an order that he make the
table) will qualify as a claim for a debt or liquidated demand, since the claim is cut and
dried.
 The following may also be classified as claims for a debt or liquidated demand: a claim
for the cancellation of a sale and ejectment; an interdict; the delivery of property; and a
claim for an amount due on an overdrawn account (an overdraft).
 However, a claim for damages is never ‘cut and dried’, and does not qualify as a claim for
a debt or liquidated demand.
 The reason is that the amount payable for damages (the quantum of the claim) is always
open to dispute.

The main di erences between a simple summons and a combined summons in the High Court
may be summarised as follows:

3. A simple summons is used only when claiming a debt or liquidated demand, whereas a
combined summons may be used for any claim.
4. The cause of action is summarised in a simple summons and the abbreviated
particulars of claim included in the summons need not comply with rule 18 of the High
Court or rule 6 of the Magistrates’ Courts, whereas with a combined summons the
cause of action is set out in full in the separate particulars of claim which are annexed
to a combined summons, which must comply with High Court rule 18 or Magistrates’
Courts rule 6.
5. A simple summons is followed by a document known as a declaration once the
defendant enters an appearance to defend. The declaration looks just like the
particulars of claim attached to a combined summons, and must comply with rule 18
or rule 6.
6. A simple summons must be signed by the attorney who acts for the plainti .

A combined summons in the High Court, however, must be signed by both the attorney and the
advocate who act for the plainti .

c) Provisional sentence summons:

A provisional sentence summons is used for those special cases where the plainti ’s claim is
founded on a liquid document such as a cheque, a mortgage bond or an acknowledgement of
debt.

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  The provisional sentence procedure is dealt with in detail later in the book and therefore
this form of summons will not be dealt with here.

4. Drafting a summons:

Rule 17 of the High Court Rules and rule 5 of the Magistrates’ Courts Rules provide specific and
detailed instructions for the contents of a summons.

a) High Court rule 17(1)(a) and Magistrates’ Courts rule 5(1)(a) dies induciae:

The summons must inform the defendant that if he wishes to defend, he must give notice of his
intention to defend to the plainti within a certain number of days.

 The time limit is usually 10 days, but this will be discussed in more detail below.

b) High Court rule 17(1)(b) and Magistrates’ Courts rule 5(1)(b) – warning to defendant:

With a combined summons, the summons must inform the defendant that within 20 court days
of delivering a notice of intention to defend, he must take his next step in the action.

 The defendant’s next step will be a plea, or an exception, or an application to strike out.
 These steps will be discussed further in due course.

c) High Court rule 17(2) and Magistrates’ Courts rule 5(2) – appearance of document:

High Court Form 9 and Magistrates’ Courts Form 2B31 set out what a simple summons should
look like and the details it should contain.

 High Court Form 10 and Magistrates’ Courts Form 2 set out what a combined summons
should look like and the details it should contain.

d) High Court rule 17(3) and Magistrates’ Courts rule 5(3) – signatures:

The summons must be signed by the plainti ’s attorney, or the plainti , if representing himself.

 An address for the service of further documents on the plainti in the matter must be set
out in the summons.
 This address is usually that of the plainti ’s attorney and may not be less than 15
kilometres from the o ice of the registrar.
 In practice, if the o ices of the plainti ’s attorney are situated more than 15 kilometres
from the court out of which the plainti is issuing summons, the plainti ’s attorney
invariably will appoint a correspondent.

e) High Court rules 17(4)(a) and (b) and Magistrates’ Courts rules 5(4)(a) and (b) – citations:

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 The rules appear to require the plainti to be cited with slightly more detailed information to
that which is required for the defendant.

The summons must set out the following details for the plainti :

7. Full name;
8. Gender (if the plainti is a natural person);
9. Occupation;
10. Residential address or place of business; and
11. If the plainti is suing in a representative capacity, that capacity must be stated.

The summons sets out the following details of the defendant:

1. Surname and first names, or initials by which the defendant is known to the plainti .
2. Residential address or place of business.
3. Occupation and employment address (if known).
4. If the person being cited is acting in a representative capacity, that capacity must be
stated (e.g. ‘… in his representative capacity as father and natural guardian of Joe
Bloggs’). Rule 6(5)(d) of the Magistrates’ Courts Rules provides as follows: ‘Where the
plainti sues in a representative capacity, state the capacity in which he sues’. This
provision provides for the situation in which either the plainti sues, or the defendant is
sued, in a representative capacity.

5. Drafting particulars of claim – High Court rule 18 and Magistrates’ Courts rule 6:

Rule 18 of the High Court Rules and rule 6 of the Magistrates’ Courts Rules are almost identical
and use the same wording for the most part.

 These rules are of fundamental importance as they contain various general provisions
relating to the manner in which all pleadings should be prepared and presented.
 Therefore, the provisions of these rules must be followed carefully when drafting the first
pleading, the particulars of claim.

a) Signatures – High Court rule 18(1) and Magistrates’ Courts rule 6(1):

Apart from those cases in which a party is acting for himself (in which case he will sign himself),
the particulars of claim portion of a combined summons must be signed by an advocate as well
as an attorney in the High Court.

 If an attorney has the right of appearance in the High Court, then the attorney may draft
the particulars of claim and sign them without involving an advocate.
 The summons portion of a combined summons may be prepared and signed by the
attorney alone, as may a simple summons.
 Magistrates’ Courts rule 6(1) makes no provision for advocates to sign, referring only to
attorneys and unrepresented plainti s signing in their own capacity.

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  Although a private person who is representing himself in a High Court matter is entitled
to sign a pleading, a juristic person, such as a company or close corporation, is not
entitled to do so through one of its o icers.
 This is not the case in the Magistrates’ Courts, as local authorities, companies, or other
incorporated bodies as well as partnerships may be represented by an o icer or, in the
latter case, a member nominated for that purpose.

b) Title of the action – High Court rule 18(2) and Magistrates’ Courts rule 6(2):

In an action, every pleading should have a heading which looks something like this:

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 123/2010

In the matter between:

John Doe Plainti

and

Jane Doe Defendant

This is known as the title of the action and, as you can see, it provides su icient information to
enable the registrar to locate the relevant court file.

 Since every pleading in the action receives the same heading, should the document ever
be lost it is easy for the registrar or any of the parties to trace precisely the action to
which the pleading belongs.
 In an action, which is commenced by a summons, the parties are known as the plainti
and the defendant, whereas in an application, which is commenced by a notice of
motion, the parties are known as the applicant and the respondent.
 The title is followed by two ‘tramlines’ which run across the page under the title.
 A description of the pleading in question is inserted between the tramlines.

For example:

_________________________________________________________________________________________

PLAINTIFF’S PARTICULARS OF CLAIM

_________________________________________________________________________________________

c) 6(4) Paragraphs – High Court rule 18(3) and Magistrates’ Courts rule 6(4):

High Court rule 18(3) and Magistrates’ Courts rule 6(3) both read as follows:

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  Every pleading shall be divided into paragraphs (including sub-paragraphs) which shall
be consecutively numbered and shall, as nearly as possible, each contain a distinct
averment.

This rule is helpful in two ways.

 Firstly, it prevents a pleader from mixing up di erent points in a confusing jumble of

information.
 Secondly, since each material fact averred is separate and numbered, it is easy for the
opposing party to identify and respond to each averment.

d) 6(3) The full facts – High Court rule 18(4) and Magistrates’ Courts rule 6(3):

High Court rule 18(4) and Magistrates’ Courts rule 6(4) are probably the most important
provisions within rules 18 and 6 as they set out a fundamental principle that must be followed
when drafting particulars of claim or any other pleading.

High Court rule 18(4) and Magistrates’ Courts rule 6(4) both provide that:

 Every pleading shall contain a clear and concise statement of the material facts upon
which the pleader relies for his claim, defence or answer to any pleading, as the case
may be, with su icient particularity to enable the opposite party to reply thereto.

If you fail to furnish the material facts, the following courses of action are open to your
opponent:

12. Make an application to have your pleading set aside as an irregular step in terms of High
Court rule 30, read with rule 18(12), read with rule 18(4), or the corresponding
Magistrates’ Courts rule 60A, read with rule 6(13), read with rule 6(4). or
13. Except to your pleading in terms of High Court rule 23 or Magistrates’ Courts rule 19.
Note, however, that mere failure to give su icient particularity in order to enable the
other party to plead will not, in general, entitle that party to except. The lack of
particularity must be so serious as to amount to a failure to disclose a cause of action
or, alternatively, to render the pleading vague and embarrassing, before an exception
may be brought.

e) Requirements: breach of contract – High Court rule 18(6) and Magistrates’ Courts rule
6(6):

High Court rule 18(6) and Magistrates’ Courts rule 6(6) are almost identically worded and deal
with pleadings relating to contracts.

In terms of these rules, when you plead in relation to a contract, you must:

1. state whether the contract is written or oral;

2. state when, where and by whom it was concluded; and
3. attach a true copy of the contract to the pleading in question (unless, of course, it is an
oral agreement).

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f) Requirements: divorce – High Court rule 18(8) and (9) and Magistrates’ Courts rule 6(8):

High Court rule 18(8) states as follows:

 A party suing or bringing a claim in reconvention for divorce shall, where time, date and
place or any other person or persons are relevant or involved, give details thereof in the
relevant pleading.

g) Requirements: bodily injuries – High Court rule 18(10) and Magistrates’ Courts rule 6(9):

High Court rule 18(10) and Magistrates’ Courts rule 6(9) are identically worded and deal with
claims for damages.

In general, the rules require that if a plainti sues for damages, he must set his damages out in
such a way that the defendant is reasonably able to assess the quantum (in other words the
amount) of the damages.

With regard to damages for personal injury, the plainti must specify the following:

1. His date of birth: A young person may, for example, have a bigger claim than an older
person as he is likely to live longer.
2. The nature and extent of his injuries: This is needed for the parties and the court to make
an assessment of a claim for pain and su ering, as well as supporting other claims for
medical expenses.
3. The nature, e ects and duration of the disability: Disability refers to the e ect of the
injuries on the plainti ’s life. This information is needed for the parties and the court to
make an assessment of a claim for loss of the amenities of life, as well as supporting
claims for loss of earnings.

Personal injuries should be separated into four heads of damages, and the plainti must state
separately what is claimed under each heading:

14. Medical costs and hospital and other similar expenses, specifying how these costs and
expenses are made up. These costs are proved at the trial by providing copies of the
medical accounts.
15. Pain and su ering, specifying whether permanent or temporary and what injury caused
this. The amount is proved at the trial by reference to previous court cases in order to
establish what the courts have been prepared to grant for similar injuries in the past. An
adjustment is then made for inflation in order to arrive at an approximate figure for this
part of the claim. Eventually, the court will have to make a final decision on the
particular facts before it.
16. Disability, which is divided into two categories:
17.

1. Loss of income, which must in turn be divided into income lost to date and
estimated future loss of income. With regard to future income, the plainti must
give details of the work he expects to be able to perform in the future. Income
lost to date is proved at trial by providing documents such as previous salary
slips, profit statements, etc. Future loss of income is proved at the trial with the
help of an actuary, who is able to calculate mathematically the earning capacity
of people over the expected course of their lives.

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 2. Loss of enjoyment of the amenities of life, for example, a particular plainti
may have enjoyed playing the piano, but because of an injury to his hand, can no
longer do so. The plainti must stipulate whether his enjoyment has been
temporarily or permanently terminated. The amount is proved at the trial in the
same way as pain and su ering.

18. Disfigurement, including a full description of the disfigurement su ered, stating

whether it is temporary or permanent. (The amount is proved at the trial in the same
way as pain and su ering.)

h) Requirements: death – High Court rule 18(11) and Magistrates’ Courts rule 6(10):

In terms of the identically worded High Court rule 18(11) and Magistrates’ Courts rule 6(10), a
plainti suing for damages resulting from the death of another shall state the date of birth of the
deceased as well as that of any person claiming damages as a result of the death.

 A claim for loss of support may be brought by any of the deceased’s lawful dependants.
 The various dates of birth are required to enable the parties to obtain actuarial
assessments as to the date on which, but for his death, the provider would have ceased
providing support.
 Claims for loss of support have also been a ected by the Road Accident Fund Act 56 of
1996, and claims from the Road Accident Fund are limited to an amount prescribed in
regulations to the Act, in respect of each deceased breadwinner.

i) Implications of not following High Court rule 18(12) and Magistrates’ Courts rule 6(13):

High Court rule 18(12) and Magistrates’ Courts rule 6(13) are almost identically worded and
provide as follows:

 If a party fails to comply with any of the provisions of this rule, such pleadings shall be
deemed to be an irregular step and the opposite party shall be entitled to act in
accordance with [Rule 30 in the case of a High Court matter and Rule 60A in the case of
the Magistrates’ Courts].

6. Provisions for summonses relating exclusively to the Magistrates’ Courts:

By and large, the High Court and Magistrates’ Courts Rules as they relate to summonses have
been standardised.

 Some di erences remain, however.

 Several provisions requiring additional specific averments to be made in particular
situations appear in Magistrates’ Courts rule 5, such as rules 6(11) and 6(12), which
relate to causes of action based on legislation and cessions, respectively.

a) Electronic addresses:

The Magistrates’ Courts Rules make provision for the use of electronic addresses.

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  In terms of rule 5(3)(a)(i), the plainti ’s attorney must, where available, include his
electronic and facsimile address as well his postal address in the summons.
 Furthermore, in terms of rule 5(3)(b), the plainti may indicate in the summons whether
he is prepared to accept service of all subsequent documents and notices in the suit
through any manner other than the physical address or postal address, and, if so, which
manner of service would be preferred.
 There is also provision in rule 5(3)(c) for the defendant in response to the written request
of the plainti , to deliver a consent in writing to the exchange or service by both parties
of subsequent documents and notices in the suit by way of facsimile or electronic mail.
 Should the defendant refuse or fail to deliver the consent, the court may, on application
by the plainti , grant such consent, on such terms as to costs and otherwise as may be
just and appropriate in the circumstances.
 This would appear to be an attempt to encourage the use of electronic means for the
exchange of documents, but must be balanced against the need for certainty as to
service of the documents and fairness to both parties.
 Before any documents or pleadings are delivered by way of facsimile or electronic mail,
a written agreement should be lodged with the registrar in which the parties agree to
delivery in this manner.
 The agreement must also contain the facsimile number or electronic mail address
where delivery must be e ected.

b) Provisions for the defendant:

Magistrates’ Courts rule 5(5) stipulates that the summons must include the following
information for the benefit of the defendant:

1. A form of consent to judgment;

2. A form of appearance to defend;
3. A notice drawing the defendant’s attention to the provisions of s 109 of the Magistrates’
Courts Act, which requires a judgment debtor to keep the court, creditor or creditor’s
attorney and, if applicable, an administrator informed of any change of address; and
4. A notice in which the defendant’s attention is directed to the provisions of various
sections of the Magistrates’ Courts Act relating to debt collection, including ss 57, 58,
65A and 65D, where the action is based on a liquidated sum of money due in terms of s
55 of the Act.

c) Provision for jurisdictional averments:

Magistrates’ Courts rule 5(6) required certain allegations to be made with regard to jurisdiction.

 Rule 5(6)(a) provides that where the defendant is cited under the jurisdiction conferred
upon the court by s 28(1)(d) of the Magistrates’ Court Act, which relates to jurisdiction
based on the cause of action, the summons must contain the averment that the whole
cause of action arose within the district or region (in the case of a Regional Magistrates’
Court).
 The rule specifically requires that the summons sets out particulars in support of this
averment.

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  This means that the usual statement to the e ect that ‘the cause of action arose wholly
within the jurisdiction of the above honourable court’ would not be valid for the purpose
of a Magistrates’ Court summons.
 The requirement applies to all summonses, including simple summonses, which is an
anomaly given that a simple summons is not required to comply with the particularity
stipulated in rule 6(4).
 Rule 5(6)(b) provides that when the plainti relies on s 28(1)(g) of the Magistrates’ Court
Act for jurisdiction (i.e. in an action relating to immovable property where the plainti
avers that the immovable property concerned is situated within the district of the
Magistrates’ Court in question), the particulars should include the averment that ‘the
property concerned is situated within the district or region’.

Finally, rule 5(6)(c) provides that the summons should show any abandonment of part of the
claim under s 38 of the Magistrates’ Court Act and any set-o under s 39 of the Magistrates’
Court Act.

d) Provisions relating to legislation:

Rule 5 makes provision for claims regulated by legislation.

 This may include the various Acts dealing with the suing of government departments,
which require particular procedures, such as giving notice before service of summons or
claims based on credit agreements regulated by the National Credit Act.
 Rule 5(7) provides a general direction to the e ect that where the plainti issues a
simple summons in respect of a claim regulated by legislation, the summons may
merely contain a bare allegation of compliance with the legislation.
 If an appearance to defend is served by the defendant on receipt of the simple
summons, however, and the plainti responds with a declaration, the declaration must
allege full particulars of such compliance.

e) Suing as a cessionary:

Rule 5(9) provides that where the plainti sues as cessionary, the plainti must indicate the
name, address and description of the cedent at the date of cession as well as the date of the
cession.

 Without an averment making it clear that the action has been ceded, the particulars of
claim would fail to show the plainti ’s interest in the matter – his locus standi.

The necessary averment would read more or less as follows:

 The plainti sues as cessionary in terms of an agreement of cession dated …, in terms of

which … the cedent (including name, address and description of cedent), ceded his
right, title and interest in this action to the plainti .

f) Declaration that immovable property is executable:

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In terms of rule 5(10), a summons in which an order is sought to declare immovable property
(which is the home of the defendant) executable must also contain a notice in the following
form:

 The defendant’s attention is drawn to section 26(1) of the Constitution of the Republic of
South Africa which accords to everyone the right to have access to adequate housing.
 Should the defendant claim that the order for eviction will infringe that right it is
incumbent on the defendant to place information supporting that claim before the
Court.

g ) Automatic rent interdict summons:

Rule 5(8) makes provision for a summons in respect of a rent claim which includes an
automatic rent interdict.

 In terms of s 31 of the Magistrates’ Courts Act, when issuing a P12 summons for arrear
rent in the Magistrates’ Courts, it is possible to include what is called an automatic rent
interdict in the summons.
 In other words, the landlord will include in his summons a notice prohibiting any person
(including, obviously, the tenant), from removing from the premises any furniture or
other e ects, which are subject to the landlord’s hypothec for rent (i.e. which belong to
the person/s who owe/s the rent), until the court makes an order as to what is to become
of such furniture and other e ects.
 Anyone who has knowledge of this notice is interdicted (i.e. legally prohibited) from
removing the said furniture or other e ects, until the court reaches its decision.

7. Lapsing and superannuation of summons and judgments:

(i) Superannuation of summons:

Rule 10 of the Magistrates’ Courts Rules previously provided for the lapsing of a summons in
two situations.

 The summons would lapse if it had been issued but not served within a period of 12
months.
 Alternatively, the summons would lapse if no further action to prosecute the matter was
taken by the plainti within 12 months after service.
 This rule was amended in its entirety and no longer contains a provision to this e ect.
 As regards High Court practice, however, there is some judicial authority that a High
Court summons can go ‘stale’ inasmuch as an unreasonable delay in proceeding with
an action may be regarded as an abuse of process.

(ii) Superannuation of judgments:

As regards superannuation of judgments, the first point to be aware of is that, in terms of the
Prescription Act, a judgment debt does not prescribe until a period of 30 years has lapsed.

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  Nevertheless, the process of execution against a judgment debtor’s property pursuant
to the judgment will not be permitted if not acted upon promptly.

Section 63 of the Magistrates’ Courts Act provides:

 Execution against property may not be issued upon a judgment after three years from
the day on which it was pronounced or on which the last payment in respect thereof was
made, except upon an order of the court.

Step 2: Notice of intention to defend:

Once the summons has been served on the defendant, he has several choices:

1. He may decide to do nothing (which will usually result in the plainti obtaining a default
judgment against him.)
2. He may contact the plainti ’s attorney and attempt to settle the matter by agreement.
3. In the Magistrates’ Courts he may consent to judgment (with similar results to default
judgment, albeit with a slight saving in costs). A similar procedure, called confession to
judgment, exists in the High Court.
4. He may decide to defend the matter, in which case he must enter an appearance to
defend and the matter will proceed on a defended basis.

1. The notice:

Notice of intention to defend is provided for in rule 19 of the High Court Rules and rule 13 of the
Magistrates’ Courts Rules.

 The rules are virtually the same.

 An appearance to defend is usually entered by the defendant’s attorneys, who deliver a
notice both to the court and the plainti called a notice of intention to defend.
 This notice simply tells the plainti and the court that the defendant intends to defend
the action, and appoints an address for service on the defendant of further documents
in the action.
 The notice has the e ect of placing the defendant’s attorneys on record.
 In terms of High Court rule 16(4), should the defendant’s attorneys in a High Court
matter wish to cease representing the defendant after placing themselves on record and
before the matter has been concluded, they are required to withdraw formally by
sending a notice to the defendant, the plainti ’s attorneys and the court.
 This must be done timeously.
 The same procedure must be followed in Magistrates’ Courts matters.
 The service address is the address at which the defendant wishes to receive service of
all future documentation in a matter, but that is not the only address which should
feature in the notice.
 The Magistrates’ Courts Rules are not identical to the High Court Rules in this regard.
 Nevertheless, Magistrates’ Courts rule 13(3) and High Court rule 19(3) both require the
defendant to provide his or her full physical residential or business address in the
notice.
 (Note that these addresses have not always been provided in practice.)

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  The Magistrates’ Courts rule goes further, however, requiring also the defendant’s postal
address and, where available, a facsimile address and electronic mail address.

Having provided all these addresses in the notice, the defendant should then select an address
for the service of all subsequent documents in the matter.

 Unless the defendant is unrepresented, this address would be that of his attorney rather
than one of the defendant’s addresses listed immediately above.
 Rule 4A of the High Court rules, inserted in June 2012, now provides that service of all
documents apart from those initiating proceedings may be e ected either at the
physical address for service.

In contrast, the Magistrates’ Courts Rules do not impose any restriction on the type of address
that may be used, and the implication is that the use of postal addresses, including post o ice
boxes would still be valid.

 The Magistrates’ Courts Rules also make provision for the use of electronic addresses.
 Furthermore, rule 13(3)(b) requires the defendant to indicate in the notice of intention to
defend whether the defendant is prepared to accept service of all subsequent
documents and notices in the suit through any manner other than the physical address
or postal address and, if so, to state such preferred manner of service. Rule 13(3)(c)
provides that the plainti may, at the written request of the defendant, deliver a consent
in writing to the exchange or service by both parties of subsequent documents and
notices in the suit by way of facsimile or electronic mail.
 Finally, in terms of rule 13(3)(d), if the plainti refuses or fails to deliver the consent in
writing as provided for in rule 13(3)(c), the court may, on application by the provided in
the notice, by registered post to the postal address provided, or via facsimile or
electronic mail to the respective addresses provided.
 The rule, however, does not appear to require such additional addresses to be given in
the notice.
 In both the High Court and Magistrates’ Courts Rules this service address needs to be
within 15 kilometres of the court out of which the summons was issued.
 In High Court practice, the address must be a street address and may not be a post
o ice box address defendant, grant such consent, on such terms as to costs and
otherwise as may be just and appropriate in the circumstances.

2. Delivery of the notice:

The appearance to defend is entered by delivering one copy of the notice to the registrar or clerk
of the court, and one copy to the plainti or his attorney.

 The word ‘deliver’ is defined in a similar fashion in both the High Court and Magistrates’
Courts Rules.
 It involves two activities: serving a copy on the opposing party, and filing the original
document at court.
 A notice of intention to defend need not be served by the sheri of the court; it is usually
delivered by a messenger working for the defendant’s attorneys.
 The messenger will deliver the original and two copies of the notice to the o ices of the
plainti ’s attorneys.

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  The receptionist at the o ice of the plainti ’s attorneys will indicate that the plainti ’s
attorneys have received the notice by stamping the original as well as the two copies
with the firm’s name and the date of service.
 The receptionist will hand the original and one of the copies back to the messenger,
retaining one copy to be placed on the file of the plainti ’s attorneys.
 Having served the notice, the messenger will then file it at court, by handing the original
and remaining copy to the clerk or registrar, who will date-stamp both documents,
retaining the original for the court file and returning the copy to the messenger.
 Once the original notice has been placed on the court file, any dispute which may arise
as to whether or not there has been proper or timeous service may be resolved by
referring to the date stamps.
 The messenger will return the remaining copy of the notice to the defendant’s attorney
for filing.
 Presumably, the introduction of electronic means of service will not modify this greatly
as the documents will still need to be filed at court by the parties who served them.
 Proof of service by electronic mail may require novel methods to prove service, such as
e-mail delivery or read receipts, confirmation from an electronic service provider that
the document was delivered, or confirmation that an imbedded hyperlink in the
message envelope was accessed, or verbal confirmation by the recipient.

3. Dies induciae:

In both the High Court and Magistrates’ Courts there are time limits, known as dies induciae,
within which the defendant is required to enter an appearance to defend.

 If the defendant fails to enter an appearance to defend within the stipulated time limit,
the plainti may take default judgment against him.
 In High Court matters, the time within which the defendant is allowed to enter an
appearance to defend depends on whether the summons was served upon the
defendant inside or outside the jurisdiction of the court which issued the summons.
 In terms of High Court rule 19(1), if a summons is served inside the jurisdiction of the
court which issued it, a defendant is allowed 10 court days after service within which to
deliver a notice of intention to defend.
 It is important to note that the days between 16 December and 15 January, both days
inclusive, are not counted when calculating this period.
 These days are known as dies non (literally, ‘non-days’).
 In terms of s 24 of the Superior Courts Act, if the summons is served outside the
jurisdiction of the court which issued it, the appearance to defend must be delivered not
less than:
1. one month after service, if the place of service is more than 150 kilometres
from the court from which it was issued; and
2. two weeks in any other case.

Step 3: Plea and counterclaim:

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1. Plea:

The plea is essentially the defendant’s reply to the plainti ’s particulars of claim and contains
the defendant’s defence to the plainti ’s claim. There are two main kinds of plea:

1. Plea on the merits; and

2. Special plea.

A plea on the merits deals with the substance of the plainti ’s claim.

 It attacks the validity of the cause of action with regard to the facts of the case.
 For example, assume that a plainti is claiming for damages to his motor vehicle caused
by a collision with the defendant’s vehicle.
 The defendant’s plea on the merits may deny that the defendant drove negligently.
 This plea strikes at the heart of the plainti ’s cause of action, since negligence is one of
the elements which the plainti will have to prove in order to be successful in an action
in terms of the Lex Aquilia.

A special plea is essentially a legal objection to some aspect of the plainti ’s claim.

 It tries to ‘knock out’ the plainti ’s case before the merits of the plainti ’s case are even
considered.
 In the example above, the defendant may raise a special plea that the plainti ’s claim
has prescribed.
 In other words, even if the defendant were to blame for the collision, it does not matter.
 The plainti has no claim in law because the matter has prescribed.

a) Plea on the merits:

Rule 22 of the High Court Rules and rule 17 of the Magistrates’ Courts Rules set out the
requirements with which the defendant’s plea must comply.

The provisions of rules 22 and 17 must be read with the general provisions relating to pleading
contained in rule 18 of the High Court Rules and rule 6 of the Magistrates’ Courts Rules,
respectively.

(i) Time limits:

In terms of rule 22(1) of the High Court Rules and rule 17(1) of the Magistrates’ Courts Rules, the
defendant must – within 20 court days after delivering his notice of intention to defend (in the
case of a combined summons), or receiving the plainti ’s declaration (in the case of a simple
summons) – deliver his plea to the plainti .

 The 20 court-day time limit does not apply if the defendant decides to except to the
plainti ’s particulars of claim or declaration, or to make an application to strike out
allegations contained therein.
 The exception or application to strike out will be dealt with first, before the defendant is
required to plead.

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(ii) The di erent kinds of pleas on the merits:

High Court rule 22(2) requires that:

 The defendant shall in his plea either admit or deny or confess and avoid all the material
facts alleged in the combined summons or declaration or state which of the said facts
are not admitted and to what extent, and shall clearly and concisely state all material
facts upon which he relies.
 (Rule 17(2) of the Magistrates’ Courts Rules is almost identically worded.).

The plainti ’s particulars of claim contains the allegations of fact made by the plainti , which
can only be allegations at this stage, since they have not yet been tested in court.

 For this reason, the ‘material facts’ referred to in rules 22(2) and 17(2) are generally
called allegations, and sometimes averments.

Rules 22(2) and 17(2) must be read with rule 18(5) of the High Court Rules and 6(5) of the
Magistrates’ Courts Rules. Rule 18(5) of the High Court Rules reads as follows:

 When in any pleading a party denies an allegation of fact in the previous pleading of the
opposite party, he shall not do so evasively, but shall answer the point of substance.
 (Rule 6(5) of the Magistrates’ Courts Rules is almost identically worded.)

When responding to the allegations contained in the plainti ’s particulars of claim, the
defendant may respond (i.e. plead) to each allegation of fact in one of the following four ways:

1. The defendant may admit the allegation; or

2. The defendant may deny the allegation; or
3. The defendant may confess and avoid the allegation; or, if he is unable to admit, or
deny, or confess and avoid (usually because he has no knowledge of the particular
allegation), then:
4. The defendant may respond that he does not admit the allegation and indicate to what
extent the allegation is not admitted.

What this means is that in relation to each of the material facts (the facta probanda) in the
plainti ’s particulars of claim or declaration (i.e. in response to each and every fact contained in
each and every paragraph), the defendant must either:

1. admit such fact; or

2. deny such fact; or
3. confess such fact; but avoid the legal implication the plainti would like the court to
draw from that fact; or, if and only if he cannot admit, or deny, or confess and avoid
(usually because he has no knowledge of the particular allegation), then:
4. make no admission, but put the plainti to the proof of the particular fact.

In addition to the four main categories of responses listed in rules 22(2) and 17(2), there are
three general responses that are worth mentioning. These three categories of pleas are namely:

1. Plead a counterclaim; or
2. Plead an alternative defence; or
3. Plead a tender.

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(ii)(1) Admission of facts:

One of the main reasons for pleadings is to define the issues that are in dispute between the
parties.

 Once the facts contained in a particular paragraph have been admitted, they become
common cause and the plainti need not prove them by leading evidence at the trial.
 Any fact that may be implied from the facts that have been admitted is also deemed to
have been admitted, unless specifically denied.
 Should the defendant fail to deal with any averment in the plainti ’s particulars of claim,
it will be deemed to have been admitted.
 Note that once an allegation has been admitted, it is extremely di icult for the
defendant to retract the admission.
 Should the defendant wish to do so, he will need to amend his plea.
 If the plainti does not consent to the amendment, the defendant will be obliged to
bring a formal application requesting the amendment.
 The court hearing the application is not likely to permit the amendment unless the
defendant can show that there was an error, and satisfy the court that the plainti will
not be prejudiced.
 The court ‘has a discretion but will require a reasonable explanation both of the
circumstances under which the admission was made and the reasons why the
defendant wishes to withdraw it’.

(ii)(2) Denial of facts:

Facts which are denied are placed in issue, and must be proved at the trial.

 For example, in a motor vehicle collision case, the averments in the plainti ’s
particulars of claim alleging that the defendant was negligent are almost always denied.
 Unless the defendant is able to show that no damages were su ered by the plainti ,
failure to deny negligence would mean that the defendant has failed to ‘disclose’ a
defence.

Note, however, that a bare denial is not allowed.

 What is meant by a ‘bare denial’ is explained below in our discussion of the plea of
confession and avoidance.
 At this point, note that it is necessary to be clear and definite when denying an
allegation.

(ii)(3) Confession and avoidance:

A plea of confession and avoidance is one in which the defendant admits (i.e. confesses) a
particular averment in the plainti ’s particulars of claim, but then sets out new facts which, if
proved, would justify or excuse the defendant’s admitted conduct (i.e. avoids).

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  For example, assume that a plainti alleges that a defendant assaulted him and broke
his nose. The defendant admits (confesses) that he punched the plainti and broke his
nose, but avers that he did so in self-defence (avoids or e ectively denies liability).
 If the new facts raised by the defendant are correct, it means that he is not liable for the
plainti ’s claim.
 Were the defendant simply to admit that he punched the plainti and broke his nose
without explaining that the punch was in self-defence, his subsequent denial of liability
for the plainti ’s damages would amount to a bare denial.

(ii)(4) Non-admission:

The fourth kind of plea is known as a plea of non-admission.

 It may only be used if, for some good reason, the defendant is unable to put forward one
of the other three pleas discussed above in response to a particular allegation in the
plainti ’s particulars of claim.
 Usually, this happens when the defendant simply does not know anything about the
particular allegation.
 An example of the kind of averment that would usually require this category of response
is the averment in a motor collision case that the plainti is the owner of the vehicle that
was damaged.
 This averment may well be true, but unless the defendant happens to know the plainti
personally, it is impossible for him to be sure whether or not the plainti is the owner.
 The defendant is quite entitled to plead non-admission and put the plainti to the proof
of this particular averment, which is essential to the plainti ’s case since it serves to
establish the plainti ’s locus standi.
 A plea of non-admission has the same e ect as a plea of denial.
 The only practical di erence between the two is that a plea of denial is a little more
emphatic than a plea of non-admission.
 Although the rule does not specifically provide for this, a reason for making a plea of
non-admission must be supplied.

(ii)(5) Counterclaim:

When a defendant has a counterclaim against the plainti , the defendant may refer to the
counterclaim in his plea, and request that the court postpone judgment on the plainti ’s claim
until the counterclaim has been adjudicated upon.

 It may happen that the defendant has no defence to the present claim, but a successful
counterclaim, if set o against the plainti ’s claim, will extinguish it at least in part, if not
entirely.
 If the counterclaim is for less than the plainti ’s claim and there is no other defence, the
court may give judgment against the defendant for the amount by which the claim
exceeds the counterclaim.
 This situation is provided for in rule 22(4) of the High Court Rules and rule 17(4) of the
Magistrates’ Courts Rules, and pleading a counterclaim is still permissible even if the
counterclaim is unliquidated.

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  The rule has been held to allow only for the situation where both claim and counterclaim
are heard in the same court.
 The court is given a discretion by the rule, however, and it would be unlikely to permit a
postponement in situations where the plainti would be unfairly prejudiced, such as a
defendant tenant attempting to stave o an ejectment with a totally unrelated
counterclaim.

(ii)(6) Alternative defence:

Occasionally, the defendant has two possible defences, but is not sure which to use.

 In such circumstances he may use both, provided he pleads in the alternative. In a case
claiming damages caused by negligent driving, for example, the defendant may deny
that he drove his car negligently.
 In the alternative, the defendant may plead that even if he is found to have been
negligent, the plainti was also negligent, and therefore a situation of contributory
negligence exists.
 Similarly, in answer to a claim for goods sold and delivered, a defendant may deny that
he has entered into a contract with the plainti (e.g. he may suspect that the plainti
was only an agent for the seller).
 He may plead in the alternative that the purchase price was paid.
 All conflicting pleas such as this must be pleaded in the alternative, otherwise they are
read together and considered to be vague and embarrassing and the plainti is able to
take an exception.
 Alternative pleas are not provided for in the rule, but are permitted nonetheless,
provided they are ‘necessary to meet the real justice of the case’.
 Drafting a plea in the alternative is a reasonably simple exercise.
 The first version will be pleaded, followed by the word ‘alternatively’ and then the
alternative version.
 Remember, however, that you may only plead contradictory versions of events if your
client is really not sure which version is correct.
 If your client knows full well that one of the versions of events is not correct and
instructs you to this e ect, you would be acting unethically if you were to assist him to
plead the incorrect version as an alternative to another version of the events.
 This would amount to assisting your client to lie to the court.
 In other words, contradicting versions may not be pleaded if your client is not bona fide
in respect of the allegations contained in the alternative versions.

(ii)(7) Tender:

This type of plea is discussed in the section on settlement and therefore will not be discussed
here.

To sum up, the way in which the defendant is required to respond to each and every material
fact in the plainti ’s particulars of claim is by giving one of the following answers:

1. ‘Yes’ (plea of admission);

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 2. ‘No’ (plea of denial);
3. ‘Yes, but’ (plea of confession and avoidance); or
4. ‘I’ve got no way of knowing – you prove it’ (plea of non-admission).

And in response to the particulars as a whole:

5. ‘You’ve got a claim, but so have I’ (pleading a counterclaim);

6. ‘This is my defence, alternatively, this is my defence’ (pleading in the alternative); or
7. ‘This matter has already been settled’ (pleading a tender).

(iii) Drafting a plea on the merits:

We noted above that High Court rule 18(3) and Magistrates’ Courts rule 6(3) require pleadings
(including, therefore, the particulars of claim and the plea) to be divided into consecutively
numbered paragraphs.

These paragraphs are merely ‘containers’ for the di erent allegations.

 Therefore, each paragraph will contain one or a number of allegations of fact.

 The first task of the defendant is to isolate116 the separate allegations contained in
each paragraph.
 After doing this, the next step is to decide how to respond to each of these allegations
(i.e. ‘Yes’, or ‘No’, or ‘Yes, but …’, or ‘I have no way of knowing, you prove it.’).
 Note that should the defendant decide to admit all the allegations contained in a
particular paragraph, the practice has developed merely to indicate in his plea that he
admits the entire paragraph.
 For the sake of accuracy, however, we suggest that even in such cases defendants state
that they admit ‘all the allegations’ contained in the paragraph.

(iii)(1) Drafting the di erent plea responses:

When drafting a plea, you simply respond (in one of the ways discussed above) to each
allegation contained in every paragraph of the plainti ’s particulars of claim or declaration.

For example, should the defendant wish to admit all the allegations contained in paragraph 1 of
the plainti ’s particulars of claim, it should be done as follows:

Ad para 1:

 The defendant admits all the allegations contained in this paragraph.

Ad para 2:

 The defendant denies all the allegations contained in this paragraph.

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Ad para 3:

 ‘The defendant admits the allegations contained in paragraph 3 of the particulars of

claim, but avers that …’ (here set out the additional facts which the plainti has omitted
and which show the matter in a di erent light).

Ad para 4:

 ‘The defendant has no knowledge of the allegations contained in paragraph 4 of the

particulars of claim, cannot admit or deny these allegations, and puts the plainti to the
proof thereof.’ (In this situation the ‘puts the plainti to the proof’ phrase should be
used.)

Once you have finished responding in one of these ways to the allegations in the plainti ’s
particulars of claim, you should end o your plea with a prayer. Your prayer might look like this:

 ‘WHEREFORE the defendant prays for judgment in his favour and the plainti ’s claim be
dismissed with costs.

(iii)(2) Dealing with all the plainti ’s allegations:

When you are drafting a plea, it is important to bear in mind the provisions of rule 22(3) of the
High Court Rules and rule 17(3) of the Magistrates’ Courts Rules:

 Every allegation of fact in the combined summons or declaration which is not stated in
the plea to be denied or admitted, shall be deemed to be admitted.

In other words, if you fail to deal with each and every fact in the particulars of claim or
declaration, you run the risk that certain facts which you ought to have denied will be deemed to
be admitted.

 Also bear in mind when drafting a plea, the need to avoid the so-called ‘negative
pregnant’.
 A negative pregnant is a negative expression which may imply or carry with it an
a irmative proposition.

(iii)(3) The consequences of not observing the rules when drafting pleas:

In terms of rule 22(5) of the High Court Rules and rule 17(6) of the Magistrates’ Courts Rules,
failure to comply with the provisions of the rules relating to pleas is deemed to be an irregular
step.

 These subsections therefore have a similar role to that of rule 18(12) of the High Court
Rules or rule 6(13) of the Magistrates’ Courts Rules in relation to particulars of claim.
 In such a case, the plainti is entitled to apply to court to have the plea set aside as an
irregular step in terms of rule 30(1) or rule 60A, respectively.

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(iii)(4) Material facts: avoiding bare denials:

Denials that do not comply with rule 22(2) of the High Court Rules, or rule 17(2) of the
Magistrates’ Courts Rules, are sometimes called bare denials. Both rules provide that:

c) Special pleas:

A special plea is a plea which raises a special defence and is directed at an underlying legal
problem in the plainti ’s case, rather than at the merits of the case.

 A special plea is procedural in character and either destroys or postpones the operation
of the plainti ’s cause of action.
 Those special pleas which postpone the operation of the plainti ’s cause of action are
called dilatory special pleas.
 Those special pleas which destroy the plainti ’s cause of action are called special pleas
in abatement.

(i) Dilatory special pleas:

(i)(1) Special plea of arbitration:

Many contracts contain a clause stating that the parties will submit any dispute arising out of
the contract to arbitration.

 If one of the parties to such a contract sues the other party to the contract without
submitting the matter to arbitration, the party who is being sued may raise a special plea
of arbitration.

In other words, what the party raising the special plea is saying is: ‘You cannot sue me yet. First,
you must take the matter to arbitration in accordance with our agreement.’

 The requirements for the court to grant a stay in the action are, firstly, that the issue falls
within the scope of issues required to be submitted to arbitration in terms of the
agreement, and secondly, that the legal validity or existence of the contract is neither in
issue nor the subject of the dispute.

(i)(2) Special plea of lis pendens:

A special plea of lis pendens may be raised in order to stay a particular action on the grounds
that another action is already pending between the same parties, based on the same cause of
action, in respect of the same subject matter.

 In other words, what the party raising this special plea is saying is: ‘You cannot sue me
for this.
 You are already suing me for the same reason regarding the same thing.’
 The pending action may be in the same or in a di erent court.

Whether or not the same cause of action exists is decided by examining the pleadings as
opposed to the evidence in both matters.

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  In most respects this plea is similar to the special plea of res judicata discussed below,
except that in the case of a special plea of lis pendens the matter is still pending in both
courts, whereas in the case of a special plea of res judicata the matter has already been
finalised and is then brought before court again.
 In the case of a special plea of lis pendens, the court has the discretion to stay the
proceedings.

(ii)(3) Special plea of premature summons:

When a summons is issued before the cause of action is complete, the defendant may raise a
special plea objecting to the premature summons.134 For example, a contract may stipulate
that notice of breach is required before action may be instituted for breach of the contract.
Should a plainti issue summons for breach of contract before giving notice of breach, his
summons will be premature. The failure of a plainti to deliver a notice under s 129(1) of the
National Credit Act135 prior to issue of summons, would also be susceptible to a special plea
of premature summons.136 Another example of a premature summons would be one which is
issued at the instance of a director of a company before a special resolution has been passed
authorising the action.

(ii) Special pleas in abatement:

(ii)(1) Special plea of prescription:

Every cause of action must be prosecuted within a certain period of time, failing which it will
prescribe.

 Should the matter prescribe, the defendant will not be legally liable, even if all the
plainti ’s allegations about the defendant’s conduct are true.
 If the plainti institutes an action after his claim has prescribed, the defendant should
raise a special plea of extinctive prescription.
 A special plea of prescription may be raised at any time and not only before litis
contestatio.
 However, prescription as an issue may only be raised by the parties and not by the court
meru motu (of its own accord).

Periods of prescription vary from case to case. It is therefore crucial for any attorney or advocate
dealing with litigation matters to possess a good knowledge of the di erent periods of
prescription.

 Prescription is every attorney’s nightmare.

 Claims arising out of matters which have been allowed to prescribe comprise a high
percentage of claims for professional negligence against attorneys.
 The first question an attorney should ask himself on being consulted by a client with a
new matter is precisely when his client’s claim is due to prescribe.
 The prescription date should be written in bold red letters on the front of the file.
 As a professional, an attorney has no excuse if he allows his client’s claim to prescribe
due to ignorance of the relevant legislation.

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The periods of extinctive prescription for various debts (i.e. the periods after which the recovery
of such debts can no longer be legally enforced) are set out in s 11 of the Prescription Act.

8. For most debts, the period of prescription is three years. Section 11(d) provides that,
except where an Act of Parliament specifically provides otherwise, the period of
prescription of any debt not specifically mentioned in s 11 is three years.
9. In terms of s 11(c), if the debt arises from a bill of exchange (such as a cheque) or other
negotiable instrument or from a notarial contract, the period of prescription is six years,
unless a longer period applies in respect of the debt in question in terms of paragraphs
(a) and (b) of s 11 discussed below.
10. In terms of s 11(b) the period of prescription is 15 years in respect of any debt owed to
the state and arising out of an advance or loan of money or a sale or lease of land by the
state to the debtor, unless a longer period applies in respect of the debt in question in
terms of paragraph (a) of s 11 discussed below.
11. In terms of s 11(a), the period of prescription is 30 years in respect of any debt secured
by mortgage bond, any judgment debt,146 any debt in respect of any taxation imposed
or levied by or under any law, any debt owed to the state in respect of any share of the
profits, royalties or any similar consideration payable in respect of the right to mine
minerals or other substances.

Section 12 of the Prescription Act sets out when the period of prescription begins to run.

 Usually, it will begin to run ‘as soon as the debt is due’.

 A debt is not deemed to be due until the creditor has knowledge of the identity of the
debtor, and of the facts from which the debt arose.
 In certain cases, the debtor may wilfully prevent the creditor from becoming aware of
the existence of the debt.
 In such cases, prescription will only begin to run when the creditor becomes aware of
the existence of the debt.
 Note also that the creditor must have actual awareness of the debt or at least a justified
belief in its existence which can be inferred from the surrounding circumstances.
 An unsupported belief or a suspicion, even if it happens to be correct, is insu icient to
allow prescription to commence.

In terms of s 13 of the Prescription Act, the running of prescription may be delayed where:

1. the creditor is a minor (now a person younger than 18), or is insane, or is a person under
curatorship, or is prevented by superior force including any law or any order of court
from interrupting the running of prescription by the service of process on the debtor;
2. the debtor is outside the Republic;
3. the debtor and creditor are married to each other;
4. the debtor and the creditor are partners and the debt is a debt which arose out of the
partnership relationship;
5. the creditor is a juristic person and the debtor is a member of the governing body of such
juristic person;
6. the debt is the object of a dispute subjected to arbitration;
7. the debt is the object of a claim filed against the estate of a debtor who is deceased or
against the insolvent estate of the debtor or against a company in liquidation or against
an applicant under the Agricultural Credit Act 28 of 1966; and

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 8. The creditor or the debtor is deceased and an executor of the estate in question has not
yet been appointed.

(ii)(2) Special plea of misjoinder or non-joinder:

A special plea of misjoinder may be raised where a party who should not have been joined161 to
an action, has been joined.

 For example, Mr Sipho Zulu who stays at 23 Kudu Lane, Durban, is cited as the
defendant in an action for damages resulting from a motor vehicle collision, but knows
absolutely nothing about the collision in question.
 There is another person by the name of ‘Sipho Zulu’ who stays at 32 Kudu Lane, Durban,
and it transpires that it is that Mr Sipho Zulu who should have been sued.
 The first Mr Sipho Zulu is entitled to raise a special plea of misjoinder.

A special plea of non-joinder may be raised where a party who should have been joined in an
action, has not been joined to the action.

 If a person has a direct and substantial interest in the matter, or if the order the court is
being asked to make is likely to prejudice somebody, then that person must be joined.
 Persons in this category would include co-owners, joint contractors and partners.
 Where such a plea is upheld, the action is not dismissed but is stayed until the proper
party has been joined.

(ii)(3) Special plea of res judicata:

A special plea of res judicata may be raised if the defendant is able to show that the point in
dispute has been adjudicated upon already between the parties.

 In other words, the plainti ’s claim has been heard previously by a court that has given a
final judgment in the matter.
 The previous court is functus o icio and cannot hear the matter again.
 If the plainti is unhappy with the previous court’s decision, his remedy is either to take
the matter on appeal or on review, not merely to begin a fresh action in the same or in
some other court.
 A matter is res judicata if a competent court has previously reached a final judgment in a
matter based on the same cause of action and involving the same parties.
 What this amounts to is that the order granted in the previous hearing must be final and
definitive of the issues raised by the same parties in the current matter.
 This is ascertained by examining the pleadings as opposed to the evidence led at the
previous hearing.
 When considering what constitutes the same cause of action for the purpose of res
judicata, issues that ought to have been raised in earlier proceedings, but were not
raised, are also included.
 Parties are required to bring their full case, this requirement being known as the ‘once
and for all’ rule.

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(ii)(4) Special plea to jurisdiction:

If the plainti brings an action in a court which lacks jurisdiction, the defendant may raise a
special plea of lack of jurisdiction.

(ii)(5) Special plea of non-locus standi in judicio:

If the plainti brings an action and lacks a real and substantial interest in the matter, i.e. locus
standi, or does not establish locus standi under the extended grounds in s 38 of the
Constitution, the defendant may raise a special plea of non-locus standi in judicio.

(iv) Drafting a special plea:

A special plea is usually raised at the start of the defendant’s plea in a separate section with the
heading ‘Defendant’s Special Plea’.

 A simple statement follows to the e ect that the defendant is raising a particular special
plea.
 Thereafter, the facts upon which that special plea is based are set out.

For example, a special plea of prescription may contain the following:

12. The date upon which the plainti became aware, or ought reasonably to have become
aware, of the facts upon which his cause of action is based;
13. The date on which the summons was served on the defendant;
14. The period of extinctive prescription applicable to the claim in question;
15. The fact that the plainti ’s claim had prescribed by the time the summons was served
on the defendant; and
16. A request for judgment against the plainti with costs.

In response to such a plea, the plainti could argue perhaps that the dates alleged by the
defendant were wrong; or that the plainti could not reasonably have been expected to be
aware of the facts upon which his cause of action was based on the date alleged by the
defendant; or that the running of prescription was somehow interrupted.

(v) Separate hearings for special pleas:

Whilst there is no longer provision in the Magistrates’ Court Rules for a separate hearing at
which the matter might be resolved without the need for an expensive and time-consuming trial
on the merits, the parties may make use of a section 54 pre-trial conference in order to raise the
prospect of a separate hearing at which a special plea can be adjudicated.

 At the pre-trial conference the magistrate may use the powers a orded by s 54(1)(e) or
alternatively, by rule 1(3), to order such a hearing.

2. Counterclaims:

A counterclaim is a claim brought by the defendant against the plainti .

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  You may think of a counterclaim as a separate action which, for the sake of
convenience, runs together with the existing action.
 The plainti ’s claim is referred to as the claim in convention and the defendant’s
counterclaim as the claim in reconvention.
 All the normal rules for drafting particulars of claim apply to counterclaims.
 The same time limits apply to counterclaims as to particulars of claim, but there is no
need for the plainti to enter an appearance to defend in respect of the counterclaim.
 Summary judgment (which is discussed in detail later in the book) cannot be obtained in
respect of a counterclaim.

The counterclaim may be linked to the plainti ’s claim in the sense that it arises out of a set of
related facts, but this need not necessarily be the case.

 Assume, for example, that the plainti sues the defendant for the price of goods sold
and delivered.
 The defendant counterclaims on the grounds that the goods delivered to him were
defective and caused damage to the machinery in his factory.
 In this case, a link exists between the claim and the counterclaim.
 However, the counterclaim may be completely unconnected to the transaction which
gave rise to the plainti ’s claim.
 For example, the defendant may allege that he was assaulted by the plainti because of
a personal dispute between them.
 In either case, it makes sense for the claim and the counterclaim to be dealt with at the
same time.

a) Procedure:

Magistrates’ Courts rule 20 is based on High Court rule 24.

 In terms of High Court rule 24(1) and Magistrates’ Courts rule 20(1), the defendant must
deliver his counterclaim to the plainti together with the plea to the plainti ’s claim in
convention (i.e. the plainti ’s claim as set out in his particulars of claim or declaration).
 If the defendant does not deliver his claim in reconvention together with his plea, the
rule provides that the plainti may consent to it being delivered at a later stage.
 If the plainti refuses to consent to late delivery of the counterclaim, the court may be
requested to allow it.

The counterclaim itself should be set out in all respects like a set of particulars of claim, and
must give particulars of all the material facts of the claim in compliance with the rules that
pertain to particulars of claim.

 The claim in reconvention may either be set out in a separate document, or else
included in a separate section of the plea which is headed ‘Claim in Reconvention’.

It is not necessary to cite the parties in full in the claim in reconvention.

 Instead, the first paragraph of the claim in reconvention may simply state that the
plainti in reconvention is the defendant in convention, that the defendant in

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 reconvention is the plainti in convention, and that for the sake of convenience the
parties are referred to as before.
 In other words, the plainti in convention remains the ‘plainti ’ and the defendant in
convention remains the ‘defendant’, even for purposes of the claim in reconvention.

Provided that it is based on the same transaction, the defendant’s claim in reconvention will
often be based on many of the same averments that are set out in the plainti ’s particulars of
claim or declaration.

 In such a case, it is not necessary to repeat all these allegations in the counterclaim.
 The allegations to be repeated may simply be incorporated into the counterclaim by
reference to the relevant paragraphs in the particulars of claim or declaration.

b) Counterclaims in the Magistrates’ Courts:

Counterclaims in the Magistrates’ Courts are dealt with by Magistrates’ Courts rule 20, which is
almost exactly the same as the corresponding rule 24 of the High Court Rules, except for
special provision made in rule 20(5)–(7) for a situation in which the defendant’s counterclaim
exceeds the jurisdiction of the Magistrates’ Courts.

A defendant in an action in the Magistrates’ Courts who wishes to bring a counterclaim which
exceeds the jurisdiction of the Magistrates’ Courts should apply to the court in terms of
Magistrates’ Courts rule 20(5):

17. to declare that the counterclaim exceeds its jurisdiction; and

18. to stay the action under s 47 of the Magistrates’ Courts Act.

Notice of the application may be delivered together with the counterclaim, or within five days
after the counterclaim has been delivered.

 If the court is satisfied prima facie that the defendant has a reasonable prospect of
obtaining a judgment on his counterclaim in excess of its jurisdiction, it will stay the
action in the Magistrates’ Courts for a reasonable period.
 This will enable the defendant to institute action for the amount of his counterclaim in
the High Court.
 Once the defendant institutes action in the High Court, the plainti is entitled to
counterclaim in the High Court for the amount of his claim in the original Magistrates’
Courts action.
 In other words, the claim and counterclaim in the Magistrates’ Courts will be dealt with
in the High Court, the only di erence being that the defendant will become the plainti ,
the claim will become the counterclaim, and vice versa.
 Various mechanisms are set out to prevent defendants delaying matters by not
proceeding with the High Court action.

Step 4: Replication (and possible subsequent steps):

1. Replication:

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Courts rule 21 is virtually the same as rule 25 of the High Court Rules and the procedure for
replication in both courts is the same.

 Generally speaking, a replication is only necessary if the defendant has raised new
averments in his plea, which the plainti cannot allow to go unchallenged.
 Usually, such new averments will be made by the defendant as part of a plea of
confession and avoidance, in which the defendant admits certain of the plainti ’s
averments, but makes further (new) averments which show the plainti ’s original
averments in a di erent light.
 It may then be necessary for the plainti to counter the new averments made by the
defendant with further averments of his own, which will be contained in his replication.
 In the majority of cases in practice, a replication is not necessary since the defendant
either admits or denies the di erent allegations made by the plainti , and does not raise
new averments which require a response on the part of the plainti .
 It is important to note that the plainti may only plead such fresh facts in his replication
as are called for by the defendant’s plea.
 The plainti may not, for example, use his replication as an excuse to introduce a new
cause of action or to increase the size of his claim.
 This kind of replication or reply is known as departure and the defendant may bring an
application to strike out the replication or except to the replication.
 The plainti may respond to the defendant’s plea by means of a replication.
 Magistrates’ Courts rule 21 is virtually the same as rule 25 of the High Court Rules and
the procedure for replication in both courts is the same.
 Generally speaking, a replication is only necessary if the defendant has raised new
averments in his plea, which the plainti cannot allow to go unchallenged.
 Usually, such new averments will be made by the defendant as part of a plea of
confession and avoidance, in which the defendant admits certain of the plainti ’s
averments, but makes further (new) averments which show the plainti ’s original
averments in a di erent light.
 It may then be necessary for the plainti to counter the new averments made by the
defendant with further averments of his own, which will be contained in his replication.
 In the majority of cases in practice, a replication is not necessary since the defendant
either admits or denies the di erent allegations made by the plainti , and does not raise
new averments which require a response on the part of the plainti .

It is important to note that the plainti may only plead such fresh facts in his replication as are
called for by the defendant’s plea.

 The plainti may not, for example, use his replication as an excuse to introduce a new
cause of action or to increase the size of his claim.
 This kind of replication or reply is known as departure and the defendant may bring an
application to strike out the replication or except to the replication.
 In terms of High Court rule 25(1) and Magistrates’ Courts rule 21(1), the plainti must
deliver the replication to the defendant within 15 court days after receiving the
defendant’s plea.
 In terms of rule 26 of the High Court Rules, if he does not do so, he will be barred and
may not do so later. While previously there was no equivalent in the Magistrates’ Court

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 Rules for the automatic barring of late pleadings, new rule 21B now makes provision for
a notice of bar in respect of all pleadings.

2. Possible steps after replication:

In some cases it may be necessary for the defendant to file a rejoinder to the plainti ’s
replication, and then for the plainti to file a surrejoinder to the defendant’s rejoinder.

 The defendant may then file a rebutter to the plainti ’s surrejoinder, and the plainti
may reply with a surrebutter to the defendant’s rebutter.
 It is only when new averments are made in the previous pleading that it is necessary to
respond by means of any of the above pleadings.
 In practice, therefore, it is only in exceptional cases that it is necessary to file rejoinders,
surrejoinders, rebutters and surrebutters.
 As each pleading is filed, it becomes increasingly unlikely that fresh issues will emerge
to which the opposite party is required to respond.
 The result is that while replications and replies are infrequent in practice, rejoinders,
surrejoinders, rebutters and surrebutters are rare in the extreme.

Step 5: Close of pleadings (litis contestatio):

In general terms, it may be said that the purpose of pleadings is to define the issues in dispute.

 Once the issues in dispute have been defined, the pleadings close.
 After that the preparations for the trial begin.

The exact time at which the pleadings close is important because this is the moment of litis
contestatio – in other words, the moment when issue is joined between the parties.

 The e ect of litis contestatio is to freeze the plainti ’s rights at that moment.
 For example, if a plainti who is claiming non-pecuniary damages for pain and su ering,
loss of amenities of life and disfigurement happens to die before litis contestatio, his
claims die with him. If he dies after litis contestatio, however, these claims are
transmitted to his estate.

A recent judicial decision appears to have unsettled this rule.

 In the precedent-setting decision of Nkala and Others v Harmony Gold Mining

Company Limited and Others, the claimants sought (and were granted) certification of
two classes of plainti to pursue a class action against certain South African mining
houses.
 In addition to certification, the claimants sought a declaration that any claim for general
damages brought by a claimant against the mining companies would be transmissible
to his estate should he die before the litigation reaches the stage of litis contestation.
 The concern arose in as much as a number of the claimants were terminally ill and a
possibility existed that they would not survive to the stage of litis contestatio.
 The Gauteng Local Division, Johannesburg, held that the law which prohibits the
transmissibility of general damages pre-litis contestatio fails to reflect the boni mores of

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 society, failed to protect the claimant’s constitutional rights to bodily integrity, and
required development in the light of the spirit, purport and objects of the Constitution.

The court accordingly held that the common law should be developed as follows:

1. A plainti who had commenced suing for general damages but who has died (from
whatever cause) before his claim has reached the stage of litis contestatio, will be
entitled to continue with such action notwithstanding his death;
2. Such action shall be for the benefit of the estate of the person;
3. The development is not restricted to class actions only, but all applies to claims.

It remains to be seen whether this aspect of litis contestation will continue to have a place in
South African law after this judgment.

Currently, High Court rule 29 and Magistrates’ Courts rule 21A set out the following instances in
which pleadings shall be considered closed:

1. If either party has joined issue without alleging any new matter, and without adding any
further pleading;
2. If the last day allowed for filing a replication or subsequent pleading has elapsed and it
has not been filed;
3. If the parties agree in writing that the pleadings are closed and such agreement is filed
with the registrar; or
4. If the parties are unable to agree as to the close of pleadings, and the court, upon the
application of a party, declares them closed.

Possible extra steps: further particulars and declarations:

1. Requests for further particulars:

Further particulars for the purpose of pleadings are no longer permitted in the High Court or
Magistrates’ Courts.

 To compensate for the abolition of further particulars at the pleadings stage, the scope
of High Court rule 18 (relating to pleadings generally) was expanded and Magistrates’
Courts rule 6 transformed to resemble closely High Court rule 18.
 Rule 18(4) provides that, from the outset, all pleadings must contain ‘su icient
particularity to enable the opposite party to reply thereto’.
 The Magistrates’ Courts rule 6(4) has exactly the same provision.
 In theory at least, this together with the other provisions of rules 18 and 6 discussed
earlier, removes the need for further particulars at the pleadings stage.
 Failure to observe rule 18 or rule 6 is deemed to be an irregular step in terms of rule 30 or
rule 60A of the High Court and Magistrates’ Courts Rules, respectively, a remedy which
is explained in more detail later.

a) High Court rule 35(12) and Magistrates’ Courts rule 23(13):

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Usually, access to documents, computer disks, tape recordings and so on, that are relevant to
the case and in the possession of the opposing party, may only be obtained after close of
pleadings, as part of a discovery procedure, which is discussed later as part of the pre-trial
procedures.

 Rule 35(12) of the High Court Rules and 23(13) of the Magistrates’ Courts Rules,
however, allow for the inspection and copying of documents or ‘tape recordings’ (which
has been interpreted to include anything on which information may be recorded)208
that have been referred to in the other party’s pleadings (or a idavits in the case of an
application).
 It is not necessary to wait until the close of pleadings to demand inspection of
documents or ‘tape recordings’ (hereafter taken to refer to its extended meaning) which
the other party has mentioned in his pleadings or a idavits.
 From the time a party receives a pleading that includes mention of a document or ‘tape
recording’, the party is entitled to inspect that document or ‘tape recording’ and make a
copy or transcription.
 He must request inspection by serving a notice drafted in accordance with High Court
Form 15 or Magistrates’ Courts Form 15B.
 Note that the rule does not restrict the documents or ‘tape recordings’ that may be
inspected to those ‘upon which the action is founded’ as previously was the case under
the former Magistrates’ Courts rule 15.
 Mere mention in the pleading is su icient to entitle the opposing side to inspect the
documents or ‘tape recordings’.
 However, only relevant documents or ‘tape recordings’ which are not subject to privilege
may be inspected.
 Documents or tape recordings which are not in the opposing party’s possession are
subject also to High Court rule 35(12) or Magistrates’ Courts rule 23(13), but these rules
will not be enforced where the opposing party is unable to obtain them.
 The rule applies not only to pleadings, but also to a idavits used in procedures which
may form part of an action, such as the summary judgment procedure discussed later.
 The rule applies also to documents referred to in documents annexed to a idavits.
 Although rules 35 and 23 are applicable to applications as well as actions, the
application of the rule to applications is not automatic and requires a prior direction
from the court in terms of rule 35(13) of the High Court Rules and rule 23(14) of the
Magistrates’ Courts Rules.

b) High Court rule 35(14) and Magistrates’ Courts rule 23(15):

Once an appearance to defend has been entered, High Court rule 35(14) and Magistrates’
Courts rule 23(15) allow any party to an action to require another party to the action to make
available for inspection a clearly specified document or ‘tape recording’ (meaning anything on
which information can be recorded) for the purposes of pleading.

 Although the document or ‘tape recording’ to be obtained in terms of rule 35(14) or

23(15) need not have been referred to in the pleadings of the opposing party (as is
required by rule 35(12) and 23(13) discussed above), it must nevertheless be a specific

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 document or ‘tape recording’ which the party making use of this procedure is able to
identify clearly.
 A vague request for a general class of documents is not permitted in terms of rule 35(14)
or 23(15).
 Note further that in terms of rule 35(14) or 23(15), the document or ‘tape recording’ must
be relevant ‘to a reasonably anticipated issue in the action’.
 The purpose of the rule is presumably to ensure that a party is in a position to reply to
pleadings, which is why it does not open the door to general discovery at this stage of
the proceedings.
 A defendant may not use rule 35(14) or 23(15) in order to gather information needed to
decide whether he has a cause of action for a counterclaim or ‘go on a fishing
expedition’, so to speak.
 In terms of rule 35(14) or 23(15), the document or ‘tape recording’ requested must be
provided within five days after a notice in terms of the rule has been delivered to the
other party.

2. Declarations:

A declaration is only necessary in actions in which a simple summons has been used.

 As explained earlier in our discussion of the di erent types of summons, a simple

summons contains only a brief summary of the particulars of claim within the body of
the summons itself.
 This is perfectly adequate for the majority of cases in which such a summons is used.
 On balance, most such cases are ‘open and shut’ and, for this reason, are not defended.
 A di iculty arises, however, with those cases that are defended, because the simple
summons is not governed by rule 18 of the High Court Rules or the corresponding rule 6
of the Magistrates’ Courts Rules and therefore lacks the detail required in terms of rules
18 and 6.
 Although a simple summons sets out the plainti ’s cause of action, it does so in concise
terms, which means that the defendant often lacks su icient detail to formulate his
plea in response to the abbreviated particulars of claim.

Rule 20 of the High Court Rules and the rule 15 of the Magistrates’ Courts Rules solve this
problem.

 It provides that once the defendant delivers a notice of intention to defend in response
to a simple summons, the plainti must deliver a declaration to the defendant within 15
court days of receiving the defendant’s notice of intention to defend.

In e ect, the declaration is the plainti ’s particulars of claim since it is identical in substance to
the particulars of claim a plainti would attach to a combined summons.

 The contents of the declaration must comply with the same requirements as the
particulars of claim, particularly with regard to rules 18(4) and 6(4) of the High Court and
Magistrates’ Courts, respectively.
 When it comes to drafting the declaration, however, the plainti must ensure that there
is no material variance between the abbreviated claim as set out in the summons itself,
and the claim as set out in the declaration.

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In respect of form, the declaration di ers only slightly from the particulars attached to a
combined summons.

 It has its own heading and case details conforming to those used for all the other
pleadings in the action.
 It is described as the plainti ’s declaration between the ‘tramlines’ and it starts with a
full and proper citation of the parties.
 The plainti ’s cause of action is set out in the same way as it would be in normal
particulars of claim, and ends with a prayer in the usual manner.

LO5: Analyse the responses to defective pleadings and non – compliance with the rules,
namely:

 Exception.
 Application to strike – out.
 Application to set aside an irregular step.
 Enforcing compliance and condoning non – compliance.
 Amendment of pleadings.

Response 1: Exception:

Exceptions are dealt with in terms of rule 23(1) of the High Court Rules and rule 19(1) of the
Magistrates’ Courts Rules, both rules being virtually identical in all material respects.

An exception is a legal objection to a pleading, the objection being that the pleading as it stands
is not legally valid for its purpose.

 It follows that if an exception is to be used, the defect should be apparent ex facie the
document, i.e. obvious from reading the pleading itself without recourse to external
evidence.
 Where the fault in a pleading is apparent ex facie the pleading, the pleading is said to be
excipiable.
 The party who brings the exception is known as the excipient.
 If an exception is brought where the defect in the pleading is not apparent ex facie the
pleading, the exception itself will be bad.

1. The two major grounds for taking an exception:

There are two major grounds for taking an exception against a pleading:

1. The pleading fails to disclose a cause of action or defence.

2. The pleading is vague and embarrassing.

a) Failure to disclose a cause of action or defence:

Since the purpose of a pleading is to define the pleader’s case, failure to disclose or reveal a
cause of action (in your particulars of claim if you are the plainti ) or defence (in your plea if you
are the defendant) is the most serious fault which may be found in a pleading.

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  When bringing an exception, the truth of each of the allegations contained in the
pleading concerned is not questioned.
 Even if the allegations are correct, however, the pleading may be held to be excipiable
on the basis that no claim or defence exists in law.
 This means that even if evidence were led su icient to prove the facts set out in the
pleading, no cause of action or defence would be disclosed.

The plainti ’s particulars of claim should contain averments alleging all the material facts
necessary to give rise to an enforceable claim, failing which the summons is excipiable.

 Similarly, the defendant’s plea must set out all the material facts necessary to raise a
defence to the plainti ’s cause of action, failing which the plea is excipiable.
 The material facts (facta probanda) necessary to give rise to an enforceable claim or
raise a defence (as the case may be) depend upon the nature of the particular claim
involved.
 What constitutes the facta probanda in a particular case is a question of substantive
law.
 For example, a claim for damages arising out of a motor vehicle collision is delictual in
nature and is based on the Lex Aquilia.
 The various essential elements that need to be proven in order to sustain a claim under
the Lex Aquilia are conduct; unlawfulness; fault (either in the form of negligence, i.e.
culpa, or intention, i.e. dolus); causation; and damages.
 Failure to allege any one of these elements will render the plainti ’s particulars of claim
excipiable.
 Occasionally, the courts have been prepared to draw an inference from the pleadings
and accept that a necessary averment is implied.
 Note, however, that there is a limit to what the courts are prepared to read into a
pleading.

b) Vague and embarrassing:

A pleading may disclose a cause of action or defence, but may have been drafted in such a way
that the pleading is ambiguous or lacks clarity.

 To constitute su icient grounds for an exception, the vagueness of the pleading must be
such that it will result in prejudice or ‘embarrassment’ to the opposing side if it is
allowed to persist.
 An exception based on the grounds that the particulars of claim in a specific case are
vague and embarrassing, ‘strikes at the formulation of the cause of action and not its
validity’.
 For this reason, the consequences that flow from this particular defect in pleadings are
less serious than a failure to disclose a cause of action or defence, as discussed above.

Generally, pleadings are vague and embarrassing if they are unclear and ambiguous to the
extent that the opposing party is uncertain of the case he is required to meet.

a) Lack of clarity, or ambiguity: A pleading is vague where a material allegation is unclear,

meaningless or ambiguous in that it is capable of more than one meaning.

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 b) The omission of material facts: Pleadings will be vague and embarrassing where
material facts have been omitted, with the result that the claim or defence is rendered
unclear in a material respect.
c) Contradictions in the pleadings: Contradictions may result in vagueness and
embarrassment in several situations.

2. The prejudice requirement:

An exception may not be taken unless the excipient will be prejudiced if the pleading is allowed
to stand.

 The reason for requiring prejudice is to prevent parties from taking technical objections
without real substance.
 Since prejudice is a requirement at common law, there is no specific mention of
prejudice in the rules.
 Essentially, prejudice constitutes the embarrassment element of a pleading that is
vague and embarrassing.
 For this reason it is insu icient that a pleading merely be vague; it must be vague to the
extent that it is embarrassing (or prejudicial) before it is possible to raise an exception
against it.
 Prejudice exists when the excipient is unable to meet his opponent’s case properly due
to the vagueness of the pleading.
 In the case of pleadings that fail to disclose a cause of action or defence, the
requirement of prejudice is satisfied by the fact that a vital element is missing from the
pleading.

3. Procedure for lodging an exception:

a) The procedure in general:

The procedure for bringing an exception is identical in the High Court and the Magistrates’
Courts.

 The citation is similar to other pleadings or notices. The words ‘Exception to the
Plainti ’s Particulars of Claim,’ (or ‘Defendant’s Plea’, as the case may be) are inserted
between the ‘tramlines’.
 The main body of the exception should clearly and concisely state the grounds upon
which the exception is founded.
 It must be signed by counsel and an attorney in the High Court, and an attorney in the
Magistrates’ Courts (or by the party who is excepting, in person) and it must end with a
prayer for relief.

b) Time periods:

An exception must be delivered ‘within the period allowed for filing any subsequent pleading’.

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  Therefore, the defendant must except to the plainti ’s particulars of claim within the
time allowed for the filing of his plea, and the plainti must except to the defendant’s
plea within the time allowed for his replication to the plea.
 It is not necessary, in addition to delivering the exception, to deliver the normal pleading
which the excipient would have had to deliver if he were not excepting.

c) Notice:

An exception based on the grounds that the pleading lacks the averments needed to sustain a
cause of action or defence may be delivered without any preliminary steps.

 Where the exception is based on the grounds that the pleading is vague and
embarrassing, however, the excipient must give the opposing party an opportunity to
remove the cause of the embarrassment before delivering the exception.
 The reason for this is to avoid the taking of exceptions in purely technical situations or in
respect of pleadings that merely lack clarity.
 The opportunity to remove the defect is provided by the excipient serving a written
notice on the opposing party.
 The notice must set out clearly the cause of complaint, giving the opposing party 15
court days to remove the cause of the complaint, and informing him that an exception
will be taken if he fails to do so.
 The opposing party may remove the cause of complaint by amending his pleading.
 If he fails to do so, the excipient must deliver the exception within 10 court days from the
date on which the opposing party either replies to the notice, or within 10 court days
from the expiry of the 15-day grace period.

4. The hearing:

An exception is set down for hearing as an application on the opposed roll.

 Within five days after delivery of the exception, the excipient should apply to the registrar
for a date for the hearing.
 A court may defer the hearing of the exception until the trial.
 As the fault that gives rise to the exception must be apparent ex facie the pleading, no
evidence may be heard at such a hearing.
 The excipient may not raise an issue that has not been set out in the particulars of the
exception, or in the notice required in respect of those exceptions based on the grounds
that the pleading complained of is vague and embarrassing.
 The onus is on the excipient to show that the pleading is excipiable.

5. The consequences of failing to lodge an exception:

Every litigant has a duty to take the most expeditious course to bring the litigation to finality.

 The prime purpose of an exception is to dispose of a matter as quickly and cheaply as

possible.

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  Should a party fail to take exception to a pleading which is clearly excipiable, and the
matter subsequently goes to trial, the court may hold that he is not entitled to his costs,
even though he was successful at the trial.

6. The consequences of a successful exception:

If the exception is successful, then the pleading which was the subject of the exception is
disposed of.

 This does not mean, however, that the action or defence of the other side is also
disposed of.
 The court will usually grant the opposing party leave to amend the particular pleading.
 If that party fails to do so, then the excipient may apply to court for judgment.
 If, at the initial hearing of the exception, the court finds that there is no basis in law for
the claim or the defence, it will not be possible to amend the pleading and the matter
will end at this stage.

7. The overlap between exception and special plea:

Occasionally, the circumstances that give rise to an exception overlap with those that give rise
to a special plea.

 In these circumstances, the potential excipient may choose between raising a special
plea or an exception.
 For example, this may occur where a plainti fails to establish his locus standi in the
particulars of claim by failing to allege his interest in the matter.
 In a motor vehicle collision case, for instance, the plainti must allege that he is the
owner of the vehicle in respect of which damages are being claimed.
 Should he fail to make this averment, the defendant may raise either a special plea of
non-locus standi in judicio or an exception on the grounds of failure to disclose a cause
of action.
 Note, however, that an overlap between the two procedures will only exist where the
fault is apparent from the pleading itself.
 If the fault is not apparent ex facie the pleading, there is no option but to raise a special
plea.

Response 2: Application to strike out:

The second type of procedure that may be used to attack defective pleadings is an application
to strike out.

 This procedure provides for an o ending averment to be deleted or erased from the
pleading in question.
 Applications to strike out are dealt with in terms of rule 23(2) of the High Court Rules and
rule 19(2) of the Magistrates’ Courts Rules. Rule 19(2) of the Magistrates’ Courts Rules is

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 based on the corresponding rule 23(2) of the High Court Rules, both rules being virtually
identical in all material respects.

Both rules read as follows:

 Where any pleading contains averments which are scandalous, vexatious, or irrelevant,
the opposite party may, within the period allowed for filing any subsequent pleading,
apply for the striking out of the matter aforesaid, and may set such application down for
hearing …, but the court shall not grant the same unless it is satisfied that the applicant
will be prejudiced in the conduct of his claim or defence if it be not granted.

In other words, there are two requirements for an application to strike out:

1. The o ending pleading contains statements which are scandalous, vexatious, or

irrelevant.
2. The applicant will be prejudiced in the conduct of his claim or defence if the o ending
statements are not struck out.

As far as the first requirement is concerned, matter which may be struck out has been defined
as follows:

1. Scandalous matter: Allegations that may or may not be relevant, but that are worded
so as to be abusive or defamatory.
2. Vexatious matter: Allegations that may or may not be relevant but are worded so as to
convey an intention to harass or annoy.
3. Irrelevant matter: Allegations that do not apply to the matter in hand and do not
contribute in any way to a decision regarding the matter.

Note, however, that the meaning of ‘irrelevant’ in this context is limited to matter that is
irrelevant to the pleadings, rather than matter that is irrelevant to the case as a whole.

Response 3: Application to set aside an irregular step:

An irregular step may be set aside in terms of High Court rule 30 and rule 60A of the Magistrates’
Courts Rules.

 A ‘step’ in the context of these rules is one that advances the proceedings one stage
nearer to completion.
 An irregular step is a step that is in some way defective.
 Examples include the failure to serve summons properly; premature set down; failure to
give reasons for urgency in an urgent application; or the use of a simple summons
instead of a combined summons for a damages claim.

Failure to comply with rule 18 of the High Court Rules and rule 6 of the Magistrates’ Courts
Rules (which regulate pleadings generally) or with rule 22(2) or (3) of the High Court Rules and
rule 17(2), (3) or (5) of the Magistrates’ Courts Rules (which regulate the substantive content of
pleas), is deemed to be an irregular step.

 Rule 18(4) of the High Court Rules and 6(4) of the Magistrates’ Courts Rules are general
provisions that require all pleadings to contain su icient particularity to enable the
opposing party to reply.

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  Failure to adhere to this rule may be met with an application in terms of rule 30 or 60A.
 Furthermore, failure to include the particular averments required in terms of rules 18(6),
(8), (9), (10) and (11), and the corresponding provisions contained in rules 6(6), (8), (9),
(10), (11), and (12) of the Magistrates’ Courts Rules, also constitutes an irregular step.
 Examples of this include divorce particulars of claim that fail to set out the grounds on
which forfeiture is claimed in terms of rule 18(9) and 6(8), or failure to include all the
averments required in respect of a claim for damages for bodily injuries in terms of rules
18(10) and 6(9).
 In this context, irregular step proceedings help to compensate for the fact that further
particulars for the purpose of pleadings are no longer permitted.
 In many cases, lack of particularity may prejudice a party’s ability to reply without
constituting grounds for an exception, but irregular step proceedings will provide a
remedy in these circumstances.

The required procedure to set aside an irregular step in the High Court is set out in rule 30(2)–(4)
of the High Court Rules and rule 60A(2)–(4) of the Magistrates’ Courts Rules, respectively:

1. The applicant may not himself take a further step in the matter after becoming aware of
the irregular step.
2. Instead, within 10 court days of the applicant’s becoming aware of the step, he must
send a written notice to the opposing party pointing out the irregularity, and giving that
party 10 court days to remove the irregularity.
3. If the opposing party does not remove the irregularity within the ten-day period, the
applicant must serve the application papers on the opposing side within 15 court days
after the expiry of the ten-day period.
4. Once the court has heard the application, it will make an order as to what is to be done
about the irregular proceedings. It has a wide discretion in terms of rule 30(3) to set the
irregular proceedings aside in whole or in part, grant leave to amend, or make any other
suitable order. The court will not set aside an irregularity that does not substantially
prejudice the applicant.
5. In terms of rule 30(4), until a party has complied with the order of the court in respect of
the irregular proceeding, that party may not take any further steps in the matter.

Response 4: Enforcing compliance and condoning noncompliance:

Both the High Court and Magistrates’ Courts Rules contain provisions designed to enforce
compliance and condone noncompliance with the rules of court.

1. In the High Court:

a) Rule 30A – noncompliance with the rules:

High Court rule 30 concerns itself only with the setting aside of an irregular step. Rule 30A
di ers from this in two ways.

 Firstly, it deals with all types of noncompliance with the rules generally, not just
procedures that constitute steps.
 Secondly, its purpose is not to set aside a step, but to enforce compliance with a rule
that has not been followed.

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  An example of a situation in which this rule would be used is if a party fails to take a step
he is required to take.
 The opposing party is able to use the procedure set out in rule 30A to compel the
defaulting party to take the necessary step.
 Rule 30A is a catch all which deals with general noncompliance with the rules.
 It is not necessary to use this rule to enforce compliance with those rules which contain
their own remedy for noncompliance.

b) Rule 27 – extension of time, removal of bar and condonation:

High Court rule 27 is intended for the use of parties who have not complied with the rules and
want the court to condone (i.e. excuse) their lack of compliance.

 The procedure used is an application on notice to the other parties, supported by an

a idavit in which the applicant must show good cause.
 What constitutes good cause will vary according to the circumstances of each case.
 It seems, however, that the court will balance two factors: the merits of the applicant’s
case and the applicant’s default.
 The applicant must provide an explanation for his default in his supporting a idavit,
together with a factual outline of his case in order to show that it is not unfounded or
without merit.
 The court has a wide discretion to grant an order under this rule and will take into
account not only the reasons for default and the strength of the applicant’s case on the
merits, but also the prejudice likely to be su ered by all the parties.
 The question of prejudice is irrelevant, however, if the applicant has not shown good
cause in accordance with the rule.

2. In the Magistrates’ Courts:

a) Rule 60 – noncompliance with rules, including time limits and errors:

 Rule 60 of the Magistrates’ Courts Rules deals with noncompliance with rules, including
time limits and errors.
 It is the nearest equivalent in the Magistrates’ Courts Rules to High Court rule 30A, but
also deals with one aspect of condonation provided for in High Court rule 27, namely the
extension of time limits.
 Magistrates’ Courts rule 60(2) and (3) makes provision for two di erent applications to
the court which represent two successive steps in a process.
 In terms of rule 60(2), the court may be asked to order the opposing party to comply with
a particular provision of the rules, or with a legitimate request made in terms of the
rules.
 If the opposing party thereafter refuses to comply with the rules within the time period
provided in the order, the original applicant may again apply to court in terms of rule
60(3) asking for judgment against the opposing party.
 Magistrates’ Courts rule 60 may not be used to enforce a rule that contains its own
internal provision for relief.

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  Rule 60 can be used to enforce discovery when there is no response or an inadequate
response to a notice in terms of rule 23(1).

Rule 60(5) deals with the extension of time limits prescribed by the rules from the point of view
of a party who has failed to keep to these limits.

 Most time limits may be extended with the written consent of the other party(ies) in the
matter.
 If such parties fail to consent to the extension, the court may on application allow such
an extension. In using its discretion to allow such an extension, a court should consider
the su iciency and acceptability of the explanation given for noncompliance.

Response 5: Amendment of pleadings:

Occasionally it is necessary to amend or correct pleadings after they have been filed at court
and served on the opposing party.

 This may occur because of an error that came to the pleader’s attention only after
service, or it may occur following a successful exception or motion to strike out where
the court has granted the party with defective pleadings leave to amend.
 An amendment may be granted at any stage of the proceedings before judgment.
 Amendment of pleadings is dealt with by High Court rule 28 and Magistrates’ Courts rule
55A which are virtually identical.
 The sub-rules referred to in the discussion which follows refer to the sub-rules of both
High Court rule 28 and Magistrates’ Courts rule 55A, which correspond exactly.
 Amendment in terms of these rules may take place either with the consent of the
opposing party, or if there is an objection, by order of court.
 It is a three-stage process, with the second stage becoming unnecessary should the
opposing side raise no objection to the proposed amendment.

1. Stage one: notice of intention to amend:

A party wishing to amend a pleading or document303 that has already been filed at court and
served on the other parties must first serve a notice of intention to amend on all the other
parties.

 This notice must set out the precise amendments intended by stating which portions of
the pleading are to be deleted, and setting out the words with which the deleted
portions are to be replaced.
 It must also call upon the other parties to deliver written objections to the proposed
amendments within 10 court days, failing which the amendments will be e ected.
 Should no objection be delivered within this time, the other parties are deemed to have
consented to the amendment.
 Consequently, stage two falls away and the party wishing to amend the pleadings
proceeds straight to stage three.

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2. Stage two: objecting to the amendment:

If, after receiving the notice of intention to amend, one of the other parties wishes to object to
the proposed amendment, the objector needs to ‘clearly and concisely state the grounds upon
which the objection is founded.

 Having received such an objection within the 10 court days referred to in sub-rule (2),
the party wishing to amend must make application on notice of motion to court within
10 court days of receipt for leave to amend.
 The matter will then be set down for hearing as would any interlocutory application.

The court will usually lean in favour of granting the proposed amendment.

 After all, the purpose of pleadings is to allow a proper airing of the dispute between the
parties, which may only be possible if the amendment is permitted.
 The onus is on the applicant to show that the amendment should be permitted.
 The main consideration for the court in permitting an amendment is that the other
parties should not be prejudiced in a manner that cannot be corrected by an order for a
postponement of proceedings if necessary, and costs against the applicant.
 With regard to prejudice, the applicant’s burden to persuade the court to allow an
amendment becomes greater depending on the extent of the inconvenience and
dislocation caused to the other parties.
 A further consideration is whether the amendment introduces something worthy of
consideration; a triable issue rather than a groundless issue that will merely harass the
opposing party.
 A triable issue is one which, if it can be proved by the evidence prospectively set out in
the application for the amendment, will be viable or relevant, or which, as a matter of
probability, will be proved by the evidence prospectively set out in the application.
 The bona fides(good faith) of the applicant in requesting the amendment is also of
importance.
 With respect to bona fides, the reason for the amendment is considered; whether, for
instance, it has been occasioned by an honest error or an attempt to secure a tactical
advantage.
 An example of securing a tactical advantage mala fide would be to request an
amendment to include a new cause of action, which the applicant had deliberately
refrained from raising at the start because he wished to cross-examine his opponent’s
witnesses before including it in the particulars of claim.

3. Stage three: giving e ect to the amendment:

In terms of sub-rule (5), if none of the other parties objects to the amendments proposed in the
notice of amendment, the party proposing the amendment may e ect (i.e. carry out) the
amendment within 10 court days after the expiry of the period allowed for objection.

 Alternatively, the amendment may be e ected within 10 court days of the court
authorising it as a result of an application referred to in stage two above.
 In terms of sub-rule (7), an amendment is e ected by filing the amended pages at court,
and serving them on the opposing party.

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  The amended pages are pages that reflect the alterations indicated in the notice of
amendment delivered during stage one.
 These amended pages replace the original pages.

Once an amendment to a particular pleading has been e ected, the other parties may want to
change their pleadings in response to the amendment.

 Sub-rule (8) provides that the opposing party may, within 15 court days after the
amendment has been e ected, make any consequential adjustment he wishes to his
own pleadings.
 Should the opposing party fail to do so, rule 22(3) will apply and every allegation of fact
that has not been denied will be deemed to have been admitted.

He is also entitled to raise an exception to, or make an application to strike out, portions of the
amended pleading or to make application to have it set aside as an irregular step in terms of
High Court rule 30 or Magistrates’ Courts rule 60A.

LO6: Compare the various concepts and procedures for short – cut judgments, namely:

 Summary judgment.
 Default judgment.
 Confession of a claim or con sent to judgment.

Shortcut judgment 1 – Default judgment:

There are two main forms of default that may result in judgment: default of appearance and
default of pleadings.

Although a number of possible default situations are dealt with below, those most frequently
encountered in practice are:

a) a failure on the part of the defendant to enter an appearance to defend at all, or

b) after entering an appearance to defend, a failure to plead after he is warned that he may
be barred if he fails to do so.

1. Default of appearance:

a) Defendant’s default of appearance to defend:

In terms of High Court rule 31(2)(a) and 31(5)(a) and Magistrates’ Courts rule 12(1)(a), default
judgment may be granted against a defendant if he fails to deliver a notice of intention to defend
within the time set out in the summons (dies induciae).

 This is the most common situation resulting in default judgment.

 Practitioners should note that where an order is sought declaring residential property
specially executable, the registrar can no longer hear the matter and must refer it to the
court.
 This is in accordance with the Constitutional Court decision in Gundwana v Steko
Development and Others and Jaftha v Schoeman and Others; Van Rooyen v Stoltz
and Others, which found the rules and practice allowing registrars to declare mortgaged

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 property specially executable after default judgment on money debt unconstitutional for
lack of judicial oversight.

b) Plainti ’s default of appearance at trial (comparuit default):

High Court rule 39(3) and Magistrates’ Courts rule 32(1) apply to failure on the part of the
plainti to appear at trial.

 In terms of Magistrates’ Courts rule 32(1), if the plainti fails to appear at the trial, the
court may dismiss the action with costs.
 The word ‘may’ indicates that the court has a discretion whether or not to dismiss the
action.
 The words ‘plainti ’ and ‘defendant’ include the attorneys of the respective parties. This
means that the parties will not be held to be in default, provided that their attorneys are
present in court.
 ‘Dismissal’ in this context means absolution from the instance327 rather than a final
judgment, and cannot be pleaded as res judicata.
 High Court rule 39(3) makes provision for the termination of the plainti ’s claim in the
circumstances outlined above.
 The rule specifically refers to absolution from the instance and is therefore very similar
in e ect to the Magistrates’ Courts rule.
 However, it contains an added proviso to the e ect that the defendant ‘may lead
evidence with a view to satisfying the court that final judgment should be granted in his
favour and the court, if so satisfied, may grant such

c) Defendant’s default of appearance at trial:

In terms of rule 32(2) of the Magistrates’ Courts Rules, the plainti may apply for judgment with
costs if the defendant fails to appear at the trial.

 In order to properly exercise its discretion, the court may need to hear evidence.
 This will be the case when determining the quantum of the claim, should the action be
for an unliquidated amount of money.
 High Court rule 39(1) is the corresponding rule in High Court practice.
 It provides that if ‘the defendant does not appear, the plainti may prove his claim so far
as the burden of proof lies upon him and judgment will be given accordingly, in so far as
he has discharged that burden.’
 It adds the proviso that ‘where the claim is for a debt or liquidated demand no evidence
shall be necessary unless the court otherwise orders.

2. Default of pleadings:

a) Default of plea:

Default of plea is the most important kind of default relating to pleadings.

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  In March 2016, rule 12 of the Magistrates’ Courts Rules was amended and, in 2014, rule
21B of the Magistrates’ Courts Rules was introduced, as a result of which the High Court
and Magistrates’ Courts Rules on this particular topic are nearly identical in e ect.
 Nevertheless, the procedure followed in each court will be dealt with separately to avoid
confusion.

(i) Default of plea:

High Court With default of plea, the defendant has given notice of his intention to defend the
action, but has failed to deliver his plea within the prescribed period set out in High Court rule
21(1).

 The plainti then serves a notice of bar on the defendant in terms of rule 26, calling on
him to deliver his plea within five days.
 Should the defendant fail to do so, he is in default and is ipso facto barred from
pleading.
 From this point on, the procedure is almost the same as if the defendant were in default
of appearance and the plainti may apply for default judgment in terms of rule 31(2) or
(5).
 There is one important di erence in that notice of the application for default judgment
must be served on the defendant in terms of rule 31(4) and (5).

(ii) Default of plea: Magistrates’ Courts:

In terms of Magistrates’ Courts rule 12(1)(b), if a defendant enters an appearance to defend, but
fails to deliver a plea within the prescribed time limit, then the plainti may serve a notice of bar
on the defendant.

 This notice of bar will call upon the defendant to deliver a plea within five days from the
date of receipt of the notice, failing which the defendant will be in default of the plea and
ipso facto (i.e. automatically) barred.
 The plainti will then be entitled to apply to the clerk of the court for default judgment
against the defendant.
 The e ect of this rule is identical to that of High Court rule 26 as it relates to the
defendant’s plea.
 One di erence in respect of the subsequent default judgment application, however, is
that no further notice need be given to the defendant.

(iii) Default of plainti ’s plea in reconvention:

In High Court practice, the procedure in respect of the plainti ’s failure to deliver his plea in
reconvention to the defendant’s counterclaim on time is identical to the barring procedure used
in respect of the defendant’s plea in convention.

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  In High Court practice, the barring procedure provided for in High Court rule 26 covers
all pleadings, which of course includes a plea in reconvention.
 With the introduction of rule 21B in 2014 (and its amendment in 2016), which provides
for a general barring rule covering all types of pleadings, the position is now identical in
Magistrates’ Courts practice.
 Accordingly, rule 21B of the Magistrates’ Courts Rules eliminates a lacuna which existed
as a result of the 2010 amendments to the Magistrates’ Courts Rules.

b) Default of declaration:

Default of declaration is an example of the plainti being in default of pleading, and the
defendant being in a position to apply for default judgment.

 If the plainti ’s claim is for a debt or liquidated demand, he will usually issue a simple
rather than a combined summons.
 Once the defendant has given notice of his intention to defend, the plainti must deliver
a declaration within 15 days of receipt of such notice in terms of High Court rule 20(1)
and Magistrates’ Courts rule 15(1).
 If he neglects to do so, the defendant may serve a notice of bar on him in terms of High
Court rule 26, demanding that the declaration be delivered within five days.
 Should the plainti still fail to do so within this period, he is automatically barred.
 With the plainti barred from any further pleading, the defendant may set the action
down in terms of High Court rule 31(3) and apply for absolution from the instance or,
after adducing evidence, for judgment.
 Provision is made in terms of Magistrates’ Courts rule 15(5) for exactly the same remedy
and result where a plainti has been barred in terms of rule 21B(3) from delivering a
declaration.

4. Applying for default judgment:

Where either the plainti or defendant fail to appear at the trial, in either the High Court or
Magistrates’ Courts, application for default judgment is made orally from the bar.

a) The procedure in the High Court:

The first question the plainti must ask himself is whether or not his claim is for a debt or
liquidated demand.

 A debt or liquidated demand is a claim for a fixed, certain or ascertained amount or

thing.
 For example, a claim for goods sold and delivered is a debt or liquidated demand,
whereas a claim for damages arising out of a motor vehicle collision is an unliquidated
claim.
 Where the claim is not for a debt or liquidated demand, the court itself will have to hear
the application for default judgment.

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  Where the claim is for a debt or liquidated demand, however, the application for default
judgment may be considered administratively by the registrar of the court.

(i) If the claim is not for a debt or liquidated demand:

If the claim is not for a debt or liquidated demand, that is, an unliquidated claim, then the
plainti must set the matter down for hearing by the court where the application will be moved
formally by counsel.

 The reason that such matters must be heard by the court is that the plainti has to
satisfy the court as to the quantum (i.e. amount) of his damages.
 The court may also, in its discretion, allow the plainti to lead evidence by a idavit to
prove his cause of action in a damages claim.
 Although default judgment is granted in relation to an action rather than an application,
the matter is always heard in motion court because the application procedure is used to
obtain default judgment.
 In undefended matrimonial actions where the matter is set down for default judgment,
however, the plainti must attend court and briefly give evidence to verify the facts
constituting the cause of action in the summons.

(ii) If the claim is for a debt or liquidated demand:

If the claim is for a debt or liquidated demand, the plainti must file a written application for
judgment against the defendant with the registrar.

 Note that a plainti is obliged to apply for judgment to the registrar where the claim is for
a debt or liquidated demand, and may not make application to the court.
 If the defendant has failed to enter a notice of intention to defend, then notice of the
application to the registrar need not be given to the defendant.
 If the defendant has failed to plead and has then ignored a notice of bar, however, notice
of the application to the registrar must be given to the defendant at least five court days
before the application is made.
 Note that this is a notice of intention to apply for default judgment, not a notice of set-
down.
 This is because all claims for a debt or liquidated demand are now dealt with by the
registrar administratively in chambers, and therefore at his convenience, without the
plainti or his representative present.
 It is therefore impossible either to set the matter down for hearing, or even to know when
the matter will be ‘heard’ by the registrar.
 The notice of intention to apply for default judgment should therefore give five days’
notice of the date on which the matter will be lodged with the registrar.

b) The procedure in the Magistrates’ Courts:

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In the Magistrates’ Courts, if the defendant defaults in that he fails to enter an appearance to
defend, or fails to plead after being called upon to do so in a notice of bar, the plainti may
request default judgment against him in terms of Magistrates’ Courts rule 12.

 Ordinarily, a request for default judgment is not heard in open court unless, as indicated
previously, it is made in respect of failure to appear at trial, when it is applied for orally
from the bar.
 In all other cases the plainti merely lodges a written request for judgment by default
with the clerk of the court.
 The request must be drafted to conform to Form 5 of the Magistrates’ Courts Rules and
must be signed in duplicate (which, strictly speaking, means two original signed drafts,
and not one original plus a copy).
 In practice, the relevant particulars are typed onto a printed form or – more likely these
days – added to a computer-generated precedent.
 The original summons and the sheri ’s return of service should be attached to the
application.
 These documents will still be with the plainti ’s attorney as the clerk of court no longer
opens a court file when summons is issued in the Magistrates’ Courts, but only when the
matter proceeds further.
 Note that in terms of rule 12(3), default judgment may only be obtained on a summons
served by way of registered post if an acknowledgement of receipt referred to in rule
9(13)(a) has been filed by the sheri with his return of service.
 Requests for default judgment in the Magistrates’ Courts under rule 12 are all dealt with
administratively in chambers, and because the plainti ’s attorney is not present, he will
only learn of the outcome when the requests are returned, duly endorsed with the
judgment, or otherwise.

5. Barring:

The concept of barring is often associated with default judgment but is of wider application.

 Barring is a procedure that prevents the delivery of any further pleadings in an action by
placing them under bar.
 In some situations, barring is automatic; in others, it requires the delivery of a notice of
bar.
 Barring is seldom fatal to a case if the barring is automatic, as this kind of barring e ects
only the non-essential – or rather optional – types of pleadings and does not lead to a
default judgment situation (for example, replication).
 The danger of default judgment is always present, however, wherever a notice of bar is
used.
 It is for this reason that the topic of barring has been raised at this particular point.

a) Automatic barring:

Automatic barring is provided for in High Court rule 26 and rule 21B of the Magistrates’ Courts
Rules.

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  After the defendant serves his plea on the plainti , the plainti has 15 days in which to
serve his replication to the plea on the defendant.
 If he does not do this, then in terms of rules 26 of the High Court rule and 21B of the
Magistrates’ Courts Rules, respectively, he will be ipso facto (or automatically) barred.
 What this means, in e ect, is that the pleadings are deemed to be closed and the
matter may be set down for trial.
 This also applies to all the pleadings that follow the replication.
 For example, if the plainti delivers his replication within the time limit, but the
defendant fails to deliver his rejoinder within the time limit, the defendant will
automatically be barred from further pleading.
 Unless there is a specific need to file a further pleading, failure on the part of either the
plainti or defendant to file such further pleading merely serves to close the pleadings
and does not constitute an admission of the facts in the previous pleading.

b) Notice of bar:

In terms of High Court rule 26, there is no automatic barring in respect of pleadings that come
before the replication.

 These pleadings are the plainti ’s declaration, the defendant’s plea and the plainti ’s
plea in reconvention to any counterclaim in High Court practice.
 If any of these pleadings is not delivered on time, and a party wishes to obtain default
judgment against the defaulting party, he must first serve a notice of bar on that party.
 The ‘notice of bar’ calls on the defaulting party to deliver the declaration or plea within
five court days after receipt of the notice.
 If the defaulting party does not deliver the declaration or plea within the five-day period,
or within a further agreed period, the defaulting party is ipso facto barred from doing so
thereafter, and the other party may apply for default judgment against him.
 Notices of bar are most commonly served by plainti s on defendants who have failed to
deliver their pleas in time.
 Barring a party from pleading is a serious threat to that party’s case as the next step is to
apply for default judgment against the party who has been barred.

c) Removal of bar:

In the High Court, a bar may be removed in terms of High Court rule 27.

 Any attorney who has been careless enough to have his pleadings barred must adopt
the following procedure in order to remove the bar.
 He may first ask the other party if they will agree to the bar being removed.
 If the other party agrees, the bar is duly removed.
 If the other party refuses to agree to the removal of the bar, however, then the defaulting
party may apply to court on notice (as opposed to on notice of motion), in terms of rule
27(1) of the High Court Rules, for the bar to be removed.

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  The non-defaulting party is not obliged to agree to the removal of the bar, although
unreasonable opposition to the subsequent application may well attract an adverse
costs order.
 In order for the defaulting party to succeed in his application, he will have to show good
cause.

Harms lists the following situations in which the court will tend to grant the application to lift the
bar:

1. The applicant has given a reasonable explanation of his delay.

2. The application is bona fide and not made with the object of delaying the opposite
party’s claim.
3. There has not been a reckless or intentional disregard of the rules of court.
4. The applicant’s action or defence is clearly not ill-founded.
5. Any prejudice caused to the opposite party can be compensated for by an appropriate
order as to costs.

Shortcut judgment 2 – Summary judgment:

In the case of an application for default judgment, one is dealing with a situation in which the
defendant (usually) does not put up any opposition, in that either he does not enter an
appearance to defend, or fails to respond to a notice of bar.

 In the case of an application for summary judgment, however, one is dealing with a
situation in which the defendant does oppose the matter, but there is a suspicion that
the only reason for the defendant’s opposition is to delay the matter.
 The rules provide a mechanism whereby a plainti who finds himself in this situation
may attempt to shortcut the usual procedures, and obtain judgment without having to
go to trial.
 The very nature of the summary judgment procedure is extraordinary, in that it allows the
court to grant a final order in a defended action without the parties going to trial.
 The purpose of the procedure is to prevent the defendant from delaying the proceedings
when he has no real defence to the plainti ’s claim.
 There is an attempt to balance two conflicting interests.
 On the one hand, the plainti should not be forced, in circumstances which amount to
an abuse of the process of court, to su er the delay and expense of a trial.
 On the other hand, summary judgment is a severe and extraordinary procedure, which
circumvents the audi alteram partem principle in that a defendant who wishes to defend
a matter may have judgment taken against him without the benefit of a trial.
 Summary judgment will therefore only be granted where a court is satisfied that the
plainti has a very clear case and the defendant fails to establish a bona fide defence.

1. Permissible claims:

Because summary judgment is such a drastic remedy, only the clearest and most
straightforward claims may be the subject of a summary judgment application.

 The types of claim permitted are all liquid in nature.

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  Note also that not all types of liquidated claims are permitted, but only the four
specifically listed in High Court rule 32(1) and Magistrates’ Courts rule 14(1).

In terms of these rules, a plainti may only apply for summary judgment together with any claim
for interest and costs if his claim is:

1. based on a liquid document;

2. for a liquidated amount in money;
3. for delivery of specified movable property; or
4. for ejectment.

a) On a liquid document:

Examples of liquid documents include cheques, acknowledgements of debt and mortgage

bonds.

 In the context of summary judgment, the term ‘liquid document’ has the same meaning
as in the provisional sentence procedure, and is dealt with in detail in that section.
 Erasmus points out that even if a document does not fall precisely within the
parameters of a liquid document, it is of little importance for the purposes of summary
judgment.
 This is because the document is still likely to lead to a liquid claim under the next
category, i.e. a liquidated amount in money.

b) For a liquidated amount in money:

A claim need not be evidenced by a document at all in order to be liquidated.

 In fact, a liquidated claim may arise out of an oral agreement, such as a claim for arrears
rent arising out of an oral lease.
 A debt or liquidated demand, as noted in the sections dealing with simple summonses
and default judgment, may be defined as ‘a claim for a fixed or definite thing’, for
example; a claim for the transfer of immovable property or ejectment; for the
cancellation of a contract; for the delivery of goods; or for the rendering of an account by
a partner.
 A liquidated amount in money, however, only involves money claims, and does not
include debts or liquidated demands requiring an act on the part of the defendant such
as the delivery of property, transfer, or the like.
 Such a claim must be ‘based on an obligation to pay an agreed sum of money or is so
expressed that the ascertainment of the amount is a mere matter of calculation.
 In Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd, it was held that a claim
for ‘work done and materials supplied’ (a claim based on a quantum meruit) fell within
the category of a liquidated amount in money as the reasonable remuneration for the
work and the market price of the materials were known and therefore ascertainable.
 On this reasoning, a claim for professional services rendered would also pass muster.

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  In KwaZulu-Natal, however, a stricter approach has been followed and the claim must
be based on an obligation to pay an agreed sum of money, or an amount that can be
ascertained merely as a matter of calculation.
 There are Western Cape decisions that go both ways, but appear to favour Fatti’s
approach on balance.
 At the very least, however, a liquidated amount in money would include claims for the
purchase price of goods sold and delivered, moneys lent and advanced, arrear rent, a
taxed bill of costs, etc.
 To this must be added the further proviso that these claims may only be for money and
may not be coupled with claims requiring an act such as specific performance.

c) For delivery of specified movable property:

Delivery of specified movable property is one of the two types of liquid claims requiring an act,
as opposed to the payment of money, in respect of which an application for summary judgment
may be brought.

 Although claims for specific performance are usually heard in the High Court, this is one
of the exceptions permitted in the Magistrates’ Courts in terms of s 46 of the
Magistrates’ Courts Act.
 Note that it is a claim for the delivery of movable property which is permitted here, not a
claim for the transfer of immovable property.
 The summons must describe the property with su icient particularity to enable it to be
identified.
 Claims such as this are occasionally accompanied either by a claim for damages, or an
alternative claim for the value of the property.
 As both these types of claims are unliquidated, a court would grant summary judgment
on the claim for delivery, but refuse summary judgment on the accompanying claim.

d) For ejectment:

This is a claim requiring the removal of the defendant from premises unlawfully occupied, and is
another example of a liquid claim which does not involve a demand for a liquidated amount in
money.

 It may, however, accompany a claim for money.

 If the accompanying money claim is an unliquidated claim for damages, such claim will
not be granted at summary judgment stage, but if it is a liquidated amount in money,
summary judgment may be granted in respect of both claims.
 The most common example would be a claim brought by a landlord against a tenant for
arrears rent, accompanied by a claim for ejectment from the leased premises.
 Summary judgment may be granted for both these claims.
 Summary judgment would not be granted, however, in respect of a further claim brought
by the landlord for the cost of repairing the damage allegedly caused to the leased
premises by the tenant.

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2. The application:

The procedure followed is by way of application, moved in motion court in terms of High Court
rule 32(2) and Magistrates’ Courts rule 14(2).

1. Should the plainti wish to apply for summary judgment, he must approach the court
by way of notice of motion, within 15 days of receiving the notice of intention to defend.
If application is not made within the 15-day period, the plainti loses the opportunity to
apply for summary judgment.
2. The application for summary judgment must state that the application will be set down
for hearing on a stated day. That day may not be less than 10 days from the date of the
delivery of the application. This means that the defendant must be given at least 10
days’ notice of the hearing. The plainti will obtain the date of the hearing from the
registrar before serving the application on the defendant.
3. If the defendant responds by way of a idavit, this should be delivered by ‘noon of the
day but one’ preceding the hearing, i.e. at least by noon two days before the hearing.
4. If the matter is not dealt with by the parties agreeing to the usual order, argument will be
heard at the hearing.

3. The supporting a idavit:

The notice of application must be supported by an a idavit deposed to by the plainti himself,
or by any other person who is able to swear positively to the facts.

 It is not su icient, in cases where the deponent is a person other than the plainti , for
the deponent simply to state that he is able to swear positively to the facts.
 He must go further than this and state that the facts are within his own personal
knowledge.
 Where no single person has personal knowledge of all the facts, a idavits by more than
one person are required.
 If the a idavit is deposed to by someone acting in a representative capacity such as the
managing director of a company, the a idavit should also state that he has been duly
authorised and this authorisation needs to be obtained.
 The a idavit is a very simple one, but must comply with the provisions of rule 32(2) of
the High Court Rules and Magistrates’ Courts rule 14(2).

In terms of these rules, the person making the a idavit must:

1. verify the cause of action and the amount claimed (if any amount is claimed);
2. state that in his opinion there is no ‘bona fide’ defence to the action; and
3. state that notice of intention to defend has been delivered solely for the purpose of
delay.

4. Responding to an application for summary judgment:

In terms of rule 32(3) of the High Court Rules and Magistrates’ Courts rule 14(3), the defendant
has two main options open to him upon receipt of the notice of application for summary
judgment:

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 1. Give security to the plainti to the satisfaction of the registrar for any judgment,
including costs, which may be given. This response only applies to a money claim, of
course, although it may also be used where the claim is supported by a money claim in
the alternative. If the defendant adopts this course of action, the application for
summary judgment will be defeated, and the action will proceed as normal. With this
response, the defendant is showing that he is at least able to make payment; that
inability to pay is not the reason for his defending the matter; and that the plainti will
not ultimately su er from the delay. The defendant is in e ect, ‘putting his money where
his mouth is’.
2. Satisfy the court by a idavit or, with the leave of the court, by oral evidence, that he has
a bona fide defence to the action. The a idavit or oral evidence may be given by the
defendant himself or by any other person who is able to swear positively to the fact that
he has a bona fide defence. The a idavit or oral evidence must disclose fully the nature
and grounds of the defence and the material facts relied upon for the defence. In other
words, the defendant cannot get away with simply claiming that he has a valid defence;
he must spell out, in broad terms, what that defence is. He does not, however, have to
set out his defence in the same detail or provide evidence as will be required of him at
the trial. At the summary judgment stage the onus on the defendant is not to satisfy the
court that his defence will probably succeed, but merely that the facts sketched by him,
if proved at the trial, would constitute a possible defence to the plainti ’s claim.

5. The court hearing:

The plainti may adduce no evidence other than that contained in the a idavit accompanying
his application.

 That a idavit, of course, provides no information that is not contained in the particulars
of claim.
 Neither party is permitted to cross-examine any person who gives evidence viva voce
(orally) or by a idavit.
 This means that the hearing is restricted to an argument in relation to whether – having
regard to the a idavits or oral evidence – the defendant has failed to disclose a bona fide
defence.
 It can be seen then, that in all the circumstances, the odds are stacked against a court
granting summary judgment.
 This is because summary judgment should not be granted lightly, and the courts will
only deprive a defendant of the opportunity to defend in clear cases.
 The courts are cautious and conservative in this matter because the summary judgment
procedure does infringe against the audi alteram partem rule to a certain extent.

6. The usual order:

When summary judgment has been applied for and the plainti has received an a idavit from
the defendant that discloses a defence, the plainti ’s attorney is unlikely to persist in
attempting to obtain summary judgment.

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  Usually, he will telephone the defendant’s attorney to ask if he will agree that the usual
order be requested by consent at the hearing.
 If the defendant’s attorney agrees, only the plainti ’s attorney will attend court, and will
ask for the usual order by consent.

The usual order in these circumstances means:

1. summary judgment refused;

2. the defendant granted leave to defend; and
3. costs to be reserved.

7. Special orders for costs:

Generally, the court may make an order for costs that seems to it to be just.

 If an application for summary judgment is opposed and then refused, the costs order
awarded will usually be ‘in the cause’ (although the court has discretion in the awarding
of costs and may depart from ‘the normal’ costs).
 If the application for summary judgment is granted, costs of the application will usually
be awarded to the plainti .
 The alternative is that the parties agree to the usual order by consent which means that
costs will be reserved.
 A further alternative exists in terms of High Court rule 32(9) and Magistrates’ Courts rule
14(10), which provides specific guidelines for the ordering of attorney and client costs in
certain situations pertaining to a summary judgment application.

Where the plainti makes an application that does not fall within the categories of claims listed
in terms of rule 32(1) of the High Court Rules and Magistrates’ Courts rule 14(1), or where the
plainti , in the opinion of the court, knew that the defendant was relying on a contention which
would entitle him to leave to defend, the court may order that the action be stayed until the
plainti has paid the defendant’s costs.

 The court may, in addition, show its displeasure by granting attorney and client costs.
 This situation may arise if the plainti and his attorneys know, from correspondence
with the defendant prior to the issue of summons, that the defendant is going to allege
the existence of a valid defence.
 The plainti may not agree with the validity of the defence, but the plainti ’s attorneys
ought to know that in the absence of evidence to the contrary, the defence as alleged is
capable of overcoming a summary judgment application.
 In requesting attorney and client costs, and after setting out the nature and grounds of
his defence in an a idavit, the defendant will usually proceed to allege that the plainti
knew of the existence of this defence, and will annex copies of the correspondence
which support this contention.
 The purpose of this provision is to discourage tactical applications for summary
judgment where the plainti does not really believe the defendant’s claim to be bogus,
but wishes to force the defendant to set out his defence on oath, which will provide his
attorney with material for cross examination at a later stage.

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Shortcut judgment 3: Consent and confession to judgment:

1. Judgment on confession in the High Court – rule 31:

In terms of High Court rule 31(1), a defendant may at any time confess to judgment in respect of
the whole or part of the plainti ’s claim as contained in the summons.

 There are, however, exceptions to this principle. It is not permissible to confess to

judgment in an action for relief in terms of the Divorce Act or in an action claiming nullity
of marriage.
 Due to the highly personal nature of such claims, as well as their importance to the
parties involved (because they a ect the status of the parties), it is not desirable that
such claims be granted without at least one of the parties appearing in court.

The way in which a defendant confesses to the plainti ’s claim is by signing a written confession
to judgment.

Rule 31(1)(b) makes it clear that the confession to judgment must:

1. be signed by the defendant personally; and

2. the defendant’s signature must either

3. a)be witnessed by his attorney (in other words, not an attorney acting for the
plainti ); or b)be verified by an a idavit deposed to by the defendant himself.

Once it is signed, the confession to judgment is delivered to the plainti .

 In terms of High Court rule 31(1), the plainti may then apply in writing through the
registrar to a judge for judgment in accordance with the confession.
 Notice to the defendant is not necessary.
 The defendant’s confession to judgment and the plainti ’s written request for judgment
are placed before a judge in chambers, who decides whether or not to grant the
judgment.
 Once the defendant consents in writing to judgment, he cannot withdraw his consent.
 Where the plainti ’s claim is based on a single cause of action, and the defendant
confesses to judgment in respect of a part of the claim only, the plainti may not obtain
judgment in accordance with the confession and must then proceed against the
defendant in a separate action for the balance of the claim.
 The reason is that the defendant will raise a special plea of res judicata.

2 Judgment by consent in the Magistrates’ Courts – rule 11:

After summons has been issued in a Magistrates’ Courts matter, the defendant may consent to
judgment in terms of Magistrates’ Courts rule 11.

In terms of rule 11(1), a defendant has three options if he wants to consent to judgment before
he has entered an appearance to defend the matter:

1. When the sheri serves him with his copy of the summons, and shows him the original
summons, he can sign the consent to judgment which will be included in the original
summons. The sheri will then take the original summons back to court.

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 2. He may sign the consent to judgment which will be included in his copy of the
summons, and lodge it with the clerk or registrar of the court.
3. He may draft his own consent to judgment, which is similar to the consent to judgment
included in the summons. This consent to judgment must then be signed by himself
and two witnesses, whose addresses must also be given.

In terms of rule 11(4), a defendant may consent to judgment after he has entered an
appearance to defend a matter by drafting his own consent to judgment, which must be similar
to the consent to judgment which appears on the summons.

 The consent need only be signed by himself or his attorney.

Theme 2: The pre – trial process

LO7: Analyse all concepts and principles in relation to the pre-trial process, with regard to the
following steps:

 Step 1: set down

 Step 2: discovery and related procedures.
 Step 3: medical examinations and technical inspections.
 Step 4: Request for further particulars.
 Step 5: Subpoena of witnesses.
 Step 6: Special evidence.
 Step 7: Pre – trial conference.
 Step 8: Final prep for trial.

Step 1: Set down:

Close of pleadings is provided for in terms of rule 29 of the High Court Rules, and the identically
worded rule 21A of the Magistrates’ Courts Rules.

These rules are self-explanatory and read as follows: Pleadings shall be considered closed –

a) if either party has joined issue415 without alleging any new matter, and without adding
any further pleading;
b) if the last day allowed for filing a replication or subsequent pleading has elapsed and it
has not been filed;
c) if the parties agree in writing that the pleadings are closed and such agreement is filed
with the registrar; or
d) if the parties are unable to agree as to the close of pleadings, and the court upon the
application of a party declares them closed.

1. Set down in the High Court:

As soon as the pleadings are closed, the matter must be set down for trial.

 In other words, a trial date must be obtained from the court and the opposing party
informed.

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  The plainti as dominus litis has the right to apply for set down in the first instance.
 If he fails to do so, then any party may place the case on the roll for hearing.

There are no provisions dealing expressly with set down.

 Each division of the High Court has its own rules for setting a matter down. We shall
examine the practice followed in the division of the High Court situated in KwaZulu-
Natal as an example.
 Once the pleadings close, the plainti (usually) drafts a notice addressed to the registrar
requesting him to place the matter on the awaiting trial roll (i.e. the long list of cases
waiting to be allocated a trial date).
 This notice includes details of the case number and the parties to the action; the names
of the advocates and the firms of attorneys representing the parties; and the number of
days which the plainti estimates that the trial of the action will last.
 The average number of days requested in the High Court tends to be three days.
 This notice is filed with the registrar and served on the opposing side.
 In the Durban seat of the KwaZulu-Natal Division, the practice is for the person
delivering the notice to enter the information in a book at the general o ice.
 If this is not done, the notice merely languishes on the court file.
 It is advisable, therefore, to send a responsible person to court with the notice.
 Once the registrar has placed the matter on the awaiting trial roll, the parties must wait
for a trial date to be allocated.
 Depending on how many days have been requested, a delay of anything between six
months and two years may be expected, before a date is allocated for the trial of a
matter although the trial backlog has abated somewhat in certain divisions since the
introduction of judicial case-flow management.
 If the registrar is asked to set aside two days for the trial of a particular matter, a trial
date will be allocated sooner than if five days are requested for the trial.
 However, an attorney may not ‘jump the queue’ by asking the registrar to allocate two
days for the trial of a matter, when he knows that the particular matter will take five days
to complete.
 In such a case, the matter will become part heard, and the attorney will probably have to
wait longer to have the matter finalised than if he had set the matter down for five days
in the first place.
 The court may also decide to penalise him with an adverse award of costs if it is clear
that the matter ought to have been set down for a longer period.
 Also, if it is clear that the requested time is insu icient at the outset, the court may
refuse to hear the matter and require that it be set down again.

2. Set down in the Magistrates’ Courts:

In the Magistrates’ Courts, the procedure is slightly di erent in that only one notice of set down
is delivered, both requesting a trial date, and informing the defendant that the matter has been
set down for trial on a particular date.

 The plainti must deliver this notice of set down to the defendant within 15 court days
after pleadings have closed.

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  Unlike the list system employed by the registrar in the High Court, the clerk of the civil
section in a Magistrates’ Court assigns a court day on receipt of the notice, and
immediately endorses the notice with the trial date, before returning the notice to the
plainti for service on the defendant.
 At least 20 court days must elapse from the date on which the notice of set down is
delivered to the date on which the trial begins.
 There is usually no danger of short service as the courts appear to be congested and
attorneys report delays of between six months and a year in some of the larger
Magistrates’ Courts.
 This will vary considerably, however, depending both on the size of the court and the
e iciency of the sta at each court.
 The notice of set down operates to set down simultaneously for trial any counterclaim
brought by the defendant.

If the plainti does not deliver the notice of set down within the required 15-day period, the
defendant may set the matter down for trial by delivering the required notice.

 The defendant will do this if he has brought a substantial counterclaim against the
plainti and wishes to proceed to trial.

Sub-rule (5) provides special provision for the set down of divorce hearings in the Regional
Magistrates’ Courts.

Promoted by the written request of the plainti , the registrar sets the matter down for hearing at
the time, place and date fixed by the registrar, provided the defendant has:

1. failed to deliver notice of intention to defend; or

2. failed to deliver a plea after receiving a notice in terms of rule 21B(2); or
3. given written notice to the plainti and the registrar or clerk of the court that he or she
does not intend defending the action.

Step 2: Discovery and related procedures:

1. What is discovery?

Usually, a portion of the evidence in legal cases consists of information recorded in documents,
on computer disks or in other ways.

 The purpose of discovery, as the name indicates, is to allow each party knowledge of,
and eventual access to, documents in the possession of the opposing party that might
be relevant to the trial.
 Each party then knows which documents are in existence that may assist his case or his
opponent’s.
 This prevents the parties from being taken by surprise, eliminates disputes about issues
where the evidence is incontrovertible, and secures the fair trial of the action in
accordance with the due process of the court.

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  In other words, the litigation process is meant to be a transparent one, unlike the
popular perception created in films where lawyers are forever springing unpleasant
surprises on their hapless opponents.
 The request for such information, and the manner in which such information is to be
furnished, is governed by rule 35 in the High Court and rule 23 in the Magistrates’ Courts.
 Rule 23 was amended in 2010 so as to replicate rule 35 in its entirety, with minor
di erences in wording and sub-rule numbering.

2. Discovery procedures:

a) Notice to discover:

(i) When must discovery take place?

 Discovery is usually prompted by a notice to discover served on a party by the opposing

party.
 The rules require that discovery should occur on oath, and so the lists or schedules of
the documents a party discovers are annexed to a discovery a idavit.
 A party’s discovery a idavit must be delivered within 20 court days of the receipt of a
notice to discover from the opposing party.
 Unless the leave of a judge or magistrate is first obtained, discovery may not be
requested before the close of pleadings.

It is not only in response to a notice to discover, however, that a party is obliged to deliver a
discovery a idavit to the opposing party.

 If a party fails to call for discovery (by serving a notice to discover), the action will reach
a point at which the opposing party will be obliged to deliver a discovery a idavit to the
other party without the prompting of a notice.
 In terms of rule 37(1), if a party has not yet discovered by the time he receives notice of
the trial date (in other words, the weekly list of cases for trial sent out by the registrar),
then he must deliver his discovery a idavit to the other side within 15 court days.

(ii) What must be discovered?

A notice to discover contains a request for the opposing party to discover on oath:

1. all documents and tape recordings which relate to any matter in question in the action;
2. which the other side have in their possession or control when the notice is delivered, or
which they have at any time in the past had in their possession or control.

The term, tape recording, includes: a sound track, film, magnetic tape, record or any other
material on which visual images, sound or other information can be recorded.

(iii) The discovery a idavit:

High Court Form 11 and Magistrates’ Courts Form 13 prescribe what the discovery a idavit
referred to in rule 35(2) and 23(2), respectively, must look like.

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  According to Forms 11 and 13, there are two schedules to a discovery a idavit.

The First Schedule lists those documents and ‘tape recordings’ (extended meaning) which are in
the possession of the deposing party at the time the discovery a idavit is deposed to.

 The First Schedule is divided into two parts.

The first part of the First Schedule contains those documents and ‘tape recordings’ (extended
meaning) that the deposing party has no objection to being inspected by the opposing party.

 Each document listed in the schedule should be identified by a description which will
usually include its date.
 It is also customary to number each document and indicate whether or not the
document is an original or a copy.

For example:

1. 2/1/03 Letter of plainti to defendant – copy

2. 7/1/03 Letter of defendant to plainti – original … etc.

The second part of the First Schedule contains those documents and ‘tape recordings’
(extended meaning) which the deposing party objects to being inspected by the opposing party.

 There may, in theory, be other valid grounds for objection, but in practice, the reason will
almost certainly be that the documents are privileged on the basis of the rules of
evidence.

The following list is not exhaustive, but includes examples of documents that are privileged:

1. A document implicating a party in a criminal o ence, which is protected by the privilege

against self-incrimination;
2. A document written by one spouse to another spouse, which is protected by marital
privilege;
3. A written o er made without prejudice with the intention of settling a matter; and
4. A document written by an attorney or advocate to his client, or vice versa, which is
protected by legal professional privilege.

In terms of rule 35(2) of the High Court Rules or rule 23(2)(c) of the Magistrates’ Courts Rules,
the only documents and ‘tape recordings’ which need not, and indeed must not, be listed in the
schedules attached to a discovery a idavit are the following:

1. Statements of witnesses taken for the purposes of the proceedings;

2. Communications between attorney and client and between attorney and advocate; and
3. Pleadings, a idavits and notices in the action.

(iv )Remedies for failure to discover

(iv)(1) Notice to inspect undisclosed documents – rule 35(3) (High Court)/rule 23(3)
(Magistrates’ Courts):

Rule 35(3) of the High Court Rules and rule 23(3) of the Magistrates’ Courts Rules set out the
procedural steps that may be taken if the opposing party has not discovered certain documents
or ‘tape recordings’ (extended meaning) that are relevant to the case.

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In terms of this rule, a written notice must be delivered to the opposing party in which that party
is required: either

1. to make the undiscovered documents or ‘tape recordings’ (or copies of them) available
for inspection; or
2. to state on oath within 10 days that such documents are not in his possession, in which
event he shall state their whereabouts if known to him.

The notice may relate to a particular document that the party giving notice knows to exist, or to a
category of documents, such as the bank statements of a business, which reasonably may be
presumed to exist, but of which the party giving notice has no actual knowledge.

(iv)(2) Document or tape recording may not be used – rule 35(4) (High Court)/rule 23(4)
(Magistrates’ Courts):

The consequences to a party of failing to discover a document or ‘tape recording’ (extended

meaning) are set out in rule 35(4) of the High Court Rules and rule 23(4) of the Magistrates’
Courts Rules.

 That party may not, save with the leave of the court, use the undiscovered document or
‘tape recording’ for any purpose at the trial.
 The opposing party, however, is entitled to use that document or ‘tape recording’ at the
trial.

(iv)(3) Application to compel discovery – rule 35(7) (High Court)/rule 23(8) (Magistrates’ Courts):

Should a party fail to discover, his opponent may make an application to court under rule 35(7)
of the High Court Rules and rule 23(8) of the Magistrates’ Courts Rules to compel discovery.

 At the hearing of the application to compel discovery, the court will order the
recalcitrant (uncooperative) party to deliver a discovery a idavit before a certain date.
 If the discovery a idavit is not delivered by that date, a further application may be made
to court to dismiss the claim or strike out the defence of the recalcitrant party.
 Note that the dissatisfied party need not send a notice in terms of rule 35(3) of the High
Court Rules and rule 23(3) of the Magistrates’ Courts Rules before making an application
to compel discovery.

b) Notice to inspect:

Having received the opposing party’s discovery a idavit, a party will in all likelihood wish to
inspect some of the documents which are described in it.

 In terms of rule 35(6) of the High Court Rules and rule 23(6) of the Magistrates’ Courts
Rules, one party may deliver a notice to another party, requiring that party to produce for
inspection any of the documents or ‘tape recordings’ (extended meaning) which that
party has discovered in his discovery a idavit.
 The notice must be in accordance with Form 13 and Form 15 of the High Court and
Magistrates’ Courts Rules, respectively.

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Rule 35(6) (High Court) and rule 23(6)(b) (Magistrates’ Courts) provide that the party upon whom
the notice to produce for inspection is served, has five court days within which to deliver a
notice to inspect documents, which is essentially a reply to the notice to produce for
inspection.

 The notice to inspect documents must be in accordance with Form 14 (High Court) and
Form 15A (Magistrates’ Courts), and must state a time, which is within five court days
after the delivery of the notice, when the documents or tape recordings (extended
meaning) listed in the notice to produce for inspection may be inspected.
 The inspection must take place at the o ice of the attorney representing the party
sending the notice to inspect documents, or, if that party is not represented by an
attorney, at a convenient place set out in the notice.
 Where the documents to be inspected are banker’s books, or other books of account, or
books in constant use for the purposes of any trade, business or undertaking, they will
normally be inspected at the place at which they are usually kept.

c) Notice to specify:

The rules also provide a means for ascertaining exactly which documents or ‘tape recordings’
the opposing party intends to use at the trial.

 In terms of rule 35(8) of the High Court Rules and rule 23(9) of the Magistrates’ Courts
Rules, any party to an action may, after the close of pleadings, give notice to any other
party to specify in writing, particulars of dates and parties of or to any document or tape
recording intended to be used at the trial of the action on behalf of the party to whom
notice is given.

The party receiving the notice to specify must, not less than 15 court days before the trial,
deliver a notice to the party who sent the notice to specify, in which he:

1. Specifies the dates of, and parties to, and the general nature of, any documents or ‘tape
recordings’ (extended meaning) which are in his possession and which he intends to use
at the trial of the matter; and
2. Specifies any particulars whereby those documents or ‘tape recordings’ which are not in
his possession and which he intends to use at the trial of the matter, may be identified,
as well as the name and address of the person in whose possession such documents
and ‘tape recordings’ are.

d) Notice to produce:

Rule 35(10) of the High Court Rules and rule 23(11) of the Magistrates’ Courts Rules set out the
procedure whereby a party may oblige another party to produce the original of a discovered
document at the hearing of the matter.

 In other words, a party will use this procedure if he wants the opposing party to bring one
of that party’s documents or ‘tape recordings’ to the trial.
 The reason a party would want the opposing party to do this, is because he wishes to
use that document or ‘tape recording’ in support of his own case.

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  By following this procedure, a party is entitled, at the trial, to hand in the document or
‘tape recording’ concerned, without calling any witnesses.
 The document or ‘tape recording’ will be received into evidence as if it had been
produced in evidence by the person to whom the rule 35(10) or 23(11) notice was given.
 A notice to produce may not be used to obtain documents currently in the possession of
third parties that have been discovered for the reason that they were once in the
possession of the party making discovery.
 The approach often used in practice of sending all the discovery notices together
(including the notice to produce) at the start of the discovery process, preceding the
opposing party’s discovery a idavit as it does, usually requires the opposing party to
produce all the originals of all the documents discovered.
 This mechanical approach is hardly what the rule envisages.
 Neither do the parties who use this approach employ the sub-rule in a useful fashion.
 There is no need to use a ‘blanket’ approach in order to avoid missing a document since
although the notice should normally be delivered at least five days before the trial, there
is provision in the sub-rule for the court to allow notice to be given at the trial itself.

e) Notice to admit:

For a document to form part of the evidence at a trial, a witness who has knowledge of the
document, and who is able to identify it for the court, must introduce the document.

 Rule 35(9) of the High Court Rules and rule 23(10) of the Magistrates’ Courts Rules
provide a method of avoiding this in certain circumstances.
 They provide a procedure whereby one party may call upon the other party to admit that
certain documents or ‘tape recordings’ (extended meaning) were properly executed and
are what they purport to be.
 A notice to admit is served on the opposing party, who then has 10 court days to make
up his mind.
 Unless the party to whom the notice was sent specifically states that the documents or
‘tape recordings’ are not admitted, the party who sent the notice is entitled to produce
the documents or ‘tape recordings’ specified in the notice at the trial without having to
‘prove’ them.

Step 3: Medical examinations and technical inspections:

Preparation for trial also involves the examination of evidence other than documents or
recordings.

 This evidence will vary considerably, from plans, diagrams and photographs to other
physical pieces of evidence of whatever kind.
 Examples could include anything from a damaged motor vehicle to defectively
manufactured concrete blocks.
 Examining evidence of injuries is also necessary in respect of personal injury claims
such as those arising out of motor vehicle collisions.
 The rules of court provide pre-trial procedures for examining evidence of this nature that
resides in the hands of the opposing party.

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  The relevant rules applicable in the High Court and Magistrates’ Courts, respectively, are
rule 36 of the High Court Rules and rule 24 of the Magistrates’ Courts Rules.
 These two rules are virtually identical in all but minor detail, with the numbering of the
sub-rules closely, if not exactly, corresponding in each case.
 The comments in relation to these rules set out below, apply equally to the practice in
both courts, but to avoid confusion we shall concentrate on the High Court rule 36,
noting any di erences that exist in respect of rule 24 of the Magistrates’ Courts rules as
they arise.

1. Medical examinations – claim for bodily injuries:

Rule 36 of the High Court Rules and rule 24 of the Magistrates’ Courts Rules provide identical
procedures for use by a defendant who is being sued for damages for personal injuries su ered
by the plainti .

 The two sets of rules are almost identical on this issue and only the High Court rule will
be referred to at this juncture, so as to avoid overburdening the text.
 The procedure involves an examination of the plainti by a suitable medical practitioner.
 The purpose of the procedure is to enable the defendant to ascertain the extent and
severity of the plainti ’s injuries, mainly for the purpose of assessing whether or not the
quantum (value) of the plainti ’s claim is reasonable.
 In certain circumstances it may be possible to deduce the manner in which the injury
occurred from the nature of the injuries.

a) Arranging the examination:

In terms of rule 36(1) of the High Court Rules, any party to proceedings in which damages or
compensation in respect of alleged bodily injury is claimed has the right to require any party
claiming such damage or compensation, whose state of health is relevant to the determination
of such damage or compensation, to submit to a medical examination.

 Rule 36(5A) also provides for a party claiming damages as the result of the death of
another person to undergo a medical examination where his own medical condition is
relevant to determining the damages.
 The damages in a loss of support claim such as this are determined by an actuarial
assessment, based on the ability to work and the life expectancy of the claimant, hence
the need for an examination.

b) Objecting to the examination:

The party who is being requested to submit to the examination may, within five court days of
receiving notice of the proposed examination, object to the examination on the following
grounds set out in rule 36(3):

1. The nature of the proposed examination;

2. The person or persons by whom the examination is to be conducted;

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 3. The place, date or time of the examination (in this case he must suggest an alternative
date, time or place); and
4. The amount of the expenses tendered to him (in this case he must give details as to why
he should be entitled to an increased amount).

c) Report on the examination:

In terms of rule 36(8)(a), the party calling for the examination must ensure that a full written
report is compiled by the person who carries out the examination.

 The report must detail the results of the examination, as well as the opinions formed by
the person who conducted the examination.
 A full copy of the report must be made available to any party to the matter who requests
it.

d) Other medical reports, records, X-rays, etc.:

In terms of rule 36(4), a party to proceedings in which damages or compensation in respect of

an alleged bodily injury is claimed, may require the party who is claiming the damages to make
available any medical reports, hospital records, X-rays, or similar documentary information,
which is relevant to the assessment of such damages.

 The party claiming the damages may also be requested to provide copies of the said
documents.
 The request is made by way of a notice in writing, and the documents must be delivered
within 10 days of service in terms of the High Court Rule, and within 15 days in terms of
the corresponding rule 24(4) of the Magistrates’ Courts Rules.

2. Technical inspection – claim relating to object:

Rule 36(6) deals with the ‘inspection or examination’ of any object, the ‘state or condition’ of
which is relevant to the action.

 This includes both movable and immovable property, and may include anything from a
motor vehicle involved in a tra ic collision to an apartment in a block of flats, which is
the subject of a building dispute.
 The rule has even been used for objects such as tape recordings that are usually thought
to form the subject of discovery under rule 35.
 The rule also provides for the examination of a ‘fair sample’ where the case concerns a
large quantity of objects of the same kind, and it is inconvenient to examine each and
every individual item, for example, a defective batch of bricks.
 Examination under this rule may only be required of a party that has the object in his
possession or under his control, and not if the object is under the control of a third party.

a) Arranging the inspection:

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The party requiring inspection must give written notice to the party in possession of the object,
requiring him to make it available for inspection for a period of 10 days from the date of receipt
of the notice.

 This may happen at any time during the course of proceedings, and not only in
preparation for trial.
 In terms of the corresponding rule 24(6) of the Magistrates’ Court Rules, however, the
notice may not be given later than 15 days before the hearing.
 During the examination, the object remains in the possession, and under the control, of
the party to whom the notice has been sent.

b) Objecting to the inspection:

In terms of rule 36(7), the party who is called upon to submit the particular object for inspection
or examination may ask the party requesting it to specify the nature of the inspection or
examination.

 Rule 36(6) refers to both ‘inspection and examination’ which clearly implies that scrutiny
of the object may be more than visual, and may include testing, experimentation or
dismantling.
 If the inspection or examination will a ect the object, however, causing material
prejudice to the party who is being asked to submit it for inspection or examination, then
that party may refuse to submit it for inspection or examination.
 The party possessing the object will be prejudiced if it is destroyed, damaged or its value
reduced as a result of the examination.
 In the event of such a dispute, either party may, on notice to the other party, refer the
matter to a judge, who has a discretion to ‘make such order as to him seems meet’ and
will decide whether or not the object may be inspected or examined.

c) Report on the inspection:

Rule 36(8) applies in the case of the inspection or examination of objects, as well as the
examination of persons. As stated earlier, the person who carries out the inspection or
examination is required to complete a written report, which the party who caused the
inspection or examination to be made, must furnish to all other parties on request.

3. Magistrates’ and High Court procedures compared:

Medical examinations and inspection of things in Magistrates’ Courts matters are dealt with by
Magistrates’ Courts rule 24.

 Rule 24 of the Magistrates’ Courts Rules corresponds very closely to rule 36 of the High
Court Rules, and the few di erences that exist have been discussed in comparison with
the High Court situation (dealt with above).

Briefly, however:

1. Magistrates’ Courts rules 24(1), (2), (3), (5) and (8) relate to examination of persons;

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 2. Magistrates’ Courts rule 24(4) relates to medical reports, hospital records, X-rays, etc,
and
3. Magistrates’ Courts rules 24(6), (7) and (8) relate to inspection and examination of
objects.

Step 4: Request for further particulars for trial:

1. What are further particulars for trial?

We have noted in the section on further particulars during pleadings that a party may no longer
request further particulars before replying to a particular pleading.

 This procedure was abolished as of 1 January 1988 in the High Court and 15 October
2010 in the Magistrates’ Courts.
 Apart from the limited exceptions explained in the section on further particulars above,
further particulars are now permitted only for the purpose of preparing for trial, a
procedure which is now available in both the High Court and Magistrates’ Courts.
 Now the only ‘further particulars’ that may legitimately be requested in terms of rule
21(2) of the High Court Rules or Magistrates’ Courts rule 16, are those particulars which
are strictly necessary to enable the party requesting them to prepare for trial.

The purposes of further particulars for trial are:

1. to prevent any surprises at the trial; and

2. to inform a party, with greater precision, what the opposing party is going to prove in
order to enable him to prepare his case.

These purposes do not include attempting to tie the other party down, thereby unfairly limiting
his case.

2. The procedure:

In terms of High Court rule 21(2) and Magistrates’ Courts rule 16(2)(a), any party to an action
may, after the close of pleadings and not less than 20 court days before the trial, deliver a notice
requesting further particulars.

 In High Court matters, the request for further particulars must be signed by both an
attorney and an advocate, unless, of course, the party is representing himself, or the
attorney is entitled to appear in the High Court.
 In the Magistrates’ Courts, only an attorney or a party who is representing himself need
sign.

The party who has been asked to furnish the further particulars for trial, must furnish them
within 10 days of receiving the request, failing which the party requesting the further particulars
may make an application to court to compel their delivery.

 In some divisions, where the order compelling the providing of further particulars is
granted, it takes the form of a blanket order for compliance with the request.
 In other divisions, for example, in KwaZulu-Natal, the court orders compliance with only
the items in the request for particulars that has properly been made.

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  If a party makes his request out of time, he may not make application to compel the
opposing party to supply the further particulars requested.

A party who requests further particulars which are not strictly necessary to enable the party to
prepare for trial, may be punished by an adverse order as to costs.

 Rules 21(5) and 16(5) of the High Court and Magistrates’ Courts Rules, respectively,
clearly seek to discourage ‘fishing expeditions.’

Step 5: Subpoena of witnesses:

The method a party uses to obtain the attendance of a witness at court is by serving a subpoena
on him.

 A subpoena is really just a notice, in the form of a court order, to a witness telling him
that he is required to give evidence in court, under threat of penalty.
 The rules provide regulations relating to the service of these documents together with
payment for transport and witness fees.

1. Subpoenas in the High Court:

a) Normal subpoena:

Rule 38 of the High Court Rules deals with the subpoena of witnesses to give evidence at a High
Court trial and should be read with s 35 of the Superior Courts Act which deals with the manner
of securing attendance of witnesses.

Whichever party wants to subpoena a witness to give evidence on his behalf simply draws up a
subpoena which must correspond to Form 16 of the First Schedule to the High Court Rules.

 The subpoena is then issued by the registrar and served on the witness by the deputy
sheri .

Any party in a matter which is due to be tried before the court, has a right (and need not first
obtain the leave of the High Court) to have a subpoena issued and served on any witnesses the
party believes may be in a position to give evidence on his behalf, or may possess documents or
other physical pieces of evidence which a party thinks may be useful to his case.

 This right is somewhat limited in that the court may set aside a subpoena if it is certain
that the witness who has been subpoenaed will be completely unable to assist the court
in its determination of the issues raised at the trial.
 Previously, the court’s power to set aside a subpoena if it is satisfied, as a matter of
certainty, that the subpoena is unsustainable was derived from its inherent jurisdiction
to regulate its own process and avoid abuse of its process, a power which of course it
still enjoys.
 However, the power to set aside a subpoena is now contained in s 36(5) of the Superior
Courts Act.
 A party may not use a subpoena to harass his enemies and drag them to court for no
reason.

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b) Subpoena duces tecum:

In terms of rule 38(1)(a) a witness may be required to bring with him to court any deed,
instrument, writing or thing that is stipulated in the subpoena.

 A subpoena that contains a direction to the witness that he must bring a stipulated
deed, instrument, writing or thing with him to court is known as a subpoena duces
tecum.
 (The Latin words duces tecum mean ‘bring with you’.)

A subpoena duces tecum is an important procedural tool.

 It is the method by which a party is able to obtain access to documents or other items of
physical evidence that may be important to his case, when these items are in the
possession of persons who are not parties to the case.
 A subpoena duces tecum thus supplements the discovery and examination procedures
set out in rules 35 and 36, which are used to obtain documents and other evidence in
the possession of the other parties to the action.
 A witness who claims that the document in question is privileged must still comply with
the subpoena but must satisfy the registrar or the court that his claim of privilege is
legally justified.

c) Failure to comply with a subpoena:

Form 16 of Schedule 1 to the High Court Rules (i.e. the form for a High Court subpoena)
includes a warning directed at the witness, setting out the penalty for failure to obey a
subpoena.

 This is a fine of R300, or three months’ imprisonment.

Section 35 of the Superior Courts Act sets out in detail the consequences if a witness fails:

 either to come to court or to remain at court in compliance with the provisions of a valid
subpoena; or
 fails to produce any document or thing in accordance with a valid subpoena duces
tecum (although this may be dealt with more properly under s 36 of the Superior Courts
Act);485 or
 deliberately evades service of the subpoena.

Section 35(2) empowers the court to issue a warrant for the arrest of such a witness.

 Section 35(3) allows the court to order such witness to be detained ‘with a view to
securing his or her presence as a witness or production of any document or thing …’ In
terms of s 35(4), the court may conduct a summary enquiry into the failure to obey a
subpoena to attend any proceedings as a witness or to produce any document or thing
by such a witness.
 If the witness does not have a ‘reasonable excuse’ for his conduct, he may be sentenced
to a fine or imprisonment for a period not exceeding three months.

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An attorney preparing a subpoena on behalf of a party should bear the following points in mind
in order to ensure that the court will be able to deal e ectively with the witness if that witness
fails to obey the subpoena:

1. The sheri must properly serve the subpoena.

2. The subpoena should not be served too close to the trial date because the witness is
entitled to ‘reasonable notice’ that he has to appear as a witness. The circumstances of
each case will determine what ‘reasonable notice’ is.
3. All the witness fees due to the witness should either be paid to him or o ered to him in
the subpoena.
4. In respect of a subpoena duces tecum, the document or thing must be su iciently
particularised.

d) Calculating witness fees:

Section 42 of the Supreme Court Act provides for the fees to which a particular witness is
entitled.

 This particular Act is unlikely to be relevant in this context much longer, however.
 The Supreme Court Act was repealed and replaced by the Superior Courts Act in 2013.
 Section 42 of the Supreme Court Act is to be replaced by s 37 of the Superior Courts Act.
 However, s 37 of this Act is not yet in force and will take e ect on a date to be
proclaimed.
 Until it is proclaimed, the ‘old’ tari under the Supreme Court Act remains applicable.
 Therefore the discussion below proceeds on the basis of the Supreme Court Act,
although its terms are essentially identical to its imminent replacement provision; s 37
of the Superior Courts Act.

Section 42 gives the Minister of Justice and Correctional Services, in consultation with the
Minister of Finance, the power to prescribe a tari of allowances to be paid to witnesses in civil
proceedings.

 While a witness should not be left out of pocket for having given evidence, the guiding
principle with regard to the financial compensation given to witnesses is that they
should not be remunerated for evidence given in a court of law.
 It is easy to see that it would be unhealthy to pay witnesses for giving evidence and a
balance has to be achieved.
 Witnesses should not be financially prejudiced by giving evidence, but neither should
they make a profit.
 The schedule provides for a subsistence allowance, travelling expenses and transport,
and income forfeited, and applies to both the High Court and Magistrates’ Courts.

2. Subpoenas in the Magistrates’ Courts:

In Magistrates’ Courts practice, subpoenas and subpoenas duces tecum are dealt with by s 51
of the Act and rule 26 of the Magistrates’ Courts Rules.

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  The form a subpoena takes in the Magistrates’ Courts is set out in Form 24 of the
Magistrates’ Courts Rules.
 A subpoena is issued in a manner very similar to that followed in the High Court, and is
served in the same manner by the applicable sheri .
 Rule 26(4) provides that the subpoena must be accompanied by as many copies as
there are witnesses to be summoned, together with their ‘conduct’ money in each case.
 Subpoenas duces tecum are dealt with in terms of rule 26(3), the subpoena needing to
specify the document or thing required to be produced in evidence.

In terms of rule 26(5), a magistrate may set the service of a subpoena aside if it appears that the
witness was not given reasonable time to enable him to appear.

Step 6: Special evidence:

Special rules apply to the following types of evidence, which have been categorised in this book
as special evidence:

1. Evidence by an expert witness;

2. Evidence in the form of photographs, plans, models and diagrams;
3. Evidence on commission;
4. Evidence by means of interrogatories; and
5. Evidence on a idavit.

1. Expert evidence:

While parties are obliged to make pre-trial discovery or allow examination of physical evidence,
ordinarily there is no obligation on a party to reveal the nature and content of the oral testimony
that their witnesses will deliver in court.

 An exception to this is expert evidence.

 Anyone may give opinion evidence if it is relevant in that it will assist the court
appreciably, but the opinion evidence of an expert falls into a special category.
 Such evidence is necessary when a court lacks the specialist knowledge which is
essential to enable it to decide certain issues in a matter.
 The evidence of expert witnesses is dealt with in terms of rule 36(9) of the High Court
Rules, and rule 24(9) of the Magistrates’ Courts Rules.
 These two rules are identical.

In terms of these rules a party intending to call an expert must do two things:

1. 1.Not less than 15 court days before the hearing, deliver a notice of his intention to call
an expert.
2. 2.Not less than 10 court days before the hearing, deliver a summary of the expert’s
opinion, which must include his reasons for that opinion.

In practice, these two steps are often combined into one and the notice of intention to call the
expert is combined with the summary of the expert’s opinion.

Although the required summary of the expert’s evidence need be no more than a brief synopsis
of the evidence, the summary should indicate the following:

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 1. The expert’s qualifications and experience in order to establish him as an expert;
2. The facts and data on which the opinion is based;
3. The process of reasoning (if it is not a matter of ordinary logic) used to arrive at the
opinion; and
4. The expert’s reasoned conclusions (i.e. opinion).

2. Photographs, plans, models and diagrams:

a) In the High Court:

If a party decides that he wants to use a plan, diagram, model or photograph as evidence during
the trial of an action, notice must be given to the opposing party before the trial.

 The applicable rules are High Court rule 36(10) and Magistrates’ Courts rule 24(10).
 Although not identical, these rules are very similar.

Rule 36(10)(a) of the High Court Rules reads as follows:

 No person shall, save with the leave of the court or the consent of all the parties, be
entitled to tender in evidence any plan, diagram, model or photograph unless he shall
not less than fifteen days before the hearing have delivered a notice stating his intention
to do so, o ering inspection thereof and requiring the party receiving notice to admit the
same within ten days after receipt of the notice.

The purpose of this notice is twofold.

 First, without giving notice to the opposing side, the plan, diagram, model or photograph
intended to be used in evidence may not be used.
 The second purpose is to obtain the consent of the opposing party to the admission of
the evidence without proof.

b) In the Magistrates’ Courts:

The corresponding rule 24(10) of the Magistrates’ Courts Rules is worded in a slightly di erent
fashion.

 Rule 24(10)(a) and (b) corresponds to rule 36(10)(a), and rule 24(10)(c) and (d)
corresponds to rule 36(10)(b) of the High Court Rules.
 These rules, although not identical, are very similar and have a similar e ect.
 However, the time periods di er: in a Magistrates’ Courts matter the notice has to be
served on the opposing party no less than 10 days before trial, and the opposing party
has to deliver his objection within five days of receipt of the notice.

3. Evidence on commission:

In certain cases it may not be possible, for some reason or other (e.g. if the witness is
bedridden, or is located in a foreign country), to get a witness to court to testify at the trial of a
matter.

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  One way in which this problem may be overcome is for the court to appoint a
commissioner, who will then go and take the evidence of that witness in the form of a
deposition.
 The deposition may then be handed in as evidence at the trial of the matter.
 The court loses the advantage of observing the demeanour of that witness, or putting
questions to him in person, but this is still better than losing the evidence altogether.

a) In the High Court:

A party who wishes to make use of this procedure will have to apply to court in terms of rule
38(3) of the High Court Rules.

 Application is generally made after close of pleadings when the issues have been
defined and it is clear what evidence will be required.
 A commission may be appointed at an earlier stage, however, when there is a danger
that the evidence may be lost, for instance due to the imminent death of a witness.
 The party making application has to show that it is convenient or necessary for the
purposes of justice to order the taking of evidence before a commissioner.
 The issues the court will examine in order to determine this include the inability of the
witness to attend court, the likelihood of evidence being otherwise lost, together with
the relevance and materiality of the evidence.

b) In the Magistrates’ Courts:

Section 53 of the Magistrates’ Courts Act deals with commissions de bene esse in the
Magistrates’ Courts.

 The wording of s 53 di ers from that of rule 38 of the High Court Rules, but the e ect and
considerations involved are largely the same.
 Section 53(1) provides only that notice should be given to the opposing side of a request
for the appointment of a commissioner, unlike the express requirement in rule 38(3) of
the High Court Rules for the request to be made by application.
 Jones and Buckle, however, hold that where the request is made prior to the trial, it
should be made in writing as far as possible in accordance with the provisions of rule 55
of the Magistrates’ Courts Rules, which provides for applications.
 The contents of the supporting a idavit should generally be the same as that indicated
for the High Court practice above.
 Form 23 of annexure 1 to the Magistrates’ Courts Rules is used to appoint the
commissioner.
 Rule 26(2)(a) and (b) provide for the issue of a subpoena in respect of a witness who is
required to appear before a commissioner within the Republic.
 The subpoena issued out by the party desiring the attendance of the witness and issued
by the commissioner.

4. Evidence by means of interrogatories:

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a) In the High Court:

Examination by interrogatories may be thought of as a particular variant of the procedure for

taking evidence on commission.

 Interrogatories are a set of questions, which are drawn up by the parties and submitted
to the court for approval, then sent to the commissioner who puts them to the witness.
 In this case, there is no representation or cross-examination by the parties.
 The procedure is not dealt with in the High Court Rules directly, but in s 40 of the
Superior Courts Act.

A party to a High Court action is entitled to apply to court for leave to examine a witness who
resides, or is for the time being outside, the area of jurisdiction of the court, by means of
interrogatories.

 The applicant will annex to his application the questions which he wishes to be put to
the witness, and the respondent will usually ask for leave to put cross-interrogatories to
the witness.
 If the application is granted, the questions (i.e. the interrogatories and the cross-
interrogatories) will be transmitted to a commissioner of the court, who will put the
questions to the witness, and record the answers of the witness.
 The commissioner will send the answers to the registrar of the court, and they will be
received as evidence at the trial of the matter.
 This procedure is obviously cheaper than that provided for in rule 38(5) in that it does not
require the presence of the parties and their legal representatives.
 Its usefulness is limited, however, by the inflexible nature of the questions, which are
formulated in advance.
 The normal procedure for evidence taken on commission de bene esse, however, allows
the parties to respond to any unexpected information that emerges, and is therefore
more useful.

b) In the Magistrates’ Courts:

Section 52 of the Magistrates’ Courts Act provides a limited procedure for interrogatories in the
Magistrates’ Courts.

 Although its e ect is similar to the practice in the High Court set out above, there are
some di erences.
 Apart from the need to show that permitting interrogatories in a particular situation is
‘consistent with the ends of justice’, interrogatories under s 52 are only permitted in
respect of witnesses who reside or are in a district other than that in which the case is
being heard.
 This excludes witnesses who cannot attend court due to some other reason such as
illness, in which case a commissioner will have to be appointed under s 53, which deals
with commissions de bene esse.

The procedure set out in s 52 neither provides for interrogatories to be used by a commissioner
appointed outside of the Republic, however, nor indeed for the appointment of a commissioner
at all.

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  Section 52(1) provides for the court on the application of one of the parties to approve
interrogatories, and to frame some questions of its own.
 In place of a commissioner, these interrogatories are sent to the court within whose
jurisdiction the witness ‘resides or is’.
 The court then subpoenas the witness and puts the questions to him together with ‘such
other questions as may seem to be necessary to obtain full and true answers to the
interrogatories’.

5. Evidence on a idavit:

Rule 38(2) of the High Court Rules provides that in certain limited cases, the evidence of a
witness in a High Court action may be given on a idavit.

 This procedure is suited to those situations in which strictly formal evidence is required
from a witness, which will not be contested by the other side.
 If there is any reason to think that the other side will contest the evidence, the court will
order that the evidence be given viva voce in court, so that it may be tested under cross-
examination.
 In this regard, courts are more likely to grant leave to receive a idavit evidence where
the evidence relates to matters that are formal in nature than where the evidence is
contentious.
 An example of formal evidence that may be given by a idavit would be the testimony of
a banking o icial providing the exchange rate on a particular date, where a party wishes
to prove the precise value of a cheque in rand terms that has been made out in a foreign
currency.
 Other factors which may be relevant in deciding whether or not to receive a idavit
evidence are, for instance, lack of means, the expense of bringing the witness from a
foreign country, and the illness of a witness.
 The production of proof by way of an a idavit in terms of rule 38(2) will be discussed in a
pre-trial conference in terms of rule 37(5)

Step 7: Pre-trial conference:

1. Pre-trial conference in the High Court:

In terms of High Court rule 37, a pre-trial conference must be held between the parties no less
than six weeks before the date of the trial.

 In general terms, the purpose of the ‘rule 37 conference’, as it is known in practice, is to

curtail the proceedings as much as possible.
 To achieve this, the parties should try to define the points in issue between them, reach
agreement on as many issues as they can, and decide upon the most e ective way of
conducting the trial (for example, which party has the duty to begin leading evidence;
whether or not the parties will produce a combined ‘trial bundle’ of documents to be
used at the trial, and so on).
 The pre-trial conference also gives the parties a chance to curb costs and possibly to
settle the matter.

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  Rule 37A, which has now been repealed, was a separate rule that dealt with pre-trial
conferences in the Western Cape Division.

a) Calling the conference:

Rule 37(2)(a) requires that once the plainti receives notice of the trial date, he must, within five
court days, deliver a notice to the defendant, specifying the date, time and place for the pre-trial
conference.

 If the plainti fails to deliver this notice, and providing that 30 court days have passed
since the date of the plainti ’s failure, then, in terms of rule 37(2)(b), the defendant may
deliver a notice specifying the date, time, and place for the conference.
 The parties may agree to amend the date, time, and place for the conference, but it may
not be held less than six weeks before the date of the trial.
 In practice, this time limit is often not adhered to, although several courts have issued
practice directives in an attempt to ensure adherence to the rule.

Rule 37 conferences have frequently been held only a day or two before the trial, which
diminishes their potential value.

 should be discouraged and practitioners should endeavour to plan their matters to

ensure that the conference is held as early as is practicable, albeit after discovery and
after the parties have exchanged documents and further particulars.
 It has been held that although failure to comply with this time limit does not require an
application for condonation, it may attract an adverse costs order if it results in a delay
in the disposal of the case.

b) Setting the agenda:

Not less than 10 court days before the date of the conference, the parties must each deliver to
the other a notice in terms of rule 37(4).

 This notice may be thought of as being each party’s agenda for the conference.

Rule 37(4) requires that the following be listed in the notice:

1. The admissions that are required from the opposing party;

2. The enquiries that will be directed at the opposing party, which have not been included
in the request for particulars for trial; and
3. Any other matters regarding preparation for trial that the party delivering the notice
intends to raise for discussion.

c) The conference:

In practice, rule 37 conferences are often held between the advocates and the attorneys
involved in the matter without their clients being present.

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  Strictly speaking, the advocates’ presence is not necessary either, but, on the whole,
attorneys appear to prefer to have the advocates present at the conference.
 The conference usually takes place in the chambers of the most senior advocate
involved in the matter.

d) The rule 37 minute:

Immediately (i.e. within a day or two) after the rule 37 conference has been held, a rule 37
minute (a record of proceedings and the decisions reached) is prepared, usually by the
plainti ’s attorney from notes taken by the most junior advocate at the conference.

It is, however, the duty of all the parties present to prepare and sign the minute. The following
points must be covered in the minute in terms of rule 37(6):

1. The place, date and duration of the conference and the names of the persons present;
2. If a party feels that he is prejudiced because another party has not complied with the
rules of court, the nature of such noncompliance and prejudice must be recorded;
3. That every party claiming relief has requested his opponent to make a settlement
proposal and that such opponent has reacted thereto;
4. Whether any issue has been referred by the parties for mediation, arbitration or decision
by a third party and on what basis it has been so referred;
5. Whether the case should be transferred to another court;
6. Which issues should be decided separately in terms of rule 33(4);
7. The admissions made by each party;
8. Any dispute regarding the duty to begin or the onus of proof;
9. Any agreement regarding the production of proof by way of an a idavit in terms of rule
38(2);
10. Which party will be responsible for the copying and other preparation of documents;
and
11. Which documents or copies of documents will, without further proof, serve as evidence
of what they purport to be, which extracts may be proved without proving the whole
document or any other agreement regarding the proof of documents.

e) Special order as to costs:

Rule 37(9)(a) gives rule 37 its ‘bite’.

The rule directs the court, at the hearing of the matter, to consider whether or not it is
appropriate to make a special order as to costs against a party or his attorney, because he or his
attorney:

1. did not attend a pre-trial conference; or

2. failed to a material degree to promote the e ective disposal of the litigation.

The whole purpose of rule 37 is to reduce the length and complexity of litigation by eliminating
certain issues and getting the parties to agree on the manner in which certain pieces of
evidence will be presented.

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2. Pre-trial conference in the Magistrates’ Courts:

Pre-trial conferences in the Magistrates’ Courts are dealt with by s 54 of the Magistrates’ Courts
Act, read with Magistrates’ Courts rule 25.

 The purpose of the conference is very similar to its High Court counterpart.

In terms of s 54 of the Magistrates’ Courts Act, the following issues may be dealt with at such a
conference:

1. The simplification of the issues;

2. The necessity or desirability of amendments to the pleadings;
3. The possibility of obtaining admissions of fact and of documents with a view to avoiding
unnecessary proof;
4. The limitation of the number of expert witnesses; and
5. Such other matters as may aid in the disposal of the action in the most expeditious and
least costly manner.

An important innovation involving a new discretionary authority for magistrates, used in the
context of a section 54 conference, has been introduced with the 2010 rule amendments.

 In terms of rule 1(3), in order to promote access to the courts or when it is in the interest
of justice to do so, a court may, at a section 54 conference, dispense with any provision
of the Magistrates’ Courts Rules and give directions as to the procedure to be followed
by the parties so as to dispose of an action in the most expeditious and least costly
manner.
 While this innovation does not amount to the kind of inherent jurisdiction enjoyed by
judges in the High Court, it certainly appears to be a shift in that direction.

Step 8: Final preparation for trial:

1. Advice on evidence:

Once all the pre-trial proceedings have been completed, final preparations must be made for
the trial.

 In High Court practice it is quite usual for an advocate to be briefed by an attorney to

draft what is known as an advice on evidence.
 An advice on evidence is an advice to the attorney on all the relevant aspects of the case
to make sure that the client’s case will be put as persuasively and comprehensively as
possible at the upcoming trial, and to make sure that nothing in the preparation has
been left out.

Usually, the advocate discusses the following issues in the advice on evidence:

1. The form of the pleadings (whether pleadings are properly closed; whether any
pleadings are still required; whether any amendments to the pleadings are necessary;
whether a request for further particulars for trial is necessary, etc.);
2. The discovery process (whether the process has been completed fully by both sides,
etc.);

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 3. The issues and the onus of proof (a list distinguishing those matters which are in issue
from those which are not in issue [i.e. those issues that are in dispute from those that
are common cause]; which of the parties bears the onus of proof in relation to each
issue; which party has the duty to begin presenting evidence at the trial, etc.);
4. The evidence available (what the documentary evidence is; what the oral evidence is;
whether any further documentary or oral evidence is required; whether any expert
witnesses are required; whether any models, plans, photographs or diagrams are
necessary; how the evidence should be adduced, etc.); and
5. General observations (whether any further preparation is required; the prospects of
success at the trial; the quantum involved [which may assist the client in fixing a
minimum settlement amount], etc.).

2. Case-flow management:

Significant developments have occurred under the direction of the Chief Justice acting in terms
of the Superior Courts Act to better ensure access to justice and the speedy resolution of cases
in the superior courts.

 In 2014, the Chief Justice published the Norms and Standards for the Performance of
Judicial Functions in terms of which judicial o icers’ functions are to include judicial
case-flow management.
 The intention of judicial case-flow management is to ensure that judicial o icers take
control of the management of cases at the earliest possible opportunity, play an active
role in and take primary responsibility for the progress of cases through the superior
court.

The introduction of judicial case-flow management signals a limited departure from the
traditional adversarial system where judges adopted a ‘hands-o ’ approach to litigation to one
in which they become involved from the outset, overseeing the preparation of the case for trial
to ensure that cases are concluded without unnecessary delay.

 The same judicial o icer is seized of a matter from inception and gives the final ‘sign o ’
for the matter to proceed to trial.
 In some divisions, certain matters, such as RAF matters, may not be enrolled for hearing
unless they are certified ‘trial ready’ by a judicial o icer.

3. Preparation of trial bundles:

In High Court practice, one of the final tasks to be performed in preparation for trial is the
creation of bundles or collections of documents for use at trial.

 We have seen that documents relevant to the case are discovered by means of the rule
35 discovery process.
 Each party needs to decide thereafter which documents it intends to use in evidence at
the trial.
 This information should be disclosed to the opposing party in reply to a rule 35(8) notice.
 Ideally, the parties should attend the rule 37 conference knowing which documents
they intend to use at trial.

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  One of the parties should then be given the task546 of gathering together the original
documents (if possible) from both parties into one bundle in chronological order.
 Each page in this bundle of documents should be consecutively numbered (paginated).
 Then an index listing each individual document in the bundle, together with a page
reference, should be prepared and a ixed to the front of the bundle.
 The bundle should then be photocopied in order to produce enough copies for the
attorneys and advocates involved in the matter, as well as one copy for the use of
persons giving evidence at the trial.
 The judge is provided with the bundle containing the original documents.
 In this way, all the parties and the judge are provided with a common set of documents,
uniformly indexed and numbered, to which the parties and judge may conveniently refer
at trial.

4. Indexing and paginating the court file:

The final task to be performed in High Court practice in preparation for trial is the indexing and
pagination of the court file.

 This is required in terms of rule 62(4) of the High Court Rules, which provides that ‘an
applicant or plainti shall not later than five days prior to the hearing of the matter
collate, and number consecutively, and suitably secure, all pages of the documents
delivered and shall prepare and deliver a complete index thereof.’

This task is usually given to a responsible but junior member of the plainti ’s attorneys firm,
invariably a candidate attorney.

 There will be a complete copy of all the pleadings in both the plainti ’s and the
defendant’s attorneys’ files, with the original documents filed at court.
 Usually, the candidate attorney will start by gathering together all the pleadings from the
plainti ’s attorneys’ file.
 Next, he will place them in chronological order and number each page consecutively.
 He will then draft an index which lists each pleading in turn, with an indication of the
page at which the pleading appears.
 The same procedure is followed for the notices and other processes, which are usually
listed separately from the pleadings.
 He will then visit the general o ice of the registrar armed with split pins, a spike or a
corner punch, and the indexes.
 He will then request the court file and proceed to place all the pleadings and notices in
chronological order and to paginate the papers by numbering each page consecutively.
 Finally, he will attach the index to the front of the bundle, and secure the documents
together with a split pin pushed through a hole created in the top left-hand corner of
each document.
 Of course, other methods of securing the documents such as plastic ring binders may
be used, and di erent divisions of the High Court may well have their own practices and
rules for this procedure.
 There is no provision for a sanction within rule 62 itself, but in most divisions, failure to
conform to the rule will result in the matter being struck o the roll with a suitable order
as to costs, or at the very least in raising the ire of the judge hearing your matter.

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Theme 3: Trial
LO8: Analyse the steps of a trial in the High Court with reference to:

 Parties not present.

 Open court.
 Recalcitrant witnesses.
 Duty to begin.
 Opening address.
 Plainti ’s case.
 Application for absolution from the instance.
 Defendant’s case.
 Closing address.
 Reopening the case.
 Inspections in loco.
 Reference to a referee.

Parties not present:

Failure on the part of one or other of the parties to appear at the trial may lead to default
judgment being taken against them.

 Note that in terms of rule 39(2), a defendant who has been barred from pleading and
who has failed to have the bar lifted, may not, without the special permission of the
court, appear at the trial in order to defend the matter.

Open court:

In terms of s 32 of the Superior Courts Act, all proceedings must be carried on in open court,
which means that the press and public may be present, although this does not necessarily
mean that the proceedings may be televised.

 This section reflects the important principle that justice should be seen to be done.
 In special cases, however, matters may be heard in camera with the public and press
excluded. What constitutes a special case will depend on the circumstances.
 Embarrassment and prejudice to a witness have been held to constitute a special case.
 The overriding criterion, however, is the proper administration of justice.

Recalcitrant witnesses:

Section 36 of the Superior Courts Act covers the way in which witnesses may be dealt with if
they refuse to give evidence or produce documents.

If a witness:

1. refuses to take the oath or make an a irmation; or

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 2. having taken an oath or having made an a irmation, refuses to answer such questions
as are put to him; or
3. refuses or fails to produce any document or thing which he is required to produce
without any just excuse for his refusal or failure, the court may adjourn the matter for up
to eight days and commit the recalcitrant witness to prison for this period.

Duty to begin:

At the start of the trial, the parties may request the court to hear argument and make an order as
to which of the parties is under the obligation to adduce evidence first. In terms of rule 39(11) of
the High Court Rules:

 Either party may apply at the opening of the trial for a ruling by the court upon the onus
of adducing evidence, and the court after hearing argument may give a ruling as to the
party upon whom such onus lies: Provided that such ruling may thereafter be altered to
prevent injustice.

Usually, the plainti is obliged to adduce evidence first because the overall onus is on him to
prove his case on a balance of probabilities.

 There is, however, a secondary evidentiary burden, which must be taken into account.
 This is a duty placed on a party to combat a prima facie case made by the opposing
party.
 It is necessary to examine the admissions made in the pleadings to ascertain where the
evidential burden lies.
 For example, a defendant in a defamation case may admit that a defamatory remark
was uttered, but claim that this remark was ‘true and in the public interest’ (a classic
plea of confession and avoidance).
 In this situation, the plainti will no longer be obliged to prove defamation, but the
defendant will be obliged to prove the statement to be true and in the public interest.
 In other words, the defendant now bears the evidentiary burden (or onus).

Opening address:

At the start of the trial, the party upon whom the burden of proof rests, or an advocate on his
behalf, may briefly outline the facts he intends to prove.

 This brief outline of the facts is known as the opening address.

 Unlike the dramatic orations sometimes seen in television shows (which may in any
event involve ‘playing to a jury’), the opening address is a sober summing up for the
benefit of the judicial o icer of the issues to be addressed.
 Counsel should take the court through the pleadings, explaining what the case is about
and listing the averments that must be proven, distinguishing them from those which
are common cause.

Plainti ’s case:

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After the opening address, the party with the duty to begin (usually the plainti ) will lead the
witnesses who are able to give evidence in support of his case.

In terms of rule 39(8) of the High Court Rules:

 Each witness shall, where a party is represented, be examined, cross-examined or re-

examined as the case may be by only one (though not necessarily the same) advocate
for such party.

The parties present their cases in turn, beginning with the party that bears the evidentiary
burden. Generally, the nature and scope of whatever evidence is led will have been determined
by the pleadings.

 Evidence not covered by pleadings will usually be inadmissible and may only be relied
on by a court where it is not prejudicial to the other party.
 Each witness called is ‘led’ in his evidence-in-chief, where the witness sets out his
version of events with the help of fairly open questions such as ‘What happened next?’
from the advocate who called him.
 The reason for such open questions is that counsel who has called the witness may not
asking leading questions, i.e. questions that suggest an answer or assume facts that are
in issue.

Application for absolution from the instance:

In the majority of cases, it is the plainti ’s advocate who accepts the duty to begin and leads the
witnesses in support of his client’s case.

 After all the evidence for the plainti has been led, the plainti ’s case is closed.
 At this point the defendant’s advocate may decide to apply to the court, without leading
evidence, for absolution from the instance on behalf of his client.
 He may do this without leading evidence because it is the plainti who bears the overall
onus of proving his case on a balance of probabilities, and there is no obligation on the
defendant to adduce evidence if the plainti has failed to discharge the overall onus by
the end of his case.
 If the court grants absolution from the instance, the case comes to an end.
 The plainti may still pursue the matter, but in order to do so he will have to institute a
fresh action against the defendant.

If the defendant decides to apply for absolution from the instance at the close of the plainti ’s
case, the defendant (or his advocate) will address the court in support of the application.

 The plainti (or his advocate) will then address the court in opposition to the
application.
 The defendant (or his advocate) may then respond to any matter arising out of the
address on behalf of the plainti .

Defendant’s case:

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If the defendant’s application for absolution from the instance at the end of the plainti ’s case is
refused (or if he did not make such an application in the first place), he is obliged to open his
case.

 If he is convinced that the plainti has not managed to adduce su icient evidence to
prove his claim on a balance of probabilities, the defendant may close his case
immediately without leading any evidence at all.
 In order to do this, the defendant must be confident that the plainti ’s version of events,
even if uncontested, is not strong enough to prove the claim against him on a balance of
probabilities.

To close the defendant’s case without leading evidence clearly requires nerves of steel (as well
as sound legal judgment) on the part of an advocate or attorney acting for the defendant.

 In almost all such cases the court will, minutes before, have turned down the
defendant’s application for absolution from the instance (which means that the plainti
has adduced su icient evidence upon which a reasonable person might find in his
favour).
 Immediately thereafter, the court will be asked to reconsider the matter (without any
additional evidence having been led) in the hope that it will find in the defendant’s
favour.
 All that changes is the test that the court applies to the evidence before it.
 Once the defendant closes his case, the court has to consider whether the plainti has
proved his case on a balance of probabilities (in other words, whether the plainti has
adduced su icient evidence upon which the court ought to find in his favour).

Closing address:

Rule 39(10) of the High Court Rules deals with the closing addresses by the parties or their legal
representatives:

 Upon the cases on both sides being closed, the plainti or one or more of the advocates
on his behalf may address the court and the defendant or one or more advocates on his
behalf may do so, after which the plainti or one advocate only on his behalf may reply
on any matter arising out of the address of the defendant or his advocate.

In the closing address, counsel addresses the court on what has emerged from the evidence.

 He goes through the evidence to show what has been proven, and discusses the
performance of the various witnesses; their credibility, reliability and the weight that he
believes should be placed on the testimony of each witness.
 He may also make submissions with reference to the inherent probabilities in the case.
 Finally, he may be required to debate a point of law with his opponent and the court.

Reopening the case:

Once a party’s case has been closed, it may not be reopened without the permission of the
court.

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  Although the court may permit the reopening of a case at any time before judgment, the
longer the trial progresses, the more reluctant the court will be to grant such permission.

The party who wishes to reopen his case must show that:

1. he used proper diligence to procure his evidence for the trial. This means he must show
that evidence has emerged which was not available or could not reasonably be obtained
before he closed his case, or, if the evidence was available and obtainable, he must give
an acceptable explanation as to why it was not adduced before he closed his case.
Leave to reopen the case will not be granted if it appears to the court that the evidence
was withheld intentionally; and
2. the evidence which is proposed to be led is material and likely to be weighty. It need not,
however, be so weighty that it would, if believed, be practically conclusive.

Inspections in loco:

It is often easier to understand the oral evidence being given by a witness about certain events if
one has visited and inspected the area in which the events occurred.

 This is obvious: once someone has seen with his own eyes an area, or structure, or
whatever, he is able to picture accurately in his mind what the witnesses are speaking
about.
 For this reason, it often happens that the court, together with all the parties and their
legal representatives, will take a trip to the place where the alleged cause of action in
the particular matter arose, and will conduct what is called an inspection in loco.
 It may be necessary also to hold an inspection in loco for the purpose of viewing pieces
of real evidence, such as defective concrete blocks, that cannot be transported to court.
 When the judge is present, this is known as a judicial inspection.
 Inspections may also be carried out by the parties without the judge present.

At any time during the hearing of the trial, either party may apply to the court for an inspection in
loco to be held, and the court has a discretion to grant or refuse this application.

 Also, the court itself may decide that it wishes to conduct an inspection in loco.
 The best time to hold an inspection in loco is at an early stage of the trial.

Notes are taken during the inspection in loco, and the nature of the observations made are read
into the record upon return to court.

 For this reason, the legal representatives of the parties should ensure that features
relevant to their respective party’s cases are pointed out to the judicial o icer during the
inspection in loco.

Reference to a referee:

In terms of s 38 of the Superior Courts Act, certain matters may be referred to a referee for
enquiry and report.

The following matters are specifically mentioned in s 38:

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 1. Any matter which requires extensive examination of documents or scientific, technical
or local investigation which in the opinion of the court cannot be conveniently
conducted by it. or
2. Any matter which relates wholly or in part to accounts; or
3. Any other matter arising.

This means that if the court is confronted with a highly technical matter, it may call in the
assistance of an expert in the relevant field.

 The referee then conducts an enquiry into the matter and produces a report.
 The court may adopt the report, either wholly or in part, and either with or without
modifications.
 It may also send the report back to the referee for further enquiry or consideration, or
make any other order in relation to the report that it feels is necessary or desirable.
 Once the court has adopted the report, it has the same e ect as if it were the court’s
own finding in the matter.

LO9: Discuss trial proceedings and related concepts in the Magistrate’s Court.

Trial in the Magistrates’ Courts:

There are few real di erences between the trial procedure followed in the High Court and in the
Magistrates’ Courts, and much of what is described above in relation to High Court practice
applies equally to Magistrates’ Courts practice – except, of course, that a di erently worded set
of rules apply.

 The procedure relating to the way in which a trial in the Magistrates’ Courts is conducted
is set out in rule 29 of the Magistrates’ Courts Rules.
 Section 5 of the Magistrates’ Courts Act provides that, apart from exceptional
circumstances, the trial must take place in open court.
 Rule 29(1) of the Magistrates’ Courts Rules provides that the trial should take place at
the court house from which the summons was issued, unless the court has ordered
otherwise.

Rule 29(3) deals with the opening address by each of the parties.

 Before proceeding to hear evidence, the court may require the parties to state briefly the
issues of fact or questions of law that are in dispute.
 This opening address serves substantially the same purpose as that in the High Court.

Rule 29(4) is designed to make litigation more expeditious (speedy).

 In terms of this rule, the court may decide to deal separately with one issue in the
matter, which may determine the action, and eliminate the need to deal with the other
issues, which will become superfluous (unnecessary).

Rule 29(5) provides that if the parties are agreed on the facts, and the dispute between them is
essentially a question of law, then the facts may be admitted, and the court may give a
judgment without hearing further evidence.

 In this situation the parties have to agree on a set of facts to be admitted.

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If both facts and law are in dispute, and the court believes that it can dispose of the matter by
deciding the question of law only, then it is entitled to do so in terms of rule 29(6).

 An example of this would be a dispute relating to a defendant’s liability in terms of a

liquid document.
 There may be two areas of dispute: firstly, one of fact relating to whether or not the
defendant signed the document, and, secondly, a question of law relating to whether or
not the defendant’s alleged liability under the document has prescribed.

Rule 29(7) to 29(12) sets out the order in which evidence must be led.

 There is no substantial di erence between the e ect of these rules and the practice of
the High Court set out above.
 The order in which evidence is given and the mode of questioning are the same.
 While the parties themselves may remain in the court throughout the proceedings,
usually witnesses should sit outside court until called upon to testify.
 The plainti should give evidence before listening to that of his witnesses.
 This avoids the suspicion that the plainti has tailored his evidence to fit that of the
witnesses, and increases the probative value of his evidence.600 This applies equally to
the defendant.

Rule 29(11) deals with the situation in which a party who has closed his case wishes to lead
further evidence.

The court will take into account the following factors in deciding whether or not to grant leave to
a party to adduce further evidence:

1. The reason it was not led timeously;

2. The degree of materiality of the evidence;
3. The balance of prejudice;
4. The general need for finality in judicial proceedings; and
5. The stage that the particular litigation has reached.

Rule 29(12) deals with the recalling of a witness for further examination, and rule 29(14) deals
with the closing addresses.

 These rules are broadly similar in e ect to the practice in the High Court.
 Recalcitrant witnesses in the Magistrates’ Courts are dealt with in terms of s 51 of the
Magistrates’ Courts Act.

Theme 4: Legal drafting of pleadings in the action procedure

LO10: Draft various pleadings that form part of the action procedure.

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 Learning Unit 6
Stage Two: Litigation, Judgment, interest and costs

Theme 1: Judgment
LO1: Analyse judgment as it takes place in the High court and the Magistrate’s court.

Judgment in the High Court:

There is no provision in the High Court Rules or the Superior Courts Act directly relating to
judgment following upon a trial.

 The authority of the High Court to grant judgments appears to derive from common law.
Judgment in the Magistrates’ Courts, by contrast, is provided for in terms of s 48 of the
Magistrates’ Courts Act.

1. Judgment at the close of the plainti ’s case:

The defendant is entitled to apply to the court for absolution from the instance at the close of
the plainti ’s case.

 This means that the action is dismissed, but judgment is not entered for either the
plainti or the defendant.
 If the plainti still wishes to pursue the matter once absolution from the instance has
been granted, he must institute a fresh action against the defendant.
 The procedure adopted is that the defendant (or his legal representative) addresses the
court; the plainti (or his legal representative) answers; and the defendant (or his legal
representative) replies.
 The court will only grant absolution from the instance if the plainti has not managed to
adduce su icient evidence upon which a reasonable person might find in favour of the
plainti .
 In making its decision the court normally will not have regard to the credibility of
witnesses unless the plainti ’s witnesses are obviously lying or have broken down to
such an extent that no reasonable person would place reliance upon them.

2. Judgment at the close of the defendant’s case:

Once the defendant has closed his case, and each party has delivered his closing address, the
court will usually reserve judgment in order to give the judge time to consider the matter
properly.

 Once the judge has considered the matter, the parties will be informed of the date on
which judgment will be delivered.

The court may hand down one of three judgments:

1. Judgment for the plainti ;

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 2. Judgment for the defendant; or
3. Absolution from the instance.

The judgment which the court gives after the close of the defendant’s case depends on the
manner in which the parties discharge the onus upon each of them.

 Overall, the onus rests upon the plainti to prove his case on a balance of probabilities.
 If he succeeds in doing this, the court will grant judgment in his favour.
 If he fails to do this, the court has a choice either to grant absolution from the instance
or judgment for the defendant.
 If the defendant has convinced the court that the balance of probabilities favours his
version of events, the court will grant judgment in his favour.
 Otherwise, the court will grant absolution from the instance.
 What a judgment of absolution from the instance essentially means, therefore, is that
neither the plainti nor the defendant has been successful in convincing the court that
the balance of probabilities favours him.

This may occur in two circumstances:

1. Where the evidentiary burden is on the plainti , and neither the plainti nor the
defendant has been able to establish a case or defence on a balance of probabilities; or
2. The result of a case depends upon the credibility of witnesses who give contradictory
evidence, and the court is unable to decide which of them is untruthful, making it
impossible to decide between them

Where the evidentiary burden is on the defendant, however, the court will never grant absolution
from the instance at the end of the whole case.

 In such a matter, judgment will be for the defendant if the onus is discharged, and for the
plainti if it is not discharged.

3. Interpreting the court’s judgment:

The following quote sets out the well-established test on the interpretation of court orders:

 The starting point is to determine the manifest purpose of the order.

 In interpreting a judgment or order, the court’s intention is to be ascertained primarily
from the language of the judgment or order in accordance with the usual well-known
rules relating to the interpretation of documents.
 As in the case of a document, the judgment or order and the court’s reasons for giving it
must be read as a whole in order to ascertain its intention.

Judgment in the Magistrates’ Courts:

Section 48 of the Magistrates’ Courts Act sets out the various judgments that may be granted as
a result of the trial of an action:

1. Judgment for the plainti in so far as he has proved the same;

2. Judgment for the defendant in respect of his defence in so far as he has proved the
same;

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 3. Absolution from the instance if it appears to the court that the evidence does not justify
the court in giving judgment for either party;
4. Such judgment as to costs (including costs as between attorney and client) as may be
just;
5. An order, subject to such conditions as the court thinks fit, against the party in whose
favour judgment has been given, suspending wholly or in part the taking of further
proceedings upon the judgment for a specified period pending arrangements by the
other party for the satisfaction of the judgment; and
6. An order against a party for the payment of an amount of money for which judgment has
been granted, in specified instalments or otherwise, including an order contemplated by
s 65J or 73.

The court will grant:

1. either (1) or (2) or (3);

2. plus, in most cases it will grant (4);
3. plus, in certain cases it may grant (5) or (6).

With regard to judgment for the defendant in terms of s 48(b), the subsection envisages a
defence raised by the defendant in respect of which the burden of proof is on the defendant.

 For example, the burden of proof may be on the defendant in respect of facts which he
has alleged ‘by way of confession and avoidance, in respect of a special defence such
as compromise or payment, or waiver, or in respect of dilatory defences and pleas in
bar’.

LO2: Discuss concepts and principles in relation to variation and setting aside of the court’s
judgment.

Variation and setting aside of the court’s judgment:

Once a court has delivered a judgment, the matter is closed in the sense that the original court
may not revisit the matter.

 In giving a judgment, the court has exercised its jurisdiction in the case to the utmost
extent possible, and its authority over the matter has end.
 The judge who delivered the judgment is functus o icio, and there is also the public
interest in bringing litigation to finality.
 As a general rule, once the court is functus o icio, it may not alter or vary its judgment in
any manner.
 If the person who lost the case is unhappy with the result, he should take the matter on
appeal or review.

There are, however, exceptional circumstances where the original court may alter its judgment.

 These exceptions fall broadly into two categories, the correction of errors in a judgment
and the rescission or cancellation of a judgment.
 When correcting errors, note that the court may not amend the essential substance of a
judgment.

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1. Variation and rescission of judgment in the High Court:

a) Variation of judgment in the High Court In the High Court, judgments may be varied in
two ways.

The first method is provided by common law, while the second is provided for in terms of rule 42
of the High Court Rules.

(i) Variation in terms of common law:

The High Court has the authority at common law to ‘supplement, clarify or correct’ its own
judgments.

 This power would seem to overlap with the High Court’s inherent jurisdiction to regulate
its own proceedings in the interests of justice.

Using this power, it has varied its judgments to:

1. allow for the inclusion of accessory or consequential matters that have been
inadvertently overlooked or that the court has inadvertently failed to grant;
2. clarify a judgment, the meaning of which is obscure, ambiguous or uncertain;
3. correct a clerical, arithmetic or other error; or
4. correct, alter or supplement a costs order.

An application to vary a judgment in terms of common law must be brought within a reasonable
time of the judgment having been granted.

(ii) Variation of a judgment in terms of rule 42(1):

High Court rule 42(1) supplements common law by providing for certain instances in which the
court may either mero motu or on application by one of the parties set aside or vary one of its
judgments or orders.

 The element that is more or less common to all the instances of variation or rescission
under this particular rule is that of error.
 The court is not confined to the record of the proceedings in deciding whether a
judgment was erroneously granted.

The rule provides for variation in the following instances:

1. An order or judgment erroneously sought or erroneously granted in the absence of any

party a ected thereby;
2. An order or judgment in which there is an ambiguity, or a patent error or omission in the
order or judgment, but only to the extent of such ambiguity, error or omission; and
3. An order or judgment granted as the result of a mistake common to the parties.

Rule 42(1)(a) deals specifically with those default judgments or orders which were erroneously
sought or granted in the absence of any party a ected thereby.

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  The essential elements of this type of rescission are therefore (a) that judgment was
erroneously sought or granted and (b) that this occurred in the absence of a party
a ected thereby.
 Rule 42(1)(b) allows the court to correct obvious mistakes it has made in its judgment or
order.

It covers the following exceptions to the functus o icio rule, all of which have been recognised
by the Appellate Division, and are conveniently listed by Erasmus in his comment on the rule:

1. The principal judgment or order may be supplemented in respect of accessory or

consequential matters, for example, costs or interest on the judgment debt, which the
court overlooked or inadvertently omitted to grant.
2. The court may clarify its judgment or order if, on a proper interpretation, the meaning
thereof remains obscure, ambiguous or otherwise uncertain, so as to give e ect to its
true intention, provided it does not thereby alter ‘the sense and substance’ of the
judgment or order.
3. The court may correct a clerical, arithmetical or other error in its judgment or order so as
to give e ect to its true intention. This exception is confined to the mere correction of an
error in expressing the judgment or order; it does not extend to altering its intended
sense or substance.
4. Where counsel has argued the merits and not the costs of a case, but the court has
made an order regarding the costs, it may thereafter correct, alter or supplement that
order.

With regard to rule 42(1)(c), two broad requirements must be met before the rule may be relied
on to rescind a judgment.

 Firstly, there must have been a common mistake between the parties, which means that
both parties must have made the mistake.
 Secondly, there must be a causative link between the mistake and the eventual order.

b) Rescission of judgment in the High Court:

In the High Court, a default judgment may be rescinded in the following ways:

1. In terms of rule 42(1) of the High Court Rules;

2. In terms of rule 31(2)(b) and 31(5)(d) of the High Court Rules; and 3. Under the common
law.

(i) Rescission in terms of rule 42(1):

Rescission under this rule requires the judgment to have been granted because of an error of
some kind.

 Rescission may also be granted under rule 31(2)(b) or rule 31(5)(d) or in terms of the
common law, but if an error can be shown, it is not necessary for the party seeking the
rescission under rule 42 to show good cause as is required with the other two types of
application for the rescission of a default judgment.

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Rule 42(1)(a) provides for the rescission of an order or judgment ‘erroneously sought or
erroneously granted in the absence of any party a ected thereby’.

 The two necessary elements are therefore an error made that a ected the judgment and
the absence of a party a ected thereby.
 The absence of the party will mean that many of the applications made under this sub-
rule will be in connection with a judgment granted by default.
 Other such applications will concern consent orders which have been granted on some
mistaken premise in the absence of one of the parties.

There is authority to the e ect that the error must be apparent from the record, which would not
be the case necessarily in respect of the two examples mentioned above.

 Erasmus submits that in deciding whether a judgment has been granted erroneously, a
court is not confined to the record of the proceedings, and the error must appear ex
facie in respect of the record only where the court acts mero motu on the basis of an
application made from the bar.

(ii) Rescission in terms of rule 31(2)(b) and reconsideration in terms of rule 31(5)(d):

Rescission in terms of rule 31(2)(b) may only take place in respect of default judgments granted
in terms of rule 31(2)(a).

 These are default judgments granted in respect of claims that are ‘not for a debt or
liquidated demand’ (in other words an unliquidated claim), and where default judgment
was granted because the defendant failed to deliver an appearance to defend or enter a
plea.
 There is no explicit provision for rescission in the case of a debt or liquidated demand
where judgment has been granted by the registrar in terms of rule 31(5).
 If a party is dissatisfied with the judgment or directions of the registrar, however, he may,
within 20 days after he has acquired knowledge of the judgment or direction, set the
matter down for reconsideration by the court in terms of rule 31(5)(d).
 It is not clear how an application for reconsideration by the court of a default judgment
given by the registrar will di er from an application for rescission of a default judgment
given by the court.
 The safest course of action for the defendant to adopt in the former case is to treat an
application for reconsideration in the same way as an application for rescission.

(ii)(a) A reasonable explanation for default:

In giving a reasonable explanation for his default, the appellant must show that his default was
not wilful. Wilful default exists where:

1. the defendant has knowledge that the action is being brought against him;
2. the defendant deliberately refrains from entering an appearance to defend, though free
to do so; and
3. the defendant has a certain mental attitude to the consequences of default.

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Let us discuss each of these requirements in turn:

1. Firstly, to be in wilful default, the defendant must have knowledge that an action is being
brought against him. If he is able to show that he failed to enter an appearance to defend
because he had no knowledge of the action, he has shown that his default was not
wilful.
2. Secondly, there may be circumstances in which a defendant was aware that an action
had been brought against him, but was unable to enter an appearance to defend prior to
default judgment being taken against him.
3. Thirdly, there are situations in which a defendant (a) knows an action has been brought
against him and (b) has the opportunity to enter an appearance to defend, but (c)
deliberately fails to do so. This need not amount to a situation of wilful default, however,
as a further enquiry is made. This enquiry relates to the mental attitude of the defendant
to the action, that is, did he fail to act as a result of indi erence to the consequences? If
he failed to understand the legal consequences of not entering an appearance to
defend, the default will not be wilful. Negligence on his part or on the part of his attorney
also will not amount to indi erence or wilful default.

(ii)(b) The existence of a bona fide defence:

Even if the defendant is not in wilful default, the court will not use its discretion to grant
rescission unless the defendant is able to show a substantial defence to the claim that is good
in law.

 He may not merely claim to have a defence but must set out its nature and salient
(pertinent) details.
 The defendant ‘need not deal fully with the merits of the case nor produce evidence that
the probabilities are actually in his favour.’
 What he needs to show is that a prima facie case exists (i.e. on the face of it) or an issue
fit for trial.

(ii)(c) The application must be brought bona fide:

The fact that the defendant has a bona fide defence is not su icient. It must also be clear that
he intends to use his defence.

 In other words, it must be clear that the defendant’s intention in bringing the application
for rescission is to enable him to have his day in court.
 For the application to be bona fide, the defendant must not have some other motive for
rescission, such as simply delaying execution of the judgment

(iii) Rescission in terms of the common law:

Judgments may also be set aside at common law in the following circumstances:

1. Fraud;
2. Justus error (on rare occasions);

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 3. In certain exceptional circumstances when new documents have been discovered;
4. Where judgment has been granted by default; and

In other circumstances based on justice and fairness.

In relation to fraud, to have a judgment set aside a party must prove that

a) the successful party (or someone to his knowledge) gave incorrect evidence;
b) that the evidence was given fraudulently and with the intent to mislead the court, and
c) that the false evidence was the cause of the unfavourable judgment.

At common law, a court has power to rescind a judgment obtained on default of appearance,
provided that su icient cause for rescission has been shown.

 This means (a) that the party seeking relief must present a reasonable and acceptable
explanation for his failure to appear and (b) that he has a bona fide defence which,
prima facie, carries some prospect of success.

c) Void judgments:

In certain very limited cases, an order of court may be disregarded without the necessity of
having to set it aside.

These are cases in which the order of the court is regarded as void for one of the following three
reasons:

1. Where the order was obtained against a party who had not been legally cited before the
court;
2. Where the case was conducted on behalf of a party without a proper mandate; or
3. Where the court lacked jurisdiction.

As a general rule, even if an order of court has been granted incorrectly, it must be obeyed until
it has been properly set aside.

d) Abandonment of a judgment:

In terms of High Court rule 41(2):

 Any party in whose favour any decision or judgment is given, may abandon such
decision or judgment either in whole or in part by delivering notice thereof and such
judgment or decision abandoned in part shall have e ect subject to such
abandonment.

2. Rescission and variation of judgments in the Magistrates’ Courts:

a) Variation and rescission in general:

Section 36 of the Magistrates’ Courts Act deals with rescission of judgments in the Magistrates’
Courts:

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The court may, upon application by any person a ected thereby, or, in cases falling under
paragraph (c), suo motu:

a) rescind or vary any judgment granted by it in the absence of the person against whom
that judgment was granted;
b) rescind or vary any judgment granted by it which was void ab initio or was obtained by
fraud or by mistake common to the parties;
c) correct patent errors in any judgment in respect of which no appeal is pending; and
d) rescind or vary any judgment in respect of which no appeal lies.

Apart from applications for the rescission of default judgments (referred to in paragraph (a)
above), the procedure by means of which a party will make an application for the rescission or
variation of a judgment in the Magistrates’ Courts is set out in rule 49(7), which requires that
such applications must be:

1. brought on notice to all parties; and

2. supported by a idavit/s setting out the grounds on which the applicant seeks
rescission/variation.

b) Rescission of default judgments in particular:

In terms of rule 49(1), a party who is seeking to rescind a default judgment has 20 court days
from the date on which the judgment came to his knowledge to serve and file the application for
rescission.

 Notice of the application must be given to all parties to the proceedings.

 He is required to show good cause why the judgment should be rescinded or,
alternatively, the court must be satisfied that there is good reason to do so.

(i) Good reason:

The court may rescind the judgment ‘if it is satisfied that there is good reason to do so’.

 Although this provision appears to set a lower standard than the requirements of good
cause as explained in the discussion of High Court rule 32(2)(b) above, it has been held
that it does not so much lower the requirements for the applicant, as much as it extends
the discretion of the magistrate.
 Where the applicant fails to show good cause, the magistrate may nevertheless grant
rescission mero motu in the interests of justice if exceptional circumstances warrant it.

(ii) Good cause shown:

This is the same requirement as that dealt with in detail under High Court rule 31(2)(b), and the
comments made there are pertinent to rescission of default judgments in the Magistrates’
Courts.

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  ‘Good cause’ has never been properly defined, but it incorporates both an investigation
into the existence of a prima facie defence, and whether or not the defendant was in
wilful default.
 Generally, therefore, rescission cannot be granted if the defendant is in wilful default
and cannot show a prima facie defence.
 This means that to show good cause, the defendant in his a idavit must explain the
reasons for his default and show the existence of a prima facie defence as well as
satisfy the court that his default was not wilful.
 A magistrate has a discretion in the case of rescission and is not obliged to grant it.
 The defendant’s bona fides, whether or not the default was wilful, and the existence of a
prima facie defence are all considered in exercising that discretion, the most important
aspect being that of the existence of a prima facie defence.
 Four di erent situations page 330-331.

Theme 2: Interest
LO3: Analyse the concepts and principles that relate to interest.

Interest:

1. General overview:

Most claims sounding in money attract interest.

 Interest is an amount of money calculated as a percentage of the original debt.

 The sum of money comprising the original debt is known as the capital portion of the
debt for the purposes of interest.
 The percentage at which interest accrues (accumulates) on the capital amount and the
period over which it is calculated vary.
 These two aspects together comprise what is called the rate of interest.
 Interest is payable from the time the debt becomes due for payment to the time that the
debtor eventually pays the debt in full.
 If the debtor makes periodic payments in order to reduce the amount of the debt,
interest continues to be calculated on the reducing balance of the capital amount still
outstanding until payment of the debt and interest is complete.
 Any interest that has accrued is first deducted from the payment a debtor makes,
however, before the payment is used to reduce the capital amount.

2. The rate of interest:

The percentage used to calculate the rate of interest may di er from case to case.

 The period of time used in order to calculate this percentage may also di er. Interest
may therefore be charged at a certain percentage, calculated over the period of a day,
week, month, or year.
 In practice, the period over which interest is calculated is invariably per year (per
annum).

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  An example of the way in which this is expressed, using an arbitrary rate of 18%, would
be ‘interest at the rate of 18% per annum’.
 If the claim is contractual, it will often transpire that the parties have agreed to a rate of
interest in respect of the debt that comprises the claim at the same time that they
agreed all the other terms and conditions of the agreement.
 In these circumstances, subject to the limitations set in terms of the National Credit Act
(as discussed below), the agreed rate may be claimed.
 The plainti must specifically plead this rate, however, making out a case for it in the
particulars of claim.

a) Simple and compound interest:

In the absence of an agreement to the contrary, the only kind of interest that may be charged at
common law is known as simple interest.

 This means that for the purposes of calculating interest, the capital amount is kept
separate from the interest that has accrued thus far, and any further interest is
calculated merely on the capital amount.
 This factor should be borne in mind by attorneys who calculate interest on the reducing
balance of the capital amount as debtors make periodic payments to reduce their
indebtedness.
 Occasionally, however, an agreement will make provision for the payment of compound
interest, which may be the case with debts owed to commercial financial institutions
such as banks.
 Compound interest is usually described as interest upon interest.
 What this means is that the amount of interest that has accrued at a given point is
added to the capital amount before a new interest calculation is made.
 Although the interest rate is usually set at a certain percentage per annum, an
agreement for compound interest usually includes the stipulation that the interest will
be calculated and compounded monthly (usually in arrears, i.e. the end of each month).
 Using an arbitrary percentage of 18%, this would be expressed in the following manner:
‘interest at the rate of 18% per annum, calculated and compounded monthly in arrears.’

If there is no agreement as to the rate at which interest should be charged, then the plainti will
be entitled to charge the rate as stipulated in terms of the Prescribed Rate of Interest Act.

b) National Credit Act 34 of 2005:

Although the parties to an agreement may agree that a debt will attract interest at a rate of their
choice, this choice is not completely unfettered.

 The National Credit Act sets limits on the rate of interest charged in respect of certain
types of credit agreements to which it applies.
 Parties need to ensure that they do not exceed the limits provided in the Act when
stipulating a rate of interest in a credit agreement, otherwise that interest rate will not be
enforceable.

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3. The date from which interest runs:

a) Unliquidated vs liquidated debts:

The date from which interest begins to run in the case of unliquidated debts is determined by
statute.

 We propose, therefore, to deal with the case of unliquidated debts separately from that
of liquidated debts.

b) Liquidated debts:

There is a close relationship between the concept of mora and the payment of interest.

 The date from which a debtor is placed in mora is the date from which interest on the
capital amount of the claim begins to run.
 With a liquid claim, there are two aspects of mora that are important, namely mora ex re
and mora ex persona.

(i) The mora ex re situation:

Mora ex re occurs where a date for the performance of a contractual obligation (including the
payment of a money debt) is set in terms of an agreement.

 In this situation, the claim will be due and payable from the agreed date.
 When this date is reached, the debtor will be in mora automatically, and no further
demand need be made.
 Interest will become due and payable on the capital amount of the debt simultaneously
with the capital amount becoming due and payable, and will begin to run from that date,
even where interest is not expressly mentioned in the agreement.
 If interest is mentioned in the agreement, it will begin to run from whatever date is
agreed, even if this is later than the date that the principal debt becomes due.
 This is rare, however, and interest will generally run from the due date of the principal
debt.
 The rate of interest will be that which was payable at that time in terms of the Prescribed
Rate of Interest Act unless another rate has been agreed.

(ii) The mora ex persona situation:

If the contract does not stipulate a date on which an amount is due and payable, and such date
is not clear from the general nature of the contract, then interest will only begin to run from the
date the debtor has been placed in mora.

 This situation is called mora ex persona.

 The debtor is placed in mora by means of a demand (an interpellatio) made by the
creditor or his attorney, requiring payment by a certain date.

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  This date must allow the debtor a reasonable period in which to pay.
 If the debtor does not make payment by the stipulated date, interest begins to run from
that date.
 The demand may take several forms (a correctly worded invoice, for instance) but
usually takes the form of a letter of demand.

c) Unliquidated debts:

Until an amendment to the Prescribed Rate of Interest Act, the situation of interest as it
pertained to unliquidated claims was most unsatisfactory.

 Until this amendment, an unliquidated claim (the most common generally being a claim
for damages) only began to attract interest from the time that it became liquid.
 An unliquidated claim becomes liquid in two situations: when the judge or magistrate,
having heard evidence on the quantum of the claim, comes to a decision about what the
quantum of the damages ought to be and gives judgment; or alternatively, when the
parties reach an agreement on quantum.
 In the past it was always held that the damages became due and payable when they had
been liquidated, and therefore interest only became payable from that date onwards,
i.e. the date of judgment or agreement, as the case may be.

4. The in duplum rule:

In terms of the common law, interest may not exceed the capital amount.

 In other words, once the interest due has reached the amount of the claim, it stops
running.
 This is known as the in duplum rule.
 Where a partial payment is made, however, which reduces the interest owed to an
amount less than the capital amount, interest starts to run again.
 Interest only stops running when it reaches the amount of capital outstanding, or when
the whole amount outstanding (capital plus interest) is paid in full.
 A statutory form of the in duplum rule is created by s 103(5) read with s 101(1)(d) of the
National Credit Act 34 of 2005 and applies to credit agreements that fall under the Act.
 In this case, unpaid interest, fees and charges will stop accumulating when it equals the
unpaid balance of the principal debt.

5. Drafting a claim for interest:

In practice, many attorneys and advocates simply ‘kick for touch’ when drafting a claim for
interest.

 The most common way of doing this is to make use of the phrase, ‘interest at the
prescribed legal rate a tempore morae’, in the prayer.
 Often, a rate higher than the prescribed legal rate has been agreed between the parties.

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  By asking only for the prescribed legal rate, the practitioner is preventing his client from
recovering the full amount due to him.

Furthermore, a practitioner should attempt to claim interest for his client from the earliest
possible date, i.e. the date when performance became due – the date of mora.

 In a mora ex re situation, there is no need mindlessly to claim interest from the date of
service of summons, or even from the date of the letter of demand (if one has been
sent).
 Neither of these processes has any influence on mora in a mora ex re situation. In the
particulars of claim, one should plead or make a case for interest from an earlier date
than that of service of summons, and then request interest from this earlier date in the
prayer.
 Furthermore, the expression a tempore morae is a very general term, which indicates
that the claim for interest is to be calculated from the date on which payment is due.
 In certain cases, however, the date on which payment is due may not be clear from the
papers before the court.
 Where this is the case, the court will be obliged to grant interest from the date of the
service of summons only.
 Accordingly, we submit that it is much better for a practitioner to set out in detail the
date from which interest is to be calculated, rather than relying on a general term such
as a tempore morae.

Theme 3: Costs
LO4: Analyse the general rules relating to an award for costs.

General rules relating to an award of costs:

The basic rule is that all costs are in the court’s discretion.

 This discretion must be exercised judicially after considering the facts of each case.
 It must be exercised upon grounds which a reasonable man would apply in order to
reach a just conclusion.

The following general rules have been laid down for the guidance of the courts:

1. Generally, the successful party is entitled to his costs.

o When it comes to awarding costs, the general rule is that costs follow the event;
in other words, the successful party should be awarded costs.
o In determining who the successful party is, the court should look to the
substance of the judgment and not merely its form.
2. The court may for good reason deprive a successful party of his costs, in whole or in
part, with the result that the successful party will have to pay his own costs.
o When exercising his discretion to deprive the successful party of his costs, the
judge will consider the following factors in connection with the successful
party’s conduct: whether the successful party has made excessive demands;
the conduct of the litigation; the taking of unnecessary steps or following a
wrong procedure; and misconduct.

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 3. The court may for good reason order a successful party to pay the whole or a portion of
the costs of the other party.
o The same reasons mentioned under (2) above apply in respect of the exercise of
the court’s decision to have a successful party pay the costs, although it is rare
for a successful party to be required to pay all the costs.
4. The court may, in special cases, make an order that the unsuccessful party is to pay the
costs of the successful party on an attorney-and-client basis, i.e. on a more punitive
scale than normal – attorney and client costs are discussed in detail below.
o Usually, this will occur in two situations.
o Firstly, such costs will be awarded when the parties have been litigating in terms
of an agreement which contains a clause providing that in the event that a
dispute arises between the parties in connection with the agreement, costs will
be awarded on the attorney-and-client scale.
o Secondly, attorney-and-client costs may be awarded when the court wishes to
express its displeasure at the manner in which a party has conducted the matter,
the circumstances being the same as those recounted.

LO5: Discuss the tari s of costs and the costs that can be charged by an attorney.

The tari s of costs and the costs charged by an attorney:

It is important to distinguish between the tari s of costs provided for in the rules of court and
the costs charged by an attorney to his client.

1. The tari :

A tari of costs exists in both the Magistrates’ Courts and the High Court.

 These tari s contain lists of the many di erent tasks which are performed before and
during litigation, together with the amounts that may be claimed for each task.
 The party who has costs awarded in his favour draws a bill of costs based on the work
done, as provided for in the tari .
 The Magistrates’ Courts tari provides for a lower charge in respect of the various items
than the High Court tari and is not identical in respect of the various items for which a
charge may be made, but the process of drawing the bill is largely the same.
 The costs in a bill of costs are divided into fees and disbursements.
 The fees are the amounts stipulated in the tari for the work done by the attorney, while
the disbursements are amounts that the attorney has been obliged to pay out (or
disburse) on his client’s behalf during the course of proceedings.
 The disbursements include payments to the sheri for the service of documents; the
cost of transport, postage or telephone charges; payments to witnesses in respect of
transport or ‘qualifying’ fees to experts; and, last but by no means least, fees paid to
counsel.
 As for the attorney’s fees, each consultation, conference, court appearance and
telephone call are charged for, in addition to charges made for the drafting, receipt and
perusal of each document and the drafting and perusal of each letter delivered. In fact,
in a High Court bill of costs, each letter and telephone call must be separately identified

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 and listed, which makes such a bill of costs a long and tedious document to draft or to
read.

The primary principle applicable to a taxation of a bill of costs is that a successful party gets
costs as an indemnification for its expense in having been forced to litigate; but that a
moderating balance must be struck to a ord the innocent party adequate indemnification only
within reasonable bounds. In assessing what is reasonable, all circumstances must be
considered.

2. The costs charged by an attorney to his client:

The fees set out in the tari should not be confused with the fees which an attorney will
demand from his client for the professional services performed by him in accordance with the
agreement reached between him and his client when the latter hired him.

 The costs that an attorney charges his client for his professional services, as well as for
his disbursements must be paid, regardless of whether the client has won or lost the
case.

The fee for professional services is the fee which is negotiated between the attorney and the
client.

 When the client first consults with the attorney, the attorney will (or should) explain to
his client the basis on which he charges for his services.
 There is nothing stopping an attorney from charging his client on the basis of the tari
provided for in the rules of court.
 Occasionally this occurs, usually with a few extras thrown in.
 This is because the tari does not provide for every eventuality, and there is invariably
some work that an attorney needs to perform for which there is no provision in the tari .
 In addition to this problem, the tari rarely keeps up with inflation.
 Just as many doctors charge more than medical aid rates, most attorneys charge their
clients more than the amounts set out in the court tari s.

Many attorneys charge on the basis of a simplified court tari , substituting the rates permitted
in the tari with higher amounts.

 Others charge on the basis of time only, no matter what kind of activity the work
involves.
 This is a departure from the court tari model which, for instance, provides that drafting
and perusing (reading) documents is charged per page, rather than the time spent
performing the work.
 If he wishes to bill for his time, the attorney will explain to his client that his professional
fee is charged at a certain rate per hour.
 He will send the client a bill at the end of each month, setting out how many hours he
has spent working on the matter, as well as outlining the nature of the work performed.
 The client agrees to pay the attorney’s bill at the end of each month and agrees that he
(the client) is responsible for paying the attorney’s bills, whatever the outcome of the
case. Alternatively, an attorney can provide a quote or estimate for a particular

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 instruction, although costs in litigious (as opposed to non-litigious) matters are
notoriously di icult to predict.

LO6: Compare the various types of costs awards.

Types of cost awards:

1. Award of costs on the party-and-party scale:

Party-and-party costs are the costs which are incurred by a party in a case and which the
unsuccessful party is ordered to pay him.

 They do not include all costs which a party may have incurred, but only those costs
which, according to the taxing master, appear to have been necessary or proper for the
attainment of justice or for defending the rights of any party.
 In addition, these costs are based on the tari stipulated in the rules of court.
 taxed or agreed, it is liquidated and becomes part of the judgment debt.
 Clients who have won their case often expect the party-and-party costs to compensate
them fully for all the legal costs they have incurred during the course of the matter.
 Because party-and party costs are strictly limited by the tari s, however, in the vast
majority of cases such costs will only cover a portion of the winner’s total legal bill.

2. Award of costs on the attorney-and-client scale:

An award of costs on the attorney-and-client scale may be seen as a ‘half-way-house’ between

an award of costs on the party-and-party scale and an award of costs on the attorney-and-own-
client scale (discussed below).

 There is some di erence of opinion, however, with regard to precisely what these costs
comprise.
 Traditionally, the tari s of costs have provided a starting point in calculating attorney-
and-client costs.
 Some authorities would have it that attorney-and-client costs give ‘little more than a
taxation between party and party, except that any necessary letters to and attendance
on the client are allowed.
 On this formulation, extra correspondence or consultations with a client that are not
provided for in the tari would be permitted on an attorney and client bill and charged at
the normal tari rate.
 Extra consultations or attendances might become necessary in circumstances where
only one consultation is allowed in terms of the tari , for instance, or in a High Court
matter, spending longer explaining something to one’s client by telephone, than the
taxing master believes was absolutely necessary.
 Sending a copy of the pleadings to one’s client for their perusal is another example of a
useful and arguably necessary step, which nevertheless is not provided for in the tari .

3. Award of costs on the attorney-and-own-client scale:

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Attorney-and-own client costs are costs which are payable by a client to his attorney for
professional services rendered.

 If there is a disagreement between the attorney and his client over the fees, the
attorney’s bill may be taxed by the taxing master, who must then apply whatever method
of fee calculation has been agreed between the attorney and the client.
 This may occur whether or not a matter has proceeded to trial. Attorney-and own-client
costs may not only be charged in a di erent manner to the tari but may also include
certain ‘luxury’ services a client has agreed to pay for.
 Whether it is possible to have costs awarded on the attorney-and-own-client scale
against the opposing party has become a debatable point.
 Such orders have been awarded by our courts for some time.
 In addition, there are a number of Appellate Division decisions which recognise this type
of order ‘in principle, but without pertinent consideration’.

4. Interim costs orders:

Costs are not only granted at the close of a trial, but also after interlocutory proceedings, for
example, after an application to compel the production of further particulars; or after an
unsuccessful summary judgment application; or after an adjournment necessitated by the
unpreparedness of one of the parties.

 In the Magistrates’ Courts, interim costs orders may be granted but may not be taxed
until the end of the case overall, whereas an interim costs order may be taxed and
enforced immediately in the High Court.

a) Costs:

This is a straightforward order of costs against one of the parties for the interlocutory procedure
or adjournment in question.

 Such costs may be granted either on the party-and-party scale, or the attorney-and-
client scale, or the attorney-and-own-client scale, according to the principles discussed
above.
 These costs will be payable by the party against whom they are granted, even should this
party be successful at the trial and have costs awarded in their favour overall.

b) Costs in the cause:

This order makes the costs in the interlocutory procedure dependent on the eventual outcome
of the case, and subject to the costs order given at the conclusion of the case.

c) No order as to costs:

This order results in no costs being awarded to either side for the procedure in question.

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  Each party then bears his own costs.

d) Costs to be reserved:

This order results in no costs being granted for the time being.

 The question is held over until the end of the case when it may be argued in light of all
that has transpired during the course of proceedings.
 Typically, this order is made by consent to conclude a summary judgment application,
following the receipt of a defendant’s a idavit in a summary judgment application, and
forms part of the usual order.
 Having regard to what transpired at the trial, the court would be in a position to reflect on
the summary judgment application and consider the cost award that is appropriate for
that part of the proceedings.
 Such a costs order may also be granted in respect of various interlocutory orders made
in proceedings.

LO7: Advise with reference to a set of facts and case law on the costs de bonis propriis and the
conduct of the legal practitioner.

Award of costs de bonis propriis:

Another option open to the court is to award costs de bonis propriis.

 What this means is that a portion or the whole of the costs of either or both the parties
must be paid by one or more of the representatives in the matter.
 For example, if an attorney representing a client conducts his client’s case in a negligent
manner, that attorney may be ordered to pay the costs of the client de bonis propriis.
 This rule applies not only to attorneys, but to all persons who act on behalf of others in
litigation (e.g. the guardian of a child, the trustee of an estate, and so on).

If an attorney tells his opponent that he is going to ask the court to award costs de bonis
propriis, it usually means that he considers the way in which his opponent is conducting himself
in the matter to be highly improper.

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 Learning Unit 7
Stage Three: After Litigation

Theme 1: Appeals
LO1: Discuss what may be appealed in terms of judgment orders and rulings.

What may be appealed – judgments, orders and rulings:

1. High Court matters:

In High Court matters, the general rule under the now repealed Supreme Court Act was that you
were entitled to appeal against a judgment or an order, but not entitled to appeal against a
ruling.

 The Superior Courts Act, which repealed and replaced the old Supreme Court Act, now
refers only to an appeal against a ‘decision’.
 In our view, this change in terminology does not a ect the existing principles and case
law set out below.

A judgment or order (or decision, to use the terminology of the Superior Courts Act) is a
determination which has the following three attributes:

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

While previously – under the test laid down in Zweni v Minister of Law and Order – if a decision
did not have all three of the above attributes, it would be considered a ruling, which was not
appealable, the Supreme Court of Appeal and Constitutional Court have recently softened this
approach.

 The requirements stated in the Zweni case are no longer cast in stone or exhaustive.
 The position now is that a decision may be appealable even if it does not possess all
three attributes.
 However, in general terms, a non-appealable decision is one which is not final because
the court of first instance remains entitled to alter it, or because it is not definitive of the
rights of the parties, or because it does not have the e ect of disposing of at least a
substantive portion of the relief claimed in the main proceedings.

Even if a decision takes the form of an order, it may, on consideration of its e ect, be deemed to
be a ruling and therefore not subject to appeal.

The following are examples of rulings:

1. A ruling on a point of evidence;

2. A ruling on a preliminary point of law;

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

Other examples of judgments and orders include the following:

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

2. Magistrates’ Courts matters:

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

1. Any judgment of the nature described in s 48 of the Magistrates’ Courts Act. These are:
(a) judgment for the plainti ;
(b) judgment for the defendant;
(c) absolution from the instance;
(d) judgment as to costs; and
(e) order suspending the taking of further proceedings upon a judgment.

2. Any rule or order having the e ect of a final judgment, including any order under Chapter
IX (i.e. relating to execution and debt-collecting procedures) and any order as to costs.
o The rationale for prohibiting or limiting appeals against judgments which are not
final in e ect is to discourage piecemeal appeals.
o As to the meaning of ‘having the e ect of a final judgment’, previously, this was
determined by asking whether the rule or order sought to be appealed from was
‘interlocutory’.

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 o Jones and Buckle states as follows: In South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd [1977 (3) SA 534 (A) at 549] Corbett
JA refers to the fact that the tests to be applied in determining whether or not an
order is interlocutory, ‘emerge with a reasonable degree of certainty’ from a
series of decisions of the Appellate Division ranging from 1911 to 1977.

The general e ect of this series of decisions, ‘together with consistent judgments of other
courts’, is summarised [at 549F–551A] in the following terms:

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

Orders of this kind are of two classes:

(i) those which have a final and definitive e ect on the main action; and
(ii) those which do not (known as ‘simple (or purely) interlocutory orders’ or
‘interlocutory orders proper’).

b) Statutes relating to the appealability of judgments or orders which use the word
‘interlocutory’ or other words of similar import, are taken to refer to simple interlocutory
orders. In other words, it is only in the case of simple interlocutory orders that the statute is
read as prohibiting an appeal or making it subject to the limitation of requiring leave, as the
case may be. Final orders, including interlocutory orders having a final and definitive e ect,
are regarded as falling outsider the purview of the prohibition or limitation.

c) The test as to whether or not an order is a simple interlocutory one is the well-known one
stated by Schreiner JA in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd: ‘…

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

LO2: Contrast appeal on the facts with appeal on the law.

Appeal on the facts versus appeal on the law:

In an appeal a party’s dissatisfaction with the judgment of the court a quo may arise either
because that party is unhappy with a finding of fact made by the court (for example, the party is
of the view that the court incorrectly believed or disbelieved a witness whose evidence was
material to the case) or because the party is unhappy with a ruling of law made by the court (for
example, the party is of the view that the court misunderstood the law on a certain point).

 It often happens that a party feels that the court got both the law and the facts wrong,
and an appeal will then be lodged on both grounds.

Certain principles governing appeals on facts have arisen in our case law and are set out in the
leading case of R v Dhlumayo and Another as follows:

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

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

Harms usefully sums up the further principles applicable to appeals on facts which were added
in subsequent cases as follows:

14. Where the trial court has made no finding on the credibility of witnesses, the court of
appeal has to do its best on such material as it has before it to decide the credibility
issue.
15. If the trial court committed an irregularity (for example, by excluding admissible
evidence), the proceedings will be set aside unless the respondent can convince the
court that the appellant did not su er any prejudice as a result of that irregularity.
16. An award of compensation will only be set aside if the court of appeal is satisfied that
the award was incorrect.
17. Where the trial court did not assess the number of damages su ered because it was not
necessary for its judgment, the Appeal Court may fix damages rather than remit the
matter to the court below if there are ‘good reasons’ for doing so.

LO3: Analyse concepts and principles governing appeals with reference to:

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  Discretionary matters.
 The e ect of a pending ap peal on the judgment of a lower court.
 Disputing of law in the Magistrate’s court.
 The appeals route from the High court.
 The appeals route from the Magistrate’s court.

Principles governing appeals in discretionary matters:

In addition to appeals against the decision of a court a quo on the facts or the law, a party may
be faced with a situation where he wishes to appeal against the exercise of discretion by a
court.

 As a general rule, a court of appeal is not entitled to interfere with the exercise by the
lower court of its discretion.
 Generally, an appeal court may interfere with a lower court’s exercise of discretionary
power only if that power was not properly exercised.

Discretionary power is regarded as having not been exercised judicially if:

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

A good example of the reluctance of an appeal court to interfere with the decision of a lower
court in the exercise of its discretion is provided by the Constitutional Court’s decision in
National Coalition for Gay and Lesbian Equality v Minister of Home A airs and Others.

 In that case, the applicants had brought an application in the High Court for an order
declaring a certain statute to be unconstitutional.
 At the High Court, the respondents had failed to file answering a idavits despite a lapse
of seven months.
 A day before the hearing, the respondents asked the High Court for a postponement in
order to file these a idavits.
 The High Court, in the exercise of its discretion, refused the postponement.
 When the matter eventually went on appeal to the Constitutional Court, one of the
arguments on appeal by the Minister of Home A airs was that the High Court had erred
in exercising its discretion to refuse the postponement.
 The Constitutional Court held, however, that a court of appeal is not entitled to set aside
the decision of a lower court granting or refusing a postponement in the exercise of its
discretion merely because the court of appeal, on the facts of the matter before the
lower court, would have come to a di erent conclusion.
 According to the Constitutional Court, a court of appeal can only interfere when it
appears that the lower court had not exercised its discretion judicially, or that it had

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 been influenced by wrong principles or a misdirection on the facts, or that it had
reached a decision which could not reasonably have been made by a court properly
directing itself to all the relevant facts and principles.
 On the facts before it, the Constitutional Court was satisfied that the High Court was
correct not to grant the Minister of Home A airs a postponement to file answering
a idavits when the government had already had a period of seven months in which to do
so.

The e ect of a pending appeal on the judgment of the lower court:

In terms of s 18(1) of the Superior Courts Act,35 the operation and execution of a decision which
is the subject of an application for leave to appeal or of an appeal is suspended pending the
decision of the application or appeal.

What this means is that the execution of a judgment (i.e. its coming into e ect) is suspended
when one party notes an appeal.

 The e ect of this suspension is that pending the appeal, the judgment cannot be carried
out and no e ect can be given to it, unless the court which granted it gives permission.
 To obtain such permission, the party in whose favour the judgment was given must make
a special application in terms of section 18.

Prior to the enactment of s 18 of the Superior Courts Act, applications of this nature were
governed by the provisions of the now repealed rule 49(11) of the High Court Rules which
provided that any of the parties may apply to the court to direct that its order will not be
suspended pending the decision of the appeal or application.

Previously, the court to which application for leave to execute was made had a wide general
discretion to grant or refuse leave and, if it were granted, to determine the conditions according
to which the right to execute would be exercised.

In exercising this discretion, the court could determine what was just and equitable in all the
circumstances and, in so doing, would normally have regard, inter alia, to the following factors:

1. The potentiality of irreparable harm or prejudice to the appellant on appeal (respondent

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

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

1. There exist ‘exceptional circumstances’ warranting the operation and execution of the
judgment pending the outcome of the appeal; and

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 2. On a balance of probabilities, the party who applied to the court for the order will su er
irreparable harm if the court does not so order and the other party will not su er
irreparable harm if the court so orders.

Disputing the validity of law in the Magistrates’ Courts:

In practice, parties to litigation in the Magistrates’ Courts may from time to time wish to dispute
the validity of a law (either statute law or common law) on constitutional grounds.

The Magistrates’ Courts are not entitled to declare either statute law or common law to be
invalid on constitutional (or any other) grounds.

 The remedy for a litigant in this situation, as discussed in more detail below, is to take
the matter on appeal to the High Court, which is empowered to pronounce upon the
validity of existing law.

Section 170 of the Constitution provides that ‘a court of a status lower than the High Court may
not enquire into or rule on the constitutionality of any legislation or any conduct of the
President’.

 In terms of s 110(1) of the Magistrates’ Courts Act, a Magistrates’ Court is ‘not …

competent to pronounce on the validity of any law or the conduct of the President’.
 The meaning of ‘law’ in s 110 of the Magistrates’ Courts Act41 is broad enough to
encompass both statutory law and common law.
 Despite the absence of any reference to common law in either s 170 of the 1996
Constitution or in s 110 of the Magistrates’ Courts Act, Magistrates’ Courts do not have
the power to rule on the constitutionality of any rule embodied in common law.
 The Magistrates’ Court is a creature of statute and has no jurisdiction beyond that
granted by the statute creating it.
 No statutory jurisdiction has been accorded to the Magistrates’ Court to enquire into, or
rule on, the validity of rules of common law.

Appeals from the Magistrates’ Courts:

1. The usual route:

A Magistrates’ Court, sitting as a court of first instance, gives a judgment.

 In your opinion the magistrate was wrong in his understanding of the law, or the facts, or
both.
 You therefore wish to appeal against the judgment. No leave to appeal is required.

You have the right to appeal to the High Court.

 The appeal will be heard by two judges of either a main or local seat of the High Court.
 (i.e. both main and local seats have jurisdiction to hear Magistrates’ Courts’ appeals).
 Once the two High Court judges have delivered their judgment on appeal, you may still
not be satisfied with the decision.

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  You will then have to appeal against that decision to the Supreme Court of Appeal in
Bloemfontein.

Before you are entitled to appeal, however, you must obtain leave to appeal from the Supreme
Court of Appeal.

If you are granted leave to appeal and follow the proper procedure, three or five judges of the
Supreme Court of Appeal will eventually hear the matter.

 This was previously the final court of appeal for all the non-constitutional issues in a
matter.
 However, an amendment to the Constitution has brought about a change in the
jurisdiction of the Constitutional Court, making it the apex court with final appeal
jurisdiction in respect of both constitutional and non-constitutional matters.
 Accordingly, a decision of the Supreme Court of Appeal may be taken on appeal to the
Constitutional Court.

In terms of the Constitutional Court Rules of 1 December 2003, Rule 19 requires that before you
are entitled to appeal, leave to appeal will have to be obtained by way of an application to the
Constitutional Court.

 The application for leave to appeal must be lodged with the registrar of the
Constitutional Court within 15 court days after the order you are appealing against has
been handed down.
 Notice of the application must be given to the other party or parties.
 The application, signed by the appellant, must set out the decision against which the
appeal is brought and the grounds on which that decision is disputed; must contain a
statement setting out clearly and succinctly the constitutional matter raised in the
decision; and any other issues including issues that are alleged to be connected with a
decision on the constitutional matter and such supplementary information or argument
as the applicant considers necessary to bring to the attention of the Court; and, finally, it
must include a statement indicating whether the applicant has applied or intends to
apply for leave or special leave to appeal to any other court.

2. Shortcut appeals directly to the Constitutional Court:

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

a) Direct access cases:

The first instance in which a shortcut to the Constitutional Court is possible is in those
exceptional cases where direct access is permitted to the Constitutional Court in the interests
of justice.

 Such matters will go directly to the Constitutional Court without first being heard by
another court.

Direct access to the Constitutional Court is provided for in s 167(6)(a) of the Constitution, read
with Constitutional Court Rule 18 of the Constitutional Court Rules.

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  The Constitutional Court will sit as a court of first instance in these cases because the
matter is of su icient public importance or urgency to necessitate direct access.
 (Note that it is not only in these direct access cases that the Constitutional Court will be
sitting as a court of first instance.
 It will also sit as a court of first instance in those cases over which it has exclusive
jurisdiction.
 Matters in which the Constitutional Court has exclusive jurisdiction are limited to a few
specific constitutional issues set out in s 167(4), such as matters relating to the
constitutionality of parliamentary or provincial Bills or certification of provincial
constitutions.
 In the case of direct access in terms of s 167(6)(a) of the Constitution, however, any kind
of case may qualify, as long as it involves a constitutional issue or a matter that raises an
arguable point of law of general public importance which ought to be considered by the
Constitutional Court, and it is in the interests of justice that direct access to the
Constitutional Court is granted.)

In order to be allowed direct access to the Constitutional Court, you will have to make an
application to the Court by way of a notice of motion supported by an a idavit.

The a idavit in support of the application for direct access must set out:

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

b) Declarations of invalidity in constitutional cases:

A second instance in which a shortcut to the Constitutional Court is possible (and, in this case,
required) is when the Supreme Court of Appeal or High Court declares an Act of Parliament, or a
provincial Act, or any conduct of the President to be constitutionally invalid.

 (Remember that the Magistrates’ Courts are not empowered to do this due to the
provisions of s 170 of the Constitution and s 110 of the Magistrates’ Courts Act.)
 In terms of s 172(2)(a) of the Constitution, however, the Supreme Court of Appeal and
the High Court do have the power to declare an Act of Parliament, or a provincial Act, or
any conduct of the President to be constitutionally invalid.

It should be noted though that the declaration of invalidity will be of no force unless the
Constitutional Court confirm it.

 The court making the order of invalidity may, however, grant a temporary interdict or
other temporary relief to a party, pending the decision of the Constitutional Court.
 This protects the interests of the party whose interests are being threatened by the
legislation or conduct which has been declared, but not yet confirmed to be, invalid.

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There are two ways in which a declaration of invalidity will come before the Constitutional
Court:

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

c) The leapfrog to the Constitutional Court:

A third instance in which a shortcut to the Constitutional Court is possible is where the High
Court has made a decision on a constitutional matter (other than a declaration of invalidity) or a
matter that raises an arguable point of law of general public importance that ought to be heard
by the Constitutional Court, and you are able to show that it is in the interests of justice to
appeal directly to the Constitutional Court.

The Constitutional Court has only pronounced on the question of what constitutes a matter of
‘general public importance’ in one previous judgment to date.

 In Paulson, the Court had regard to comparative law in developing its jurisprudence in
relation to what would constitute a matter of general public importance.
 In summary, the Court held, with reference particularly to United Kingdom (UK) and
Kenyan authorities, that ‘for a matter to be of general public importance, it must
transcend the narrow interests of the litigants and implicate the interest of a significant
part of the general public.

Appeals from the High Court:

1. The usual route:

A division of the High Court, sitting as a court of first instance, gives a judgment.

 In your opinion the judge was wrong in his understanding of the law, or the facts, or both.
 You therefore wish to appeal against the judgment.

You need to apply to the same judge who gave the judgment for leave to appeal against his
judgment.

 If the judge refuses your request, you may petition the President of the Supreme Court of
Appeal to grant you leave to appeal.
 Note that the Supreme Court of Appeal may grant you leave to appeal either to a full
bench of the High Court or to the Supreme Court of Appeal.

The appeal will be heard by a full court of the division of the High Court within whose jurisdiction
the matter falls.

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  A full court of the division consists of three High Court judges.
 As a general rule, local seats of divisions of the High Court (such as the KwaZulu-Natal
Local Division, Durban) do not have jurisdiction to hear full court appeals.
 An exception to this general rule is the Gauteng Local Division, Johannesburg, which
does possess such jurisdiction.

If your appeal is turned down by the full court, you will then require special leave to appeal to
the Supreme Court of Appeal.

 The way in which you obtain special leave to appeal is by means of an application to the
Supreme Court of Appeal.
 This application is made to the President of the Supreme Court of Appeal, who is in
charge of the Supreme Court of Appeal.

As a general rule, your appeal will be heard by five judges of the Supreme Court of Appeal in
Bloemfontein, although the President of the Supreme Court of Appeal may allow the appeal to
be heard by three judges.

2. Shortcut appeals directly to the Supreme Court of Appeal or Constitutional Court:

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

a) Direct access in constitutional cases:

Precisely the same principles apply as above dealing with jurisdiction in Magistrates’ Courts
appeals.

b) Declarations of invalidity in constitutional cases:

Precisely the same principles apply as above dealing with Magistrates’ Courts appeals.

c) The leapfrog to the Constitutional Court:

Precisely the same principles apply as above dealing with Magistrates’ Courts appeals.

d) The leapfrog to the Supreme Court of Appeal:

In terms of s 16(1)(a)(i) of the Superior Courts Act, if an appeal is being launched against the
judgment of a single judge, then the appeal may be by way of a full court appeal to the relevant
main seat of the division (or Witwatersrand Local Division, now the Gauteng Local Division,
Johannesburg), or by way of an appeal to the Supreme Court of Appeal.

 The court granting leave to appeal may order an appeal to the Supreme Court of Appeal
as opposed to a full court appeal if the court is of the view that the decision to be
appealed involves a question of law of importance, whether because of its general

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 application or otherwise or in respect of which a decision of the Supreme Court of
Appeal is required to resolve di erences of opinion.
 It may also do so if the administration of justice, either generally or in the particular
case, requires consideration by the Supreme Court of Appeal of the decision.
 Notwithstanding what a party or the parties may prefer, it remains the duty of the judge
to consider which court is the more appropriate in the circumstances.

 This provision is aimed at ensuring that parties do not unnecessarily increase costs by
being inappropriately allowed to appeal to the Supreme Court of Appeal.

LO4: Discuss the relevant principles that relate to leave to appeal.

Leave to appeal:

In High Court appeals, the appellant will need to obtain leave (i.e. permission) to appeal or
special leave to appeal, before actually launching an appeal.

 This is a procedure which a litigant must follow if he wishes to appeal against a decision
of the High Court, or if he wishes to appeal against a decision of the Supreme Court of
Appeal to the Constitutional Court.
 (Note again that the leave to appeal procedure is not a feature of appeals against
decisions of the Magistrates’ Courts.
 You have an automatic right by law to appeal against the decision handed down in a
Magistrates’ Court and do not have to seek permission to appeal first.)

1. Grounds for granting leave to appeal and special leave to appeal:

Historically, the court, in evaluating an application for leave to appeal, was guided by whether
the applicant had satisfied the court that there is a reasonable prospect of the appeal
succeeding, and whether the matter was of substantial importance for the appellant or for the
appellant as well as the respondent.

These principles are now codified in s 17(1) of the Superior Courts Act, which prescribes that
leave to appeal may only be given where the judge or judges concerned are of the opinion that:

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

(ii)there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;

(b) the decision sought on appeal will have some practical e ect or result; and

(c)if the decision sought to be appealed does not dispose of all the issues in the case, the
appeal would nonetheless lead to a just and prompt resolution of the real issues between the
parties.

If you are applying to the Supreme Court of Appeal for special leave to appeal, you need to show
that there are special circumstances which merit a further appeal, over and above the
requirements of reasonable prospects of success and substantial importance.

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In Westinghouse Brake, special circumstances may include a matter

(a) in which the appeal raises a substantial point of law;

(b) that is of great importance to the parties involved or the general public; and
(c) in which the prospect of success is strong and the refusal of leave to appeal
would probably result in a manifest denial of justice.

The power is likely to be exercised only when the President of the Supreme Court of Appeal
believes that some matter of importance has possibly been overlooked or grave injustice will
otherwise result.

2. Application to the High Court for leave to appeal:

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

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

3. Petition to the Supreme Court of Appeal for special leave to appeal:

If your application for leave to appeal has been refused by the High Court, but you still believe
that you have good grounds for an appeal, you may then address a petition to the President of
the Supreme Court of Appeal for special leave to appeal against the decision of the High Court.

 Similarly, you must address a petition to the President of the Supreme Court of Appeal
for special leave to appeal when you are appealing against the decision of a full court
(meaning three judges; or the Gauteng Local Division, Johannesburg) which has been
given following a full court appeal.

In terms of s 17(2)(b) of the Superior Courts Act, the petition must be made within one month of
the refusal of the application of leave to appeal or the judgment of the full bench has been
given.

The following requirements must be met:

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

If the respondent wishes to respond to the allegations made in the petition, he must lodge his
written response with the registrar of the Supreme Court of Appeal within one month after the
petition was served on him.

 His written response must be in the form of an a idavit and two copies thereof must be
lodged with the registrar.

The petition is then considered in chambers by two judges of the Supreme Court of Appeal
designated by the President of the Supreme Court of Appeal.

 If these two judges cannot agree, then the President himself, or else a third judge
designated by the President, will also consider the petition.

The judges who are considering the petition may:

1. grant or refuse the petition; or

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

LO5: Explain what can occur during an appeal hearing.

What can occur during an appeal hearing:

1. Further evidence on appeal and the raising of new points:

In terms of s 19(b) of the Superior Courts Act,174 the Supreme Court of Appeal or a division
exercising appeal jurisdiction, has the power to receive further evidence on appeal, or to remit
the case to the court of first instance, or the court whose judgment is the subject of the appeal,
for further hearing.

 However, since a court of appeal has to consider the correctness of the decision of the
court a quo, it will, as a general rule, not allow evidence of events subsequent to the
judgment under appeal.
 As Cloete J remarked in the case of Fedsure Life Assurance Co Ltd v Worldwide
African Investment Holdings (Pty) Ltd and Others, a court deciding an appeal decides
whether the judgment appealed from was right or wrong according to the facts in
existence at the time it was given, and not according to new circumstances which came
into existence afterwards.
 Accordingly, further evidence can only be admitted in exceptional circumstances and
caution should be exercised when admitting this type of evidence lest the floodgates be
opened for such a procedure to be followed in almost every case; it is in the public
interest to attain finality in litigation.

A more general, but related, principle is that a party who takes a matter on appeal is bound by
the record of the case in the court a quo and cannot raise a new point by relying on a
circumstance which does not appear from, or which cannot be deduced from, the record.

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  Put di erently, a party whose case has unravelled before the trial court is not allowed to
stitch together a new one on appeal if it was not properly covered in evidence.
 A party is not entitled to advance on appeal a case di erent from the one he presented
on paper in the court below – be it in the a idavits on notice of motion or in the
pleadings on trial.
 If an appellant is not satisfied with the record he must apply for leave to amend it.
 As a good example of the rule that a court will not allow a point to be raised on appeal
unless it was covered by the pleadings, consider the case of Road Accident Fund v
Mothupi.
 In this case, the Supreme Court of Appeal dealt with the question of whether a new
point that the appellant wished to take (regarding estoppel) could be raised on appeal.

2. No appeal or order granted without a practical e ect or result:

Another point relating to the hearing of appeals is that in terms of s 16(2)(a)(i) of the Superior
Courts Act, an appeal court will not grant any appeal or order requested if such appeal or order
will have no practical e ect or result.

 A good example of the application of this rule is provided by the Supreme Court of
Appeal’s decision in Coin Security Group (Pty) Ltd v SA National Union for Security
O icers and Others.
 In this case, the appellant (a private security company) had been involved in a labour
dispute with some of its employees arising out of a strike action and sought an interdict
from the High Court.
 When the matter came to the High Court, the court upheld an argument by the
employees that the High Court had no jurisdiction since the Labour Court exercised
exclusive jurisdiction in matters of this nature.
 The appellant appealed this decision to the Supreme Court of Appeal, asking that the
employees’ point concerning jurisdiction be dismissed and that the matter be sent back
to the High Court for determination.
 By the time the case came on appeal to the Supreme Court of Appeal in 2001, however,
the employees had been fairly dismissed from their jobs in 1997.
 The Supreme Court of Appeal found, therefore, that it was unnecessary to decide the
question of whether the High Court really had jurisdiction in respect of the interdict
sought by the appellants as against the striking employees.
 The order sought would have no practical e ect or result, as the court was asked to
confirm an interdict, for the future, in respect of acts committed in the course of an
industrial dispute which had been finally resolved between the parties by the dismissals
in 1997.
 The court therefore dismissed the appeal and ordered the appellant to pay the costs of
the appeal.

3. Condonation of noncompliance with rules:

A court of appeal is empowered to condone noncompliance with any of its rules, if good cause
is shown.

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  Precisely what constitutes good cause in a particular case lies within the discretion of
the court of appeal considering the matter.

The Constitutional Court has held that the standard for considering an application for
condonation is the interests of justice.

 The concept ‘interests of justice’ is elastic and may include the following: the nature of
the relief sought; the extent and cause of the delay; the e ect of the delay on the
administration of justice and other litigants; the reasonableness of the explanation for
the delay; the importance of the issue to be raised in the intended appeal; and the
prospects of success.

A party who wishes his breach of the rules to be condoned must apply for condonation as soon
as he becomes aware that he has breached the rules.

 In situations where a party is aware that he will not be in a position to meet a particular
time limit, and his opponent refuses to consent to the time limit being extended, he
must make an immediate application for condonation, even though the rules have not
yet been breached.
 The Constitutional Court has stressed that an application for condonation must set out
a full explanation for the delay and the explanation must be reasonable.

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

In appeals before the Constitutional Court, Constitutional Court Rule 32 allows the
Constitutional Court to condone noncompliance with the Constitutional Court Rules.

 That power of condonation appears to be limited to proceedings that take place in the
Constitutional Court.
 In National Coalition for Gay and Lesbian Equality and Others v Minister of Home
A airs and Others, the Constitutional Court held that on appeal it has no power to
make condonation orders on behalf of other courts, short of setting aside an order on
appeal and substituting it with another order.
 In casu, the applicants had brought an application in the High Court for an order
declaring a certain statute to be unconstitutional.

4. The judgment:

The judgment of the majority of the judges on appeal is taken to be the judgment of the court.

 If the judges di er in their judgments to the extent that there cannot be said to be a
majority judgment, then the matter must be heard de novo (i.e. from the beginning)
before a freshly constituted court.
 If one of the judges is absent or unable to perform his functions, or if a vacancy among
the members of the court arises (i.e. a judge dies or cannot continue sitting in an appeal
for some or other reason), the hearing will continue before the remaining judges,
provided that those remaining judges constitute a majority of the judges who started
hearing the appeal.

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  The judgment of the majority of the remaining judges is taken to be the judgment of the
court, provided that those judges also constitute a majority of the number of judges who
started hearing the appeal.
 A judge may not form part of a court which is hearing an appeal against one of his own
judgments.

Theme 2: Review
LO6: Discuss what is meant by review jurisdiction.

Review jurisdiction:

Magistrates’ Courts do not have review jurisdiction. In other words, Magistrates’ Courts do not
have the power to review the proceedings of, for example, the Small Claims Court.

 This would have to be done by the High Court.

In terms of s 21(1)(b) of the Superior Courts Act,208 a division of the High Court has the power
to review the proceedings of all Magistrates’ Courts within its area of jurisdiction.

 Previously, local divisions of the High Court, apart from the Witwatersrand Local
Division (now the Gauteng Local Division, Johannesburg), did not have review
jurisdiction unless such jurisdiction was conferred by a particular statute, whereas
provincial divisions of the High Court (as they were then called), did have review
jurisdiction.

While it appears that, subsequent to the enactment of the Superior Courts Act, this continues
to be the practice, the recent case of Nedbank Limited v Norris and Others has held that local
divisions do have review jurisdiction:

In s 22 [of the Superior Courts Act], which deals with the grounds of review of proceedings of
Magistrates’ Courts, the introductory portion of sub-section (1) indicates that review
proceedings may be brought ‘before a court of the Division’.

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

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LO7: Set out various grounds for review.

Grounds for review:

Section 22 of the Superior Courts Act sets out the various grounds upon which the proceedings
of any Magistrates’ Court may be reviewed.

 A Magistrates’ Court is defined in s 1 of the Superior Courts Act to mean any court
established in terms of s 2 of the Magistrates’ Courts Act.

The grounds of review set out in s 22 are:

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

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

An example of gross irregularity as grounds for review would be for the audi alteram partem rule
to be disregarded.

 Because this rule is one of the cornerstones of our law, if a court makes an order
against a party without a ording the party an opportunity to present his case, the
disregard of the rule will be a good cause for review.

LO8: Analyse concepts and principles in relation to:

 Urgent reviews.
 Powers of the court on review.
 Requirement of the court record.

Urgent reviews:

You should be aware that applications to review decisions of Magistrates’ Courts may require
urgent handling and, in proper circumstances, a review application might justify the granting of
interim relief.

 Sometimes, therefore, you will have to consider bringing an application for urgent review
of an inferior court’s decision.

Powers of the court on review:

If the application for review is successful, the court will usually set aside the proceedings
reviewed, and refer the matter back to the court (or person or body) which made the decision,
for reconsideration.

 This is not always the case, however. In certain cases, the review court may decide to
impose its own decision in place of that of the inferior court.

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In determining whether there are exceptional circumstances justifying the review court to
substitute its own decision for that of the body being reviewed, a number of guidelines have
crystallised in South African law, and have been summarised by Hlophe J (as he then was) in
University of the Western Cape and Others v Members of the Executive Committee for
Health and Social Services and Others:

 Where the end result is in any event a foregone conclusion and it would merely be a
waste of time to order the tribunal or functionary to reconsider the matter, the courts
have not hesitated to substitute their own decision for that of the functionary.
 The courts have also not hesitated to substitute their own decision for that of the
functionary where further delay would cause unjustifiable prejudice to the applicant.
 Our courts have further recognised that they will substitute a decision of a functionary
where the functionary or tribunal has exhibited bias or incompetence to such a degree
that it would be unfair to require the applicant to submit to the same jurisdiction again.
 It would also seem that our courts are willing to interfere, thereby substituting their own
decision for that of the functionary, where the court is in as good a position to make the
decision itself.

Requirement of the court record:

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

Theme 3: Debt collection and execution Procedures

LO9: Analyse the process of attachment and sale of movable and immovable things with
reference to:

 A writ of execution in the High Court.

 A warrant of execution in the Magistrate’s court.

Writ of execution in the High Court:

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

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

Generally speaking, the registrar will not issue a writ of execution against a judgment debtor’s
immovable property until he is certain that the judgment debtor does not possess su icient
movable property to satisfy the amount of the judgment debt.

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  In other words, before you may issue a writ of execution against a judgment debtor’s
immovable property, you must first issue a writ against his movable property.
 It is only if the sheri finds that the judgment debtor does not have su icient movable
property to satisfy the judgment debt, and provides you with what is called a nulla bona
return, that you are able to proceed to have a writ of execution issued against the
judgment debtor’s immovable property.
 There are, however, exceptions to this general rule.

Section 39 of the old Supreme Court Act stated (prior to its repeal) that the following categories
of movable property could not be seized in execution of any process:

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

Section 45 of the Superior Courts Act,12 which replaces the Supreme Court Act,13 contains a
similar provision to the e ect that certain belongings of the debtor may not be seized by the
sheri in execution of process, unless the court in exceptional circumstances permits this to be
done.

 However, s 45 does not identify which belongings of the debtor the sheri may not seize;
rather, this must be prescribed by the Minister of Justice and Correctional Services
(‘Minister’) in regulations, which, at the time of writing the third edition of the book, has
not yet been done.

1. Attachment and sale of movables:

In terms of High Court rule 45(1), the format to be adopted for a High Court writ of execution
against movables is set out in High Court Form 18 (contained in the First Schedule to the High
Court rules).

 Once the writ has been issued by the registrar, it must be delivered to the sheri of the
High Court who is responsible for making the attachment.
 A judgment creditor who sues on a writ of execution does so ‘at his own risk’.

In terms of High Court rule 45(3), the sheri or his assistant will proceed to the residence or
place of employment or business of the judgment debtor, unless you have given specific
instructions that he must proceed to another place where you believe that assets of the
judgment debtor are situated.

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Once the sheri or his assistant arrives at the judgment debtor’s residence or place of
employment, or wherever, he must follow this procedure:

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

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

1. make an inventory of the property; and

2. take the property into his custody.

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

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

Once the sheri has taken the attached goods into his custody, he must either ‘remove the said
goods to some convenient place of security’, or ‘keep possession thereof on the premises where
they were seized’.

 If he chooses the latter course of action, he must leave an o icer permanently in

possession of the goods. It is not good enough for him to occasionally send one of his
o icers to check up on the goods.

After the sheri has made the attachment, he will leave a copy of the writ of execution with the
judgment debtor, and file the original, together with his return of service, at the o ice of the
registrar of the division.

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  He will also furnish you, as the attorney for the judgment creditor, with copies of the writ
of execution, his return of service, and the inventory of the goods attached.

If the property which has been attached is perishable (for example, a truckload of tomatoes),
then the sale in execution may take place immediately, provided that:

1. the execution debtor consents to the sale; or

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

If the property which has been attached is not perishable, the sale in execution may only take
place once 15 court days have elapsed from the date of the attachment.

The goods must be sold by public auction.

 The sheri must advertise details of the auction beforehand in two suitable newspapers
circulating in the district in which the property has been attached.

2. Attachment and sale of immovables:

High Court rule 46 deals with the attachment and sale of immovable property in the High Court.

 In order to execute against immovable property, the debtor’s movable property must
have been excused in terms of rule 45 or the immovable property must have been
declared ‘specially executable’.
 This means that, despite the debtor’s movable property not having been excused, the
immovable property may nonetheless be executed against.
 This may occur, for example, where immovable property has been hypothecated as
security (e.g. in favour of the bank which granted the debtor a home loan).

In terms of High Court rule 31(5)(b), when a debtor has failed to deliver a notice of intention to
defend or a plea, and the claim is for a debt or liquidated demand, the registrar of the division
may grant judgment for the creditor, including an order declaring immovable property specially
executable.

 The registrar may, however, not do so if the property in question is residential property.
 In such instances, the matter must be referred to court.
 This is so even if the immovable property is, for example, a holiday home.

Where the residential property is the debtor’s primary residence, additional safeguards apply.

 In such instances, not only must the application be referred to open court but the court
considering the application must consider all ‘relevant circumstances’ before making
the order.

These requirements were introduced to rules 31(5) and 46 as a result of the decision of the
Constitutional Court in Gundwana v Steko Development and Others.

 In this case, the constitutionality of the practice of registrars granting orders declaring
property constituting a person’s home specially executable was considered.

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  The Constitutional Court, having regard to the constitutionally entrenched right of
access to housing, and in the light of its earlier decision in Jaftha v Schoeman and
Others; Van Rooyen v Stoltz and Others, held that the practice was unconstitutional.

Rule 46(3) provides that immovable property is attached by means of a written notice sent by
the sheri , by prepaid registered post, to the following people:

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

Details of the names and addresses of the owner and occupier of the immovable property, as
well as details of the Registrar of Deeds in whose o ice the title deeds relating to the property
are lodged, must thus accompany the writ of execution.

 Once the immovable property has been attached, the execution creditor must instruct
the sheri in writing to proceed with the sale.

The sheri must then find out and record which bonds or other encumbrances are registered
against the property, together with the names and addresses of the persons in whose favour
such bonds and other encumbrances are registered.

 The sheri must provide the execution creditor with this information.

Thereafter the execution creditor must send a written notice by prepaid registered post to the
following persons:

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

In his written notice to the preferent creditors and the local authority, the execution debtor must
call upon these persons to stipulate, within 10 court days, a reasonable reserve price at which
the property may be sold, or to agree to a sale without reserve.

 Obviously, if the property is to be sold in execution, then the preferent creditors will
want to recover at least the outstanding amounts of the debts owing to them by the
execution debtor, and will take this into account when they set the reserve price.

The execution creditor must provide the sheri with proof that the preferent creditors and the
local authority have set a particular reserve price, or have agreed to a sale without reserve.

 If the sheri is satisfied that it is impossible to notify a preferent creditor of the sale, or
that a preferent creditor has been notified of the sale but has not responded, the sale
may nevertheless go ahead.

The sheri will then appoint a date for the sale of the property.

 This date must be not less than one month after service of the notice of attachment.

The execution creditor must then prepare the notice of sale, which must contain:

1. A short description of the property;

2. The situation and street number, if any, of the property;

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 3. The time at which and place where the sale will be held; and
4. An invitation to inspect the conditions of sale at the o ice of the sheri .

The execution creditor must publish the notice of sale in one newspaper that circulates in the
district in which the property is situated, as well as in the Government Gazette, not less than five
court days and not more than 15 court days before the date of the sale.

 The sheri must be provided with a photocopy or a telefax of the notices once they have
been published. Instead of providing the sheri with a copy or fax of the notice in the
Government Gazette, the execution creditor is entitled simply to provide the number of
the Government Gazette in which the notice was published.

Not less than 20 days before the date of the sale, the execution creditor must prepare
conditions of sale in accordance with High Court Form 21.

 The conditions of sale must be submitted to the sheri for approval.

 Thereafter, the execution creditor must supply the sheri with two copies of the
conditions of sale, one of which must lie for inspection by any interested party at the
sheri ’s o ice.

Not less than 10 days before the date of the sale, the sheri must:

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

Not later than the day before the sale, the execution creditor must provide the sheri with a
copy of each of the newspapers, and the number of the Government Gazette, in which the
notice of sale was published.

On the date of the sale, the property will be sold by public auction.

As soon as possible after the sale, the sheri must prepare a plan of distribution of the
proceeds of the sale.

 A copy of the plan must be forwarded to the registrar, and it must lie for inspection at
both the o ice of the registrar and the o ice of the sheri for a period of 15 court days.
 Written notice must be given, by registered post, to all parties who have lodged writs, as
well as to the execution debtor, that the plan of distribution is lying for inspection.

Any interested party may object to the plan of distribution, in which case he shall give notice in
writing to the sheri and all other interested parties of the particulars of his objection, and shall
bring such objection before a judge for review, on 10 court days’ notice to the sheri and the
said persons.

Warrant of execution in the Magistrates’ Courts:

In the Magistrates’ Courts one speaks of a warrant as opposed to a writ of execution.

Note that there are three types of warrants in the Magistrates’ Courts:

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

1. The warrant of execution:

In practice, the judgment debtor is usually given some time to satisfy the judgment.

 At this stage, the judgment debtor often makes arrangements with the attorney
representing the judgment creditor for the payment of the judgment debt, plus costs.
 In such a case, a warrant of execution is usually not issued. Obviously, if no acceptable
arrangement can be made to satisfy the judgment, the plainti will arrange for a warrant
of execution to be issued against the property belonging to the judgment debtor.
 Before applying for a warrant of execution, it is recommended that a judgment creditor
first issue a notice in terms of s 65A(1) of the Magistrates’ Court Act (discussed at 3
below), unless the judgment debtor is already aware of the existence of attachable
assets.
 Where the judgment creditor has issued a warrant of execution before the hearing of
proceedings in terms of a notice under s 65A(1) and a nulla bona return is made, the
judgment creditor shall generally not be entitled to the costs of the warrant.

The warrant is issued and signed by the clerk of the court and addressed to the sheri for the
purpose of attachment.

 The sheri of the court may be regarded as its executive o icer. His duty is to execute
orders and carry out the instructions of the court, for example by attaching goods.
 The sheri ’s return, i.e. the declaration made by the sheri concerning the execution of
the court’s instructions to him, is considered prima facie evidence of the matters stated
in the return.

2. Attachment – what can and cannot be attached:

Before we go on to a detailed examination of writs of execution against movables and

immovables, note that certain property is not liable to be seized in execution by the Magistrates’
Courts.

Section 67 of the Magistrates’ Courts Act provides that the following categories of property may
not be seized in execution of any process:

1. The necessary beds and bedding and wearing apparel of the person against whom
execution is levied, or any member of his family;

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

Note that the court has a discretion in exceptional circumstances to increase the sums referred
to above.

Section 68 of the Magistrates’ Courts Act stipulates which property may be attached and sold in
execution. The list is extensive and includes, for example:

1. movable property generally;

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

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

3. The attachment:

Once the warrant has been issued and handed to the sheri of the court for execution, the
sheri will proceed to the residence or place of employment or business of the judgment
debtor, unless you have given specific instructions that he must proceed to another place
where you believe that assets of the judgment debtor are situated.

Once the sheri or his assistant arrives at the judgment debtor’s residence or place of
employment or wherever, he must follow this procedure:

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

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 warrant, the sheri may open any door on any premises or of any piece of furniture. If
opening is refused and, if it is necessary, the sheri may use force to open any door.

Once the sheri has located attachable movable property, he must draw up an inventory of the
property and make a valuation.

 If the debtor declares that he has no, or insu icient, movable property and the sheri is
unable to find su icient movable property to satisfy the warrant, the sheri must
request the execution debtor to declare whether he has immovable property which is
executable and enter the reply on his return of service, endorsed on the warrant.

Execution After attachment, the property is sold in execution on a date, appointed by the sheri ,
which is not less than 15 days after the attachment.

 The sheri will appoint a day for the sale and a notice of sale will be advertised (at the
court and the place where the sale is to be held).
 If the sheri is of the opinion that the value of the goods exceeds R5 000, then the notice
must also be published in a newspaper circulating in the district at least 10 days before
the sale.
 Notice of attachment should be given to interested parties.
 Where a motor vehicle is to be sold in execution, notice must be given to both the title
holder and owner of the vehicle.
 On the date of the sale, the property will be sold by public auction.

LO10: Analyse the process of attachment of incorporeal property with reference to:

 Attachment of a debt owed to the judgment debtor by a third party in the High Court.
 Attachment of incorporeal property in the Magistrate’s court.

Attaching a debt owed to the judgment debtor by a third party in the High Court:

High Court rule 45(12) provides a procedure whereby the judgment creditor may attach debts
owing or accruing to the judgment debtor by a third party.

 Such debts may include salary or wages as are now and will in the future be owed to the
judgment debtor by his employer (i.e. the rule covers debts which are both owing now
and accruing in the future), as well as any other kind of debt owed to the judgment
debtor (e.g. money loaned to the third party by the judgment debtor).
 There is no distinction in the High Court (as there is in the Magistrates’ Courts practice
discussed below) between so-called emoluments attachment orders (which relate to
the attachment of the salary or wages of the judgment debtor) and garnishee orders
(which relate to the attachment of other kinds of debts owed to the judgment debtor).

In the High Court, if any debt is owing to the judgment debtor (including salary and wages), such
debt may be attached by the sheri if he is requested to do so by the judgment creditor.

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  The person who owes the debt to the judgment debtor is known, for the purposes of
attachment, as a garnishee.
 The sheri must serve a notice on the garnishee, ordering him to pay the debt directly to
the sheri , instead of to the judgment debtor.
 If the amount of the debt owed by the garnishee to the judgment debtor is more than the
amount of the judgment debt, the sheri may not demand that more than the amount of
the judgment debt be paid to him.
 Once the garnishee has paid the sheri , the sheri will issue a receipt to the garnishee
to the e ect that the amount of the debt paid to the sheri has been discharged.

If the garnishee refuses or neglects to comply with the notice calling on him to pay the debt
directly to the sheri , the sheri must immediately notify the judgment creditor.

 The judgment creditor may then deliver a notice to the garnishee, calling upon him to
appear before the court to show cause why he should not pay the debt to the sheri .
 If the garnishee does not dispute the debt due by him to the judgment debtor, or does
not appear in court to answer the judgment creditor’s notice, the court may order that a
writ of execution be issued against the garnishee’s property for the amount of the debt.

Attachment of incorporeal property in the Magistrates’ Courts:

1.Emoluments attachment orders versus garnishee orders:

In terms of the procedure adopted in the Magistrates’ Courts, there is a distinction between
emoluments attachment orders(which relate to the attachment of the salary or wages owing or
accruing to the judgment debtor by a third party), and garnishee orders (which relate to the
attachment of all the other kinds of debts which may be owed to the judgment debtor by a third
party).

o There have recently been significant developments concerning emolument attachment

orders, which have significantly changed how such orders may be obtained.

2.Emoluments attachment orders:

a) What is an emoluments attachment order?:

Emoluments attachment orders are dealt with in s 65J of the Magistrates’ Courts Act.

o According to s 65J, an emoluments attachment order is an order whereby the judgment

creditor is able to attach part of the salary or wages of the judgment debtor.
o In other words, once an emoluments attachment order has been granted, the employer
of the judgment debtor (who is referred to as the garnishee) is obliged (on a continuing
basis and until such time as the judgment debt has been paid in full) to pay a certain
portion of the judgment debtor’s salary or wages to the judgment creditor.
o This is a good way of proceeding against a judgment debtor who does not possess
su icient attachable assets to pay o a significant portion of the debt.
o Because the money goes directly from the employer to the judgment creditor, the
latter’s attorney does not have to worry about the judgment debtor spending it before it
can be attached.

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 o The judgment debtor also has an interest in retaining his job, and, as long as judgment
debtor does so, the debt will continue to be paid.

b) How is such an order obtained?:

An emoluments attachment order may be obtained in the following ways:

1. By obtaining the written consent of the judgment debtor; or

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

c) Out of which court must the emoluments attachment order be issued?:

An emoluments attachment order must be issued from the court of the district in which the
employer of the judgment debtor resides, carries on business or is employed.

 If the judgment debtor is a state o icial, the emoluments attachment order must be
issued from the court of the district in which the judgment debtor resides.

d) What is the e ect of the order?:

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

e) What if the judgment debtor leaves his employment?:

Section 65J(8) reads as follows:

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

leaves the service of a garnishee before the judgment debt has been paid in full, such
judgment debtor shall forthwith advise the judgment creditor in writing of the name and
address of his or her new employer, and the judgment creditor may cause a certified
copy of such emoluments attachment order to be served on the said new employer,

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 together with an a idavit or a irmation by him or a certificate by his attorney specifying
the payments received by him since such order was issued, the costs, if any, incurred
since the date on which that order was issued and the balance outstanding.
b) An employer on whom a certified copy referred to in paragraph (a) has been so served,
shall thereupon be bound thereby and shall then be deemed to have been substituted
for the original garnishee, subject to the right of the judgment debtor, the garnishee or
any other interested party to dispute the existence or validity of the order and the
correctness of the balance claimed.

3. Garnishee orders:

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

 The court may, on ex parte application by the judgment creditor … order the attachment
of any debt at present or in future owing or accruing to a judgment debtor by or from any
other person (excluding the state), residing, carrying on business or employed in the
district, to an amount su icient to satisfy the judgment and the costs of the proceedings
for attachment, whether such judgment has been obtained in such court or in any other
Magistrate’s Court, and make an order (hereinafter called a garnishee order) against
such person (hereinafter called the garnishee) to pay to the judgment creditor or his
attorney … so much of the debt as may be su icient to satisfy the judgment and costs,
and may enforce such garnishee order as if it were a judgment of the court.

Magistrates’ Courts rule 47 (read with s 72 of the Magistrates’ Courts Act) sets out the procedure
in terms of which an application for a garnishee order must be made. In terms of rule 47(1), the
application must be supported by an a idavit or a irmation by the judgment creditor or a
certificate by his attorney.

The following details must be included in the a idavit, a irmation or certificate:

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

In terms of rule 47(2):

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

Rule 47(3) requires the following:

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

The application is made ex parte.

 In other words, when the application is made, only the judgment creditor (the applicant)
will be in court.

In terms of rule 47(5), if the application papers are in order, the court will order the garnishee:

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

In terms of rule 47(7), once the initial order of court has been served on the garnishee and the
judgment debtor, it operates as an attachment of the debt in the hands of the garnishee.

 In other words, the garnishee may not go ahead and pay the debt to the judgment
debtor.

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

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

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

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

 If the garnishee fails to pay as ordered, execution may be issued against the garnishee
by the judgment creditor.

LO11: Set out the procedure and related principles in relation to:

 Section 65M of the Magistrate’s Court Act 32 of 1944, as amended.

 Section 65A of the Magistrate’s Court Act 32 of 1944, as amended.

Section 65M of the Magistrates’ Court Act 32 of 1944, as amended:

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

 If a judgment for the payment of any amount of money has been given by a division of
the Supreme Court of South Africa, the judgment creditor may file with the clerk of the
court from which the judgment creditor is required to issue a notice in terms of s 65A(1),

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 a certified copy of such judgment and an a idavit or a irmation by the judgment
creditor or a certificate by his attorney specifying the amount still owing under the
judgment and how such amount is arrived at, and thereupon such judgment, whether or
not the amount of such judgment would otherwise have exceeded the jurisdiction of the
court, shall have all the e ects of a judgment of such court and any proceedings may be
taken thereon as if it were a judgment lawfully given in such court in favour of the
judgment creditor for the amount mentioned in the a idavit or a irmation or the
certificate as still owing under such judgment, subject however to the right of the
judgment debtor to dispute the correctness of the amount specified in the said a idavit
or a irmation or certificate.

Section 65A of the Magistrates’ Court Act 32 of 1944, as amended:

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

1. Judgment is handed down by the court.

2. In most cases, the judgment will have been by default.
i. In other words, neither the judgment debtor nor his representative (attorney)
would have been present when judgment was handed down.
ii. If this was the case, the judgment creditor has to send a registered letter to the
judgment debtor, in which the judgment debtor is informed about the terms of
the judgment.
iii. (This is not necessary, however, if the judgment creditor served a warrant of
execution on the judgment debtor personally – i.e. opted for the warrant of
execution route before trying s 65.)99 In the letter the judgment creditor should
request payment within 10 days.
3. Ten days must elapse from the date on which the letter was posted.

A notice may then be issued calling on the judgment debtor to come to court to attend an
enquiry into his financial position.

 The notice must be supported by an a idavit by the judgment creditor or a certificate by

his attorney, in which the information prescribed by rule 45(1)(a)–(d)102 is clearly set out
(for example, stating in what respect the judgment debtor has failed to comply with the
judgment or order referred to in s 65A(1) of the Act, the amount in arrears and
outstanding balances on the date upon which the notice is issued).
 The financial enquiry is then held in the magistrate’s chambers.
 The court must be situated in the district where the debtor stays, is employed or carries
on business.
 If the judgment debtor is a juristic person, e.g. a company, then the notice may be
served on a director or o icer of the company.
1. The notice must be served on the judgment debtor: by the sheri or by the attorney or
candidate attorney representing the judgment creditor and at least 10 court days before
the date on which the judgment debtor is to appear in court for the financial enquiry.
2. If the judgment debtor ignores the notice to attend the financial enquiry and fails to
appear at court on the day set out in the notice, the judgment creditor or his attorney

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 may request the court to authorise the issue of a warrant directing the sheri to arrest
the judgment debtor.
3. If the court authorises the warrant, the judgment creditor or his attorney may prepare a
warrant, have it signed by the clerk of the court, and then deliver it to the sheri who will
go out and arrest the judgment debtor.
4. Once the sheri has arrested the judgment debtor, he must be brought before a
competent court as soon as possible.
5. By ignoring the notice to attend the financial enquiry, the judgment debtor may be guilty
of an o ence and be liable on conviction to a fine or to imprisonment for up to three
months.
6. The court before which the judgment debtor is brought after arrest will conduct a
summary enquiry into whether or not the judgment debtor is guilty of such an o ence.
7. Before conducting the summary enquiry, the court will explain to the judgment debtor
what is going on (i.e. that a summary trial is going to be held and that he may be
convicted of the o ence referred to and fined or sent to prison), and will tell the
judgment debtor that he has the right to choose, and be represented by, a legal
practitioner.
8. The court will have regard to the following rights of the judgment debtor during the
summary enquiry:
a. The right to remain silent and to be presumed innocent.
b. The right to adduce and to challenge evidence.
c. The right not to be compelled to give incriminating evidence.
9. After the summary enquiry has been held, the court will proceed with the enquiry into
the judgment debtor’s financial a airs.
10. If the court establishes that the debtor can a ord to pay o a certain amount per month,
it will probably order him to do so.
11. If the debtor disobeys the court’s order by refusing to pay the instalments, he will
contravene s 106 of the Magistrates’ Courts Act.
12. In terms of s 106 of the Magistrates’ Courts Act, any person who wilfully disobeys, or
refuses, or fails to comply with any judgment or order of a court, shall be guilty of
contempt of court and shall, upon conviction, be liable to a fine or to imprisonment for a
period not exceeding six months.

LO12: Analyse the procedure and related principles that govern administration orders.

The procedure for obtaining an administration order:

1.The application for an administration order:

First, the debtor who is in financial trouble drafts a document in which he makes application for
an administration order.

 Administration is only available to natural person debtors and not to juristic persons.
 Attached to the application document must be a full statement of the debtor’s financial
a airs, including a list of all the debtor’s creditors and the amounts owed by him to each
of them severally.
 Upon completing the application, the debtor lodges the application with the clerk of the
court and delivers personally or by registered post to each of his creditors, at least three

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 days before the date appointed for the hearing, a copy of the application and the
statement of his a airs, containing the case number under which the original
application was filed.

2.The hearing:

The application is heard by a magistrate with the debtor appearing in person or with his legal
representative before the court.

 Creditors, whether or not they have received notice in terms of s 74A(5), may attend the
hearing.
 The debtor is then questioned, either by the court or by the creditors, in respect of the
circumstances having a bearing upon the envisaged administration order.

During this examination, the debtor may be examined only in regard to the following:

1. His assets and liabilities;

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

The debts that the debtor listed in his statement to the court are deemed to be proved, unless
any creditor raises an objection to a particular debt or the court rejects it or requires it to be
substantiated.

 Any creditor to whose claim an objection is raised by the debtor or by any other creditor,
or who is required by the court to substantiate the debt, must provide proof of the debt
allegedly due to him.

3.The administration order:

If the court grants the administration order, the order must take the prescribed form, the content
and form of which is regulated by s 74C and Annexure 1 Form 51, respectively.

The salient parts of the order are as follows:

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

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

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

4.The appointment of an administrator and his tasks:

After issuing its order, the court nominates and appoints a person as administrator.

The administrator, after appointment, forwards a copy of the administration order by registered
post to every creditor whose name is mentioned by the debtor in his statement of a airs, or who
has given proof of a debt.

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The administrator then draws up a complete list of the names of creditors and the amounts
owing to them individually, as at the date on which the administration order was granted, and
lodges the list with the clerk of the court.

This list of creditors lies for inspection by the creditors or their attorneys at the o ice of the clerk
of the court and the o ice of the administrator at any time during o ice hours.

The rule provides that creditors may object to any debt included in the list of creditors, or may
provide proof of a debt owing before the making of the administration order and not listed in that
order.

5.Payment to the administrator and to the creditors:

The debtor is then obliged to pay the administrator the amounts of the weekly or monthly or
other payments stipulated in the administration order.

If he fails to do so, the court may undertake an investigation into the debtor’s failure to make the
payments due by him at a hearing to which the debtor will have been summoned.

The s 65 procedure is utilised in this regard.

Where the debtor pays in terms of the administration order, the administrator collects the
payments and keeps an up-to-date list of all payments and other funds received by him from or
on behalf of the debtor.

He then distributes these amounts pro rata among the creditors, at least once every three
months, unless the creditors agree otherwise or the court orders otherwise in a particular case.

He must undertake such distribution in accordance with the laws relating to insolvency, so that
claims that would enjoy preference under those laws are paid out in the correct order.

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