Unit 1: Introduction to civil procedure

Adjective law covers the law of evidence, civil procedure and criminal procedure. While
adjective law could be described as “procedural law”, the word “adjective law” describes
this law better because it clearly implies that the law of procedure exists for the sake of
something else: substantive law because the law of procedure enforces the rules and
provisions of substantive law.

Substantive law is concerned with the ends which the administration of justice seeks while
(adjective law) procedural law deals with the means and instruments by which those ends
are to be attained.

The function of the courts is to resolve disputes between legal subjects or between legal
subjects and the state.

While the state has no direct interest in civil proceedings, it provides the infrastructure (the
judiciary, court buildings) within which the dispute may be resolved and, if necessary,
enforces the order or judgment of a court.

In criminal cases you have the state versus an accused. In civil cases you have a plaintiff
versus a defendant (in a civil action commenced by a summons), or an applicant versus a
respondent (in a civil application commenced by an application).

If the matter goes on appeal, the person who lodges the appeal is known as the appellant
and the other party as the respondent.

In civil proceedings, the plaintiff or applicant is known as dominus litis, which means the
‘lord’ or ‘master’ of the litigation.

Civil cases are about deciding whether the defendant or respondent is liable for the
plaintiff’s or applicant’s claim. The liability of a defendant or respondent in a civil matter
need only be proved on a balance or preponderance of probabilities.

When it comes to civil liability, money plays a much greater role and the majority of civil
judgments include orders for the payment of money.

But not all civil cases involve claims for the payment of money. In some cases, the person
who initiates a civil case wants the other party to do something such as in a claim for
specific performance in terms of a contract, in which one of the parties to the contract asks
the court to order the other party to carry out that party’s obligations in terms of the
contract.

A money claim is often attached as an alternative to a claim for specific performance, and
sometimes it is also possible for damages to be claimed in addition to specific performance.

In some civil cases, the order sought is aimed at preventing someone from doing something,
such as a claim for a prohibitory interdict preventing someone from doing something.
There are also many other civil claims, such as those for ejectment, sequestration and
divorce, which do not necessarily involve claims for money but in practice such claims are
generally connected to money claims (e.g. for arrear rent in the case of ejectment, and
maintenance in the case of divorce).

If civil law is about a private person recovering what is due to him or her, then civil
procedure is that part of civil law which enables the person to go about doing that in
practice: civil procedure is the ‘nuts and bolts’ part of civil law.

The respective bodies of law relating to delict and contract, for example, are each part of
substantive law, whereas civil procedure is part of procedural or adjectival law.
Unit 2: Sources of civil procedural law
Unlike the magistrates’ courts, the civil procedure of the High Court does not consist of only
statutory provisions and rules of court but also common-law rules.

The Constitution of 1996 serves as the supreme law of the Republic and any laws that are
inconsistent with it may be declared invalid.

Legislation
Much of the law relating to civil procedure is derived from various Acts, the rules of court
and the jurisprudence that has been built up around their interpretation with the following
being the main statutory sources for purposes of civil procedure:
• The Superior Courts Act 10 of 2013;
• The Magistrates’ Courts Act 32 of 1944; and
• The Constitution of the Republic of South Africa, 1996.

There are additional statutory sources that provide for the procedure in special courts and
there are also numerous statutory provisions that confer jurisdiction on a court e.g., section
2(1) of the Divorce Act 70 of 1979.

Rules of court
With effect from 15 January 1965, under the provisions of section 43(2)(a) of the Supreme
Court Act of 1959, the Uniform Rules of Court were promulgated to regulate the conduct of
proceedings in all provincial and local divisions of the then Supreme Court. The effect of
these Rules was to repeal all the previous rules of the various divisions of the then Supreme
Court, except those rules of particular divisions regulating court terms, vacations, sessions
and set down.

These remaining matters now exist as the Rules for specific High Courts. Consequently, since
1965, proceedings have been conducted uniformly in all the divisions of the then Supreme
Court – now the High Courts – under a common set of Rules, which are still known as the
Uniform Rules of Court.

Apart from the Acts mentioned above (aka “primary legislation”), court rules that regulate
the conduct of proceedings in the various courts have also been promulgated (called
subordinate legislation). These rules must be read in conjunction with their particular Act.

Section 6 of the Rules Board for Courts of Law Act 107 of 1985 specifies the powers of the
Rules Board to make, amend or repeal rules “for the efficient, expeditious and uniform
administration of justice” in the Supreme Court of Appeal, the High Courts and the
magistrates’ courts.

For the Constitutional Court, the President of the Constitutional Court, in consultation with
the Chief Justice, may make rules relating to the manner in which this court may be engaged
and for all matters relating to the proceedings of and before that court.
Since these rules are delegated legislation, they have statutory force and are thus binding
on a court. However, because the rules exist for the sake of a court, a court, subject to its
competence to do so, may condone non-compliance with procedure if non-condonation
would lead to substantial injustice to a litigant.

A superior court may also exercise its inherent jurisdiction to grant relief in circumstances
where the rules do not cover a particular matter or where strict compliance with a rule
would result in substantial prejudice to a litigant.

Common law
A considerable portion of High Court procedures also comprises rules of common law,
especially in the matter of provisional sentence (namptissement).
Unit 3: Civil procedure in context
In inquisitorial systems, the judicial officers participate directly in the process of litigation,
from the commencement of the proceedings until the conclusion of the hearing: judicial
officers are actively involved in the conduct of proceedings and in determining the facts of
the case.

“Pleadings” are in the form of notices to the parties and include evidence; in certain
instances, judicial officers are involved in the gathering of evidence; the trial is in the form of
a hearing in which a judicial official may participate actively by asking questions and
sometimes by leading evidence.

In the inquisitorial system, a judicial officer is the trier of both fact and law and unlike the
adversarial system, which relies on case law and precedent, the inquisitorial system places
more reliance on statutory provisions than on the precedents arising out of decided cases
where the creation of law through case precedent is sometimes viewed, as an improper
usurpation of power reserved solely for the legislature.

A court’s decision is only of persuasive value and is not binding as law in regard to other
courts.

South African civil procedure adheres to the adversarial system of litigation which is a
system generally adopted in common-law countries, such as the USA and the UK.

The adversarial system regards litigation as a ‘private’ matter and relies on the legal
representatives of parties to prosecute their respective claims or defences: civil procedure
system is a contest between the parties and/or their representatives.

The legal representatives are also responsible for gathering and presenting their evidence to
a judicial official at trial. The trial in civil procedure is predominantly oral in nature): viva
voce evidence (oral evidence given by witnesses in person) is led by the counsel for both
litigants by means of examination, cross-examination and re-examination.

The judicial official also gives oral judgment (even when written, always read aloud) unless
judgment is reserved.

In the adversarial system, proceedings are marked by distinct pre-trial and trial stages: the
pre-trial stage opens with the exchange of pleadings between the litigants to define issues
in dispute that must be presented and proved at the trial and then after the pleadings have
closed, a trial date is requested. During this waiting period the litigants prepare their
respective cases for trial.

The judicial official plays a passive role, except the commissioner of a small claims
court, and does not interfere in the proceedings, except upon the request (motion) of one
of the litigants. Like an umpire of a game, the judicial officer is more interested in ensuring
the fair play of due process or of fundamental justice.
Three fundamental principles that underlie our system of civil procedure are:
1) bilaterality (between two parties): both or all litigants will have a fair and balanced
opportunity to present either their respective claims or defences. Inherent in this
principle is the belief that the truth will emerge if each party presents their own
biased view of the issues in dispute;

2) party prosecution: this refers to the competence of a litigant either to commence or

defend proceedings and to move the case forward through all its procedural stages
which reinforces the notion that litigation is a private matter that is conducted by
both litigants without any interference from the court, except where its intervention
is requested by one of the litigants. This means that a person whose substantive
rights have been infringed or alienated has a choice either to commence civil
proceedings or simply do nothing about the matter. Likewise, the person against
whom proceedings have been commenced (defendant or respondent) may also
make certain choices;

3) party presentation: this refers to the competence of a litigant to investigate his or

her own cause or defence, to formulate the issues in dispute, as well as to present
the material facts concerned and to prove these facts and raise legal argument in
support of these facts before a court. The principle of party presentation confirms
that a litigant has control of the content of his or her cause of or defence. Litigants
are competent to determine the scope of the controversy and to define the
boundaries of the dispute without the interference of the court. Party presentation
supports the idea that the litigants should be masters of their rights: e.g., a
defendant may consent to judgment, defend the action or simply ignore the
summons or both litigants may negotiate what is called an “out-of-court
settlement”.

In a practical setting these principles are interdependent and interrelated.

In principle, every litigant is entitled to appear personally before a court to plead a cause or
to raise a defence but because of the specialised nature of litigation, litigants normally
instruct attorneys and advocates to conduct litigation on their behalf with the exception of
the small claims court where legal representation is prohibited.

Members of the legal profession act as agents for their clients and represent their clients’
rights in court. Legal representatives are duty-bound to promote and protect their litigant
clients’ interests and in this sense it is said that legal representatives must take a partisan
stance on behalf of their clients.

Alternative dispute resolution (ADR)

This is a system of dispute resolution that uses a variety of informal processes as a means of
resolving disputes, both inside and outside the court system: negotiation, mediation and
arbitration are traditional processes. Within the context of ADR, these processes are also
known as the primary processes.
Although there are differences between many of these processes, they all fall within the
system of ADR because they share several common characteristics:
• informal: in comparison with the process of litigation as ADR processes are neither
bound by strict rules of procedure, nor constrained by technicalities;
• flexible: ADR processes can be adapted to suit the needs of particular kinds of disputes
in different contexts/situations, such as in the case of labour, commercial, industrial,
family and divorce and environmental issues, or in the case of international relations and
out-of-court-settlements;
• voluntary: the disputants are not compelled to enter into the process except when an
ADR process is used within the court system;
• consensual: they function on the basis that the outcome of a process is reached through
the consent of both disputants;
• interest-based: the interests of disputants, rather than their rights in law, are allowed to
dominate;
• relational: ADR processes emphasise the relationship between the disputants and are
therefore highly suited to disputes between persons who are in a continuing or long-
term relationship;
• future-oriented: apart from the case of full arbitration, ADR processes do not focus on
blame for past events but concentrate on establishing – or re-establishing – the future
relationship between the disputants;

The characteristics common to all ADR processes are diametrically opposed to those of the
process of litigation. ADR processes challenge the process of litigation: the word
“alternative” suggests, ADR processes may sometimes offer an alternative to the process of
litigation. Litigation is the mainstream model of dispute resolution against which ADR
processes are posed as an alternative.

Mediation
Mediation is a process in which parties to a dispute require the assistance of an impartial
third party (mediator) to help them reach agreement. The mediator acts only as a
facilitator and does not decide the outcome of the conflict – this remains in the hands of the
parties.

High success rate of mediation and other claimed benefits of mediation, court-annexed
mediation was introduced as an alternative dispute resolution mechanism within the civil
court system (magistrates’ courts).

Consequently, Chapter 2 was inserted into the magistrates’ courts rules under GN R 183 of
18 March 2014 whose purpose is to provide the procedure for the “voluntary” submission
of civil disputes to mediation (r 72).

Parties may refer a dispute to mediation either prior to the commencement of litigation or
thereafter, but prior to judgment, and the court may also enquire into the possibility
of mediation and afford parties the opportunity to refer the matter for mediation (r 75).

Dispute resolution mechanisms in African customary law

Dispute resolution mechanisms in African customary law have the following characteristics:
 • They follow the oral tradition, although they are influenced by Western traditions;
• The participants comprise a collective group of people who are free to participate in
the discussions;
• The processes are victim-oriented;
• The processes are informal and flexible;
• The outcome is restorative justice or the restoration of social harmony or peace;
• The use of state authorities is the exception rather than the norm.

Most disputes in African customary law are settled in a satisfactory manner without
recourse to the courts through negotiations within and between groups of relatives.

If a dispute cannot be solved in this manner, then two more options are available to the
disputants:
• use the process of mediation using an impartial mediator to help the people involved
in the dispute to come to an agreement or find a solution regarding the problem;
• If mediation fails then the next option is to follow the court procedure.

The impact of the constitution on South African law of civil procedure

Civil litigation can no longer be conducted without considering the values embodied in
section 26 of the Constitution.

Section 8 of the Constitution provides that the Bill of Rights applies to “all law”, and
therefore also applies to the law of civil procedure. Several of the rights enshrined in the Bill
of Rights directly relate to the law of civil procedure, the most important being equality
before the law (s 9); the right to freedom and security (s 12); property (s 25); the right to
have access to adequate housing (s 26); and access to courts (s 34).

Eviction
An owner’s common law right to obtain an eviction order is seriously limited by the
Constitution and certain land reform legislation. The various Acts have divergent
procedural requirements for obtaining eviction orders in different courts.

The legislation includes the following:

• Restitution of Land Rights Act 22 of 1994: which protects the lawful and unlawful
occupiers of urban and rural land who have instituted land restitution claims;
• Land Reform (Labour Tenants) Act 3 of 1996 (LTA): which protects persons living on
agricultural land who, instead of wages, have obtained the right to use land for farming
purposes;
• Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA): which protects de
facto holders of informal land rights in respect of rural and urban land pending the final
determination of the status of such rights. The land concerned is mainly found in the
former so-called “independent homelands”;
• Extension of Security of Tenure Act 62 of 1997 (ESTA): which protects former lawful
occupiers of agricultural land;
• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the
so-called “PIE” Act): which finds application when the eviction of a person from his or
her urban home is sought and applies in respect of land throughout the Republic.

If ESTA, IPILRA or LTA do not apply to a particular case, and the occupier falls within the
definition of an ‘‘unlawful occupier’’ as defined in section 1 of the Act, then this Act applies.

Buildings and structures that do not fulfil the function of a dwelling or a shelter for humans
such as commercial property fall outside this Act. If the land has been occupied for less than
six months, the court may grant an eviction order if it considers it just and equitable to do so
after considering all relevant circumstances (which include the rights and needs of the
elderly, children, disabled persons and households headed by women).

If the land has been occupied for longer than six months, the court must consider if land is
available for the relocation of the unlawful occupier. This Act suspends the exercise of a
landowner’s proprietary rights until this determination has been made, and if the
procedural requirements of the Act have been met, a landowner may approach the court
for an order (Ndlovu v Ngobo; Bekker and Bosch v Jika 2003 1 SA 113 (SCA)).

This Act clearly confirms certain values such as dignity, equality and freedom and requires
courts to create innovative remedies in order to protect and enforce the constitutional
rights of the owner and the occupier (Transnet Ltd v Nyawuza 2006 5 SA 100 (D) 105G–
107D).

Arrest
The right to freedom and security (s 12) led to the decision in Bid v Industrial Holdings (Pty)
Ltd v Strang (Minister of Justice and Constitutional Development, Third Party) 2008 3 SA 355
(SCA), in which it was held that the arrest of a person to confirm or found jurisdiction was
unconstitutional.

In Malachi v Cape Dancing Academy Int (Pty) Ltd 2010 6 SA 1 (CC) at 19A–B, the court
confirmed an earlier finding that the section in the Magistrates’ Courts Act, 1944, codifying
the common law, and which authorised arrest tanquam suspectus de fuga, was
unconstitutional. Uniform Rule 9 (regulating arrest) has since been repealed and arrest
tanquam suspectus de fuga no longer exists.

Execution
The Constitutional Court held in Japhtha v Schoeman; Van Rooyen v Stoltz 2005 3 SA
140n(CC) that a writ of execution that would deprive a person of ‘‘adequate housing’’ would
be in conflict with such person’s right in terms of section 26 and would consequently need
to be justified in terms of section 36(1).

Mokgoro J explained the position thus:

The interests of creditors must not be overlooked. There might be circumstances
where, notwithstanding the relatively small amount of money owed, the creditor’s
advantage in execution outweighs the harm caused to the debtor. In such
 circumstances it may be justifiable to execute. It is in this sense that a consideration
of the legitimacy of a sale in execution must be seen as a balancing process.

For this reason, the court held that execution must be subject to judicial oversight. In
Gundwana v Steko Development and others 2011 3 SA 608 (CC), the Constitutional Court
held that (in an instance when it was requested that immovable property be declared
specially executable after default judgment) the Registrar may not grant such an order, and
that execution may only follow upon judgment in a court of law.

The court further declared the practice under the rules of court of allowing a Registrar to
grant orders declaring immovable property that constitutes a person’s home executable,
constitutionally invalid (para. [55]; [65]) (read amended Uniform Rule s 45 and 46 which give
effect to these judgments).

Judicial oversight will ensure that the impact that the execution may have on indigent
debtors who are at risk of losing their homes be considered, as well as any alternative
course of action. It is submitted that this amended practice ensures compatibility with
section 26 of the Constitution.

In FirstRand Bank Ltd v Folscher and another and similar matters 2011 4 SA 314 (GNP), the
court considered the meaning of ‘‘primary residence’’ and ‘‘home of a person’’ (as used in
Uniform Rule 46 and Gundwana). The court held that execution against a holiday home or a
second home that is not usually occupied by the debtor does not trigger the rule requiring
judicial oversight. Likewise, the term ‘‘judgment debtor’’ was held to refer to an individual
who owns the primary residence, and not to immovable property owned by a company,
close corporation or a trust, even if the immovable property is the shareholder’s, member’s
or beneficiary’s only residence (para [31]–[32]).

The summons initiating an action in which relief is claimed that embraces an order declaring
immovable property executable must contain a clause which draws the attention of the
debtor to section 26(1) of the Constitution, and which informs the debtor about the need to
present information to court supporting his or her claim that an order for execution will
infringe his or her section 26 right of access to adequate housing.

The conduct of practitioners

The conduct of legal practitioners in practice is subject to a professional code of conduct.
The main sources of this code of conduct are the Attorneys Act 53 of 1979 (as amended) and
the Regulations promulgated under it, the Admission of Advocates Act 74 of 1964, the rules
and rulings of the various law societies and bar councils, court decisions, the common law,
textbooks, and the influence of international codes.

The purpose of a professional code of conduct is to provide the norms in terms of which it
can be established whether prospective practitioners and current practitioners are fit and
proper persons to practise law.

A practitioner is admitted to practice by the High Court and a practitioner is termed an

‘‘officer of the court’’. Because a practitioner is part of the legal system, he or she is
compelled to uphold the law at all times, and to promote the general administration of
justice. This includes a practitioner’s duty to respect the processes of court, and not to
hamper his or her opponents in conducting their cases.

The professional conduct of practitioners crops up in various relationships, such as in the

relationship with their clients, other practitioners, the courts, the state, the community, and
the particular professional body (law society or bar council). In all these relationships, it is
expected that practitioners will conduct themselves with integrity, objectivity, dignity and
good judgement, demonstrating sufficient knowledge and skill, respect for the law,
commitment, equity and fairness.

Serious breaches of the code of conduct can lead to the removal from the roll of attorneys
or advocates, as appropriate. The duty of practitioners is well expressed in the following
principles laid down in the ‘‘General Principles of Ethics’’ of the International Bar
Association:
1) Lawyers shall at all times maintain the highest standards of honesty and integrity
towards all those with whom they come into contact;
2) Lawyers shall treat the interests of their clients as paramount, subject always to their
duties to the Court and the interests of justice, to observe the law and to maintain
ethical standards.
…
10) Lawyers shall use their best efforts to carry out work in a competent and timely
manner, and shall not take on work which they do not reasonably believe they will
be able to carry out in that manner.
…
12) Lawyers shall always behave towards their colleagues with integrity, fairness and
respect.
Unit 4: The structure of the South African court system
The Constitutional Court
Situated in Johannesburg, it comprises the Chief Justice, the Deputy Chief Justice and nine
other judges. A matter before the Constitutional Court must be heard by at least eight
judges. Its jurisdiction is set out in section 167(3)–(7) of the Constitution (as amended).

This court has four functions:

1) It is the highest court of appeal in respect of both constitutional and non-constitutional
matters (s 167(3)(a));
2) It is the only court that may hear disputes between organs of state at national or
provincial level; hear certain applications by the legislature over the constitutionality of
parliamentary and provincial bills and Acts; take decisions on whether parliament or the
President has failed to comply with a constitutional duty; and certify provincial
constitutions (s 167(4)). As regards these matters, the Constitutional Court has exclusive
jurisdiction;
3) This court may, in exceptional circumstances, grant anyone direct access when it is in
the interests of justice to do so (s 167(6)(a));
4) The final function of the Constitutional Court is to confirm orders made by other courts
in which parliamentary or provincial legislation is declared invalid. Until the
Constitutional Court confirms an order of invalidity, it has no force (s 167(5)).

This court can function as either a court of first instance or as a court of appeal.

The Supreme Court of Appeal (SCA)

Situated in Bloemfontein, it functions only as a court of appeal and may never be
approached directly. It hears appeals from the High Court of South Africa or various courts
of similar status to the High Court of South Africa, except labour or competition matters, as
well as matters referred to it in circumstances defined by an act of parliament (s 168(3) of
the Constitution).

This court may hear appeals on both constitutional and non-constitutional matters which
matters may be further appealed to the Constitutional Court.

The High Court of South Africa and courts of similar status

Divisions of the High Court are situated in various major centres of South Africa. The High
Court functions as a court of first instance in respect of litigation where the amount
concerned or the nature of the claim places the matter outside the jurisdiction of the
regional magistrates’ courts. (At present, if it exceeds R400 000, the matter falls within the
jurisdiction of the High Court.)

They also function as courts of appeal or review in respect of decisions taken in magistrates’
courts. The High Court of South Africa may hear any matter that it is not prohibited from
hearing by the Constitution or an Act of Parliament (s 169 of the Constitution, as amended)
such as those under the exclusive jurisdiction of the Constitutional Court.
However, any finding that legislation or the conduct of the President is unconstitutional by
the High Court or the Supreme Court of Appeal must be confirmed by the Constitutional
Court for it to have effect. The jurisdiction of the High Court is set out in the following
legislation:
1) Section 169 of the Constitution, 1996 which deals with the constitutional jurisdiction of
the High Court;
2) Section 21(1) of the Superior Courts Act, 2013 (SCA) which provides that every High
Court Division may adjudicate on any cause arising within its territorial area of
jurisdiction, except where exclusive jurisdiction has been vested in another court or
tribunal. The phrase “causes arising” has been interpreted by our courts to mean “legal
proceedings duly arising”, i.e., proceedings in which the court has jurisdiction under
common law. The High Court also has jurisdiction over all persons residing in its
territorial area (in terms of common law, a court also has jurisdiction over a person who
is domiciled in its territorial area, even if that person is temporarily residing elsewhere);
3) Section 173 of the Constitution, 1996 which refers to the jurisdiction that derives from
common law and from the unwritten powers that the court possesses to exercise its
judicial functions;
4) Appeal jurisdiction which is granted in terms of sections 16–19 of the SCA.

The above legislation is that the jurisdiction of the High Court divisions is confined to
matters that arise within their area of jurisdiction and persons resident in that area. Within
these limits, jurisdiction is exercised in accordance with common-law principles, except
where statute provides otherwise.

The magistrates’ courts

Are also referred to as the “lower courts”, they function either in a district magisterial
district or a regional magisterial district and they have no constitutional jurisdiction (s 170
of the Constitution) and section 110 of the Magistrates’ Courts Act 32 of 1944 provides that
these courts may not pronounce on the validity of “any law” or of any conduct of the
President.

The small claims court

These are regulated by the Small Claims Courts Act 61 of 1984. Small claims courts were
introduced to achieve the following objectives:
• make the administration of justice more accessible to all South Africans;
• provide a forum for the settling of minor civil disputes;
• remove time-consuming, formalistic and expensive procedures;
• introduce informal and simplified procedures to reduce the cost of litigation and provide
for the speedy determination of small claims;
• further reduce the cost of litigation by prohibiting legal representatives from appearing
in a small claims court; and
• establish a consumer-oriented court.

The purpose of the Act is obviously to solve problems experienced by litigants in other
courts and extending the basis of every citizen’s right to have access to justice. This is
facilitated by:
• self-representation by both plaintiff and defendant,
• simplified pre-trial proceedings,
• granting the commissioner an inquisitorial function.

The different and simplified procedures that are applied in small claims courts do not render
these courts inferior to other courts; small claims courts are part of the structure of the
court system recognised in terms of section 166(e) of the Constitution and as courts of law,
their judgments are binding and execution of judgment is enforced by the state.

Small claims courts should also not be regarded as inferior to other courts because of the
low value of the claims submitted. The legal issues involved in these cases are not
necessarily simple.

A small claims court is not a court of record: the proceedings during the trial are not put into
writing but the commissioner must record his or her judgment or order and sign it (s 3(1)(2)
of the Small Claims Courts Act).

Like all other courts, proceedings must take place in an open court (s 4), and the process of
these courts is effective throughout the Republic (s 3(4)).

The following shortcomings of small claims courts should be recognised:

• The very low jurisdictional limit restricts consumers to extremely minor claims (currently
R15 000);
• Certain claims are totally excluded from the jurisdictional competence of a small claims
court (s 16);
• Only natural persons may appear in a small claims court as plaintiffs (s 7);
• Review of proceedings is permitted (s 46), but appeal is prohibited (s 45);
• Representation of a litigant by a member of the legal profession is forbidden to keep to a
minimum any legal costs that would otherwise be incurred. To facilitate (assist) self-
representation by each of the litigants, pre-trial proceedings are informal, the rules of
evidence have been relaxed and the role of the judicial officer (the commissioner) has
been radically modified in that he or she plays an active role in assisting the litigants in
presenting their cases;
• Pre-trial formalities have been simplified and reduced to the barest essentials (no
pleadings are required, and only a letter of demand and a summons is used);
• Although the relationship between the litigants remains adversarial, the role of the
judicial officer has changed, the commissioner plays an active role.
Read sections 3, 4, 712, 14, 15–22, 26, 29, 45 and 46 of the Small Claims Courts Act, 1984.
Unit 5: Jurisdiction
The distinction between courts
A definite distinction is made between the superior courts and the lower courts with the
superior courts being:
• the Constitutional Court,
• the Supreme Court of Appeal,
• the High Courts and any courts of a similar status.

Courts such as the Labour Court and the Lands Claims Court have the status of a High Court.

There are also subordinate courts, known as lower courts which include:
• magistrates’ courts (district magistrates’ courts and regional magistrates’ courts)
established in terms of the Magistrates’ Courts Act 32 of 1944;
• small claims courts, which have limited jurisdiction and are conducted according to
simplified procedures to hear minor civil claims in terms of the Small Claims Courts Act
of 61 of 1984;
• other bodies vested with judicial or quasi-judicial powers, which have been established
by virtue of particular legislation, such as the children’s courts and maintenance courts.

A large number of specialist courts exist and in some cases these courts sit as magistrates’
courts.

The meaning of jurisdiction

There is no single court in South Africa which has jurisdiction (i.e. the competence), as court
of first instance, to hear all disputes instituted anywhere in the country. Before an action is
instituted it is therefore essential to ascertain which court is competent to hear the matter.

There must be some link (nexus) between the court and the parties or the subject matter of
the dispute before a particular court will be vested with jurisdiction and such a court must
be able to give an effective judgment: a judgment that can be enforced before it will hear a
matter.

Jurisdiction must always be considered before aspects of procedure are considered. Once
the correct court has been determined, jurisdiction is no longer an issue because as long as
it has jurisdiction when an action commences, it will not matter whether the original ground
of jurisdiction has ceased to exist.

An action instituted in a court that is not vested with jurisdiction will result in such a court
refusing to hear the matter and a new action will have to be instituted in the correct court.

Proceeding in the High Court with a claim that falls within the jurisdiction of a magistrates’
court brings the risk of being awarded costs on the scale applicable to magistrates’ courts
(costs on a lower scale).

In the decision of Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A), the
court defined jurisdiction as follows:
 Jurisdiction… means the power vested in a court to adjudicate upon, determine and
dispose of a matter.

In this definition, the following two requirements are emphasised:

1) The court must have the authority to hear the matter;
2) The court must have the power to enforce its judgment.

No court will exercise jurisdiction unless both these requirements are met. The authority to
hear a matter requires the presence of some link or jurisdictional connecting factor (nexus)
between the court and the parties or the cause of action. The power to enforce a judgment
is derived from the doctrine of effectiveness.

The meaning of inherent jurisdiction

Civil procedure in the superior courts does not depend solely on statutory provisions and
the Rules of Court. Because of this, the superior courts are sometimes said to exercise an
“inherent jurisdiction”.

A court exercising “inherent jurisdiction” simply means that its jurisdiction is derived from
common law and not from statute although statute may limit or increase this jurisdiction.

An implication of a superior court’s exercising its inherent jurisdiction is that it has discretion
regarding its own procedure: the court may condone any procedural mistakes or determine
any point of procedure.

The Constitution in section 173 confirms the continued existence of this inherent jurisdiction
of superior courts:
The Constitutional Court, the Supreme Court of Appeal and the High Courts have the
inherent power to protect and regulate their own process, and to develop the common
law, taking into account the interests of justice.

The meaning of “creatures of statute”

Lower courts do not have inherent jurisdiction because they derive their powers from the
particular statute that created them resulting in lower courts sometimes being called
“creatures of statute”. The exercise of jurisdiction is dependent on the extent to which its
enabling statute permits it to exercise such jurisdiction.

A magistrates’ court is referred to as a “creature of statute”, the Magistrates’ Courts Act of

1944, and it may only do what the Act permits it to do.

When jurisdiction is determined

The determining moment is when proceedings are instituted. Once a litigant has
commenced proceedings in a particular court, he or she must continue them in that court
unless the leave of the court is obtained for the removal of the matter to another court or
the proceedings are withdrawn by the plaintiff.
Unit 6: Jurisdiction of the superior courts
Definitions:
Actor sequitur forum rei
This means that the plaintiff must institute action against the defendant in the area in which
the defendant is domiciled or resident. This rule is merely one of the accepted rationes
jurisdictionis and, if another link with a court exists, need not be followed. If the actor
sequitur forum rei rule is followed to give jurisdiction to a court, such court is said to have
jurisdiction ratione domicilii.

Dominus litis
More than one court may be able to exercise jurisdiction in the same action if various
rationes jurisdictionis exist in respect of different courts in which case the plaintiff may, as
dominus litis (literally, “master of the suit”), choose in which of these courts vested with
jurisdiction he/she wishes to institute the action.

Incola and peregrinus

From Roman law originally, peregrinus meant a foreigner – someone who was not Roman
citizen while an incola was a resident of a particular city or province of the Roman Empire.
In South African law these terms have these meanings:
a) An incola is a person who is either domiciled or resident within a specific court’s area
of jurisdiction.
b) A peregrinus is a person who is neither domiciled nor resident within that court’s
area of jurisdiction.

These two terms only apply to each High Court as a separate entity and not to South Africa
as a whole as a person domiciled or resident in the area of the KwaZulu-Natal High Court,
Durban is regarded as a peregrinus of the North Gauteng High Court, Pretoria.

Citizenship of a country is not relevant when determining whether someone is an incola or a

peregrinus. A person may be a citizen of a particular country without ever having been
domiciled or resident there. Citizenship is irrelevant for the purposes of jurisdiction.

When dealing with the term peregrinus, a distinction is drawn between a person who does
not live within the jurisdictional area of a specific court but does live elsewhere in South
Africa – a local peregrinus and a person who lives outside South Africa – a foreign
peregrinus. Different jurisdictional rules apply depending on whether the defendant is a
local or a foreign peregrinus.

Nexus
This literally means “link” and in a jurisdictional context, it is the link or connection that
gives a specific court jurisdiction over a particular person or cause of action.

Rationes jurisdictionis
The rules of jurisdiction provide that there must be some link between the court’s
jurisdictional area and the defendant or the facts from which the dispute arose. These links
are called “jurisdictional connecting factors” or rationes jurisdictionis.
The links accepted by our courts include domicile or residence of the defendant,
commission of a delict, conclusion or breach of contract, submission (in certain instances),
and the location of property where such property is the subject of the dispute.

Ratione rei gestae

Under common law, a court will be vested with jurisdiction in respect of monetary claims in
the following instances:
1) If the contract that is the subject of the litigation was concluded, was to be performed or
was breached within the court’s area of jurisdiction: any of these grounds will be
sufficient to vest a court with jurisdiction. A court is then said to be vested with
jurisdiction ratione contractus;
2) If the delict on which the claim is based was committed within a court’s area of
jurisdiction, a court is vested with jurisdiction ratione delicti commissi.

Collectively, the above-mentioned two grounds are termed ratione rei gestae.
A court is not limited to these two grounds – it may also be vested with jurisdiction on some
other ground, e.g., ratione domicilii.

Ratione domicilii
Under common law, the court where the defendant is either domiciled or resident always
has jurisdiction to hear a claim sounding in money.

Ratione rei sitae

Under common law, the court where the property is situated is the only court that has
jurisdiction to hear claims relating to such property - this connecting factor is relevant only
in respect of property claims.

Legal phrases
Attachment to found or confirm jurisdiction
The word “attachment” in a jurisdictional context refers to one of the grounds upon which a
court justifies its exercise of jurisdiction in respect of monetary claims.

This term is relevant only when dealing with jurisdiction in respect of money claims where
the defendant is a foreign peregrinus. The practice of accepting jurisdiction against a foreign
defendant on the basis of attachment has its origin in Roman-Dutch law.

The general principle underlying this practice is said to be the doctrine of effectiveness. The
effect of the attachment is either to confirm an accepted ground of jurisdiction (ratio
jurisdictionis) or to found jurisdiction by providing a basis on which the court may assume
jurisdiction where there is no ratio jurisdictionis.

Arrest of a defendant to found or confirm jurisdiction has been held to be unconstitutional

(Bid Industrial Holdings (Pty) Ltd v Strang and Another 2008 (3) SA 355 (SCA)).

However, the Supreme Court of Appeal has held that attachment to confirm or found
jurisdiction of a court is not unconstitutional because it serves the purpose of making any
judgment that the court may give in favour of the plaintiff effective. Therefore, all principles
developed at common law regarding attachment to found or confirm jurisdiction still apply
to the attachment of property.

In Bid Industrial Holdings (Pty) Ltd v Strang and Another 2008 (3) SA 355 (SCA), the court
used the power given to it in terms of section 173 of the Constitution to develop the
common law to introduce a new basis upon which a court may assume jurisdiction in
respect of a foreign peregrine defendant if attachment of property to found or confirm
jurisdiction is not possible. It held that a court may assume jurisdiction in respect of such
defendant if:
a) the defendant is served with the summons while in South Africa, and
b) there was an “adequate connection between the suit and the area of jurisdiction of
the court concerned” when the appropriateness and convenience of the matter
being decided by that court is considered [56].

The court did not elaborate on what would constitute an “adequate connection” but did
indicate that the strongest connection would be provided by the cause of action arising
within that jurisdiction. With regard to appropriateness and convenience, the court held
that these concepts can be developed case by case.

Claim sounding in money

This expression is the standard term used to describe an action based upon a claim that
seeks either the payment of money or the payment of money as an alternative to some
other order, e.g., an order for specific performance. If in doubt, consider the relief that the
plaintiff seeks: if it is payment of money, the claim is one that sounds in money.

Doctrine of effectiveness
This is one of the common-law principles on which the exercise of jurisdiction is based. A
court will not exercise jurisdiction unless it is able to give an effective judgment: unless
compliance with the judgment can be expected. Where a defendant resides in South Africa,
compliance can be enforced (if a party does not comply with a court order) by execution or
contempt proceedings.

Where a defendant resides outside South Africa (a foreign peregrinus), attachment to found
or confirm jurisdiction is necessary to give the court some control over the defendant or his
property but no court can ensure that a particular defendant will be in a position to comply
fully with a court order – he/she may be financially incapable of doing so. The purpose of
the doctrine of effectiveness is merely to ensure that court proceedings are not completely
futile from the start; it does not guarantee compliance with all judgments.

This doctrine must not be seen in isolation and it is frequently not followed because of other
considerations.

Domicile
Domicile is acquired by lawful presence at a particular place with the intention of settling
there for an indefinite period. If the defendant is domiciled in the court’s area, the court has
jurisdiction even if the defendant is not present in person in the area at that time.
Reside
The term “reside” has never been satisfactorily defined by our courts or in legislation but it
is clearer that it amounts to more than mere physical presence in a place, while being less
than domicile in that there must be some element of intention to prolong the stay beyond
the limit of a mere casual or temporary visit.

In Beedle & Co v Bowley (1895) 12 SC 401 at 403, De Villiers CJ defined a person’s residence
as “his home, his place of abode, the place where he generally sleeps after the work of the
day is done”. This is as good a definition as any.

In Ex parte Minister of Native Affairs 1941 AD 53, the following principles were laid down:
1) A distinction should be drawn between place of residence and domicilium. A person may
be domiciled in one place and reside in another;
2) A person may have more than one place of residence, in which case he or she should be
sued in the jurisdictional area of the court in which he or she is residing at the time of
service of the summons;
3) A person does not reside in a place that he or she visits only temporarily.
Unit 7: General overview of jurisdictional principles
Different jurisdictional principles apply in respect of a particular type of claim and the
principles that are relevant in respect of one kind of claim cannot be applied when another
type of claim is considered.

Although the methods for determining the nature of claims for jurisdictional purposes have
been the subject of legal debate since Roman times, for the purposes of this course, we
have classified claims as those dealing with money, property, status and constitutional
matters.

Relationship between common-law principles and legislation

Section 21 of the Superior Courts Act, 2013 has been interpreted to mean that when
determining jurisdiction in the High Courts, common law still applies unless specifically
altered by legislation, hence we often refer to common law when deciding whether or not a
court has jurisdiction to hear a matter.

Claims sounding in money

This is the standard term used to describe an action based upon a claim that seeks either
the payment of money or the payment of money as an alternative to some other order, e.g.,
an order for specific performance. Traditionally, the common-law principle that applied in
respect of such claims was actor sequitur forum rei.

However, even in Roman times this principle was not always followed hence the principle of
ratione rei gestae has resulted in the situation where courts other than the court in which
area the defendant is domiciled or resident may also exercise jurisdiction.

Claims relating to property

Here the principle that the forum rei sitae is the only court that may exercise jurisdiction has
remained relatively unchanged.

Matrimonial actions
In terms of the common-law principle that applied to divorce actions, the only competent
court was the one where the parties were domiciled. This principle has now been altered by
statute, the Divorce Act 70 of 1979.

Constitutional actions
Section 167(3) of the 1996 Constitution defines a constitutional matter as including any
issue involving the interpretation, protection or enforcement of the Constitution and
provides that the final decision on whether or not an issue is a constitutional matter rests
with the Constitutional Court.
88
Unit 8: Jurisdiction in respect of claims sounding in money
Pete et al Civil Procedure 3ed (2017) 99–104; 109–112
Sections 21(3); 28 and 42(2) of the Superior Courts Act, 2013

Schematic outline
The following schematic outline is to give you a clear view of the jurisdictional principles as
an integrated whole.

Note: For purposes of this module, a thorough knowledge of the content of this study unit is
deemed sufficient for examination purposes. Read Pete et al for additional information only.

Where the defendant is an incola of some South African court

When a defendant is domiciled or resident somewhere in South Africa, the court(s) where
such a defendant is resident or domiciled will be able to hear the matter. The ground for
jurisdiction is known as ratione domicilii and is based on the Roman-law maxim actor
sequitur forum rei.

A court has jurisdiction over a defendant who is an incola of its area at the time when the
action is instituted and it is irrelevant whether the plaintiff is an incola or a peregrinus, or
where the cause of action arose. The only problems encountered with regard to this
jurisdictional connecting factor are procedural ones: determining the question “when is the
action instituted”?

In Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N), it was held that the action is
instituted when the summons is issued and served. This view was confirmed in Baren en ’n
Ander v Lottering 2000 (3) SA 305 (C) at 309F–G.

From a jurisdictional point of view, the defendant need not be physically present in the
court’s area of jurisdiction at the time when action is instituted.

Where the defendant is a peregrinus of the court concerned, but an incola of another
court in South Africa (local peregrinus)
When a defendant is neither domiciled nor resident in the jurisdictional area of the court
concerned, such a defendant is a peregrinus of that particular court, but because he or she
is still domiciled or resident somewhere in the Republic, such a defendant is termed a local
peregrinus.

When a defendant is a local peregrinus of the court concerned, this court may exercise
jurisdiction only if the cause of action arose within its jurisdictional area. A “cause of action”
comprises the facts that give rise to an enforceable claim. This ground of jurisdiction also
derives from Roman-law principles and is known as ratione rei gestae. It is irrelevant
whether the plaintiff is an incola or a local or foreign peregrinus.

When does a cause of action arise within a court’s jurisdictional area? All claims instituted
are based on some cause of action. A cause of action usually arises from either a contract
(ex contractu) or a delict (ex delictu). In the following instances a court will be vested with
jurisdiction because the cause of action arose within its jurisdictional area:
1) Where the contract that is the subject of the litigation was concluded or breached within
the court’s area of jurisdiction or where performance of the contract was intended to be
effected within the court’s area of jurisdiction - any of these grounds will be sufficient to
vest a court with jurisdiction. The court is then said to be vested with jurisdiction ratione
contractus;
2) Where the delict on which the claim is based was committed within a court’s area of
jurisdiction the court is vested with jurisdiction ratione delicti commissi.

No other requirement need be met before the court in whose area the cause of action arose
may exercise jurisdiction but it is not possible for jurisdiction to be confirmed or extended
by attachment of the local peregrine defendant’s property, in contrast with the position of
foreign peregrini defendants. This is because section 28(1) of the Superior Courts Act 10 of
2013 prohibits attachment of property of persons domiciled or resident anywhere in South
Africa for jurisdictional purposes. The effect of section 28(1) is that, as regards local
peregrini, attachment of property for the purpose of founding or confirming jurisdiction is
not only unnecessary but is prohibited.

Where the defendant is a peregrinus of all South African courts (foreign peregrinus)
When a defendant is neither domiciled, nor resident within the borders of the Republic,
such a defendant is a foreign peregrinus. Before a claim sounding in money is instituted
against a defendant who is a foreign peregrinus, it is usually necessary to acquire some hold
over that person. This is usually done by attaching his or her property. Such attachment is
necessary to ensure that the court’s judgment can be carried out.

However, attachment to found or confirm jurisdiction cannot be applied to matrimonial

actions or actions in personam that do not have a monetary or property component
(Herbstein and Van Winsen The Civil Practice of the High Courts of South Africa Vol 1 at 105).

Where the defendant is a foreign peregrinus and the plaintiff is an incola of the court
concerned
In instances where the defendant is a peregrinus of the whole of the Republic, a court will
assume jurisdiction if the plaintiff is an incola of the court and if attachment of the
defendant’s property has taken place. This is known as attachment ad fundandam
iurisdictionem.

What is of cardinal importance in this respect is that the order for attachment founds
jurisdiction. It is not necessary for the cause of action to have arisen within the court’s area
of jurisdiction: attachment ad fundandam iurisdictionem alone founds jurisdiction and
constitutes the ground on which the assumption of jurisdiction is justified.

However, an order for attachment ad fundandam iurisdictionem is permissible only if a

further condition is complied with: the plaintiff must be an incola of the court concerned.
This principle is based on policy considerations that South African courts should come to the
assistance of South African subjects and enable them to litigate at home, which evolved as a
result of a series of court decisions.

In 1887, in Einwald v German West African Co 1887 (5) SC 86, the Cape Supreme Court held
that attachment ad fundandam iurisdictionem was not permissible and that the cause of
action must have arisen in a court’s area before it could adjudicate the matter. It was only in
1931 that the Cape Provincial Division, in Halse v Warwick 1931 CPD 233, reversed the
decision in the Einwald case.

In Halse v Warwick, the court approved and adopted the approach prevailing in the
Transvaal, where, in Lecomte v W and B Syndicate of Madagascar Ltd 1905 TS 295; 1905 TS
696, it was established that an incola plaintiff could be granted an order for attachment ad
fundandam jurisdictionem, even though the cause of action arose outside the court’s area of
jurisdiction.

However, the decision in the Einwald case still holds true in the following respect:
attachment ad fundandam jurisdictionem is not permissible if the plaintiff is a peregrinus.

Seen in this perspective, our courts will not adjudicate an action between peregrini unless
there is a sufficient nexus with the area of the court. Thus, the rule evolved that, in the case
of attachment ad fundandam jurisdictionem, the plaintiff must be an incola of the court.
Thus attachment to found jurisdiction is permissible where:
1) the defendant is a peregrinus of the whole Republic;
2) the plaintiff is an incola of the court concerned;
3) attachment of the defendant’s property has taken place (within the particular court’s
area of jurisdiction)

Note that jurisdiction is not conferred on the ground that the plaintiff is an incola of the
court. This is merely a requirement that developed as a matter of policy to assist a local
plaintiff. In the case of attachment ad fundandam iurisdictionem, it is the attachment itself
that vests jurisdiction and not the status of the plaintiff.

Where the defendant is a foreign peregrinus and the cause of action arose within the area of
the court concerned
Where a defendant is a foreign peregrinus, a court will be competent to exercise jurisdiction
if the cause of action arose within its area of jurisdiction and if attachment of the
defendant’s property has taken place within the court’s area of jurisdiction.

This is known as attachment ad confirmandam jurisdictionem: the attachment confirms or

strengthens the partial or imperfect jurisdiction that a court has by reason of the fact that
the cause of action arose within its area of jurisdiction. Although a court has partial
jurisdiction based on the fact that the cause of action arose within its area of jurisdiction
(ratione rei gestae), it will not be competent to exercise this jurisdiction unless attachment
ad confirmandam iurisdictionem has taken place because the defendant is a foreign
peregrinus.

Where a court exercises jurisdiction based on attachment ad confirmandam iurisdictionem,

the nature of the proceedings is irrelevant, provided that money is claimed (e.g. a debt or
damages). The most common grounds are the ratione contractus and the ratione delicti. It
makes no difference to the above rules whether the plaintiff is an incola or a peregrinus of
the court concerned.

To summarise:
• Attachment ad confirmandam iurisdictionem is permissible where the defendant is a
foreign peregrinus;
• attachment of the defendant’s property has taken place (in the court’s jurisdiction area);
• and the cause of action has arisen within the court’s area.

Effect of sections 21(3) and 42(2) of the SCA and the location of the property for purposes
of attachment
Section 26(1) of the Supreme Court Act 59 of 1959 provided that a civil process of a division
ran throughout the Republic. The question of whether this section extended jurisdiction to
allow (the arrest of the defendant or) the attachment of the defendant’s property anywhere
in the Republic was decided in the negative in Ewing McDonald & Co Ltd v M & M Products
Co 1991 (1) SA 252 (A) in which it was held that section 26 was merely procedural and,
therefore, made the execution and service of a process more convenient. It could not be
used to found or confirm jurisdiction.
It essentially confirmed the position that the attachment of the property of a foreign
peregrinus had to take place within the jurisdiction of the court in which the plaintiff
instituted the action (and thus which was asked to exercise jurisdiction in the main action).
If the property was situated in the Republic, but in the jurisdiction area of a court other than
the court in which the plaintiff wished to institute the action, then the plaintiff could not
proceed with the action.

To remedy this situation, section 19(1)(c) was enacted in 1999, which changed the common
law in that attachment to found or confirm jurisdiction could then take place anywhere in
the Republic and was no longer confined to the jurisdiction area of the court in which the
action was instituted.

The Supreme Court Act 59 of 1959 was repealed in its entirety by the Superior Courts Act,
2013 (SCA). The equivalent section of the repealed section 26 is section 42 of the Superior
Courts Act, 2013. Section 21 of Superior Courts Act, 2013, is to some extent similar to the
repealed section 19(1) but is problematic, as can be seen below.

Section 42(2) of the SCA:

Section 42(2) of the SCA provides that a civil process of a Division runs throughout the
Republic and may be served or executed within the jurisdiction of any Division. This means
that the process issued by a particular court (such as a summons or notice of motion) may
be served within the jurisdiction of any division of the High Court in the Republic.

It also means that the judgment or order of a particular court is enforceable within the
jurisdiction of any division of the High Court in the Republic. The result is that even if a
defendant or his property is situated outside the jurisdiction of a particular court, that court
is able to exercise control over the person or property of the defendant, provided that he is
an incola of South Africa.

However, in those instances where the defendant is a peregrinus of South Africa, and
neither the defendant, nor any of his or her property may be in the country when judgment
is granted against him or her, the judgment would be rendered ineffective. Therefore, to
establish jurisdiction in a claim sounding in money against a foreign peregrinus, the
attachment of such defendant’s property is usually required (in Bid Industrial Holdings case
the court considered alternative options when attachment was not possible).

Section 21(3) of the SCA:

Section 21(3) provides that any Division may issue an order for the attachment of property
to confirm jurisdiction. This section is subject to section 28 of the SCA and section 4 of the
Admiralty Jurisdiction Regulation Act, 1983. (s 28 prohibits the attachment of property of a
person resident in the Republic to found jurisdiction.)

The following two points should be noted:

• This section only provides for attachment of property ad confirmandam iurisdictionem
and makes no reference to attachment ad fundandam iurisdictionem. However, it is
contended that as attachment ad fundandam iurisdictionem has been part of our
common law, the provisions of this section must be read together with the common-law
 principles regarding attachment ad fundandam iurisdictionem. Consequently, the
position regarding attachment ad fundandam jurisdictionem is thus governed by
common law (hence an order for attachment ad fundandam iurisdictionem is possible in
terms of the common law).
• Unlike the position with the repealed section 19(1)(c), no mention is made of a
requirement as to where the property to be attached must be situated. It is contended
that as the legislature is silent on this matter and did not specifically provide where
attachment must take place, again this provision must be read with the common-law
principles regarding attachment and consequently the requirement is that the property
must be situated within the jurisdiction area of the particular court approached for the
order.

Unfortunately, the result is that this section, in its present form, amounts to a regression, in
that the incola plaintiff is again placed in the invidious position in which he or she found him
or herself prior to 1999. It is hoped that the courts (or preferably, parliament) will clarify the
uncertainty regarding the interpretation of this section in the near future.

In sum: regardless of whether attachment ad fundandam iurisdictionem or ad

confirmandam iurisdictionem is sought, our contention is that the property in respect of
which the attachment is sought must be situated within the area of jurisdiction of the
particular court concerned (as required under common law).

Procedural issues concerning the attachment of property

It is important to determine the procedural stage at which an order for attachment may be
sought. The attachment of the defendant’s property precedes the commencement of the
main action: before the main action, an application for notice of motion is brought,
requesting the attachment of the defendant’s property.

The onus is on the applicant (the plaintiff in the main action) to show that, prima facie, he or
she has a cause of action. Because the application for an order for attachment is a separate
issue that precedes the principal claim, it is decided separately, and so the court will not go
into the merits of the main action.

If attachment is ordered, the defendant’s property will be subject to attachment until

judgment has been given in the main action – unless such defendant furnishes security to
the value of the claim to obtain the release of his or her property.

When submission will vest a court with jurisdiction

Submission refers to the situation where a person who would otherwise not be subject to
the jurisdiction of the court consents to the court’s jurisdiction, either by positive act or
negatively, by not objecting to the judgment of the court, thus conferring jurisdiction on the
court. Submission to jurisdiction, although viewed as one of the general principles of our law
of jurisdiction, is relevant only where monetary claims are concerned, since in claims
relating to property or status, a particular court usually has exclusive jurisdiction.
Submission by an incola defendant will never occur, since the court is already vested with
jurisdiction ratione domicilii. Likewise, a local peregrinus cannot submit to the jurisdiction of
a court, and an action must be instituted against him or her in the court within whose area
the cause of action arose (or alternatively, of course, in whose area he or she is an incola).

As far as a defendant who is a foreign peregrinus is concerned, the question arises whether
he or she can submit to jurisdiction in order to avoid the attachment of property. Based on
case law, a foreign peregrinus cannot avoid attachment to found jurisdiction. However,
where the cause of action has taken place within a court’s jurisdictional area, and a foreign
defendant submits to the court’s jurisdiction before the attachment order has been made,
submission will render attachment unnecessary.

Therefore, it appears that this is the only instance in which submission to jurisdiction can
take place. Thus, rather than being an independent ground for jurisdiction, submission is
merely a substitute for the confirmation of jurisdiction by attachment.

On the question of when submission occurs, it is accepted that submission can occur either
by way of the mutual consent of both parties, or as a result of the defendant’s unilateral
action. Mutual consent is usually embodied in a contract or other documentary proof.

However, submission by a defendant can take place in several ways.

Examples: If a dispute arises about whether the actions of the defendant are consistent
with a submission to jurisdiction, the onus rests on the plaintiff to prove that the
defendant’s behaviour has given rise to a clear inference that he or she submitted to the
jurisdiction of the court. It has been held that the filing of a plea on the merits, a request for
security in respect of costs, or a request for a postponement will be deemed to be
submission. The failure to object promptly to the jurisdiction of the court is also viewed as
submission. However, the mere noting of an appearance to defend a matter is not regarded
as submission.
Unit 9: Jurisdiction in respect of claims relating to property
The two forms of property are immovable such as a building or land and movable property
such as a piece of jewellery. Many claims sounding in money are based on disputes over
property such as a claim for damages for the breach of a contract concerning property.

A claim relating to property is one in which the court is asked to make an order that directly
affects specifically identifiable property, e.g., the delivery of a specific item of jewellery or
an order that a particular erf (piece of land) be subject to a servitude. Pay attention when
determining whether a particular claim sounds in money or relates to property.

The general common-law principle is that the forum rei sitae (court in whose area the
property is situated) has jurisdiction to hear claims relating to such property. Frequently, the
jurisdiction of such a court is exclusive: no other court may hear this claim.

Where the object of relief is immovable property

Where the object of relief is immovable property, the court in whose territorial area the
immovable thing is situated has exclusive jurisdiction in actions:
• to determine the title to immovable property;
• for the partition of immovable property;
• where a real right is in dispute;
• where possession of immovable property is claimed;
• where rescission of a contract for the transfer of immovable property is claimed; and
• for the transfer of immovable property (Hugo v Wessels 1987 (3) SA 837 (A) is an
exception to this general rule; this case is about transfer of property in a divorce order).

It does not matter whether the defendant is an incola or a peregrinus.

Where the object of relief is movable property

Where the object of relief is movable property, the court in whose territorial area the
movable property is situated has jurisdiction in any action:
• to determine the title to such property;
• for delivery of the movable property;
• where a real right in respect of such property is at issue.

It is debatable whether the jurisdiction of the forum rei sitae is exclusive as far as movable
property is concerned. (see Herbstein and Van Winsen The Civil Practice of the High Courts
of South Africa 80–81). Unlike immovable property, movables can be removed from the
jurisdictional area of a court, while remaining under the control of their owner or possessor.

It would appear that a court that has power over the owner or possessor, the forum
domicilii of such person, should also be able to exercise jurisdiction. This is so because once
judgment has been given – and provided that the property is somewhere in South Africa –
such judgment can be enforced anywhere in the country in terms of section 42(2) of the
Superior Courts Act of 2013.
Our courts have not pertinently decided this question: the current position is that, while the
forum rei sitae will always have jurisdiction, it is unclear whether the forum domicilii of the
defendant will also be able to exercise jurisdiction. Where the forum rei sitae is approached
for relief, it is irrelevant whether the defendant is a peregrinus or an incola.
Unit 10: Matrimonial jurisdiction
COMPULSORY READING MATERIAL
Pete et al Civil Procedure 3ed (2017) 113–114
Section 2 of the Divorce Act 70 of 1979; sections 28(1A) and 29(1B) of the Magistrates’
Courts Act 32 of 1944.

Unlike the position regarding money claims, the jurisdictional principles that govern issues
of status are not based on the concept of effectiveness but on the degree of recognition that
will be given to the judgment by courts in other countries.

A money judgment is seldom enforced outside the country where it was granted while a
judgment that changes status often requires foreign recognition. If the court that gave the
judgment is not generally viewed as competent to give such a judgment in respect of the
parties concerned, its judgment might not be recognised elsewhere and the status of the
parties would be in doubt.

The basic common-law principle regarding divorce jurisdiction is that the court of the
common domicile of the parties has jurisdiction to hear an action for divorce. This makes
sense, as the court where the parties have their home is the court that has the greatest
interest in their status and future arrangements.

In the past, the common domicile rule was generally appropriate but it did cause severe
hardship to the wife in certain circumstances and the problems experienced by deserted
wives led to the introduction of a series of legislative changes, culminating in the changes to
the Divorce Act 70 of 1979 and the introduction of the Domicile Act 3 of 1992.

The concepts of domicile and residence in the context of divorce jurisdiction

In terms of common law, upon entering into marriage, a woman automatically adopted and
followed the domicile of her husband, retaining it throughout the subsistence of the
marriage. She lost the domicile that she had prior to her marriage and also forfeited her
competence to acquire a domicile of choice during the subsistence of the marriage.

Thus, any reference to the common domicile of the parties was just a reference to the
domicile of the husband. The wife’s domicile of dependence was abolished by the provisions
of the Domicile Act 3 of 1992. An independent domicile for married women is now
conferred under section 1(1) of the Act, in the following terms:
Every person who is of or over the age of 18 years, and every person under the age of 18
years who by law has the status of a major, … shall be competent to acquire a domicile of
choice, regardless of such person’s sex or marital status.

The Domicile Act changed the concept of domicile in the context of divorce jurisdiction. The
Divorce Act 70 of 1979 established both domicile and residence as separate grounds for the
exercise of divorce jurisdiction. Accordingly, the current legislative position is that the
domicile or ordinary residence of either spouse within the area of a particular High Court is
enough to confer jurisdiction on that court.
“Domicile”, when used in the context of divorce jurisdiction, must be interpreted in
accordance with the definition contained in section 1(1) of the Domicile Act, and not in
accordance with its common-law definition. A domicile of choice is acquired by a
combination of lawful presence at a particular place and the intention to settle there for an
indefinite period (s 1(2) of the Domicile Act).

The phrase “ordinarily resident” is not defined in the Act and it is thus necessary to refer to
judicial interpretation to determine the meaning of this phrase and how it differs from the
concept of reside simpliciter. The then Appellate Division described it as “his usual or
principal residence… his real home” (Cohen v CIR 1946 AD 174).

The court also held that the term “ordinarily resident” requires a greater degree of
permanence than just residence (at 184–185). It appears that ordinary residence does not
require the party to be continuously present in the area and that a person can be
temporarily resident in one area and ordinarily resident in another.

Current legislation regulating divorce jurisdiction

The question of whether a particular High Court has jurisdiction to hear a divorce is
determined by the Divorce Act 70 of 1979. The principle is that a court may exercise
jurisdiction on the basis of the independent domicile or residence of either the husband or
the wife.

Domicile and residence are established as independent and alternative jurisdictional

grounds.

Note that an independent domicile also applies to couples who enter into a civil union
under the Civil Union Act 17 of 2006, which legalised same-sex marriages. The legal
consequences of a civil union are the same as those of a marriage under the Marriage Act 25
of 1961, and any reference to marriage in any law is deemed to include a civil union, and
any reference to a husband, wife or spouse is deemed to include a spouse or partner in a
civil union.

The ordinary meaning of section 2(1) is clear. A court may exercise divorce jurisdiction if
both or either of the parties are/is domiciled in its area of jurisdiction on the date on which
the action is instituted (s 2(1)(a)).

A court may also exercise jurisdiction if both or either of the parties are/is ordinarily
resident in its area of jurisdiction on the date on which the action is instituted and have/has
been ordinarily resident in the Republic for a period of not less than one year immediately
prior to the institution of the action (s 2(1)(b)).

A court may exercise jurisdiction in the case of a divorce if only one of the parties is either
domiciled or resident in its area of jurisdiction. This has the following implications:
a) the domicile or residence of one spouse alone is sufficient to confer the competence
to exercise divorce jurisdiction over the other spouse;
b) the domicile or residence of the one spouse is sufficient to confer jurisdiction, even if
the other spouse is domiciled or resident outside the Republic: a spouse who is
 domiciled or resident outside the Republic and who has never had any personal links
with the Republic may, as plaintiff, institute divorce proceedings in South Africa in a
particular High Court on the grounds that the other spouse is domiciled or resident
within that court’s jurisdiction.

It is unclear how much time must elapse before domicile or residence in terms of the Act
has been established. Section 2(1)(a) provides that if both or either of the parties are/is
domiciled within the area of a court, such court will be competent to exercise divorce
jurisdiction, irrespective of the period of domicile (see s 1(1) of the Domicile Act).

This contrasts with section 2(1)(b), which requires a period of residence of not less than one
year within the Republic immediately prior to the institution of the action. The period of
residence for one year in the Republic is not clearly defined, though. It seems that this
period of one year’s residence includes any antenuptial period of residence (the period of
residence before the conclusion of the marriage). For instance, a spouse who institutes
divorce proceedings could have been resident in the Republic for a period exceeding one
year, but only have been married for a month immediately prior to the institution of the
proceedings.

Section 2(2) provides that a court that has jurisdiction to adjudicate a claim for divorce in
terms of section 2(1) also has jurisdiction in respect of a claim in reconvention or an
application in the divorce action concerned. Section 2(3) deals with choice of law. It
determines that, in the circumstances stated therein, a “court” must apply its own law when
adjudicating a “divorce action”.

With the advent of the Jurisdiction of Regional Courts Amendment Act 31 of 2008 (JRCAA),
the jurisdiction of the regional courts was extended to include divorce matters. This Act also
repealed section 46(1) of the Magistrates’ Courts Act in so far as it provided that a
magistrates’ court could not grant a divorce, because a divorce affects the status of the
parties and status must be decided by the High Courts.

Section 1 of the Divorce Act of 1979 has been amended to extend the definition of “court”
to include a reference to a regional magistrates’ court division. The jurisdiction of the
regional magistrates’ courts in respect of divorce and related matters is now as follows:
1) Section 28(1A) of the Magistrates’ Courts Act provides that a regional magistrates’ court
shall have divorce jurisdiction over both or either party who is
a) “domiciled in the court’s area of jurisdiction on the date on which the proceedings
are instituted; or
b) ordinarily resident in the court’s area of jurisdiction on the said date and has been
ordinarily resident in the Republic for a period of not less than one year immediately
prior to that date.”
2) Section 29(1B)(a) of the Magistrates’ Courts Act provides that a regional division shall
have jurisdiction to determine actions relating to the nullity of a marriage and divorce,
as well as related matters. A regional magistrates’ court may also hear any matter
provided for in terms of the Recognition of Customary Marriages Act, 1998. In terms of
this Act, a valid customary marriage can only be dissolved through a decree of divorce
 on the grounds of the irretrievable breakdown of the marriage, in the same way as civil
marriages.
3) In terms of section 29(1B)(b), a regional magistrates’ court hearing any of these matters
shall have the same jurisdiction as any High Court regarding such matter.
Unit 11: Jurisdiction of the magistrates’ courts
COMPULSORY READING MATERIAL
Pete et al Civil Procedure 3ed (2017) 66–95; 196–197
Section 28–32; 37; 40; 43; 45; 47; 50 and 110 of the Magistrates’ Courts Act 32 of 1944

Because the magistrates’ courts may exercise statutory jurisdiction only, the common-law
principles that applied when determining jurisdiction in the High Courts are not relevant
when determining jurisdiction in magistrates’ courts. While sometimes a statutory provision
dealing with the jurisdiction of magistrates’ courts is based on or is similar to, some
common-law principle, this does not mean that the common-law principle applies – it
merely shows that the statutory principle was derived from the common-law principle.

An example is the principle of forum domicilii: the High Court of which a defendant is an
incola may exercise jurisdiction in respect of money claims. The Magistrates’ Courts Act 32
of 1944 contains a similar provision in section 28(1)(a), which provides that the magistrates’
court where a defendant “resides, carries on business or is employed” has jurisdiction. This
section contains the jurisdiction ground in the magistrates’ courts in this regard, and the
common-law principles (such as ratione domicilii) thus do not apply (and thus may not be
used to indicate why a particular magistrates’ court has jurisdiction).

Unlike the High Courts, where the only general limitation that is placed on the exercise of
jurisdiction is geographical (which one of the various High Courts has jurisdiction over a
specific are), a particular magistrates’ court is limited by considerations regarding the nature
of the claim and the amount of the claim in addition to geographical considerations.

In determining whether a magistrates’ court has jurisdiction, the following three-step

approach should be followed:
1) Consider section 46: As a general rule, this section deals with the kinds of claim that no
magistrates’ court whatsoever may hear (e.g., interpretation of a will). Such matters
must be brought in the High Court;
2) Consider section 29: If a matter is not prohibited by section 46, regard must be had to
the claim amount, and this section sets out the maximum amount that may be claimed
in a particular court (district or regional magistrates’ court);
3) Consider section 28: once it has been determined that a particular court may hear the
matter, the correct magistrates’ court must be identified. This section deals with
jurisdiction in respect of persons.

Other provisions
There are a number of other provisions in the Act that also deal with jurisdiction. They all
deal with either the question of whether any magistrates’ court is competent to hear the
matter or how to deal with claims falling outside the jurisdictional limit of the court.

The following sections deal with the question of whether any magistrates’ court is
competent to hear the action:
• Section 30 provides that magistrates’ courts may grant interdicts;
• Sections 31 and 32 deal with forms of interdict peculiar to the magistrates’ court;
• Section 37 provides that, to determine a matter that a magistrates’ court may hear, the
court may decide on matters outside its jurisdiction;
• Section 50 deals with how a defendant can transfer a matter to the High Court if the
defendant is unhappy that the matter is being heard by a magistrates’ court;
• Section 110 deals with the question of whether a magistrates’ court can pronounce on
the validity of any form of legislation.

Section 46: Limitations on the nature of the claim

Section 46(2)(a): Validity of wills
Although only the High Court has jurisdiction in this regard, the magistrates’ courts do have
jurisdiction to hear an action resulting from the provisions of a will, for example, regarding
the payment of an amount bequeathed in a will.

Section 24(2)(b): Status as regards mental capacity

The magistrates’ court may not make an order affecting the status of persons (with the
exception of divorce matters). As far as status regarding mental capacity is concerned, it
should be noted that a magistrate is authorised to appoint a curator ad litem for a person
who has already been declared insane or incapable of managing his or her own affairs. The
curator ad litem then manages this person’s affairs during a trial in the magistrates’ court in
which the person is involved.

Section 46(2)(c): Specific performance

The traditional meaning of the phrase “specific performance” is that of specific performance
of a contractual obligation: the performance of an act that a person has contractually
undertaken to perform. Such orders were traditionally granted by the superior courts only,
as they require someone to perform a particular action, and the superior courts were the
only courts deemed competent to make such orders.

Section 46(2)(c) and its predecessors were introduced to confirm the traditional position by
preventing magistrates’ courts from making such orders but there has been some confusion
on what is meant by the phrase “specific performance” in this subsection and two main
questions have arisen:
1) Was the phrase “specific performance” limited to performance in terms of a contract or
performance in general?
2) Could payment of money in terms of a contractual debt (ad pecuniam solvendam) ever
amount to specific performance or was specific performance limited to performance of
a particular action (ad factum praestandum)?

• The first question was decided in Maisel v Camberleigh Court (Pty) Ltd 1953 (4) SA 371
(C), where the court held that the words were limited to the traditional meaning of
specific performance in terms of a contract and could not be widened to include any
order to perform a particular action (e.g. in terms of an interdict);
• The second question was finally decided in Tuckers Land and Development Corporation
(Edms) Bpk v Van Zyl 1977 (3) SA 1041 (T), where the court held that a claim for payment
of a purchase price in terms of a contract, although strictly speaking a claim for specific
performance, was not a claim for specific performance in terms of this section and that a
 claim sounding in money – whether the debt arose from a contract or not – could never
be a claim for specific performance.

The result of these cases is that this subsection applies only where there is a claim for
specific performance of a contract - where the defendant has to perform a particular act
because he/she contractually undertook to do so. This restrictive approach appears to be
what the legislature intended when passing the subsection.

But it should be borne in mind that the courts (including the High Courts) are reluctant to
grant orders for specific performance particularly where:
• specific performance is impossible or contra bonos mores;
• the court will have difficulty in enforcing the order;
• damages provide an adequate and convenient remedy; and
• the same result could be achieved by means of an interdict.

Exceptions to the general rule

(a) Section 46(2)(c)(i): “Rendering of an account”
The phrase has a specific technical meaning which is not the furnishing of a shop or bank
account to an accountholder. The phrase was described as follows in Victor Products (SA)
Ltd v Lateulere Manufacturing Ltd 1975 (1) SA 961 at 963:
The right at common law to claim a statement of account is, of course, recognised in
our law, provided the allegations in support thereof make it clear that the said claim
is founded upon a fiduciary relationship between the parties or upon some statute
or contract which has imposed upon the party sued the duty to give an account.

It is only when one party is in a position of trust or when it is provided by statute that the
“rendering of an account” can be requested. If the claim for specific performance without
an alternative payment of damages is for the rendering of an account in respect of which
the claim does not exceed the relevant financial limit, the matter may be heard in the
magistrates’ court.

(b) Sections 46(2)(c)(ii) and (iii)

The sections 46(2)(c)(ii) and (iii) order that may be granted is limited to the delivery or
transfer of movable or immovable property and no more. In Hardwood Timber Co v
Stainless Steel and Barnett 1928 TPD 60, the court refused to order that an accepted
promissory note (which constitutes movable property) be delivered to the plaintiff, since
this would have meant that the defendant would have had to accept the promissory note
before delivery.

Section 46(2)(d): Perpetual silence

A decree of perpetual silence is a court order instructing someone who has threatened to
institute litigation to do so within a set period. If action is not instituted within this period,
the person is barred from ever instituting action on those facts.

Section 29: Limitations on the amount of the claim

Financial limitations placed on magistrates’ courts mean that even if a plaintiff has an action
of a kind that a magistrates’ court may hear, he/she cannot institute it in a particular
magistrates’ court if the amount claimed exceeds the financial limits imposed by section 29.

Note the following:

• Currently, if the claim is R200 000 or less, then the matter falls within the jurisdiction of
the district magistrates’ court;
• Currently, if the claim is over R200 000 but less than R400 000, then the matter falls
within the jurisdiction of the regional magistrates’ court;
• If the claim is over R400 000, then the matter falls within the jurisdiction of the High
Courts.
• The Minister may determine different amounts contemplated in subsections 1(a), (b),
(d), (e), (f) and (g) pertaining to district courts and regional courts, in terms of section
29(1A).
• The exclusion of a case from the jurisdiction of the district magistrates’ court does not
necessarily mean that such case is excluded from the jurisdiction of the regional
magistrates’ court.

Section 29
• Section 29(1) says: “Subject to the provisions of this Act…” referring to other sections of
the Act dealing with jurisdiction like section 45 which sets out how to consent to a claim
that exceeds the limits of section 29.
• Section 29(1): “Causes of action” and “action” in section 29, reference is made to “cause
of action” and “action” which must be interpreted broadly and must not be restricted to
mean proceedings instituted by way of a summons only. The word refers to all
proceedings in the magistrates’ courts and includes all applications, particularly all
proceedings in terms of section 30 (attachments and interdicts). This means that
proceedings in terms of section 30 are also subject to the restrictions imposed by section
29, regarding the financial limits.
• Section 29(1)(a): “Delivery or transfer of any property”: “value” in this section means the
actual market value of the property concerned: the amount of money that would be
paid for the property in an open sale. The plaintiff need not state what the value of the
property is in his or her particulars of claim; it is up to the defendant to allege that the
jurisdictional limit has been exceeded. Although this seems to be a claim for specific
performance, which would be prohibited from being heard in a magistrates’ court in
terms of section 46(2)(c), it is one of the exceptions for which provision is made in
section 46(2)(c)(ii).
• Section 29(1)(b): “Actions of ejectment … where the right of occupation is in dispute
between the parties”: district and regional magistrates’ courts possess jurisdiction in
respect of actions of ejectment against the occupier of any premises or land within the
relevant district or regional district provided that where the right of occupation of any
premises or land is in dispute between the parties, such right does not exceed the
applicable financial limit “in clear value to the occupier”.
It is extremely difficult to lay down general rules for determining whether the “right of
occupation exceeds R200 000 or R400 000 in clear value to the occupier”, but note the
following:
 o The rental for the premises is not always the correct criterion for calculating
the value of the right of occupation since the rental value is really the value
to the landlord and in certain cases the rental value may be far below the
true value of occupation to the occupier.
o The capital value of the premises is also not necessarily an indication of the
value of the right of occupation, except where the defendant claims
ownership of the premises.
o Where premises are occupied for residential purposes, the value of the right
of occupation is probably equal to the rental of other premises similar to the
one in dispute, calculated over the same period of occupation.
o If the premises are being occupied for business purposes, the value of the
right of occupation is probably equal to either
 the cost of renting other premises on which the occupier has a
reasonable expectancy of making the same profit as on the premises
in dispute, or
 the amount of the profit that the occupier is reasonably expected to
make on the premises in dispute.
This provision must be read in conjunction with the relevant statutory provisions
regulating this area of the law, such as the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (known as PIE).
• Section 29(1)(c): “Actions for the determination of a right of way, notwithstanding the
provisions of section 46” - provisions of section 46 are clearly excluded here. Also, it is
not necessary to determine the value of the right of way, as no limit is placed on the
value thereof, and so it seems that magistrates’ courts may create or confirm any right
of way, irrespective of its value to the parties.
• Section 29(1)(d): “Liquid document or mortgage bond” – a liquid document is a
document in which a debtor, above his or her signature or that of his or her agent,
admits that he/she is liable for a fixed or ascertainable sum of money. Liquid documents
include cheques, promissory notes, acknowledgements of debts and mortgage bonds.
The financial limitation relates to the amount that may be claimed in the summons, not
to the amount of the liquid document or bond.
• Section 29(1)(e): “Credit agreement as defined in section 1 of the National Credit Act 34
of 2005” - a credit agreement is an agreement for an instalment sale or for a lease
transaction. It is commonly found when large items such as furniture or motor vehicles
are purchased and the purchaser cannot pay the full amount immediately, but receives
the goods concerned and pays the amount due by instalments over a period of time.
The plaintiff in such an action, who will be the person or institution who granted credit,
can seek one of two things: recovery of the property he/she sold by hire-purchase or
lease, or payment of money owing in terms of the agreement. If he/she seeks recovery
of the property, the value of the property at the time of the claim must not exceed the
financial limit. If the defendant bought a car on hire-purchase for R300 000, but only
stopped payments three years later when the car was worth R80 000 on the open
market, then the person or institution who gave the credit could sue for recovery of the
car, as its value at the time action is instituted is below the financial limit of the district
magistrates’ court.
 If the plaintiff’s claim is for payment of one or more outstanding payments, each
payment must not exceed the financial limit. The total amount of the various payments
may exceed the limit, as each payment constitutes a separate claim.
• Section 29(1)(f): “Actions in terms of section 16(1) of the Matrimonial Property Act 88 of
1984” - section 29(1)(f) was introduced in 1984 when the Matrimonial Property Act
came into operation. Section 16(1) of this Act provides that where a spouse refuses to,
or cannot, give consent to various transactions relating to property belonging to the
joint estate or the other spouse, and which require the consent of both parties, the
other spouse may approach a magistrates’ court for assistance. The court is approached
by way of application and may then authorise the transaction.
• Section 29(1)(fA): “Actions, including an application for liquidation in terms of the Close
Corporations Act 69 of 1984” - this is the only insolvency application that a magistrates’
court may hear, based on the understanding that close corporations are suited to meet
the needs of smaller business entities. Otherwise, the Insolvency Act 24 of 1936 provides
that sequestrations and liquidations must be decided by the High Courts.
• Section 29(1)(g): “Actions other than those already mentioned” - this section is relevant
when claims in the alternative are drafted. If, for example, delivery (alternatively,
damages) is claimed, neither the value of the property nor the alternative claim for
damages may exceed the financial limitation of the particular magistrates’ court.
• Section 29(2): “Action” includes a claim in reconvention - a claim in reconvention is a
counterclaim that the defendant may institute against the plaintiff when he or she
defends the plaintiff’s claim. This subsection merely confirms that these claims are also
subject to the same financial limitations.

Section 28: limitations regarding geographical considerations

Whether an action should be instituted in the magistrates’ court and not the High Court is
covered by the provisions of sections 29 and 46.

Section 28 does not deal with the question of whether any magistrates’ court has
jurisdiction in respect of certain categories of persons but rather in which particular
magistrates’ court should this action be instituted? It deals with the link that should exist
between the jurisdictional area of a specific magistrates’ court and the person in respect of
whom the court’s jurisdiction is being exercised.

Also note the following:

1) Every paragraph in section 28 begins with words relating to persons. In all instances,
“person” means the defendant only, not either of the parties: the situation of the
defendant, not the plaintiff, will give a court jurisdiction. Where relevant, a person can
be a juristic person such as a company, close corporation or municipality.
2) It is important to note that the persons referred to in section 28 are the only persons in
respect of whom a magistrates’ court has jurisdiction, as is apparent from the imperative
wording of the introductory sentence of section 28(1): “shall be the following and no
other”. In Van Heerden v Muir 1955 (2) SA 376 (A) at 379, the Appellate Division held
that the words “the following and no other”, in section 28, “show that the Legislature
plainly intended to alter the common law except in the case of a defendant who appears
and takes no objection to the jurisdiction (section 28(1)(f)). To that extent, and that
extent alone, has the Legislature preserved the common law”.
The provisions of section 28
• Section 28(1)(a): “Any person who resides, carries on business or is employed” - the
question of whether a person “carries on business” within the particular court’s area of
jurisdiction is one of fact and is similar to the question of whether a person “resides” in a
particular place and the phrase connotes regularity. The business carried on must be a
person’s own business. An artificial person, such as a corporation or company, carries on
business in the place where its head office is situated, although a large company may clearly
carry on business in a number of places simultaneously and the company may be sued
where its local head office is situated.
A person who “is employed” does not “carry on business”; hence the words “is employed”
cover an employee who falls outside the ambit of the latter phrase. A degree of permanent
employment is required. A defendant who usually works in an office in district or regional
division X, but who is sent to district Y to finalise a matter there (which will take a few days
only), does not then become subject to the jurisdiction of the court of district or regional
division Y.
• Section 28(1)(b): “Any partnership …” - a partnership is not a juristic entity and, if sued in
terms of common law, all the partners had to be sued jointly. This was extremely
inconvenient if the partners lived in different districts (or regional divisions); therefore,
section 28(1)(b) was introduced for the sake of convenience. It provides that a partnership
can be sued in any area where it has business premises or where any one of the partners
resides. A notice in terms of rule 54 is usually served together with the summons. This
notice requires the partnership to state the names of all the partners at the time that the
cause of action arose.
• Section 28(1)(c): “ … in respect of any proceedings incidental to any action” - the
interpretation of “incidental” is problematic. Different kinds of proceedings are incidental to
or arise out of the same facts as the main action. Interlocutory and preliminary applications
are two examples. Many, but not all, counterclaims are incidental to the main action.
• Section 28(1)(d): “Cause of action arose wholly” - in the High Court it is sufficient to show –
in an action based on a contract – that the contract was concluded, breached or was to be
performed, within a particular jurisdictional area. In the magistrates’ court, however, it must
be shown not only that the contract was concluded within the district or regional division
concerned, but also that the breach occurred there as well: the cause of action must have
arisen “wholly” within the district or regional division.
The concept of “whole cause of action” has been considered in a number of court decisions
and in Abrahamse & Sons v SAR & H 1933 CPD 626 it was described as the entire set of facts
which gives rise to an enforceable claim and includes every fact which is material to be
proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out
in his declaration in order to disclose a cause of action.
The purpose of this subsection is to make matters more convenient for the plaintiff and
witnesses in certain kinds of cases. It often happens that a person is involved in a
transaction that occurs in a district or regional division other than that in which he or she
resides or carries on business. Thus, a visitor from Pretoria is involved in a motor vehicle
collision while on holiday in Cape Town, and a local resident is injured.
Were it not for section 28(1)(d), the local resident would have to sue in Pretoria, and he
or she and his or her witnesses would have to travel all the way there to give evidence.
• Section 28(1)(e): “Any party to interpleader proceedings” - Interpleader is a form of
procedure by which a person in possession of property that is not his or her own and which
is claimed from him or her by two or more other persons is able to call upon the rival
claimants to such property to appear before the court in order that the right to such
property may be determined.
This procedure is followed in cases where either the sheriff of the particular magistrates’
court has attached property and more than one person claims a right to the property, or
where a person other than the sheriff of the particular magistrates’ court is in possession
of the property and conflicting claims are made in respect thereof.
• Section 28(1)(f): “Any defendant who appears and makes no objection” - is a legislative
restatement of common law that if a person not subject to a court’s jurisdiction submits
thereto, such court will be vested with jurisdiction by virtue of such submission. This
subsection is subject to the same limitations as the common-law doctrine: a defendant
cannot confer jurisdiction upon a court in matters that it is not empowered to hear, e.g., the
validity of a will in terms of section 46.
Subsection 28(1)(f) may be distinguished from the situation envisaged in section 45 in the
sense that in the case of section 45, the defendant positively consents to the jurisdiction of
the magistrates’ court. Section 28(1)(f) deals with a failure to object to the court’s
jurisdiction. This distinction explains why a defendant may consent to jurisdiction in terms of
section 45 in respect of claims quantitatively exceeding the limits imposed by section 29, but
why such defendant cannot confer jurisdiction upon the court on the ground of submission
in matters where the amount claimed exceeds section 29 limitations.
Therefore, as a general proposition, we may state that the defendant, by his or her failure to
object, “consents” to the court’s jurisdiction only in respect of his or her person - submission
in terms of section 28(1)(f) is valid only when a court lacks jurisdiction in terms of section 28.
Submission cannot be used when a court lacks jurisdiction in terms of section 29 – then
actual consent is necessary, in terms of section 45.
The filing of entry of appearance in order to defend the action is not an indication that the
defendant accepts the court’s jurisdiction, as the defendant must file appearance to defend
within a certain time to ensure that the plaintiff does not obtain a default judgment against
him or her. The correct procedure for raising an objection to the jurisdiction of the court is
to file a special plea, together with the plea on the merits. It appears that in exceptional
circumstances a defendant may even object to the court’s jurisdiction at a later stage.
• Section 28(1)(g): “Any person who owns immovable property” - this section extends
jurisdiction to persons who own immovable property within the area of jurisdiction of a
particular magistrates’ court, but who are otherwise not subject to such court’s jurisdiction
in terms of any other provisions of section 28(1).
The mere fact that immovable property is situated within the area of a particular
magistrates’ court does not automatically confer jurisdiction upon that court – the action
must be in respect of that particular property or it must be in respect of a mortgage bond
registered over such property. The person who owns the property must be the defendant in
the action. It must be stated in the summons that the property concerned is situated within
the district or regional division (rule 5(6)(b)).
• Section 28(2): “The State” as defendant - words “person” and “defendant” also include the
state.
In Minister of Law and Order v Patterson 1984 (2) 739 (A), the then Appellate Division had to
decide which magistrates’ court was competent to entertain an action against the state. The
court held that the question of whether the respondent was entitled to sue the appellant in
the Cape Town District Magistrates’ Court had to be determined by reference to the
provisions of section 28 of the Act. The court ruled that on the grounds of convenience and
in the interests of certainty, the rule adopted should be similar to that which the courts
apply when determining the forum in which a trading corporation or other artificial person
is sued in terms of section 28(1)(a). The court noted that the “residence” or “place of
business” of a trading corporation is interpreted as being the place where the central
management of such corporation is exercised. A similar interpretation can be applied to the
state, which has vast and countrywide activities. The court held that Pretoria is regarded as
“the seat of the Government of the Republic” in terms of section 23 of the Republic of South
Africa Constitution Act 32 of 1961 (as it then applied). Thus the “place of business” of the
state in terms of section 28(1) is Pretoria.

Other provisions that determine whether a particular magistrates’ court may exercise
jurisdiction
Apart from the sections discussed above, numerous other sections also influence the
authority of a particular magistrates’ court to hear specific types of actions and grant the
necessary form of order. The following sections all deal with the question of whether any
magistrates’ court is competent to hear an action and make the required order:
• Section 30 provides that magistrates’ courts may grant interdicts;
• Sections 31 and 32 deal with forms of interdict peculiar to the magistrates’ court;
• Section 37 provides that, to determine a matter that a particular magistrates’ court may
hear, the court may decide on matters outside its jurisdiction;
• Section 50 deals with how a defendant can transfer a matter to the High Court if he or
she is unhappy that the matter is being heard by a particular magistrates’ court.

In terms of section 30, magistrates’ courts may grant interdicts, attachment orders and
mandamenten van spolie but the provisions of sections 28 and 29 must still be complied
with. While section 30 authorises a magistrates’ court to grant an interdict, the amount
concerned must still fall within the monetary limits imposed by section 29, and the court
must have jurisdiction over the person of the defendant in terms of section 28.

Interdicts
An interdict is a court order in terms of which a person is ordered either to perform or not
to perform a specific act. An order that someone must not perform an act is a prohibitory
interdict while an order that someone must perform an act is a mandatory interdict. Such
orders may be final (the order remains permanently valid) or temporary (the interdict is
granted either for a particular period of time or as an interim measure while the outcome of
the main case is awaited).

A mandatory interdict could be viewed as a form of specific performance and so prohibited

by section 46(2)(c) because an order to perform an act is frequently very similar to an
order for specific performance. However, in Badenhorst v Theophanous 1988 (1) SA 793 (C),
it was held that magistrates’ courts may nevertheless grant mandatory interdicts, provided
that such orders do not amount to “orders ad factum praestandum in terms of a contractual
obligation”.
Magistrates’ courts may grant both final and temporary interdicts. It is difficult to determine
the financial value that must be placed on an interdict in order to decide whether it falls
within the limits set by section 29. How, for instance, do you assess the value of an order
preventing an employee from giving confidential information to another employer? It seems
that if nothing appears to the contrary in the pleadings or in evidence, or if the defendant
does not dispute the plaintiff’s allegation that the matter falls within the limits set by section
29, the court will have jurisdiction.

If it is impossible to determine the value of the interdict and the plaintiff decides to institute
action in the High Court, this court will not penalise the plaintiff by making an order for costs
on the lower magistrates’ courts scale, but will grant him or her costs on the High Court
scale.

Mandamenten van spolie

A mandamenten van spolie is a form of interdict which is also known as a restitutionary
interdict because it is an order forcing someone to return property that he or she has taken
unlawfully from another. The person applying for such an order need not be owner of the
property or have any claim to the property; in fact, he or she need not even be in lawful
possession of the property.

The object of a mandament is to prevent people from taking the law into their own hands,
and the court does not go into the merits of the matter until the person whose possession
was disturbed is placed in possession of the item.

This form of order appears to contravene section 46(2)(c) but the order is usually not “in
terms of a contractual obligation” and it has been held that a mandament van spolie does
not contravene the provisions of section 46, because section 46 is not concerned with
“extraordinary remedies of a temporary nature” (Zinman v Miller 1965 (3) SA 8 (T)).

The value of the property that must be returned will determine whether a particular
magistrates’ court is prohibited by section 29 from exercising jurisdiction.

Attachments
In actions where the payment of money or relief in regard to property is sought, it is
sometimes possible to attach property in the possession of the defendant in order to obtain
security for the claim. Attachment of property in terms of section 30 is not available in all
instances – a person applying for an attachment must show that it is likely that the
respondent will dispose of the property in order to frustrate his or her creditors, or
otherwise plans to abscond with his or her assets.

Sections 31 and 32: Rent interdicts

Read Pete et al 196–197.
As soon as a lessee falls behind with his or her rental, the landlord acquires a ‘tacit
hypothec’ over all the household effects (invecta et illata) that are on the leased property, to
offset the rent due but the moment the household effects are removed from the leased
premises, the tacit hypothec falls away. Therefore, the landlord must ensure that the
household goods remain on the premises in order to maintain the hypothec. He or she does
this by obtaining a special form of interdict and attachment order that prohibits removal of
the goods from the leased premises.

• The automatic rent interdict: although an ordinary interdict may be used to prohibit the
removal of household effects, the Magistrates’ Courts Act has created a simpler and less
expensive procedure in section 31 which provides that when a summons is issued for arrear
rental, the plaintiff may include in the summons a notice prohibiting anyone from removing
from the leased premises any of the household effects that are subject to the hypothec,
until an order dealing with such goods has been made by the court.

The notice in the summons serves automatically as an interdict forbidding anyone with
knowledge thereof from removing goods from the premises and no court application or
other formalities are required. The lessee or anyone else who is affected by the notice may
apply to court to have it set aside.

The notice is addressed not only to the defendant, but also to all other persons, so anyone
who is aware of the notice may not remove items from the premises. The summons in
which rental is claimed takes the usual form, with the addition of the following paragraph,
which contains the automatic rent interdict:
And further take notice that you, the defendant, and all other persons are hereby
interdicted from removing or causing or suffering to be removed any of the furniture
or effects in or on the premises described in the particulars of claim endorsed
hereon which are subject to the plaintiff’s hypothec for rent until an order relative
thereto shall have been made by the court.

• Attachment of property in security of rent: the automatic rent interdict created by section
31 is effective only against persons who have knowledge of it. Persons who are not aware of
the contents of the summons will not be in breach of the interdict if they remove property
from the premises. To protect the household goods against removal by anyone at all,
section 32 provides for an attachment order to supplement the effect of the interdict and to
secure the goods effectively. Section 32 provides that the court may authorise the sheriff to
attach enough of the movable property on the premises, which is subject to the landlord’s
hypothec, to satisfy the amount owed as rental.

The landlord must apply to court and, in his or her supporting affidavit, state the following:
• the amount of rent due and in arrears,
• that the rent has been demanded in writing for at least 7 days or, if this is not so, that he
or she believes that the lessee is about to remove the movable property on the premises to
avoid paying rent.

The landlord must also provide security for all costs, damages and expenses that may result
from this order, should it be set aside at a later stage.

The lessee may apply to have the order set aside but he or she may also consent to the
attached property being sold in execution in order to pay the rent. If neither of these
options is chosen, the defendant must plead to the summons and the usual trial procedure
will follow.
Section 37: Incidental jurisdiction
Read Pete et al 73–74.
It sometimes happens that during the proceedings of magistrates’ courts, a question arises
that falls outside the jurisdiction of these courts. The question may be one that no
magistrates’ court may hear, in terms of section 46, or it may be one that exceeds the
jurisdictional limits of the courts, as imposed by section 29.

Section 37 provides that while a magistrates’ court may not make an order on matters
falling outside its jurisdiction, it may make a finding on such matters. The test to decide
whether a court may decide a matter in terms of section 37 is to look at the relief that the
court is asked to grant: if that relief falls within the jurisdictional limits of section 46 and
section 29, the court may grant such relief, even if this means that it has to consider and
make a finding on matters outside its jurisdiction.

Section 37(1) deals with one specific matter where the jurisdictional limits of section 29 are
exceeded. In this instance it will make no difference if the total account is far in excess of
the jurisdictional limit, provided that the value of the plaintiff’s claim falls within the limit.

Section 37(2) deals with matters in which the court has no jurisdiction in terms of either
section 46 or section 29. Here, a court may inquire into the ownership of fixed property to
determine a claim for rates or consider the validity of a divorce agreement to make an order
for the payment of maintenance.

Section 50: Removal to High Court

It sometimes happens that, despite the fact that the matter falls within the jurisdictional
limits of sections 46 and 29, a party feels that a matter is too complex to be heard by a
particular magistrates’ court. If that party is the plaintiff, he or she is always free to institute
action in the High Court – all that he or she need fear is a costs order against him or her on
the greater High Court scale.

The defendant does not have this choice – he or she is served with a summons from the
court chosen by the plaintiff but section 50 gives a defendant the opportunity to have a
matter moved from the magistrates’ court to the High Court if he or she is not satisfied with
having it heard by the lower court.

If a defendant wishes to exercise this option, an application must be made to the court
where the summons has been issued. If the applicant complies with the requirements laid
down in section 50, the case must be stayed in the magistrates’ court. The only check on a
defendant’s freedom to require that a matter be heard before a High Court, rather than a
particular magistrates’ court, is the costs order that the High Court may make - if the
plaintiff is eventually successful, the court may grant him or her High Court costs on the
attorney-and-client scale (thus costs against the defendant), which is considerably higher
than the usual party-and-party scale.

Provisions affecting claims that fall outside the jurisdictional limits

In preparation, read Pete et al 72–79.
Jurisdictional limits imposed by section 29 affect the choice of court in which a plaintiff may
institute action:
• Sections 38 and 39 set out how to reduce a claim so that it falls within the jurisdictional
limit of a particular magistrates’ court.
• Section 45 sets out how the parties can consent to the jurisdiction of a particular
magistrates’ court, despite the fact that the amount claimed is higher than the limit or that
the court does not have jurisdiction in terms of section 28.
• Section 40 provides that one claim cannot be split into many different smaller claims to
bring the claim within the financial limits.
• Section 43, which is the opposite of section 40, deals with how to institute an action
where more than one amount is claimed and the total amount exceeds the jurisdictional
limit, although each amount is less than the limit.
• Section 47 deals with the situation in which a counterclaim, which falls outside the
jurisdiction of the magistrates’ courts, is filed in response to a plaintiff’s claim instituted in a
particular magistrates’ court.

Section 38: Abandonment of part of claim

Details of any abandonment must be set out explicitly in the summons – or in the
subsequent document, if abandonment occurs later in the proceedings. The court will
consider and make a finding on the full amount due before abandonment, but can only
order payment of the maximum amount permitted by section 29.

If the court finds that the amount due exceeds its limits, but is not the full amount claimed,
the amount that the plaintiff was unable to prove is deducted first from the amount that
was abandoned: a plaintiff who abandons a portion of his or her claim will receive the
amount proved or the maximum that the particular court can grant, whichever is the lesser
amount because, if a plaintiff proves that he or she is owed more than the jurisdictional
limit, the court can award only the maximum allowed.

Obviously a plaintiff will not abandon more than is necessary to fall within the court’s
jurisdiction. If a plaintiff cannot prove the maximum amount, he or she cannot be awarded
more than is proved. If, however, a defendant institutes a counterclaim, any amount
awarded as counterclaim is deducted from the amount actually awarded to the plaintiff, not
from the amount that he or she claimed before abandonment.

Section 39: Deduction of an admitted debt

If a plaintiff wishes to claim more than the jurisdictional limit of the particular court, and is
aware of a possible counterclaim that the defendant might institute, section 39 creates the
possibility that the plaintiff can admit the debt due to the defendant and deduct this
amount from the amount claimed in the summons.

Unlike the position when section 38 is used, a plaintiff cannot expect an admitted debt to be
deducted from the full amount claimed before deduction, if this full amount cannot be
proved. Therefore, the effect is that a plaintiff who uses the provisions of section 39 will
always be awarded the amount proved in court, less the amount admitted as due to the
defendant.
Section 45: Consent
Section 45 gives parties the opportunity to consent that a district or regional magistrates’
court may hear a matter between them, despite the fact that such a court does not have
jurisdiction in terms of either section 28 or section 29. Note that this section pertinently
provides that parties cannot consent to a court’s hearing a matter that is excluded from
jurisdiction by section 46. Matters excluded from the jurisdiction of the magistrates’ courts
by section 46 remain excluded, no matter what the parties agree to. Both parties must
consent to jurisdiction – the defendant must agree to cooperate with the plaintiff before the
provisions of section 45 can be used.

Section 45(1) deals with three possibilities:

1) where the particular court has jurisdiction over the defendant in terms of section 28, but
the amount of the claim exceeds the limitations imposed by section 29 (e.g. A wishes to
sue B in district X [where B resides] for damages ex delicto amounting to R230 000)
2) where the particular court has no jurisdiction over the defendant, in terms of section 28,
and the amount of the claim exceeds the limitations imposed by section 29 (e.g. A
wishes to sue B in regional district Y for damages ex delicto amounting to R430 000, and
the court in regional district Y does not have jurisdiction over B in terms of section 28)
3) where the particular court has no jurisdiction over the person of the defendant, but the
amount of the claim is within the limitation imposed by section 29 (e.g. A wishes to sue
B in district Y for damages ex delicto amounting to R100 000, but the court in district Y
does not have jurisdiction over B in terms of section 28).

• Jurisdiction in terms of section 28, but not in terms of section 29:

Here, written consent may be given at any time, regardless of whether the action has
already been instituted or is about to be instituted. However, the consent must be in writing
(Truck & Car Co (Pty) Ltd v Ewart 1949 (4) SA 295 (T)).

• No jurisdiction in terms of either section 28 or section 29:

In this case the consent must be given “specifically with reference to particular proceedings
already instituted or about to be instituted in such court” (Truck & Car Co supra; Neale v
Edenvale Plastic Products (Pty) Ltd 1971 (3) SA 860 (T) at 863H to 866.)

The following is an example of consent to jurisdiction in this kind of case:

Whereas A intends to issue a summons against B for payment of the amount of R330 000,
the parties hereby agree that the summons will be issued from the magistrates’ court for the
regional district of Trustville and B consents to the jurisdiction of the said court.

• No jurisdiction in terms of section 28, but jurisdiction in terms of section 29:

For some time, the view was held that section 45(1) did not apply to cases where the court
had jurisdiction in terms of section 29 but not in terms of section 28. This view was expressly
rejected in Van Heerden v Muir 1955 (2) SA 376 (A), where it was held that even in such a
case, the consent must be “specifically with reference to particular proceedings already
instituted or about to be instituted in such court”.

Section 45(2) deals with contractual agreements to institute action in a district or regional
magistrates’ court. In Truck & Car Co (Pty) (Ltd) v Ewart 1949 (4) SA 295 (T), it was held that
this prohibition relates only to consent given when the court has no jurisdiction in terms of
section 28. The prohibition is not relevant when the court has jurisdiction over the parties,
in terms of section 28, but lacks financial jurisdiction in terms of section 29.

It follows that a clause in a contract that reads as follows will be valid, provided the plaintiff
institutes action in a district magistrates’ court that has jurisdiction in terms of section 28:
“The parties agree that any action that might result from this contract will be instituted in a
district magistrates’ court, and the parties hereby agree to the jurisdiction of the said court.”

This clause is valid because consent has merely been given to the jurisdiction of a district
magistrates’ court, not to the jurisdiction of a particular magistrates’ court and for that
reason a clause that reads as follows will not be valid, unless the court has jurisdiction in
terms of section 28:
The parties agree that any action that might result from this contract will be instituted in the
district magistrates’ court of X and the parties hereby consent to the jurisdiction of the said
court.

Section 43: Cumulative jurisdiction

The claims must exist between the same parties. Section 43(2) provides for an exception but
note that the exception only applies to interdicts or arrests, and not to all types of claims.

Section 40: Splitting of claims

Section 40 is the counterpart of section 43. The following case illustrates how it is
determined whether a single cause of action has been improperly split:
Mohamed & Son v Mohamed 1959 (2) SA 688 (T) involved a plea by the defendant, based on
section 40 of the Magistrates’ Courts Act of 1944, in defence of a suit brought by the
plaintiff: the plaintiff, a dealer, periodically sold goods to the defendant on credit. The credit
sale was an arrangement of several years’ standing. Upon failure of the defendant to pay for
the goods sold, the plaintiff instituted separate actions to recover the purchase price of the
delivered goods in respect of the separate sales.

The defendant’s plea was that the separate actions by the plaintiff amounted to a splitting
of claims contrary to section 40, in order to circumvent the limitations on the financial
jurisdiction of the district magistrates’ court. Section 40 prohibits the splitting of a
“substantive claim” exceeding the jurisdiction of the particular magistrates’ court in order to
recover the claim if the parties would be the same and the point at issue in all the split
actions would be the same. The court a quo ruled in favour of the defendant.

On appeal, the court ruled in favour of the plaintiff (appellant). According to the court, the
plaintiff’s claim was based on separate causes of action and, therefore, did not fall within
the terms of section 40. Each sale was entered into on different occasions, sometimes
months apart, and the points at issue in each sale were different. The defendant
(respondent) failed to provide the court with evidence that there was splitting of claims and
that the plaintiff’s intention with the different actions was merely to recover the sum due to
him in more than one action.

Section 47: Counterclaims exceeding jurisdiction

It is possible that a defendant may have a counterclaim that exceeds the financial
jurisdiction of district or regional magistrates’ courts. A defendant has two options in this
situation: He or she may abandon part of the claim, in terms of section 38, to bring the claim
within the jurisdiction of the magistrates’ courts or under section 47 he may apply to have
his or her counterclaim decided by a High Court before the plaintiff’s claim is heard by a
particular magistrates’ court.

Section 47, read together with rule 20, sets out the procedure for applying for a
counterclaim to be heard by the High Court. The defendant must ask the particular
magistrates’ court where the plaintiff has instituted action to decide whether or not the
counterclaim exceeds its jurisdiction.

The defendant must persuade the court that he or she appears to have a reasonable
prospect of obtaining a judgment on the counterclaim that will exceed the jurisdiction of the
particular magistrates’ court. If the court does find this, it does not make an order relating
to the defendant’s counterclaim, but orders that the plaintiff’s claim be stayed (suspended)
for a reasonable period so that the defendant can institute action in a competent court (a
High Court with jurisdiction over the parties).

The defendant must then institute action within the period for which the plaintiff’s action
was stayed. The plaintiff may, in these circumstances, institute his or her original
magistrates’ court claim as a counterclaim to the defendant’s High Court proceedings. If the
defendant fails to institute action within this time, the particular magistrates’ court may stay
the plaintiff’s claim for a further period, or it may dismiss the defendant’s counterclaim and
proceed to determine the plaintiff’s claim.

Please note that two actions between the same parties but based on separate causes of
action may, in terms of section 43, which allows different claims based on different causes
of action to be included in one summons, be brought before the court in one summons even
if the combined claim amount exceeds the quantitative jurisdiction limit of the magistrates’
court in question as long as the individual claims each fall within this limit (s 29).
Unit 12: Pre-litigation issues
Pete et al Civil Procedure 3ed (2017) 35–36; 39; 55–58; 122–127; 132–149
Uniform Rule 7; Magistrates’ courts rule 52(2)

Legal standing (locus standi in iudicio)

The literal translation would mean “place or position before the court”. It essentially means
that a party must, first, have a direct and substantial interest in the matter and, secondly,
have the necessary capacity to litigate.

Representation by power of attorney

In principle, every natural person who is a party to civil proceedings is entitled to represent
himself or herself personally but for practical purposes such a person would usually instruct
an attorney to act on his or her behalf. These instructions are confirmed and specified in a
document known as a ‘‘power of attorney’’.

Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa (2009) (Vol 1
267), describe a power of attorney as a written document in which an agent is given the
authority to act on behalf of his or her principal either in a specific situation or to act on
behalf of such principal in respect of all actions which the principal could perform himself or
herself.

A client may terminate his or her mandate to an attorney at any time but after accepting a
client’s brief an attorney may only withdraw for sound reasons. A practitioner is duty-bound
to adhere to the specific instructions of a client, provided that the instructions are not
improper.

When is a power of attorney required in litigation?

In terms of Rule 7(1), the filing of a power of attorney is not required for the issuing of a
summons or the entering of an appearance but it is required for the conduct or defence of a
civil appeal (see Rules 7(2) and 7(3)) in the High Court.

This position differs from that in the Supreme Court of Appeal. Rule 5(1) of the Rules of the
Supreme Court of Appeal provides that a power of attorney need not be filed with the
Registrar unless the authority of a legal practitioner to act on behalf of a party is disputed in
which event, a power of attorney has to be filed within a stipulated period.

The filing of a power of attorney is also not required in the magistrates’ court, but if the
authority to act is challenged, proof of such authority must be presented to court (rule
52(2)).

Why is a power of attorney then drawn up?

A carefully drawn up power of attorney is essential for the protection of both the attorney
and the client and to determine the extent of the attorney’s brief making it important to
always have a power of attorney kept on the client’s file.
The power of attorney generally contains details of the action to be instituted and of the
relief to be claimed. A client does not wish to be involved, unknowingly or unwillingly, in
expensive or protracted litigation or in an appeal which he or she never contemplated.

The attorney is entitled to protection as far as his own costs are concerned. Should an
attorney conduct litigation without the authority of the client, he will not be entitled to
recover the costs incurred from his client, since no contractual relationship will exist. Should
an attorney’s power to act be disputed, proof of his mandate must be given.

Study Uniform Rule 7(1) in this regard and familiarise yourself with the procedure that must
be followed in instances where a mandate is disputed.

The demand
The start of litigation proceedings is not necessarily preceded by a demand by a person who
wishes to institute such proceedings, unless
1) a demand is necessary to complete a cause of action that is relied upon or
2) it is required by legislation.

A litigant having a complete cause of action does not need to issue a demand. A demand
applies to both application proceedings and summons proceedings and can be made either
orally or in writing. The purpose of a demand is to inform the prospective defendant or
respondent:
• that a particular attorney acts on behalf of the prospective plaintiff/applicant;
• about the nature and content of the claim against him or her;
• that payment or performance of the claim is claimed;
• about the time period within which action is required;
• about the consequences of failure to comply with the demand;
in order to convince such a person to meet his or her obligations to avoid litigation.

When a demand is necessary

Where a demand is an essential part or element of the cause of action (where a demand is a
condition precedent to liability), litigation proceedings may not commence until the liability
is complete (the cause of action must exist at the time proceedings commence). The rules of
substantive law determine whether a demand is an essential element of the cause of action.

E.g.: in a contract that stipulates that, if the defendant defaults, a notice must be given to
him or her to rectify such default within a certain number of days and such notice is not
given, the cause of action is not complete.

But if a contract stipulates that certain moneys must be paid on demand, a summons will
constitute sufficient demand (e.g. Joss v Barclays Western Bank Ltd 1990 1 SA 575 (TPD)).

When statutorily required

Sometimes legislation requires a demand or a notice to prospective litigants to notify them
about a person’s intention to institute action against them and that stipulates the time
period within which the action must be instituted as well as that which must lapse after
receipt of the notice and the commencement of proceedings. E.g., the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 and section 29 of the Small
Claims Courts Act 61 of 1984. The legislative provisions in respect of demand or notice are
peremptory and strict compliance is essential.

The maxim of audi alteram partem

The audi alteram partem rule is fundamental to all proceedings, whether by way of notice of
motion or summons. Literally translated it means “hear the other side”. When applied to
civil procedure, it means that every person is entitled to be heard before an order or
judgment is granted against him or her.

This explains why our courts meticulously enforce the requirement that an opponent should
be notified timeously of the steps to be taken against him or her and that he or she should
be given an opportunity of replying to the case stated against him or her and of placing his
or her own defence before the court.

This also partly explains why pleadings and process documents are used: each party knows
exactly what the basis of the opposing party’s claim is and will therefore know how to reply
to it hence preventing any party from being caught unprepared during the trial.

Forms of proceedings
Since there are different ways in which an action can be instituted, it is important to use the
correct form of procedure for each case because if the incorrect form is used, the court may
1) refuse to hear the case or to hear it in its present form;
2) penalise the party that used the incorrect form when it issues an order for costs, even if
the court is prepared to condone the use of the incorrect form.

There are also certain advantages attached to the different process forms, including speed
and cost saving. A particular form of proceedings may thus be selected because it affords
the most inexpensive means of approaching the court. The litigant can naturally make this
choice only if the law allows him to do so: if the law does not compel him or her to use a
particular form of proceeding or does not prohibit him or her from using a particular form.

Generally, there are two ways in which a litigant may approach the court: by means of an
application or by means of a summons. Consequently, one speaks of application (or motion)
proceedings and summons (also called action) proceedings.

In the case of application proceedings, all applications are directed to the court by means of
notice of motion, while, in the case of summons proceedings, the court is approached by
means of a summons. The following is a schematic representation of this:
The identification of the applicable form of proceedings
There is neither a magic formula nor any absolute rules to determine which choice to make.
This is clearly illustrated by the fact that there has been an increase in the use of application
proceedings in respect of proceedings that were normally instituted by means of summons
proceedings and that the courts are extending this practice, rather than limiting it. (Abaany
Property Investments Ltd v Fatima Ayob & Sons Ltd 1994 2 SA 342 (T) 343J.)

The main reason for this phenomenon is that application proceedings are much faster and,
therefore, far cheaper than summons proceedings but application proceedings are not
permissible in all circumstances and the courts often have to decide on this issue.

Determining the appropriate form of proceedings to use can only be established by a

process of elimination and the following questions should be asked:
1) Does legislation or the rules of court prescribe the use of application proceedings?
Examples include the liquidation of companies; the sequestration of estates; and
applications in respect of marital matters (Rule 43 of the Uniform Rules of Court);
2) Is it compulsory to use summons proceedings? Examples include divorce
proceedings and unliquidated claims for damages;
3) Does a matter fall under neither of the above categories? In such an event (when
application proceedings are neither prescribed nor forbidden), the following
principle applies:
An application by means of notice of motion may be made if
i) there is no real dispute over any fundamental question of fact, or
ii) if there is such a dispute, it can nevertheless be satisfactorily decided without the
necessity of oral evidence.

When is there a “dispute of fact”?

A dispute of fact does not arise where the respondent merely states that he or she disputes
the truth of the applicant’s statements but offers no evidential reply to them – where there
is simply a bare denial because if motion proceedings could be delayed or terminated
merely by a bare denial, such proceedings would be of no value.

The attitude of the courts is that a firm and practical approach to disputes must be adopted
in motion proceedings to ensure that the courts function effectively and that justice is done.
A real dispute of fact has to occur: the mere fact that the parties are not in agreement on all
facts does not mean that a real dispute on any material question of fact has occurred.

Procedure where a dispute of fact arises

Where a genuine dispute of fact arises that cannot be settled without the hearing of viva
voce evidence, the court hearing the motion proceedings may
1) dismiss the application (this happens very seldom in practice) (Uniform Rule 6(5)(g));
2) order oral evidence to be heard on specified issues (Uniform Rule 6(5)(g));
3) order the parties to trial with appropriate directions as to pleadings, the definition of
issues, etc. (see Uniform Rule 6(5)(g)).

Magistrates’ courts rule 55(1)(k) simply refers to “any dispute of fact” and empowers a
court to make directions similar to those in (2) and (3) above.
Unit 13: The parties to litigation
Pete et al Civil Procedure 3ed (2017) 58–59; 440–442; 449–452
Uniform Rule 10; 13; 14; 17(4) and 40. Magistrates’ courts rule 2; 5(4); section 42 and 43 of
the Magistrates’ Courts Act 32 of 1944

A description of the parties

Read Uniform Rule 17(4) and magistrates’ courts rule 5(4) and note that the parties must be
very well defined in the summons. A female defendant’s marital status need not be
mentioned, because it has been held that such a requirement is old-fashioned and contrary
to the equality provisions in the Constitution (Nedcorbank Ltd v Hennop 2003 3 SA 622 (T)).

See also Uniform Rule 14 (in respect of proceedings against partnerships, firms and
associations), which allows these bodies to sue and be sued in their own name but this Rule
does not endow these bodies with legal personality, but simply provides a procedural
benefit by simplifying and streamlining actions.

Joinder
Under common law, it was generally not possible for different plaintiffs with different
causes of action to join in the same action against the same defendant. It was also
impossible to sue two different defendants, liable in different causes of action, in one
summons.

The Uniform Rules of Court have amended the common law position and now joinder is
possible, provided that it complies with the provisions of Rule 19(1) and Rule 10(3).

The common law provisions in respect of the compulsory joinder of parties have not been
altered by the Uniform Rules of Court, and such provisions thus still apply.

The provisions governing joinder in the High Court and the magistrates’ court are similar,
and in both courts voluntary and compulsory joinder of plaintiffs and defendants are
possible.

Voluntary joinder
For plaintiffs, each plaintiff must have a claim and they must act against the same
defendant(s). The essence of joinder of plaintiff lies in the expression “substantially the
same question of law or fact”.

For defendants, the essence of joinder also lies in the expression “substantially the same
question of law or fact” but several defendants may be sued in the alternative or jointly
when a plaintiff alleges that he or she suffered damages but does not know which one of the
several defendants is to blame. Such a plaintiff is not expected to take the risk of first
proceeding against the one and then against the other.

Compulsory joinder
There is another situation where the High Court, irrespective of the wishes of the parties,
will not hand down a judgment or make an order unless another (third) party is joined in the
action.

The court will determine that joinder of a third party as a party to the proceedings is
necessary if such a party has, or may have, a direct and real interest in any order that the
court may make, or if such order will prejudice that party, unless the court is satisfied that
the party has distanced himself or herself from his or her right to be joined in the
proceedings.

In the magistrates’ court, on application by a party, the court may order that another person
be added as plaintiff or defendant on such terms as it deems fit (rule 28(2)). All that has to
be shown is that joinder would be “convenient” and “in accordance with the interests of
justice”.

Third party procedure

Read Pete et al 449–452 in broad terms so that you understand the purpose of the
procedure as well as the circumstances when it may be used.

The purpose of third-party procedures is twofold:

1) the procedure enables a litigant to avoid instituting multiple actions in respect of the
same matter (‘‘third party’’ refers to a person who is not initially a party to a suit, but
who is later involved in such suit in terms of Uniform Rule 13; rule 28A);
2) it enables a third party’s liability (if any) to be determined by a court at the same time
that the liability of the other party is determined.

Any party (i.e. a plaintiff or a defendant) to an action may employ this procedure but such
procedure may be resorted to only where a party claims that:
a) he or she is entitled to a contribution or indemnity from the third party in respect of
any payment which he or she may be ordered to make or
b) a question or matter in dispute in the action is substantially the same as that which
arose, or will arise, between him or her and the third party, and should be decided
not only between the parties to the action (i.e. the plaintiff and the defendant), but
also between one or more of them and the third party.

The effect of the third-party notice is that, after service on the third party, such party
becomes a party to the action (see Uniform Rule 13(5); rule 28A(5)). ‘‘Joinder’’ therefore
occurs irrespective of the wishes of the third party, and no provision is made in the Rule for
such joinder to be opposed. The third party may, in terms of Uniform Rule 13(9); rule
28A(9), merely request that the case be tried separately, and may except to the notice and
plead thereto.

In forma pauperis proceedings

Uniform Rule 40 lays down a procedure in terms of which indigent persons may obtain free
legal aid by approaching the Registrar, after which legal representatives are appointed.

Briefly study the procedure laid down in Rule 40. You are at least expected to know
(1) who qualifies for this form of legal aid (Rule 40(2)(a))
(2) what documentation must be submitted to the Registrar when instituting an action in
terms of this Rule (Rule 40(2))
(3) what steps may be taken against a litigant in forma pauperis (Rule 40(6))
(4) the position with regard to costs (Rule 40(7))
Unit 14: Service
Pete et al Civil Procedure 3ed (2017) 132–144
Uniform Rule 4; 5. Magistrates’ courts rule 5; 9 and 10

One of the fundamental principles of civil procedural law is that the process and documents
arising out of any proceedings must be brought to the attention of the opposite party. This
requirement may be said to be derived from the audi alteram partem rule.

Notice of legal proceedings is accomplished by service of documentation either personally

by a party or his or her legal representative or by the sheriff: after being issued, a summons
must be served on the opposite party. It is by means of service that proceedings are brought
to the attention of the other party.

Proceedings that flow from proceedings that have been initiated without proper notice to a
party against whom relief is sought, are null and void.

‘‘Service’’ means that a copy of the particular document is handed to the person upon
whom service is effected, after explaining the document’s nature and contents. The original
is then filed in the court file.

Once a summons has been drawn up and is ready to be served, it must first be taken to the
office of the Registrar of the relevant High Court division. It is signed by the Registrar or
Assistant Registrar, a case number is assigned to it and a court file is opened. The office of
the Registrar also officially stamps the original summons and copies of it.

Once a summons has been issued, it cannot be altered without the consent of the person
issuing it or without leave of the court. The process is similar in the magistrates’ court,
except that a summons may be amended prior to service.

In terms of Uniform Rule 4(1), service of any process directed to the sheriff (e.g. summonses
and writs) and any document initiating application proceedings, must be effected by the
sheriff.

All other documents, such as notices, are served by the party or his or her legal
representative. The position is similar in the magistrates’ courts.

By law, the summons must be served by the sheriff or an officer in the employ of the sheriff.
After service has been effected, the official concerned must draw up a document under his
or her signature, known as a ‘‘return of service’’, in which he or she records the manner in
which service of the summons was effected and any other relevant details such as the date,
time and place of service.

The return of service serves as proof of service and the original return of service must be
filed in the court file. Section 43(2) of the Superior Courts Act, 2013 provides that the return
is prima facie proof of the matters set out therein - the contents may be disputed, but the
court will require the clearest of evidence before the return of service will be impeached.
Manner of service
There are different ways in which a summons may be served: by way of
• normal (usual) service,
• substituted service,
• edictal citation.

Normal (usual) service

Pete et al 134–140.
Normal (also referred to as usual or ordinary) service refers to service effected in
accordance with the rules of court in the ordinary course of events. Although the Uniform
Rules of Court do not specify the manner of service in matrimonial matters, it has become
practice in various High Courts to insist on personal service in such matters. Rule 9(3) of the
magistrates’ courts rules, requires personal service in respect of divorce matters and nullity
of marriage.

Substituted service
Pete et al 141; 143–144.
Where a person is believed to be within the Republic, but service cannot be effected on him
or her in terms of the rules of court, because it is not known precisely where such person is
to be found, an application may be made to the court for leave to sue by substituted service
and the court will then give directions as to how such service is to be effected.

Substituted service is an extraordinary method of service since it deviates from the normal
method of service provided for in the court rules. Consequently, an application to court
must be made on Notice of Motion seeking the court’s permission to serve the summons by
means of substituted service and requesting the court to give directions as to how the
summons must be served.

An abbreviated summons must accompany the application for consideration by the court.
On hearing the application and on being satisfied that it is a proper case for substituted
service, the court will give directions as to how service is to be effected, e.g., by registered
post, by service on a relative, by publication in the Government Gazette or by any
combination of these methods.

In CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 5 SA 604 (KZD)
the court gave leave for a notice to discover to be served by way of substituted service, and
that service be effected by way of a Facebook message addressed to the defendant.

See Rule 4A and note that this was a highly exceptional application of substituted service,
and that its application is not restricted to summonses.

Edictal citation
Pete et al 142–143.
The respective rules of court (Uniform Rule 5; rule 10) prescribes how service must be
effected on a defendant who is, or is believed to be, outside the Republic. This is so even
when his or her exact whereabouts are known and even when personal service is possible.
Such a person cannot be summonsed before our courts in any manner other than by means
of edictal citation. The court is also approached by way of Notice of Motion.

Service within the Republic, outside the court’s jurisdiction area

In terms of section 42(2) of the Superior Courts Act, 2013, the civil process of a division is
valid throughout the Republic and may be served or executed within the area of jurisdiction
of any division: summons may be served in any division of the High Court.
Unit 15: The conduct of application proceedings
Pete et al Civil Procedure 3ed (2017) 153–175
Uniform Rule 6; Magistrates’ courts rule 55

In contrast to summons proceedings, there is no distinction between the pleading stage and
the trial stage. We do not speak of pleadings in the case of the application: the equivalent
documents in the last-mentioned procedure are called ‘‘processes’’. These processes
contain not only the formulation of the factual dispute, but also the evidence that the
different parties offer as proof of their respective factual allegations.

This is possible because these processes are drafted in the form of affidavits. The processes
not only consist of the applicant’s affidavit, but also of the supporting affidavits of the
witnesses. Not only the claims or defences of the respective parties are formulated in these
documents, but also all the evidence in the possession of such parties. Hence, when the
case comes before the court, the claim, defence and supporting evidence are all in the
court’s possession.

Therefore, the hearing of the application consists exclusively of the arguments of the legal
representatives of the parties. In exceptional cases, viva voce evidence may be heard.

If the application is not opposed, the facts, as set out in the documents, are accepted. The
only question that must be answered is whether a case can be made for granting the
requested order.

Application forms
There are two forms of notice of motion that can be used to institute an application: the ex
parte application and the “ordinary” application. The latter is not used in the magistrates’
court.

The following is a schematic representation of the application forms in the High Court. The
forms in the magistrates’ court correspond with those of the High Court, except that the
notice of motion must comply with Form 1, Annexure 1 to the magistrates’ courts rules:
Ex parte applications
The general rule is that notice of litigation must be given to everyone whose rights may be
affected by any order in the legal proceedings or who has any interest in any such order.
Since an ex parte application can be heard by a court without notice being given to anyone,
it can be said that, in this respect, this form of application is an exception to the general
rule. Therefore, it is used only in the exceptional circumstances set as follows:
1) When the applicant is the only person with an interest in the relief claimed, e.g., an only
person interested application for admission as a sworn translator where the sworn
translator who brings the application has an interest in the relief claimed, but the only
other party with an interest is the court itself;
2) When the relief sought is a preliminary step in the proceedings, e.g., an application to
sue by edictal citation, an application for substituted service or an application to attach a
person’s property in order to found or confirm jurisdiction: these applications simply
prepare the way for the legal proceedings that are to follow and do not 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, e.g., an application to freeze someone’s bank account. The purpose of
this application is to prevent a person from dissipating the funds as giving notice to the
debtor of this application could encourage him to transfer the funds;
4) When immediate relief is essential because the harm is imminent, e.g., an urgent
application for a temporary interdict. If 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;
5) Where the application is usually brought ex parte in terms of established court practices,
e.g., 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 to be followed unless special circumstances exist;
6) Where the identity of the respondent is not readily ascertainable, e.g., if an application
may affect 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.

Where the rights of other persons may be affected by any order granted in pursuance of an
ex parte application, the court will not grant a final order, but will issue what is known as a
rule nisi. The rule nisi is an order calling upon the respondent or on all interested parties to
show cause on a day fixed in the rule (known as the ‘‘return day of the rule nisi’’ being the
day upon which these parties may, if they are so advised, oppose the application) why the
relief specified in the rule nisi should not be finally granted.

Where immediate relief is essential to the applicant, the court will ordinarily further order
that the rule nisi operate as an interim order (usually in the form of an interim interdict)
pending the confirmation or discharge of the rule nisi on the return day.

If it is deemed desirable, the court may order that the rule nisi be served on certain
interested parties, e.g., the Master of the High Court, the Companies and Intellectual
Property Commission (CIPC), the state, and so on. Although these persons or bodies are not
parties to the application, the court may, in view of their official capacity, consider it
necessary that they receive notice of such an order e.g., where a company has been
deregistered and an order for reinstatement as a registered company is applied for, the
court will normally order that the rule nisi be served on the CIP Commission by virtue of its
interest in proceedings that affect companies.

“Ordinary” applications
Pete et al 164–171.
This form of application differs from an ex parte application in that notice of the application
is given to another person or persons. Such person, or persons, receives notice of the
application in that it is ‘‘served’’ on him or her after it has been issued: a copy of the
application is handed to him or her.

This form of application is often referred to as “on notice” application, especially in the
magistrates’ court.

Related forms in which applications can appear

a) Interlocutory applications
Often a party may want to approach the court for relief in respect of matters related to
proceedings that have already been instituted, particularly in the case of summons
proceedings. E.g, C sues D. The parties prepare for the hearing and D fails to disclose some
documents. C’s preparation is prejudiced by this failure and C approaches the court in terms
of Uniform Rule 35(7) for an order to force D to disclose.

Rule 6(11) of the Uniform Rules of Court determines that, in these cases, the court must
be approached by means of interlocutory applications. Note that, although Rule 6(11) refers
to ‘‘notice’’, the courts have decided that this does not mean ‘‘notice of motion’’.
Interlocutory applications are brought purely by way of notice. As a result, the parties are
not bound by the severity of the Rules.

b) Urgent applications
Pete et al 155–156.
Uniform Rule 6(12) (magistrates’ courts rule 55(5)) makes provision for this kind of
application. This does not mean that an applicant may completely disregard the usual
requirements for applications. The principle is that as far as possible the normal rules of
procedure should be followed, and that any departure from such normal rules of procedure
must be justified by the urgency of the matter.

The mere fact that an applicant views the matter as urgent does not mean that he or she
may bring the application in any form and at any time and place or with too short a time
limit for responses by the respondent.

If a departure cannot be justified, the court may strike the application off the roll with costs
or may postpone the matter to afford the respondent more time to respond to the
application. In Luna Meubel Vervaardigers (Edms) Bpk v Makin (h/a Makin’s Furniture
Manufacturers) 1977 4 SA 135 (W), it was held that the degree of relaxation of the normal
rules should not be greater than the urgency that the case demands.

Carefully read Uniform Rule 6(12) (rule 55(5)) – you will notice that, in terms of such rule,
the normal rules of procedure may be dispensed with.

In the High Court, if time permits, the notice of motion must be prepared in accordance with
Form 2(a) of the First Schedule. The usual prayers for relief should include an additional
prayer that the forms and service provided for in the Uniform Rules of Court be dispensed
with and that the matter be heard as one of urgency.

The founding affidavit must also set out very clearly the circumstances that render the
matter urgent, as well as the reasons why, in the normal course of events, a hearing will not
afford proper redress.

An applicant may not himself or herself create urgency by, e.g., waiting too long to act so
that the ordinary rules can no longer be applied. In various divisions of the High Court, it is
the practice that a certificate of urgency signed by the applicant’s advocate must
accompany the documents before the Registrar will place the application on the roll.

Formal aspects of application proceedings

The form and content of the application proceedings
The different types of affidavits Pete et al 158–161
In the case of ex parte applications, there is only one type of affidavit: the supporting
affidavit. If an ‘‘ordinary’’ application is unopposed, there will also obviously only be a
supporting affidavit. However, if the application is opposed, the situation differs.

Please note that a party opposes an application by giving written notice to the applicant
within the dies induciae stated in the notice of motion of his or her intention to oppose the
application – Uniform Rule 6(5)(d)(i) and magistrates’ courts rule 55(1)(f). This notice fulfils
the same function as the notice of intention to defend in summons proceedings.

The general rule is that, in all application proceedings that are opposed, the papers will be
restricted to the following three sets of affidavits:
1) The supporting affidavit of the applicant, which is attached to the notice of motion;
2) The answering affidavit by the respondent in terms of Rule 6(5)(d)(ii) (magistrates’
courts rule 55(1)(g)(ii)). In this affidavit, the respondent, supported in so far as may be
necessary by other affidavits, deals paragraph by paragraph with the allegations and
evidence contained in the supporting affidavit;
3) The replying affidavit by the applicant in terms of Rule 6(5)(e) (magistrates’ courts rule
55(1)(h)(ii)), in which the applicant deals paragraph by paragraph, in so far as may be
necessary, with the allegations and evidence contained in the respondent’s answering
affidavit.

The court is empowered, in its discretion, to permit the filing of further sets of affidavits
(Rule 6(5)(e); magistrates’ courts rule 55(1)(i)). This means that a further set of affidavits will
be required from the respondent. The court will exercise its discretion in this regard in
exceptional circumstances only, e.g., where there is something unexpected in the
applicant’s replying affidavit, where a new matter is raised or where the court requires more
detailed information on record.

Remedy in the case of defects: motion to strike out Pete et al 162–163

An affidavit may not, save in exceptional cases of urgency, contain hearsay evidence, any
other inadmissible evidence or matter that is argumentative, irrelevant, vexatious or
scandalous.

Where an opposing party wishes to object to such matter, he or she may apply to have the
offending matter struck out. Such application is not brought by means of notice of motion,
but merely upon proper notice to the other side (Uniform Rule 6(15)).
Unit 16: The conduct of summons proceedings
When application proceedings are inappropriate or when the summons procedure is
prescribed, an action is initiated by way of a summons. The summons proceedings are
divided into the illiquid summons proceedings and the liquid summons proceedings.

The latter is instituted by way of the provisional sentence summons, whereas the former is
instituted either by way of the combined summons or by way of the simple summons. It can
thus be stated that action proceedings (summons proceedings) are instituted by way of one
of three types of summons.

Although it is possible for a defendant to enter appearance in provisional sentence

proceedings and that a plea stage can be indicated, this is exceptional.

See the following schematic representation:

A general explanation of the conduct of the proceedings

Whereas there is no clear distinction between the pleading stage and the trial stage in
application proceedings, summons proceedings are characterised by a clear distinction
between these two stages:
a) Pleading stage
In illiquid summons proceedings, pleadings are exchanged between the parties. The
pleadings consist of printed or written statements that are made by the parties to an action.
The material facts upon which the parties respectively rely to establish their claims or
defences must be set out concisely and in summary form. In practice, this really means that
conclusions of fact are pleaded.

b) Trial stage
Once the process of pleading has been completed, the action is set down for trial. At the
trial, the parties endeavour, by means of witnesses who appear in person and who give
evidence viva voce and who hand in documents or other real evidence, to prove by such
evidence the basic facts formulated in the pleadings. These witnesses are examined in chief,
are cross-examined and are re-examined.
After all the evidence has been led, argument is addressed to the court on the pleadings and
on the evidence and judgment is then delivered. When a summons is issued, a claim is
actually being instituted. The person instituting the claim is called the plaintiff. This claim is
called a ‘‘claim in convention’’. The person who is defending himself or herself against this
claim is called the defendant.

It is also possible for the defendant to have a claim against the plaintiff, in which case it is
referred to as a ‘‘counterclaim’’. If the defendant institutes a counterclaim, this claim is then
also referred to as a ‘‘claim in reconvention’’.

The plaintiff commences the claim in convention by means of either a simple summons or a
combined summons. Because the simple summons is issued in respect of a liquidated claim,
it is not accompanied by any other document setting out the details of the claim – the
amount and nature of the claim are merely stated in the summons.

Because the combined summons is used in respect of an unliquidated claim, it is

accompanied by a document known in this instance as ‘‘the particulars of claim’’. The
particulars of claim are attached to the summons, forming a single document; hence the
term ‘‘combined summons’’.

If, in the case of a simple summons, the defendant has formally indicated that he or she
intends to defend the action, the plaintiff files his or her declaration setting out the material
details of the claim, similar to the particulars of claim only at this stage.

Before a plaintiff delivers a declaration, he or she will consider whether to apply for
summary judgment. Where such an application is unsuccessful or where the application is
abandoned, a declaration must also be delivered.

Once a summons has been served, and, if the defendant wishes to defend the action, he or
she must, within the time stipulated in the summons, deliver and file a notice of intention to
defend.

At this stage, if the plaintiff has filed a simple summons, he or she will now file his or her
declaration. Thereafter, the defendant must raise his or her defence by filing his or her plea
on the merits to the plaintiff’s declaration or particulars of claim, as the case may be.

Alternatively, the defendant may raise a special plea to object to an issue not apparent ex
facie the declaration or particulars of claim, as the case may be.

The defendant may, together with his or her pleadings, file a counterclaim. By means of the
counterclaim, the claim in reconvention is introduced and the pleadings in reconvention are
usually filed simultaneously with the pleadings in convention which might follow. The
Plaintiff, now the defendant in reconvention, responds to the defendant’s, now the plaintiff
in reconvention, counterclaim by means of a plea in reconvention. The pleadings in
reconvention, which might now follow, are the same as the pleadings in convention.
To return to the pleadings in convention: usually, the pleadings close after the defendant’s
plea has been delivered and filed, but this need not necessarily be the case. The plaintiff
could respond to the defendant’s plea by means of a replication, and, if issues are not joined
hereby, the defendant may reply to the replication by means of a rejoinder. At this stage,
the pleadings should close; the matter is then set down for trial and the pre-trial
preparation stage commences.

After rejoinder, the parties may exchange the following pleadings: a surrejoinder to the
rejoinder; a rebutter to the surrejoinder; and a surrebutter in response to the rebutter.
These are exchanged in exceptional circumstances only.

In the normal course of pleadings, certain irregularities in the pleadings might need to be
corrected, rectified or objected to in this respect. Procedurally, this may be effected by
means of the following processes or pleadings: a notice of amendment, a motion to strike
out or the raising of an exception. These procedural remedies may be used in respect of any
pleadings.

Prior to the trial stage, it is possible to obtain a judgment known as a pre-trial judgment.
Should the defendant not timeously file a notice of intention to defend or a plea, as the case
may be, the plaintiff may apply for default judgment to be granted against the defendant.
Likewise, if a defendant has in fact filed a notice of intention to defend, but has no bona fide
defence, and has done so merely to delay proceedings, the plaintiff may apply for summary
judgment.

So, too, when the plaintiff has failed to deliver timeously his or her declaration and has been
barred from doing so, the defendant may have the matter set down for hearing, and the
court may grant absolution from the instance or make any order it deems fit.

The defendant may consent to judgment. The consent is furnished to the plaintiff, who
applies to the Registrar to have it converted to a judgment by a judge in chambers.

It is also possible to institute a claim by means of a third summons, namely, the provisional
sentence summons. This is an extraordinary procedure and is specifically designed to assist
a creditor, armed with sufficient documentary proof, in recovering his or her money
speedily without resorting to the illiquid summons proceedings.

However, the judgment is provisional in the sense that a defendant may enter into the
principal case within two months after provisional sentence has been granted. In such a
case, the summons is deemed to be a combined summons, and the usual litigation
process then follows.

The schematic outline below provides a visual representation of this study unit:
Unit 17: The simple summons and the combined summons
Pete et al Civil Procedure 3ed (2017) 179–184
Uniform Rule 17; 18 and 20; Form 9 and 10, First Schedule. Magistrates’ courts rule 5 and
7; Form 2 and 2B, Annexure 1

If you refer to Forms 9 and 10 of the First Schedule to the Uniform Rules of Court, you will
note why a summons may be defined as “a written instruction to the sheriff to notify a
person (normally termed ‘‘the defendant’’) against whom the plaintiff wishes to obtain relief
(in the form of an order) to give notice, within a specified time (the dies induciae), of his or
her (the defendant’s) intention to defend the action if the claim is disputed”.

This description relates to the definition of ‘‘action’’ in Uniform Rule 1, which makes it clear
that summons proceedings are instituted by way of a summons.

Although Rule 17(1) refers to ‘‘a summons or a combined summons’’, we refer to the two
types as the simple summons and the combined summons, respectively. Elsewhere, you
may find that the simple summons is referred to as the ‘‘ordinary summons’’ or the
‘‘summons for a debt or liquidated demand’’.

The simple summons and the combined summons may be distinguished from each other on
the basis of the nature of the claim in respect of which each is applied, as well as on
procedural grounds.

Since using the wrong type of summons can give rise to certain penalties against a
practitioner, one must have a thorough knowledge of the circumstances in which each type
of summons is the correct or most appropriate one.

The simple summons and declaration

The answers to the following two questions are important:
When is the simple summons employed?
The simple summons is employed when the plaintiff’s claim is for a debt or liquidated claim.

What is meant by the expressions “a debt or liquidated claim”?

Unlike the previous Transvaal, Natal and Orange Free State Rules of Court, the Rules contain
no definition of ‘‘a debt or liquidated demand’’. The meaning to be attached to the
expression was left to judicial interpretation: the courts assigned reasonably clear
interpretations to the expression in various judgments some of which are indicated below.

The interpretations do provide clear guidelines:

In the case of the old Transvaal Rule 42, the expression was interpreted as ‘‘a claim for a
fixed or definite thing, e.g., a claim for transfer or ejectment, for the delivery of goods, for
rendering an account by a partner, for the cancellation of a contract or the like’’;
The courts have also indicated that the debt is liquidated where it is admitted or where the
monetary value is capable of being ascertained speedily, e.g., the current market price of a
particular article that is sold or the reasonable, accepted remuneration for the rendering of
specific services;
In order to be a ‘‘liquidated demand’’, the demand must be described in such a way that the
amount may be determined merely by mathematical calculation. What ‘‘ascertained
speedily’’ embraces is a question of fact and the courts will exercise their discretion in
deciding whether a particular claim is capable of being ascertained speedily.

Neither an action for divorce nor an action for damages constitutes a claim for a debt or a
liquidated demand.

From the above, it is clear that the nature of the claim (i.e. whether we are dealing with a
debt or a liquidated claim) determines whether a simple summons must be employed.

As regards the form of the summons, such summons must be drawn up so as to correspond
as closely as possible to Form 9 of the First Schedule of the Uniform Rules of Court. From an
examination of Form 9, it clearly appears that only the cause of action needs be set out
concisely.

But it must be described with sufficient clarity to enable the court to decide whether
judgment may be given, and to inform the defendant about the claim against him or her so
that the defendant may defend himself or herself against further legal steps. In the
magistrates’ courts, see Form 2, Annexure 1.

The declaration, which is the equivalent of the particulars of claim, is used only in
proceedings commenced by simple summons but a plaintiff is only obliged to serve and file
a declaration if a defendant has delivered a notice of intention to defend, provided that the
plaintiff did not apply for summary judgment.

The combined summons

The answers to the following two questions are important:
When is the combined summons employed?
The combined summons is primarily used where the plaintiff’s claim is unliquidated: where
it is not a claim for a debt or liquidated demand. Matters for which a combined summons is
used often involve serious factual disputes that require the leading of oral evidence to
resolve the issues.

What does the expression “unliquidated claim” mean?

An unliquidated claim refers to any claim in respect of which the quantum must be
determined (e.g. a claim for damages) or where the status of the parties is affected (e.g. an
action for divorce).

In every case where the claim is not for a debt or liquidated demand, the plaintiff must
annex to his or her summons, particulars of the material facts relied upon by him or her in
support of the claim (the ‘‘particulars of claim’’) (Uniform Rule 17(2); magistrates’ courts
rule 5(2)). This Rule also requires that the particulars of claim must comply with the
provisions of Uniform Rule 18, because it is a pleading.

This summons, together with the particulars of claim, are known as a ‘‘combined
summons’’, since they combine in one document a summons and the equivalent of a
declaration. The big difference is that the particulars of claim, unlike the declaration, do not
constitute a separate pleading and are inseparably linked to the summons; hence the
designation ‘‘combined summons’’. The summons and the particulars of claim thus form a
unit. A declaration may never be used in the case of a combined summons.

The effect of the Constitution and the National Credit Act of 2005 on the content of a
summons in which execution of immovable property is relevant
In the judgment delivered in Standard Bank of South Africa Ltd v Saunderson 2006 2 SA 264
(SCA) 277C–E on 15 December 2005, the Supreme Court of Appeal issued the following
practice directive, with which every summons must comply:
The summons initiating action in which a plaintiff claims relief that embraces an
order declaring immovable property executable shall, from the date of this
judgment, inform the defendant as follows:
‘‘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 execution will
infringe that right it is incumbent on the defendant to place information supporting
that claim before the court.’’

This notification is especially important when immovable property is the primary or ordinary
residence of the defendant. Thus, the North Gauteng High Court, Pretoria, issued a practice
directive in First Rand Bank Ltd v Folscher and another, and similar matters 2011 4 SA 314
(GNP) in respect of actions instituted to enforce a debt secured by a special hypothec over
such property.

In terms of this practice directive, if the issue of summons is preceded by a notice in terms
of section 129 of the NCA, such notice must include a notification to the debtor that, should
action be instituted, and judgment obtained against him or her, execution against the
debtor’s primary residence will ordinarily follow, leading to eviction from such home. The
purpose of these steps is clearly to inform a debtor of his or her rights.

(The rules of practice in respect of actions instituted under the NCA have in the meantime
come into force in the KwaZulu-Natal High Courts (Pietermaritzburg and Durban), the
Western Cape High Court, Cape Town, and the North Gauteng High Court, Pretoria.)
Unit 18: The provisional sentence summons
Provisional sentence is an extraordinary and summary procedure. The exceptional nature of
the procedure lies in that the case can be decided before trial and that the court is
concerned with prima facie proof only. Judgment is given on the assumption that the
documents submitted are genuine and valid.

A basic aspect of provisional sentence is that it is fundamentally an executory procedure. It

accelerates the procedure for granting judgment – although such judgment is provisional -
and entitles a successful plaintiff to execute the judgment immediately, subject to giving the
defendant the necessary security de restituendo.

The essence of the procedure is that it provides a creditor who has sufficient documentary
proof (i.e. a liquid document) with a remedy for recovering his or her money without it
being necessary to resort to the more cumbersome, more expensive and frequently
protracted illiquid summons proceedings.

Although, in the past, criticism was levelled at the provisional sentence procedure, it should
be noted that this procedure fulfils a useful role in commerce and contributes to the fact
that the payment of an amount owing to the creditor is not delayed by the mere wilful
action of the debtor and the defendant is not unprotected – payment of the judgment
amount occurs only against provision of security de restituendo by the plaintiff and the
defendant may also enter into the principal action (in specific circumstances).

The provisional sentence summons

Pete et al 424–428, and study 429–432 in broad outline.
This is the third type of summons with which an action can be instituted in the High Court. It
can be used only if the cause of action is based on a liquid document. As in the case of the
illiquid summons procedure, the nature of the claim determines whether a provisional
sentence summons ought to be used.

A court will allow a provisional sentence summons only if:

1) the plaintiff’s claim is based on a liquid document, and
2) the defendant is not able to provide such counter-proof as to satisfy the court that the
probabilities of success in the principal action will probably not be in the plaintiff’s
favour.

The nature and effect of provisional sentence

1) The plaintiff is of right entitled to payment, or, failing such payment, to take out a writ of
execution against the defendant’s property under security de restituendo. Security de
restituendo is the security that the plaintiff must give for the restitution of the money he
has received from the defendant in terms of the judgment in the event of the defendant
successfully defending the main case.
2) The judgment is provisional in the sense that the defendant may still defend the main
action, but only within two months of the granting of provisional sentence and then only
if he or she has paid the judgment debt and costs.
3) A defendant who may and who wishes to enter into the principal case must deliver
notice of his or her intention to do so within two months after provisional sentence has
been granted, in which case the summons will be deemed to be a combined summons
on which the defendant must deliver a plea within 10 days. In default of such notice or
plea, the provisional sentence automatically becomes a final judgment and the security
given by the plaintiff falls away.
Unit 19: The principles of pleading
Uniform Rule 18; magistrates’ courts rules 17; 20 and 21

The basic concepts

• Pleading stage: In illiquid summons proceedings, the stage from the issue of summons up
to the close of pleadings is known as the pleading stage.

• Pleading: This is a written document containing averments by the parties to an action in

which the material facts on which they rely in support of their claim or defence are clearly
and concisely set out to enable the opponent to plead thereto and which is exchanged
between such parties.

The term ‘‘pleading’’ is used in a generic sense to include all types of pleadings, not to be
confused with the ‘‘plea’’, which refers to the defendant’s statement of his or her defence
to the plaintiff’s claim, and which is merely one species of the genus of ‘‘pleadings’’.

• Process: There is a difference between a pleading and a process and although ‘‘process’’
is not defined in the Act, the phrase ‘‘process of the court’’ was interpreted in Dorfman v
Deputy Sheriff, Witwatersrand 1908 TS at 703 to mean ‘‘something which ‘proceeds’ from
the court; some step in legal proceedings which can only be taken with the aid of the court
or of one of its officers’’.

Included in this concept are subpoenas, notices and the like. It is important that you can
distinguish between pleadings and process documents, since certain remedial steps can be
taken only in respect of defective pleadings and certain procedural steps can be taken only
in respect of pleadings.

The function of pleadings

The object of pleadings is to enable the parties to come to court fully prepared to meet the
case of the opponent and to enable the court to isolate the issues that have to be
adjudicated upon. The parties are bound by the pleadings unless duly amended.

Pleadings serve several functions:

1) Pleadings serve to define and limit the disputed issues of fact and law for the benefit of
both the court and the parties, thus saving time and money and justice can be dispensed
more quickly and effectively. They may also encourage the settlement of a dispute;
2) They also serve to apprise each party of the case he or she is expected to answer. The
parties are given the opportunity of preparing their cases and the evidence that they
intend leading in support of their own contentions and in rebuttal of their opponent’s.
They prevent the parties from being taken by surprise at the trial, thus obviating time-
and money-consuming adjournments;
3) They constitute a formal, summary record of the issues in dispute between the parties,
which may be decided at the trial, thus serving to prevent future disputes between the
parties regarding issues that have already been adjudicated upon;
4) They determine the onus of proof and the duty to begin (to present evidence first).
The rules for the drafting of pleadings
A number of rules have been formulated that must be borne in mind when drawing up
pleadings the most important of these being Rule 18(4). Other rules have been developed
by the courts against the background of this Rule.

Study Uniform Rule 18(4) and read Rules 18(3), 18(5) and 18(7) attentively.

With regard to the formalities in the magistrates’ courts rules, rule 17 with regard to the
plea; rule 20 with regard to claims in reconvention and rule 21 with regard to the replication
and plea in reconvention.
1) Pleadings must contain clear and concise statements of the material facts upon which
the claim, defence or reply is based; but there must be adequate details so that the
pleadings are not vague and embarrassing and inform the opponent about matters in
dispute;
2) Details must be reflected clearly, logically and in a comprehensible form;
3) Facts, and not the law, must be pleaded and evidence must also not be pleaded;
4) Pleadings should not contain repetitions. If repetition is necessary, it should be effected
by reference and not by restatement.

Apart from the general requirement relating to particularity of pleadings, it should be noted
that the Rules also lay down specific requirements in respect of claims based on contract
(Uniform Rule 18(6)), for divorce (Uniform Rule 18(8)(9)) and for damages (Uniform Rule
18(10)(11)). Failure to comply with any provision of Uniform Rule 18 will cause such
pleadings to be deemed to be an irregular step, which entitles the opposite party to act in
accordance with Uniform Rule 30 – (Uniform Rule 18(12)).

A summons is a printed form that is merely a step in the litigation process and whereby
litigation is instituted. This step can only be taken with the help of a court official (the
Registrar or Assistant Registrar must first issue the summons before the plaintiff can use it
any further hence a summons is a process).

The combined summons is a unique document in that the summons and the particulars of
the claim cannot be separated from each other. Technically, the summons section is a
process and the particulars of a claim constitute a pleading since they contain a formal,
concise, but more complete, version of the plaintiff’s claim, to which the defendant must
respond making the combined summons both a process and a pleading.2020
Unit 20: Litigation proceedings during the pleading stage: exchange
of processes and pleadings
Notice of intention to defend
Study Pete et al 198–202.
The notice of intention to defend is not a means of raising a defence because a defence is
raised by means of a plea. A notice of intention to defend is merely a notice which informs
the plaintiff that the defendant intends defending the action. It is in this context that it is
said that the defendant is ‘‘defending the action’’.

Another expression encountered when referring to the notice of intention to defend is that
the defendant ‘‘enters an appearance’’. The notice of intention to defend is also not a
pleading.

The defendant who neglects to file and deliver a notice of intention to defend timeously,
runs the risk of having a judgment by default given against him or her. Study Uniform Rule
19(5) to determine up to what stage proper delivery of such notice may still be effected.

In the magistrates’ court an appearance to defend may also be entered after the prescribed
dies induciae (days of grace) has expired, but before default judgment has been granted. If
appearance to defend is entered after a plaintiff has already lodged a request for default
judgment, the plaintiff is entitled to costs (rule 13(5)).

If the notice is defective in that certain requirements in terms of the rules have not been
complied with, e.g., if
1) it has not been properly served,
2) it has not been properly signed, or
3) it does not comply with the requirements in respect of address for service, or
4) exhibits any two or more of such defects or any other defect of form,
5) the registrar or clerk of the court shall not enter judgment against the defendant unless,
the plaintiff has delivered a notice in writing to the defendant calling upon him or her to
deliver a notice of intention to defend in due form within five days of the receipt of such
notice (rule 12(2)(a)).

The plea on the merits and the counterclaim

Pete et al 202–211; 219–222.
A plea on the merits is the only way in which a defendant may raise a defence against the
plaintiff’s claim. A plea must deal with the merits of the plaintiff’s case as set out in the
plaintiff’s particulars of claim or declaration, depending on the case.

Although the defendant must deal with each allegation in the particulars of claim or
declaration, a plea deals especially with all the factual allegations. Just as the particulars of
claim or the declaration must fully disclose the plaintiff’s claim, so the defendant’s plea must
disclose his or her defence fully.

In such plea, the plaintiff’s factual allegations are admitted, are denied, are placed in issue,
or are confessed and avoided, and all the material facts upon which the defendant relies are
stated clearly and concisely. It is also permissible, where the facts warrant it, for a
defendant to plead that he or she has no knowledge of a particular allegation and is not in a
position to admit or deny it (Uniform Rules 22(2) and 22(3)).

Every single factual allegation in the declaration or particulars of claim that is not specifically
denied or not admitted, is deemed to be admitted (Uniform Rule 22(3) and magistrates’
courts rule 17(3)(a)).

Uniform Rule 24(1) (magistrates’ courts rule 20(1)) provides that a defendant may, together
with his or her plea or, at a later stage, with the leave of the plaintiff or, if refused, the court,
deliver a claim against the plaintiff. This is known as a counterclaim. The counterclaim is
called a ‘‘claim in reconvention’’.

The claim that is instituted by means of a summons is called a ‘‘claim in convention’’. Since a
counterclaim is similar to a claim that is instituted by a plaintiff in convention, the plaintiff
has the opportunity to answer to the counterclaim with a plea on the counterclaim, which
corresponds to the defendant’s plea as regards form and content.

The same pleadings as are exchanged between the parties in convention, are exchanged in
reconvention; the only difference is that the parties act in the reverse order: the plaintiff in
convention acts as the defendant in reconvention. The pleadings in reconvention are also
exchanged until close of pleadings occurs. In practice, the counterclaim is usually served at
the same time as the plea, and, for convenience, is usually contained in the same document,
but under a separate heading.

The replication, rejoinder and close of pleadings

Pete et al 222–224.
A replication contains the plaintiff’s reply to the defendant’s plea. Uniform Rule 25(1) and
magistrates’ courts rule 21 are essentially the same. This pleading is not essential and is
necessary only where the defendant raises new averments as to facts in his or her plea (on
the merits).

Uniform Rule 25(2) and rule 21(2) indicate when a replication is unnecessary.

A replication will typically be relevant in the case where a defendant’s defence is one of
confession and avoidance. E.g., a defendant in a defamation action admits in her plea the
publication of the alleged defamatory statements but avers that such statements were
made in privileged circumstances.

The plaintiff will then deal with these in replication. A plaintiff who fails to deliver a
replication within the prescribed dies induciae is ipso facto (automatically) barred from
replicating (Rule 26; magistrates’ courts rule 21B). Where a replication is not necessary,
joinder of issue will be assumed and the pleadings will be deemed to be closed when the
last day for filing the replication has elapsed (Rule 25(2); rule 21(2)).
‘‘Joinder of issues’’ refers to the moment when the dispute is crystallised and is ready to be
presented to court for adjudication. In practice, this usually coincides with close of
pleadings.)

Rule 25(5); rule 21(5) make provision for the exchange of further pleadings by the parties,
and also prescribe the dies induciae within which such pleadings must be delivered. The
most common of these is the rejoinder. If the plaintiff raises new averments of fact in the
replication, the defendant is given an opportunity of reacting thereto by way of rejoinder
but these pleadings are not often needed in practice.

Uniform Rule 29 and magistrates’ courts rule 21A are identical and lay down when pleadings
are deemed to be closed. Study these rules as a whole, since you must be familiar with the
circumstances in which close of pleadings occurs.2121
Unit 21: Further possible pleadings and processes during the
pleading stage: remedial steps
Pete et al Civil Procedure 3ed (2017) 211–219; 226; 228–242
Uniform Rule 23(1)–(4); 28; 30; 30A; 35(14). Magistrates’ courts rule 19 (1)–(3); 23(15); 55A;
60; 60A

The rules in regard to pleading are not rigid and unbending and not every technical mistake
in a particular pleading will render it open to objection. Where there has been some breach
of pleading (or, in certain cases, a process), the opposite party can take certain steps to
rectify the situation.

A party can also take certain steps to rectify a bona fide error in his or her own pleadings, or
to enable him or her to deliver a pleading. The court rules also contain provisions that allow
parties to enforce compliance (or condone noncompliance) with the rules of court.

Inspection
Pete et al 226.
Study Uniform Rule 35(14); magistrates’ courts rule 23(15).

Note at what stage of the proceedings inspection can be requested, for what purposes, and
precisely in respect whereof. It is important to note that any party can obtain inspection,
but not merely in respect of any type of document or tape recording: the document must be
clearly specified and this procedure can therefore not be used for purposes of a ‘‘fishing
expedition’’ in search of possible documents. Also note that the test is whether the
document is essential, and not merely useful, for purposes of pleading.

Application to strike out

Pete et al 235–236.
Where any pleading contains averments that are ‘‘scandalous, vexatious or irrelevant’’, the
opposing party may, within the period allowed for any subsequent pleading, apply for the
striking out of such matter (Uniform Rule 23(2); rule 19(2)). Although the rules refer to
pleadings only, it is commonly accepted that offending passages in affidavits relating to
motion proceedings may also be struck out.

‘‘Irrelevant’’ in this context means irrelevant in relation to the points in dispute, which have
been raised and which must be decided by the court. This procedure is used to rectify that
part of an opposing party’s pleading that contains an averment that is ‘‘scandalous,
vexatious or irrelevant’’. It does not relate to the pleading as a whole.

A court will grant such an application only if it is satisfied that the applicant will be
prejudiced in the conduct of his or her claim or defence if the application is not granted. The
striking-out procedure is not intended to be used for raising technical objections that are of
no advantage to either party, but merely increase costs. This application is interlocutory in
nature and is, therefore, made merely by way of notice.
Amendment of pleadings
Pete et al 229–235.
Rule 28 provides that any party may amend any of his or her own pleadings or documents
(but excluding an affidavit), which have been filed in regard to any proceedings but such a
party must give notice of such intention to amend to all parties concerned and must set out
the details of the amendments in the relevant notice (Rule 28(1) and 28(2)).

The amendment procedure is used for a variety of purposes, the most common of these
being to correct errors in pleadings, to amplify the cause of action, to introduce a further or
alternative cause of action, or to extend or limit the relief claimed.

The general rule in regard to all amendments is that the court will grant an amendment,
unless the application for amendment is made mala fide or the opposing party will suffer
prejudice that cannot be compensated for by a postponement and/or an order as to costs
(Embling v Two Oceans Aquarium CC [2000] 2 All SA 346 (A)).

The exception
The purpose of excepting to a pleading may be twofold. In the case of a pleading that is
vague and embarrassing, an exception is taken to prevent the person excepting from being
taken by surprise or being prejudiced in his or her pleading or at the trial. Where a pleading
discloses no cause of action or defence, an exception provides a speedy and inexpensive
method of determining the issue without having to embark on the lengthy and expensive
procedure of a full trial.

An exception is adjudicated upon separately before the trial. The principal distinguishing
feature of an exception, as opposed to a plea on the merits or a special plea is that the
exception must appear ex facie the pleading that is being excepted to.

This is a legal argument, and no fresh facts may be alleged in the exception; for the purpose
of deciding the exception, the facts stated in the pleading being attacked must be taken to
be true. E.g., if, in the particulars of claim in which a widow claims damages for the death of
her husband, the allegation of negligence is omitted, the summons may be excepted to, on
the ground that it discloses no cause of action.

Assuming the correctness of all the facts in the particulars of claim, the plaintiff would still
not be entitled to succeed, for, unless the defendant caused the damage in a negligent
manner, he or she is not in law obliged to compensate the party suffering such damage.
Fault is indeed one of the elements that must be proved to establish that a delict has been
committed.

A further important distinguishing feature of an exception is the fact that it must be taken to
the pleading as a whole, and not to a portion of the pleading, unless such portion
constitutes a separate cause of action or defence.

Where a party intends to except to a pleading on the ground that it is vague and
embarrassing, he or she must, by notice, afford his or her opponent an opportunity of
removing the cause for complaint. Whenever an exception is taken to any pleading, the
grounds upon which the exception is founded must be clearly and concisely stated (Uniform
Rule 23(3); magistrates’ courts rule 19(3)).

The special plea

Pete et al 211–219 in broad outline.
A plea on the merits, as its name indicates, deals with the merits of the plaintiff’s claim as
set out in his or her declaration or particulars of claim. A special plea is a means of raising an
objection on the basis of certain facts that do not appear in the plaintiff’s declaration or
particulars of claim and has the effect of destroying or postponing the action.

If a defendant intends to serve and file a special plea, we are of the opinion that he or she
must still deliver a plea on the merits. Therefore, a special plea does not replace the plea on
the merits. A failure to deliver the last-mentioned document will expose a defendant to a
request for default judgment. (We base our opinion on David Beckett Construction (Pty) Ltd
v Briston 1987 3 SA 275 (W) 280C–F.

The views in the various divisions of the court are not uniform, and the Uniform Rules are
silent in this regard.

The difference between the special plea and the exception

An exception is limited to an attack on the allegations in the pleading as a whole, on the
assumption that such allegations are true, and with one of the distinguishing features being
that no factual allegation may be introduced outside the pleading that is attacked.

The pleading is judged exactly as it stands. In common with an exception, a special plea
assumes the truth of all the allegations in the declaration and does not deal with the merits
of the action at all. It differs from an exception in two respects:
a) as its name indicates, it alleges special facts unconnected with the merits of the
action as a result of which the action is either destroyed or postponed; and
b) a special plea may only be pleaded to a declaration or particulars of claim, whereas
an exception can be brought against any pleading.

The two categories of special pleas

Although the nomenclature may vary, special pleas are usually divided into two categories
after Brown v Vlok (1925 AD 56 at 58): those special pleas that seek to destroy the action
(pleas in abatement) and those special pleas that seek to postpone the action until the
defect has been cured (dilatory pleas).

Elsewhere, you may encounter a different nomenclature, in which reference is made to a

‘‘declinatory plea’’, ‘‘a plea in abatement’’ and a ‘‘dilatory plea’’, depending on whether
these arise from the nature or the effect of the special plea.

• Dilatory pleas: examples:

a) Where the defendant disputes the plaintiff’s authority to sue because of the absence of
a formal requirement that is a condition for suing (e.g. that a director is not competent
to sue because of a lack of specific authorisation).
b) Lis pendens. If an action is already pending between the parties, and the plaintiff brings
another action against the defendant or relating to the same cause and in respect of the
same subject matter, whether in the same or in different courts, the defendant can take
the objection of lis pendens.
c) Arbitration. The defendant may raise this as a special plea where the parties have
previously agreed to submit their dispute to arbitration.

• Pleas in abatement: examples:

a) Special plea of prescription
b) Special plea of non-joinder or mis-joinder
c) Special plea of res iudicata
d) Special plea in respect of the jurisdiction of the court in matters concerning status (this is
sometimes also referred to as a ‘‘plea in bar’’)

Application to set aside irregular proceedings

An irregular proceeding is not defined in the Rules but it may be stated that the irregularity
concerns formal irregularities: noncompliance with formal requirements in respect of
procedural matters. E.g.s of this, compare, for instance, Uniform Rules 18(12), 22(5) and
24(5), where it is explicitly stated that noncompliance with the provisions of specific Rules
will be deemed to be an irregular step.

Other examples of irregular proceedings are the failure by an advocate to sign the
particulars of claim (as required by Uniform Rule 18(1)), the premature set-down of a case,
the use of the wrong kind of summons and improper service.

The period within which the applicant must act commences as soon as a party takes notice
that a step has been taken or that a proceeding has occurred, and not once the irregularity
has come to his or her notice. This interpretation was given in Minister of Law and Order v
Taylor 1990 (1) SA 165 (EC), and corresponds with the current wording of Uniform Rule
30(2)

However, such an application may be launched only if the objector has not taken some
further step in the litigation after becoming aware of the existence of an irregularity
(Uniform Rule 30(2)(a)).

In Kopari v Moeti 1993 4 SA 184 (BGD) 188H, the step is described as ‘‘some act which
advances the proceedings one stage nearer completion”. Objectively judged, the step must
show the intention to continue with the action despite the irregularity (Jowell v Bramwell
Jones 1988 1 SA 836 (W) 904).

A further step would include the next sequential exchange of pleadings and any objection to
the content of a pleading (e.g. delivery of a replication or motion to strike out). It would not
include the filing of a notice of intention to defend; our courts have held that this is merely
an act carried out to enable the defendant to put forward his or her defence.
Rule 30(2) and magistrates’ courts rule 60A(2) provide that an application in terms of these
rules must be accompanied by notice to all parties. Such an application is naturally also
interlocutory in nature.

Enforcing compliance
Pete et al 237–240.
The information in the textbook does not require further comment. Note the procedure to
be followed in the magistrates’ courts (rule 60(2)) and the consequences for the continued
failure to comply with the rules of court (rule 60(3)).
Unit 22: Offer to settle, tender, interim payments and security for
costs
Pete et al Civil Procedure 3ed (2017) 415–418; 433–434.
Uniform Rule 34; 34A. Magistrates’ courts rule 18; 18A.

A defendant in a claim sounding in money, or in a claim for the performance of an act, is at

liberty to attempt to settle such matter. A settlement is often reached by agreement
between the parties, but, where such negotiations fail, the defendant can utilise the
procedure laid down in Uniform Rule 34 in a further attempt at settling the matter.

The benefits derived from a settlement are:

a) the action is extinguished, and
b) no further costs are incurred.

Magistrates’ courts rule 18 is a mirror image of Uniform Rule 34.

An offer to settle need not be made in terms of Uniform Rule 34, but such an offer provides
no protection against costs being awarded to the other party, unless it is pleaded. This type
of offer is known as a (common-law) tender.

Another way of attempting to achieve a settlement between parties is by way of an interim

payment. The need for such payment in actions for damages in terms of the Motor Vehicle
Accident Act of 1986 arose as a result of the delay in the finalisation of litigation, which
frequently happens in actions for damages as a result of personal injuries and death.

These delays can often lead to undue financial hardship for the plaintiff and/or his or her
next of kin. Interim payments not only eliminate these hardships but can also facilitate a
reasonable and equitable settlement between the parties, and, in so doing, shorten the
litigation process.

Offer to settle
For the purposes of the above rules of court, the following expressions have the following
meanings:
• ‘‘unconditional’’ = liability in respect of the claim is accepted
• ‘‘without prejudice’’ = liability is denied.

The fact that an offer has been made may not be disclosed in court before judgment has
been given and no reference to such offer may appear on any file in the office of the
Registrar containing the papers of the case (Uniform Rule 34(10); rule 18(10)) – any party
acting contrary to these rules will be liable to have costs given against him or her, even if he
or she is successful in the action (Uniform Rule 34(13); rule 18(13)).

But the offer is brought to the attention of the judge concerned before any order as to costs
is made since the fact that an offer was made is relevant to the apportionment of costs. A
plaintiff who rejected an offer and then obtains judgment in his or her favour, but in a
smaller amount than offered by the defendant, may be penalised by an adverse costs order.

Common law tender

A party to litigation is not obliged to offer a settlement in terms of the Rules. A tender can
be made even before proceedings are instituted. If such a tender is satisfactory, it will
provide a defendant with protection against costs which accrue from the summons stage.

The concept of tender is derived from common law and broadly speaking a tender is
equivalent to payment by way of an offer of settlement. Common law requires that
payment be made in money – met opene Beurse en klinkende Gelde. The amount thus
offered in settlement need not be paid into court, and need be available only in the form of
money or a cheque. The plaintiff must be notified of the manner in which payment is
available.

If a defendant wants to use a tender to protect himself or herself against costs, he or she
must plead a tender, which must be proved like any other fact. Where a tender is raised as a
defence, it is done to show that the tender is accepted (and that, therefore, the cause of
action is extinguished) or that the plaintiff is not entitled to costs from the date on which the
tender is made. However, it is important to note that a tender must be unconditional.

If the tender is not accepted, the tendered amount must be paid back; however, if the
tender is accepted, the plaintiff may not sue for the balance of the claim.

Interim payments
Interim payments may be ordered only in an action for damages as a result of either
personal injuries or the death of a person (usually the breadwinner). Personal injuries
naturally refer to the plaintiff’s own injuries.

An application for an order for such payments may be made at any time after the lapse of
the dies induciae in respect of the intention to defend.

The damages that are relevant are confined to:

1) the plaintiff’s medical costs
2) the plaintiff’s loss of income as a result of his or her physical incapacity
3) the plaintiff’s loss of income as a result of the death of another person.

Also note the prohibition on disclosure of an order made by the court: it may not be
pleaded and it may not be disclosed to the court before the quantum of damages has been
determined (Uniform Rule 34A(8); rule 18A(8)).

Security for costs

Generally speaking, a party may request the other party by way of application to furnish
security for costs, especially when it is uncertain or doubtful whether the other party will be
in a position to pay the costs of litigation in the event that an adverse costs order is granted
against such a party. In the High Court, Uniform Rule 47 and, in the magistrates’ courts, rule
62 regulate this matter.
According to these court rules, as soon as practicable after the commencement of
proceedings, a party must deliver a notice setting out the grounds upon which such security
is claimed, and the amount demanded. If the amount of security only is contested, then the
registrar/clerk of the court may determine the amount, but if the liability to furnish security
is contested (or if the party fails or refuses to furnish security), the court must be
approached on notice for an order.

If security is then not furnished within a reasonable time, the court may dismiss any
proceedings instituted or strike out any pleading filed by the defaulting party.

As to the form of security, the registrar/clerk of the court usually directs what form it shall
take, as well as the amount and the manner in which it is to be furnished. The court has a
discretion to order security or not. The circumstances of each case will be considered, as
well as the reasonableness of the request.

In general, a plaintiff or applicant may be requested to furnish security if the plaintiff or

applicant is a foreign peregrinus; an unrehabilitated insolvent; a company or other body
corporate; a vexatious litigant. The court may also order security in certain exceptional
circumstances, such as when a party has no substantial interest in the proceedings or is a so-
called “man of straw” (when a person is being put up as a dummy plaintiff while the real
party hides behind the dummy).2323
Unit 23: Pretrial judgments
Pete et al Civil Procedure 3ed (2017) 243–251; 252–259
Uniform Rule 26; 31; 32. Magistrates’ courts rule 11; 12; 14; 21B.

A court may deliver a judgment even before hearing the matter in order to bring the matter
to a close. There are various instances in which a party may approach a court for judgment
prior to a trial, ranging from the granting of judgment against a defendant to the dismissal
of a plaintiff’s claim.

Such instances are the following:

1) where the opposite party fails to file a pleading or process within the time laid down in
the rules of court (referred to as the party ‘‘in default’’). The parties are naturally at
liberty to agree among themselves on an extension of time and the court itself may also
be approached for such an extension – Uniform Rule 27(1);
2) where a defendant does in fact enter appearance timeously, but does so merely as a
delaying tactic, knowing full well that no bona fide defence exists in which case summary
judgment is relevant;
3) where a defendant consents to judgment.

Consent to judgment
The defendant may consent to the action of the plaintiff through confession of liability
(Uniform Rule 31(1) or signing consent form Magistrate Court Rule 11(1).

In certain cases, consent is excluded. Where the Rule provides that application by the
Registrar must be made before a judge, this means that a judge sitting somewhere else
other than in open court may grant judgment.

In terms of the Divorce Act 70 of 1979 it is not permissible to consent to judgment in an

action for relief in terms of the Act or for the nullity of marriage.

Default judgment and bar

A party who fails to deliver a pleading or process document in time, is ‘‘in default’’.
Depending on the type of pleading or process, the other party can request a ‘‘default
judgment’’ immediately or another step may first have to be taken before judgment may be
requested.

When a further step is required, this step is known as the giving of a “notice of bar”.
Although judgment by default and bar are related, there is a difference in application.

Bar
Bar applies only in respect of pleadings. In the High Court and in the magistrates’ court, a
distinction is drawn between the situation where:
a) automatic bar occurs, and
b) where a notice calling for the delivery of a pleading is required first.
Rule 26 (rule 21B) clearly states that a party who fails to deliver a replication and the
ensuing pleadings, is ipso facto (automatically) barred from doing so. This means that the
party who is in default will no longer be entitled to deliver the specific pleading concerned.

In the case of all other pleadings, a party must first receive a notice of bar, and, if such party
still fails to deliver within the period indicated in the notice of bar (or within a period agreed
upon), he or she will be in default as regards the specific pleading and will ipso facto be
barred.

In the magistrates’ court, bar is dealt with in three separate rules, namely, in rule 12(1)(b) in
respect of a plea; in rule 15(5) in respect of a declaration, and in rule 21B. The bar procedure
to be followed is the same as in the High Court.

Default judgment
Default judgment is relevant in the following cases:
1) where the defendant does not timeously give notice of intention to defend;
2) where the defendant does not deliver a plea timeously;
3) where the plaintiff does not deliver a declaration timeously;
4) where a party fails to appear at the trial.

Note the following:

• in respect of failure to file a notice of intention to defend: Where the claim is
unliquidated, evidence regarding the quantum of the claim must first be led before
judgment by default will be granted. Also, where a defendant enters an appearance out of
time, but before default judgment is granted, the plaintiff cannot merely ignore this and
proceed to request judgment by default – the correct procedure is for the plaintiff to
approach the court first to have the appearance set aside as an irregular proceeding, before
any other action is considered.

• in respect of failure to file a plea: Again, evidence regarding an unliquidated claim is

required before a judgment will be granted. Also, a notice of bar must be delivered first,
before default judgment is requested.

• in respect of failure to file a declaration: Here, the plaintiff fails to deliver a pleading and,
because a pleading other than a replication or one of the ensuing pleadings is in issue, a
notice of bar must first be served on the plaintiff. Should the plaintiff then fail to deliver a
pleading, he or she will be in default and will ipso facto be barred from doing so.

• failure to appear at trial: Note the various types of orders that may be granted. The rules
of court make provision that a party may apply to have a default judgment set aside.

The court has a discretion whether to set aside a judgment. The defendant must also
advance sound reasons for the failure concerned. The courts have held that ‘‘sound
reasons’’ mean that
1) a reasonable explanation must be given for the failure;
2) the application must be bona fide and not merely a delaying tactic;
3) the defendant must have a bona fide defence (See Grant v Plumbers (Pty) Ltd 1949 2 SA
470 (O) 476–477; Coetzee v Nedbank Ltd 2011 2 SA 372 (KZD) 373.)

Summary judgment
The summary judgment procedure is designed to protect a plaintiff who has a claim of a
particular nature, against a defendant who has no valid defence to his or her claim, and who
has simply entered an appearance to defend for the purpose of gaining time and preventing
the plaintiff from obtaining the relief he or she seeks and deserves.

Summary judgment should not be granted lightly and the courts will deprive a defendant of
his or her defence in this manner only in clear cases. The courts are cautious and
conservative in this regard because of the audi alteram partem rule since summary
judgment procedure does to a certain extent infringe on this principle.

Section 129 of the National Credit Act of 2005 contains certain requirements that must be
met before any ‘‘legal proceedings’’ may commence to enforce a credit agreement.

Rule 32(1) and rule 14(1) provide the following as grounds for summary judgement:
a) based on a liquid document (cheques, mortgage bonds, acknowledgement of debt);
b) for a liquidated amount in money;
c) for delivery of specified movable property; or
d) for ejectment,
together with any claim for interest and costs.

These types of claims fall within the definition of a ‘‘debt or liquidated demand’’.

Rule 32(1) refers to a defendant’s notice of intention to defend, which indicates that an
action has already been instituted. This application is thus made within the framework
of existing proceedings. An application for summary judgment should follow from a simple
summons only.

The authors of the Study Guide are aware that in some divisions a new practice has
emerged of allowing an application for summary judgment where the action has been
instituted by means of a combined summons and do not recommend this practice.

The procedure
This done by way of application moved in motion court in terms of High Court rule 32(2) and
Magistrates’ Courts rule 14(2). The plaintiff 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 plaintiff loses the opportunity to apply for summary
judgment.

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 giving the defendant at least 10 days’ notice of the hearing. The plaintiff
will obtain the date of the hearing from the registrar before serving the application on the
defendant.
If the defendant responds by way of affidavit, this should be delivered by ‘noon of the day
but one’ preceding the hearing: at least by noon two days before the hearing.
If the matter is not dealt with by the parties agreeing to the usual order, argument will be
heard at the hearing.

The supporting affidavit

The notice of application must be supported by an affidavit deposed to by the plaintiff
himself or by any other person who is able to swear positively to the facts. It is not
sufficient, in cases where the deponent is a person other than the plaintiff, for the deponent
simply to state that he is able to swear positively to the facts but 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, affidavits by more than one
person are required. If the affidavit is deposed to by someone acting in a representative
capacity such as the managing director of a company, the affidavit should also state that he
has been duly authorised and this authorisation needs to be obtained. In Rees and Another
v Investec Bank Ltd, the Supreme Court of Appeal explained:
The mere assertion by a deponent that he can swear positively to the facts (an
assertion which merely reproduces the wording of the Rule) is not regarded as being
sufficient, unless there are good grounds for believing that the deponent fully
appreciated the meaning of these words.... In my view, this is a salutary practice.
While undue formalism in procedural matters is always to be eschewed, it is
important in summary judgment applications under Rule 32 that, in substance, the
plaintiff should do what is required of him by the Rule. The extraordinary and drastic
nature of the remedy of summary judgment in its present form has often been
judicially emphasised… The grant of the remedy is based upon the supposition that
the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus or
bad in law. One of the aids to ensuring that this is the position is the affidavit filed in
support of the application; and to achieve this end it is important that the affidavit
should be deposed to either by the plaintiff himself or by someone who has personal
knowledge of the facts.

Furthermore in Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and

Another, it was held that:
(F)irst-hand knowledge of every fact which goes to make up the applicant’s cause of
action is not required, and ... where the applicant is a corporate entity, the deponent
may well legitimately rely on records in the company’s possession for their personal
knowledge of at least certain of the relevant facts and the ability to swear positively
to such facts.

The affidavit 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 affidavit must:
a) verify the cause of action and the amount claimed (if any amount is claimed);
b) state that in his opinion there is no ‘bona fide’ defence to the action; and
c) state that notice of intention to defend has been delivered solely for the purpose of
delay.

The words above are literally all that the plaintiff need say in his affidavit and it is advisable
to stick very closely to the words used in the rule. ‘Verify’ does not mean that the plaintiff
should expand on and explain his cause of action in more detail, and it certainly does not
mean that he should provide any evidence in support of the allegations contained in the
particulars of claim. If he does, such evidence will be struck out. No annexures to the
affidavit are permitted, except that where the claim is based on a liquid document, a copy
must be annexed.

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:
a) Give to the plaintiff to the satisfaction of the registrar for any judgment, including costs,
security which may be given. This response only applies to a money claim 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 plaintiff will not ultimately suffer from the
delay. The defendant is in effect, ‘putting his money where his mouth is’. Security may
be given by way of a bond of security obtained from a financial institution or else the
defendant’s attorneys may stand surety. The charges levied by financial institutions for
bonds of security are prohibitive unless the defendant has fairly strong financial
resources. An attorney would be foolish to stand surety unless he is placed in funds or
the defendant he is representing is a solid business or public institution;
b) Satisfy the court by or, with the leave of the court, by oral evidence, that he has a bona
fide defence to the action. The affidavit 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 affidavit or oral evidence must disclose fully the nature and grounds of the defence
and the material facts relied upon for the defence:, 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 but he does not 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 plaintiff’s claim: at the
summary judgment stage, the court is not interested in whether the plaintiff’s or the
defendant’s version of events is more probable.
As long as the defendant’s version, if proved true, would amount to a valid defence to
the claim, it qualifies as a bona fide defence. The affidavit, therefore, need never provide
more information than a plea, and as High Court rule 18(4) will not apply, the defendant
may even get away with less, provided that the nature and grounds of his defence are
 disclosed. The defence raised must go to the merits of the application. Technical
defences are not permitted.

This is the favourite method chosen by defendants for opposing summary judgment
applications, as furnishing security will incur bank charges or require that funds be tied up
until the close of trial.

On the negative side, the defendant must hurriedly set out his defence in writing on oath. If
he departs from the contents of the affidavit, either in the plea or later in the witness box at
trial, the plaintiff’s legal representatives are in possession of superb material with which to
cross-examine him.

If the defendant either gives security or satisfies the court that he has a bona fide defence,
the court will give him leave to defend, and the matter will proceed as if there had been no
application for summary judgment. The time within which any further pleading must be
filed is deemed to run from the date on which the court grants leave to defend. If the
defendant does not provide security or satisfy the court that he has a bona fide defence, the
court has the discretion to grant summary judgment against the defendant in favour of the
plaintiff.

The court hearing

The plaintiff may adduce no evidence other than that contained in the affidavit
accompanying his application. That affidavit, 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 viva voce evidence or by affidavit. This means that the hearing is restricted to an
argument in relation to whether – having regard to the affidavits or oral evidence – the
defendant has failed to disclose a bona fide defence.

In all the circumstances, the odds are stacked against a court granting summary judgment
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.

The usual order

When summary judgment has been applied for and the plaintiff has received an affidavit
from the defendant that discloses a defence, the plaintiff’s attorney is unlikely to persist in
attempting to obtain summary judgment. 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 plaintiff’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.

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 plaintiff. 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 plaintiff 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 plaintiff, 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 plaintiff 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 plaintiff 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 plaintiff may not agree with the validity of the defence, but the plaintiff’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 affidavit, the defendant will usually proceed to allege that the plaintiff 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 plaintiff 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.

Because of the need to balance the stringent nature of summary judgment against the
defendant’s right to a hearing, a summary judgment application is relatively easy to defeat.
This is especially so if the defendant is willing to put forward a bogus defence in order to
keep the plaintiff at bay.

For this reason, rule 32(9)(b) of the High Court Rules and Magistrates’ Courts rule 14(10)(b)
deal with the situation in which summary judgment is refused, but it subsequently becomes
clear at the trial that the defence put forward was bogus or unreasonable, and that
summary judgment ought to have been granted. The court may show its displeasure with
the defendant by ordering him to pay attorney and client costs for the entire action.

Summary dismissal
Summary dismissal is the counterpart of the summary judgment procedure and affords the
defendant an inexpensive and speedy method of dismissing the plaintiff’s action if it is
vexatious or frivolous. The High Court has inherent jurisdiction to prevent an abuse of its
process.
Unit 24: Preparation for trial
Pete et al Civil Procedure 3ed (2017) 262–280; 284–294
Uniform Rule 21; 35; 36; 37; 38(2). Magistrates’ courts rule 22; 23; 24(1); 25; 27(5);
Magistrates’ Courts Act 32 of 1944 section 54(1).

The pleadings serve to delimit the issues between the parties, and after close of pleadings
adjudication of the crystallised dispute between the parties can then occur at the trial.
However, the parties are obliged to disclose to each other certain aspects of the evidence
they wish to place before the court before the matter can go to trial.

The aim of the pre-trial procedures is to facilitate an orderly and speedy trial and to prevent
the parties from being taken by surprise at the trial by unexpected evidence. These various
steps in preparation for trial may serve one, or both, of two functions: they are either taken
to obtain information from another party to the action or they are taken to allow the party
taking them to adduce certain evidence.

We deal with two broad categories: steps that may be taken both before and after the close
of pleadings and steps that may be taken only after the close of pleadings.

You are expected to know the purpose of these steps, when they may be taken and the
consequences for non-compliance.

Set-down of cases for trial and removal of cases

The following is sufficient for examination purposes. Read intently Pete et al for an
understanding of the process, and note the difference in the position between the High
Court and magistrates’ courts procedure.

The plaintiff is dominus litis and consequently has the right to apply for set-down in the first
instance. After pleadings have closed, the plaintiff may, by giving notice to the Registrar (or
clerk of the court) forthwith set down the case on the roll for the allocation of trial dates. If
the plaintiff neglects to do so within a certain period after close of pleadings, the defendant
may set the matter down in a similar manner.

Unlike the position in a magistrates’ court, in the High Court set-down is governed by the
rules of the various divisions, and not by the Uniform Rules of Court. Note the different
procedures followed in these courts.

Steps that may be taken both before and after close of pleadings
Medical examinations
Read intently Pete et al 273–276. Magistrates’ courts rule 24 contains similar (albeit more
detailed) provisions to Uniform Rule 36.
Note that the rules apply only where a party to an action claims compensation or damages
in respect of an alleged physical injury, and if the party’s state of health is relevant in the
determination of the amount.
Uniform Rule 36(8)(a) provides that any party causing such an examination to be
undertaken must ensure that the person conducting the examination provides a complete,
written report on his or her findings, and must, on request, furnish any other party with a
complete copy of this report (Rule 36(8)(b)); and must bear the expense of the examination
(Rule 36(8)(c)).

Examination of inanimate objects

This examination is relevant where the condition of the inanimate object may have a
bearing on deciding a point of dispute in the action.

Medical reports, hospital records, X-ray photographs and similar documents

Any party who is entitled to demand a medical examination, may, by written notice, require
that the abovementioned documents be made available to him or her if they are relevant to
the assessment of damages.

Expert evidence
No party may, except with the leave of the court or with the consent of all parties to the
action, make use of expert evidence, unless the provisions of Uniform Rule 36(9) have been
complied with. Study this subrule with regard to the requirements concerned as set out
in Pete et al 284–285.

The purpose of the abovementioned provisions relating to expert evidence is to prevent a

party being surprised at the trial and to give a party the opportunity of arriving in court
prepared to rebut the expert evidence presented by the opposite party. If the expert
witnesses themselves get together to exchange opinions, this could shorten the duration of
the trial.

Tender of plans, diagrams, models and photographs

These documents may not be used unless the requirements have been complied with
relating to notice, inspection and admission – Uniform Rule 36(10).

Other productions
Uniform Rule 35(12) allows a party to require the production of documents and tape
recordings referred to in pleadings or affidavits and Uniform Rule 35(14) provides that a
party must, for purposes of pleading, make specified documents and tape recordings
available for inspection when requested to do so and after appearance has been entered.

Steps that may be taken only after the close of pleadings

Request for further particulars for trial
Pete et al 277–279.

The request for further particulars for trial, and the reply to it, does not form part of the
pleadings that are exchanged; only particulars that are, strictly speaking, necessary to
prepare for trial may be requested. This does not mean that the requesting party is entitled
to know what evidence the other party is going to lead, but only which facts will be
presented.
The purpose of the request is to inform a party more fully about what the opponent intends
to prove and to put him or her in a position to prepare for the trial and to prevent him or
her from being taken by surprise by evidence given against him or her, which he or she
could not reasonably anticipate would be produced (Thompson v Barclays Bank DCO 1965 1
SA 365 (W)).

Note the prescribed dies induciae for both the request and the reply. If a party fails to
furnish the particulars timeously or sufficiently, the opposing party may approach the court
for an order for their delivery, or for the dismissal of the action or the striking out of the
defence. The court will then make an appropriate order.

The pre-trial conference

Study Pete et al 290–295.

The pre-trial conference is a very important step in trial preparation but it is only
compulsory in the High Court (Uniform Rule 37). In the magistrates’ court (rule 54) it may be
ordered by the court or requested by a party.

Uniform Rule 37 contains numerous peremptory provisions that indicate that a serious
effort is being made to achieve the purpose of shortening the trial. Rule 37(9)(a) provides
that, at the trial, the court must consider whether a special order as to costs should not be
made against a party, or his or her attorney, owing to failure to attend the conference, or
because there has been substantial failure to promote the effective disposal of litigation.

Uniform Rule 37(4) to (7) so that you are aware of the obligations with which the parties
must comply before, during and after the pre-trial conference.

Discovery of documents and tape recordings

Pete et al 266–271 in broad terms and Uniform Rule 35 and magistrates’ courts rule 23
intently. You need to know when discovery takes place; what has to be discovered; the
consequences of failure to discover.

Save for the procedure created by Uniform Rule 35(14), discovery may not be requested
until after the close of pleadings. The purpose of discovery is to ascertain from other parties
to the action what documents and tape recordings are in existence that might be relevant to
the action.

This enables a party to prepare fully and properly for trial and prevents him or her from
being taken by surprise. The party thus knows what documents are in existence that may
help him or her establish his or her own case, or to break down the case of his or her
adversary, or what documents may help an opponent, or weaken his or her own case.

Discovery helps the parties and the court to discover the truth and thus to reach a fair
decision/judgment. It is important to ensure that discovery is not abused by parties, so that
its important role is not diminished.
Discovery is obtained by written notice addressed to any party to the action to make
discovery under oath within 20 days of such request. Discovery relates to all documents and
tape recordings relevant to any matter in dispute in the action. Discovery is made by
disclosing the necessary information in an affidavit – known as a ‘‘discovery affidavit’’.

A party may validly object to the discovery of a document if he or she is able to claim
privilege for its contents, e.g., communications made ‘‘without prejudice’’, documents that
fall under legal professional privilege, incriminating documents and documents that affect
the security of the state. Privilege is usually seen as a matter falling within the law of
evidence.

Although the definition of “tape recording” in Uniform Rule 35(5) and magistrates’ courts
rule 23(16)’ is wide enough to cover all types of material on which visual images, sound and
other information may be stored, the precise position with regard to all electronically stored
information is unclear.

Today, most documents are digitally stored and are often never printed. This, of course,
poses challenges, especially with regard to the interpretation of a ‘‘document’’ for purposes
of discovery.

Inspection of documents and tape recordings

Once a party has received the discovery affidavit from an opponent, he or she will be
anxious to discover precisely what the documents are, and what they contain. To achieve
this, the party so discovering may be required in terms of Uniform Rule 35(6) and rule 23(6)
to make available the documents disclosed (with the exception, of those documents that
the party discovering may validly object to disclosing) for inspection and copying. The party
on whom the notice is served may choose the time and place of production.

Specifying documents and tape recordings to be used at trial

Pete et al 271–272.

Production of documents and tape recordings

Pete et al 272–273, and simply note the objective of the step.

Securing the necessary evidence

Advice on evidence
On commencement of the preparation phase, it is advisable to request advice concerning
evidence for the purposes of the trial from the advocate who will be appearing in the
proceedings. Copies of all pleadings and other relevant documents are forwarded to the
advocate. After considering them, the advocate will indicate whether the available evidence
is adequate, how it must be proved at the trial, and which witnesses will be necessary.
Usually, the advocate also indicates the chances of success in the action.

Ways in which evidence may be placed before the trial court

Study Pete et al 279–283; 287–290 in broad terms. The information below is
sufficient for examination purposes.
1) Unless special circumstances exist, a witness must give evidence viva voce and in open
court (Uniform Rule 38(2) – there is no corresponding magistrates’ courts rule, although the
same principle applies).

If a person is within the Republic, such a person can be compelled to attend any High Court
in the Republic by issuing a subpoena from the office of the Registrar and by having it served
on the witness required, by the sheriff (Uniform Rule 38(1); rule 26(1)).

Where a witness is required by a subpoena to make available at the trial a document,

instrument or object that is in his or her possession, or is under his or her control, such a
subpoena is termed a subpoena duces tecum.

A witness duly subpoenaed to appear in court and who fails to do so (or fails to remain
present) may be arrested after the court authorises a writ for his or her arrest (s 35 of the
Superior Courts Act, 2013). In the magistrates’ court, a witness failing, without lawful
excuse, to comply with a subpoena may be fined a prescribed amount and, in default of
payment, face imprisonment for a period not exceeding three months (Magistrates’ Courts
Act 32 of 1944 s 51(2)(a)).

2) If a witness cannot give evidence in person, and if the necessary circumstances are
present, he or she may be allowed to give evidence in the following ways:
a) on commission (commission de bene esse)
You should know when a court will order this, in what way evidence is given, and in what
way such evidence is placed before the trial court. Note that application must be made to
the court for evidence to be given in this way, showing that it is convenient and in the
interests of justice to obtain evidence in this manner.

b) by way of interrogatories
Interrogatories differ from commissions de bene esse in that, while in the latter case
evidence is given generally, in the former case specific evidence only is taken, and for this
purpose specific questions are formulated, which must be put to the witness by the
commissioner. This method is used if a person resides outside the court’s jurisdiction or is
outside this area at that stage (s 40 of the Superior Courts Act, 2013; s 52 of the Magistrates’
Courts Act 32 of 1944).

c) by way of affidavit
Study Uniform Rule 38(2) (no equivalent rule in the magistrates’ courts rules) in broad
outline so that you know when evidence will be taken down by way of affidavit, and
when such practice will not be permitted.
The court has a discretion to allow this, and factors such as the costs involved in bringing a
witness from overseas, illness and the nature of the evidence to be presented are relevant
for the court’s consideration. The courts are reluctant to grant such leave, and are usually
disposed to do so only when the evidence so required is of a formal nature.
Unit 25: The trial and costs
COMPULSORY READING MATERIAL
Pete et al Civil Procedure 3ed (2017) 298–304; 307–309; 326–335
Uniform Rule 39; Magistrates’ courts rule 29.

Conduct of the trial

The High Court and the magistrates’ courts are of record, and a record must be kept of all
evidence, arguments and judgments. This record of the court proceedings is usually
mechanically recorded. However, the record is not transcribed unless the court so directs,
or unless one of the parties requests a transcript.

Re-opening a case already closed

Once a party’s case has been closed, it may not be reopened without the permission of the
court and it has to be before judgment and 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:
a) evidence has emerged which was not available or could not reasonably be obtained
before closing their case, or, if the evidence was available and obtainable, he must
give an acceptable explanation as to why it was not adduced before. Leave to reopen
the case will not be granted if it appears to the court that the evidence was withheld
intentionally; and
b) the evidence which is proposed to be led is material and likely to be weighty but it
need not be so weighty that it would, if believed, be practically conclusive.

Judgment
At the close of a trial, the court makes a decision based on the law and the evidence
presented to it called a judgment. A judgment may be distinguished from an order of the
court because a judgment is the decision of the court in response to the relief claimed in an
action while an order is the decision of the court in response to the relief claimed in an
application or by some other procedure such as an interlocutory hearing in the course of a
trial.

Jones and Buckle indicate that a judgment has two functional components:
a) It is a command to the party at which it is aimed, coupled in an appropriate case with a
warrant to the sheriff to enforce the command;
b) It regulates the legal relationship between the parties and settles their mutual rights and
obligations, to the extent necessary for its grant.

Although wilful disobedience of an order made in civil proceedings is a criminal offence, the
practice in the High Court is to bring an application on notice of motion for committal for
contempt of court in order to enforce obligations under an order or under ad factum
praestandum (prohibitory interdict).

There is no provision in the High Court Rules or the Superior Courts Act directly relating to
judgment following upon a trial as the authority of the High Court to grant judgments comes
from common law.
Judgment in the Magistrates’ Courts is provided for by s 48 of the Magistrates’ Courts Act.

Judgment at the close of the plaintiff’s case

The defendant is entitled to apply to the court for absolution from the instance at the close
of the plaintiff’s case: if granted, the action is dismissed, but judgment is not entered for
either party. If the plaintiff 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 addresses the court; the plaintiff answers and
the defendant replies.

The court will only grant absolution from the instance if the plaintiff has not managed to
adduce sufficient evidence upon which a reasonable person might find in favour of the
plaintiff. In making its decision, the court normally will not have regard to the credibility of
witnesses unless the plaintiff’s witnesses are obviously lying or have broken down to such
an extent that no reasonable person would place reliance upon them.

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 and the court may hand down one of three judgments:
a) Judgment for the plaintiff;
b) Judgment for the defendant; or
c) Absolution from the instance.

The judgment after the close of the defendant’s case depends on how the parties discharge
the onus upon each of them. Overall, the onus rests upon the plaintiff to prove his case on a
balance of probabilities and 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 only grant absolution from the instance.

A judgment of absolution from the instance essentially means that neither the plaintiff nor
the defendant has been successful in convincing the court that the balance of probabilities
favours them and may occur in two circumstances:
a) Where the evidentiary burden is on the plaintiff and neither the plaintiff nor the
defendant has been able to establish a case or defence on a balance of probabilities; or
b) 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, the court will never grant absolution
from the instance at the end of the whole case but judgment will be for the defendant
if the onus is discharged, and for the plaintiff if it is not discharged.

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.

In Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd, the Supreme Court of
Appeal, in dealing with the interpretation of the order of the court a quo held:
The flaw in the argument, as I see it, is that it loses sight of the principle that a court
order, as in the case of any other document, must be read in the context of the
judgment as a whole and particularly in the light of the court’s reasons for that order
(see e g Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 304D–
F). Approached in this way, it is clear to me that the court a quo never intended to
and never did afford Newlands leave to appeal on the just and equitable issue or, for
that matter, on the issue whether or not the share sale agreement could be
characterised as contra bonos mores.

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 plaintiff 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;
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, e.g., 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’.

With regard to a judgment of absolution from the instance in terms of s 48(c), it is an order
granted either at the end of the plaintiff’s case or at the end of the whole case dismissing
the plaintiff’s claim. Its effect is to leave the parties in the same position as if the case had
never been brought: the judgment of absolution from the instance does not amount to res
judicata and the plaintiff may, if he so wishes, proceed afresh.

Costs
When the court has delivered its judgment on the main issues, it has to consider the
question of costs. A court has a wide discretion when awarding costs. That a party who loses
a case will automatically be ordered to pay the winner’s costs is not a foregone conclusion.

Factors that play a role and are considered by the court include the conduct of the parties
and any fact that may be relevant. The court is guided by the question as to what order
regarding costs would be correct and equitable in the circumstances of a specific case.

The purpose of awarding costs to a successful litigant is to ‘‘indemnify’’ him or her for the
expenses actually incurred for having been unjustly compelled to initiate or defend litigation
and an award of costs seldom, if ever, fully compensates a litigant for such expenses.

The ‘‘successful party’’ is not necessarily the party in whose favour judgment is given and
the court will attempt to determine which of the parties has been substantially successful
(Swanepoel v Van Heerden 1928 AD 15).

It is also possible that, in exercising its discretion, the court deprives the successful party of
his or her costs wholly or partly, should grounds exist to justify such an order.

Attorney-and-client costs
Study Pete et al 330–331; 333–334.
A court will not lightly grant attorney-and-client costs. The most common ground on which a
court will order a party to pay the other party’s attorney-and-client costs is:
1) where the former party has been guilty of dishonesty or fraud in conducting the suit, or
2) where his or her motives have been vexatious, reckless or malicious, or
3) where he or she has seriously misconducted himself or herself in the course of the
proceedings.

Party-and-party costs
Study Pete et al 332–333.
Party-and-party costs are those costs that have been incurred by a party to legal
proceedings and which the court orders the other party to pay him or her. These differ from
attorney-and-client costs, in that they do not include all the costs that the party to litigation
may have incurred, but only such costs, charges and expenses as were incurred in the actual
litigation and are allowed by the Taxing Master.

Generally, costs incurred before the issue of summons are not considered to be party-and-
party costs, e.g., the cost of obtaining counsel’s opinion as to a party’s prospect of success in
a contemplated action.

Costs de bonis propriis

Study Pete et al 335.
This cost order is relevant only where a person acts in a representative capacity. This is an
exceptional order, and, unless there are very good reasons, it will not be given.

4
Unit 26: The variation or rescission of judgments
Pete et al Civil Procedure 3ed (2017) 310–320
Uniform Rule 42; Magistrates’ courts rule 49; Magistrates’ Courts Act 32 of 1944 section 36.

A court’s judgment becomes final and unalterable by it under common law when the
judgment is pronounced by the judicial officer and the judicial officer becomes functus
officio (‘‘having performed his or her office’’: the court has exercised its jurisdiction fully and
finally, and therefore, its authority over the matter has come to an end).

But a judgment might sometimes not reflect the intentions of either of the parties to an
action, or the judicial officer:
1) a judgment might be given in the absence of a party who is affected thereby;
2) the judgment could be ambiguous;
3) the judgment could contain a patent error; or
4) the judgment could have been granted as a result of a common mistake.
In such cases, a party to the action may request that the judgment be varied or set aside in
terms of certain statutory provisions or in terms of the common law.

The following is a schematic representation of this:

The rescission or variation of judgments in the magistrates’ court

Judgments given by a magistrates’ court may only be statutorily rescinded in terms of
section 36. Note that decrees, orders and rules are also regarded as judgments in terms of
the definition of a judgment.

1) There are many instances in which a court may grant judgment in the absence of the
defendant in terms of the provisions of subsection 36(1)(a), e.g.,
a) judgment may be granted in the case of a failure to file appearance to defend (rule 12);
b) the filing of consent to judgment (rule 11);
c) failure to plead (rule 12(1)(b));
d) non-compliance with a court order regarding compliance with the rules of court (rule
60).
The case of De Allende v Baraldi t/a Embassy Drive Medical Centre 2000 1 SA 390 (T) is
instructive regarding section 36(1)(a). The court found that, if a practitioner represents a
natural or artificial person who is a party to litigation, that person, even if he or she is not
physically present in court, is not regarded as ‘‘absent’’ as that is what is usually understood
by legal representation.

Thus, when a judgment is granted against a litigant who is not physically present but who is
represented at the proceedings by a practitioner, the court is not authorised in terms of
section 36(1)(a) to thereafter vary or rescind the order for this reason.

2) The provisions of subsections (b) and (c) are clear and require no further comment.

3) To determine which judgments may, in terms of subsection (d), be rescinded or varied,

one must first determine whether an appeal lies from such a judgment. The judgments
affected by the subsection are those that do not have the effect of a final judgment.

The rescission or variation of judgments in the High Court

Study Pete et al 310–313 in broad outline only.
In the High Court, a judgment may be set aside in terms of the common law or Rule 42. The
grounds upon which a judgment will be set aside in terms of the common law are:
1) Fraud: a judgment procured by one of the parties cannot be allowed to stand but it must
be shown that the successful party was a party to the fraud or perjury;
2) New documents: if new documents come to light that, had they been available at the
trial, would have entitled the party claiming relief to judgment in his or her favour, the
judgment may be set aside in certain circumstances, e.g., where judgment was given on
a particular will and a later will is discovered;
3) Error: where fraudulent misrepresentation gives rise to such error;
4) Irregularities in procedure: judgment given in the absence of a party (e.g. due to lack of
service) may be set aside.

Statutory provisions governing rescission and variation are contained in Uniform Rule 42:
1) The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected, rescind or vary—
(a) an order or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby;
(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but
only to the extent of such ambiguity, error or omission;
(c) an order or judgment granted as the result of a mistake common to the parties.
(2) Any party desiring any relief under this rule shall make application therefor upon notice
to all parties whose interests may be affected by any variation sought.
(3) The court shall not make any order rescinding or varying any order or judgment unless
satisfied that all parties whose interests may be affected have notice of the order proposed.

The procedure for the rescission or variation of judgments

In terms of rule 49, in the magistrates’ courts, a party wishing to have a judgment rescinded
or varied must bring a substantive application on notice to the other parties. Rule 49
contains special provisions governing applications to set aside judgments.
Rule 49
(1) A party to proceedings in which a default judgment has been given, or any person
affected by such judgment, may within 20 days after obtaining knowledge of the judgment
serve and file an application to court, on notice to all parties to the proceedings, for a
rescission or variation of the judgment and the court may, upon good cause shown, or if it is
satisfied that there is good reason to do so, rescind or vary the default judgment on such
terms as it deems fit: Provided that the 20 days' period shall not be applicable to a request
for rescission or variation of judgment brought in terms of subrule (5).
(2) It will be presumed that the applicant had knowledge of the default judgment 10 days
after the date on which it was granted, unless the applicant proves otherwise.
(3) Where an application for rescission of a default judgment is made by a defendant against
whom the judgment was granted, who wishes to defend the proceedings, the application
must be supported by an affidavit setting out the reasons for the defendant's absence or
default and the grounds of the defendant's defence to the claim.
(4) Where an application for rescission of a default judgment is made by a defendant against
whom the judgment was granted, who does not wish to defend the proceedings, the
applicant must satisfy the court that he or she was not in wilful default and that the
judgment was satisfied, or arrangements were made to satisfy the judgment, within a
reasonable time after it came to his or her knowledge.
(5) (a) Where a plaintiff in whose favour a default judgment was granted has agreed in
writing that the judgment be rescinded or varied, either the plaintiff or the defendant
against whom the judgment was granted, or any other person affected by such judgment,
may, by notice to all parties to the proceedings, apply to the court for the rescission or
variation of the default judgment, which application shall be accompanied by written proof
of the plaintiff's consent to the rescission or variation.
(b) An application referred to in paragraph (a) may be made at any time after the plaintiff
has agreed in writing to the rescission or variation of the judgment.
(6) Where an application for rescission or variation of a default judgment is made by any
person other than an applicant referred to in subrule (3), (4) or (5), the application must be
supported by an affidavit setting out the reasons why the applicant seeks rescission or
variation of the judgment.
(7) All applications for rescission or variation of judgment other than a default judgment
must be brought on notice to all parties, supported by an affidavit setting out the grounds on
which the applicant seeks the rescission or variation, and the court may rescind or vary such
judgment if it is satisfied that there is good reason to do so.
(8) Where the rescission or variation of a judgment is sought on the ground that it is void ab
origine or was obtained by fraud or mistake, the application must be served and filed within
one year after the applicant first had knowledge of such voidness, fraud or mistake.
(9) A magistrate who of his or her own accord corrects errors in a judgment in terms of
section 36(1)(c) of the Act shall, in writing, advise the parties of the correction.

In the High Court, the procedure to be followed differs, depending on whether setting aside
in terms of the common law or variation in terms of Uniform Rule 42 is sought. The correct
procedure to be followed when setting aside a judgment in terms of the common law, is by
means of the action procedure as Rule 42 specifically provides that where variation of a
judgment is sought in terms of Rule 42, the application procedure must be followed and the
provisions of Uniform Rule 6 which govern the application procedure in general must be
complied with.
Unit 27: Review
Uniform Rule 53; section 22(1) of the Superior Courts Act, 2013

The meaning of the term “review”

The meaning of the term ‘‘review’’ was laid down as follows by Innes CJ in Johannesburg
Consolidated Investment Company Ltd v Johannesburg Town Council 1903 TS 111:
In its... most usual signification it [review] denotes the process by which, apart from
appeal, the proceedings of inferior Courts of Justice, both Civil and Criminal, are
brought before this Court in respect of grave irregularities or illegalities occurring
during the course of such proceedings... But there is a second species... Whenever a
public body has a duty imposed upon it by statute disregards important provisions of
the statute, or is guilty of gross irregularity or clear illegality in the performance of
the duty, this Court may... review the proceedings complained of... Then... the third
signification... The Legislature has... conferred... a power of review (of certain
statutory bodies).

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) creates a fourth situation
where review may occur. This Act was passed to give effect to section 33 of the Constitution
which requires administrative actions to be lawful, reasonable and procedurally fair.

Because ‘‘administrative action’’ refers to a decision taken or a failure to take a decision by

(a) an organ of state, or (b) a natural or juristic person when exercising a public power or
performing a public function in terms of an empowering provision that adversely affects a
person’s rights, review in terms of this Act falls outside the scope of this module.

As far as the third meaning is concerned, suffice it to state that, in addition to review under
the common law, various statutes also make provision for the review of decisions taken by
tribunals or officials.

In general, it can be said that review is essentially concerned with the decision-making
process (as opposed to the decision per se). Therefore, the question is whether the
procedure followed is regular and valid.

The distinction between appeal and review

Appeal and review may be distinguished as follows:
1) An appeal is aimed at the result of the trial, whereas a review is aimed at the method by
which the result is obtained. Of course, the ultimate aim of both forms of proceedings is
to reverse the judgment of the court a quo. The distinction lies rather in the methods
employed to achieve this end:
In an appeal, the appellant accepts that the record correctly reflects the proceedings in
the lower court (if he does not and still wishes to appeal, he must have the record
amended) and that the proceedings were conducted properly. He alleges that the
presiding officer made false deductions and findings of fact on the evidence (although
acting perfectly properly) or that his or her legal conclusions were incorrect.
 The very object of a review is to show that the proceedings were improperly conducted,
and it seeks to have the judgment set aside on these grounds without being concerned
with the merits of the case;
2) The second distinction (really another facet of the first) is that, in the case of an appeal,
the parties are restricted to the record of the proceedings and may not go beyond it,
whereas in the case of a review, the parties may, by virtue of the nature of review, go
beyond the record;
3) The third distinction is that the rules governing civil appeals usually provide that an
appeal must be noted within a stipulated number of days and that the steps to
prosecute it must be taken within a further limited period while with reviews there is
generally no fixed period within which the proceedings must be brought, except within a
‘‘reasonable time’’. What is ‘‘reasonable’’ will depend upon the facts of each case. The
reason for there being no fixed period is that an irregularity might come to light months
or even years after the case has been tried;
4) The final (and most obvious) distinction is that the procedure differs: an appeal must be
noted and prosecuted according to statutory provisions supplemented by the rules of
court while reviews are brought on notice of motion.

Grounds for review

Grounds for reviewing the proceedings of lower courts
Section 21(1)(b) of the Superior Courts Act, 2013, authorises the divisions of the High Court
to review the proceedings of lower courts and section 22 of this Act lays down uniform
grounds for reviewing the proceedings of any lower court.

The following grounds for review are mentioned in section 22(1):

a) absence of jurisdiction on the part of the court;
b) interest in the cause, bias, malice or corruption by the presiding judicial officer;
c) gross irregularity in the proceedings;
d) the admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence.

The meaning of “gross irregularity”

The term ‘‘gross irregularity’’ refers not only to incidents in the courtroom, but also to any
irregularity that prejudices any of the parties. E.g., if a court makes a ruling against a party
without giving him or her the opportunity to present his or her case, then this will lead to a
gross irregularity in the proceedings.

Likewise, if a court conducts an inspection in loco in the absence of the parties, the court’s
conduct will amount to a gross irregularity. A gross irregularity must be prejudicial before
review proceedings will proceed.

Grounds for reviewing the proceedings of quasi-judicial bodies (review in terms of the
common law)
Superior courts have inherent jurisdiction to entertain all causes arising within their areas of
jurisdiction. If a statutory body (e.g. a liquor licensing board, which is not a court per se)
does not conduct its proceedings in a fair and reasonable manner, a superior court will have
the inherent jurisdiction necessary to correct such shortcomings. This type of review is often
termed a ‘‘review under the common law’’ as opposed to a review of inferior court
proceedings authorised by statute.

A superior court has jurisdiction to review the proceedings of any body or tribunal
empowered to perform statutory duties, as well as to review the proceedings of quasi-
judicial bodies.

Procedure on review
The procedure pertaining to review is set out in Uniform Rule 53. This Rule provides that
motion proceedings must be used when the review of a decision of any inferior court or
quasi-judicial body is sought.

Rule 53:
(1) Save where any law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior court and of any tribunal, board or officer performing
judicial, quasi-judicial or administrative functions shall be by way of notice of motion
directed and delivered by the party seeking to review such decision or proceedings to the
magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer,
as the case may be, and to all other parties affected—
(a) calling upon such persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be,
to despatch, within 15 days after receipt of the notice of motion, to the registrar the record
of such proceedings sought to be corrected or set aside, together with such reasons as he or
she is by law required or desires to give or make, and to notify the applicant that he or she
has done so.
(2) The notice of motion shall set out the decision or proceedings sought to be reviewed and
shall be supported by affidavit setting out the grounds and the facts and circumstances upon
which applicant relies to have the decision or proceedings set aside or corrected.
(3) The registrar shall make available to the applicant the record despatched to him or her as
aforesaid upon such terms as the registrar thinks appropriate to ensure its safety, and the
applicant shall thereupon cause copies of such portions of the record as may be necessary
for the purposes of the review to be made and shall furnish the registrar with two copies and
each of the other parties with one copy thereof, in each case certified by the applicant as
true copies. The costs of transcription, if any, shall be borne by the applicant and shall be
costs in the cause.
(4) The applicant may within 10 days after the registrar has made the record available to
him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the
terms of his or her notice of motion and supplement the supporting affidavit.
(5) Should the presiding officer, chairperson or officer, as the case may be, or any party
affected desire to oppose the granting of the order prayed in the notice of motion, he or she
shall—
(a) within 15 days after receipt by him or her of the notice of motion or any amendment
thereof deliver notice to the applicant that he or she intends so to oppose and shall in such
notice appoint an address within 15 kilometres of the office of the registrar at which he or
she will accept notice and service of all process in such proceedings; and
(b) within 30 days after the expiry of the time referred to in subrule (4) hereof, deliver any
affidavits he or she may desire in answer to the allegations made by the applicant.
(6) The applicant shall have the rights and obligations in regard to replying affidavits set out
in rule 6.
(7) The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the
set down of review proceedings.

Powers of the court on review

If review proceedings are successful, the High Court will set aside the decision or the
proceedings that it has reviewed and remit the matter to the particular body to decide in
accordance with the correct procedure but the court will not substitute its own discretion
for that of the body or official whose decision it has reviewed, unless there are exceptional
circumstances (see Roopsingh v Rural Licensing Board for Lower Tugela and Others 1950 4
SA 248 (N)).

The court will not remit the matter to the particular body whose proceedings are reviewed,
in the following circumstances:
• when the end result is clear and referring it back will merely waste time;
• when a remittance will be futile;
• when there are valid reasons why the court should exercise its discretion in favour of the
applicant and substitute its own decision for that of the respondent.
Unit 28: Appeals
A litigant who is not satisfied with the decision of a court of first instance may appeal against
such decision to a higher court. For decisions of magistrates’ courts, an aggrieved litigant is
allowed one appeal as of right. No appeal as of right is available to an aggrieved litigant in
respect of decisions of the High Court but leave to appeal from the court concerned (or
leave from the Supreme Court of Appeal) must be obtained.

• “court of first instance” – the court before which a matter was first heard;
• “court a quo” – the court against whose decision an appeal is noted;
• “full court” – a court consisting of three judges of the relevant division.

Appeals from magistrates’ court decision

When can an appeal be noted?
A party’s right to appeal from a magistrates’ court entails that leave to appeal need not be
obtained. This right to appeal may be excluded by a written agreement by the parties before
the trial commences that the decision of the court will be final (s 82). In terms of section 83,
the right of appeal accrues only to a party to a civil suit or proceeding and this section also
provides that appeals may be brought only against the following three types of decision:
1) any judgment described in section 48;
2) in certain circumstances, any decision overruling an exception;
3) any rule or order having the effect of a final judgment including an order relating to
execution in terms of Chapter IX of the Act and on an order as to costs.

What is meant in section 83(b) by a rule or order “having the effect of a final judgment”?
The leading case here is Pretoria Garrison Institute v Danish Variety Products (Pty) Ltd 1948
1 SA 839 (A), in which it was held that the test for determining whether a rule or order has
this effect is whether it disposes of any issue, or any portion of any issue, in the main action,
or irreparably anticipates or precludes some of the relief that would, or might, be given at
the main hearing.

If the effect of a rule or order is final then the matter has ended for one of the parties.
Therefore, he or she can appeal against that order or rule. This differs from an interim order,
in that the granting of an interim order does not mean that a party has lost the case.

The party may not appeal against a provisional or interim order. E.g.s of orders that are final
and definitive are the granting or refusal of a final interdict, the granting of a summary
judgment, the upholding of a special plea that the court lacks jurisdiction and the upholding
of a defence of prescription. In Makhetha v Libamba 1998 2 All SA 496 (W); 1998 4 SA 143
(W), it was held that the granting of provisional sentence in a manner that would render it
pointless to go into the principal case, had the effect that the provisional sentence order
was final in effect and accordingly appealable.

Examples of orders that are interlocutory with no final effect are: a refusal to grant
absolution from the instance at the end of the plaintiff’s case, or an order for (or refusal to
order) further particulars.
The effect of noting an appeal
The noting of an appeal automatically suspends execution of the judgment, pending the
outcome of the appeal but upon application the court may order that the judgment be put
into effect (s 78 of the Magistrates’ Courts Act). The onus rests on the successful party who
is now seeking to execute, to approach the court for an order allowing execution despite the
noting of an appeal.

The court hearing the appeal

In terms of section 83, a party may appeal to the “provincial or local division” of the High
Court having jurisdiction to hear the appeal but the Superior Courts Act, 2013 no longer
makes this distinction and reference is made to a “Division” only. The Act further
distinguishes between a “local seat” and a “main seat” of a Division, where this is applicable.

The procedure on appeal

An appeal may be noted either by an appellant in person or by his or her duly authorised
legal representative. The appeal procedure can be divided into two phases: the first is
governed by rule 51 and refers to the procedure in the magistrates’ court, while the second
is governed by Uniform Rule 50 and refers to the procedure in the High Court.

The procedural steps to be taken in an appeal from a magistrates’ court decision consist of
a) the appellant in writing requesting the judicial officer against whose judgment he or she
wishes to appeal the reasons for the judgment;
b) the noting of an appeal, in which is stated whether the judgment as a whole or only part
of the judgment or order is being appealed against (if in part, which part), as well as the
grounds of appeal, specifying the findings of fact or rulings of law appealed against;
c) the delivery of the reasons for judgment from the judicial officer; and
d) the prosecution of the appeal, starting with a set down for hearing.

Appeals in superior courts

There is no right of appeal against a decision of a High Court and leave to appeal is required
each time from the court that gave the judgment or from the Supreme Court of Appeal.
Leave to appeal will only be given if the judge(s) concerned is/are of the opinion that:
• the appeal would have a reasonable prospect of success or that there is some
compelling reason why the appeal should be heard;
• it cannot be said that the issues are of such a nature that the decision will have no
practical effect or result, and
• the appeal would lead to a just and prompt resolution of the real issues between the
parties (s 17(1)).

Appeals from High Courts

Section 16 of the Superior Courts Act, 2013 refers to an appeal against “any decision”,
whereas its predecessor (s 20 of the Superior Courts Act of 1959) referred to “a judgment or
order”. The latter terminology was considered by the courts on various occasions, and the
current terminology makes it clear that what is referred to, is the decisive answer given by a
court in connection with the relief claimed by a party in litigation (see Holland v Deysel 1970
1 SA 90 (A) 92–93).
The effect of noting an appeal
Section 18(1) provides that unless there are exceptional circumstances, the “operation and
execution” of a decision is suspended pending the decision of the application for leave to
appeal or the appeal.

In addition to proving exceptional circumstances, the party approaching the court to order
otherwise, must prove that he or she will suffer irreparable harm if the court does not order
otherwise (while the other party will not) (s 18(3)).

Courts hearing the appeal

A court of first instance is usually constituted before a single judge and a full court hearing
an appeal against the judgment of a single judge comprises three judges (s 1 of the Superior
Courts Act, 2013). No judge whose judgment is appealed against may sit at a hearing of such
an appeal (s 14(8)).

An appeal lies upon leave being granted in the following instances:

1) against a decision of a Division as a court of first instance
• if the court consisted of a single judge, the appeal lies either to the full court of that
Division or to the Supreme Court of Appeal (s 16(1)(a)(i));
• If the court consisted of more than one judge, the appeal lies to the Supreme Court of
Appeal (s 16(1)(a)(ii)).

Leave to appeal may be granted by the judge(s) against whose decision is being appealed (s
17(2)(a)), or if refused, by the Supreme Court of Appeal on application (s 17(2)(b)). If the
leave to appeal is granted against a decision of a single judge sitting as a court of first
instance, the judge(s) granting such leave must direct that the appeal be heard by a full
court of that Division (s 17(6)), unless the decision
– involves a question of law of such importance that it requires a decision by the
Supreme Court of Appeal, or
– such that the administration of justice requires the Supreme Court of Appeal to
consider it (s 17(6)(i)–(ii)).

2) against a decision of a Division as court of appeal

The appeal lies to the Supreme Court of Appeal upon special leave to appeal granted by the
Supreme Court of Appeal (s 16(1)(b)).

3) against a decision of a court of a status similar to that of the High Court

The appeal lies to the Supreme Court of Appeal upon leave to appeal granted by that court
or by the Supreme Court of Appeal (s 16(1)(c)).

Should a Division have one or more local seats, the main seat of that Division has concurrent
appeal jurisdiction over the area of jurisdiction of any such local seat, and the Judge
President of the Division may direct that an appeal against a decision of a single judge or of
a magistrates’ court within that area of jurisdiction may be heard at the main seat of the
Division (s 6(4)(a)).

Procedure on appeal
Procedure on appeal to full court Pete et al 362–363 in broad outline.
The procedure on appeal to the Supreme Court of Appeal Pete et al 363–365 in broad
outline.

Position of the Supreme Court of Appeal

Section 168 of the Constitution provides that this court may decide appeals in any matter
arising from the High Court of South Africa or from a court of a status similar to that of the
High Court. Appeals in respect of labour and competition matters are expressly excluded in
this regard.

Section 168(3)(b) makes it clear that this court may decide the following only: appeals,
issues connected with appeals and matters referred to it in terms of an Act of Parliament.
Should the Supreme Court of Appeal make an order concerning the constitutional validity
of an Act of Parliament, a provincial Act or any conduct of the President, such an order of
constitutional invalidity will have no force unless it is confirmed by the Constitutional Court
(s 172(2)(a) of the Constitution, 1996).

The position of the Constitutional Court

As the highest court of the Republic, the Constitutional Court may decide not only
constitutional matters, but also any other matter, provided it grants leave to appeal on the
grounds that “the matter raises an arguable point of law of general public importance which
ought to be considered” by the Court. The precise meaning of this phrase is unclear, but it
will no doubt in due course be clarified by the Constitutional Court.

This Court also makes the final decision whether a matter is within its jurisdiction (s 167(3)
of the Constitution, 1996). When it is in the interests of justice, and the Constitutional Court
has given leave, a person may bring a matter directly to the Court, or appeal directly to the
Court from any other court (s 167(6)).

The “heads of arguments” comprise the main points to be made in counsel’s address
to court as well as a list of the authorities to be quoted in support of each point. The
heads of argument will also define the form of order sought from the Court.