PVL 4008 H CIVIL PROCEDURE - SKELET ON BEFORE LITIGATION PRELIMINARY ISSUES Cause of Action The existence of a valid cause of action is determined by substantive law, and is illustrated by the facta probanda. Locus Standi A party has locus standi if he has a direct and substantial interest in the matter (see common law requirements) and has legal capacity to litigate. Locus standi must be evident from the pleading itself. Juristic Persons – Companies + close corporations must be cited in their own right (MCR 5(4), URC 17(4)). A universitas must have perpetual succession and separate legal personality. Non-juristic persons may litigate as a matter of procedural convenience (MCR 54, URC 14), but this does not confer separate legal personality (DF Scott). - URC 14: Sue the persons behind the entity at the time that the cause of action arose → may compel delivery of the names of such persons - MCR 54: Sue the persons behind the entity at the time that the cause of action arose OR currently behind the entity → may compel delivery of the names of such persons, or apply to declare persons as behind the entity A litigant may not sue the person currently behind the entity if that person discloses the identity of the person who was behind the entity at the time that the cause of action arose (DF Scott) A notice is sent to the partnership, firm, or association requesting delivery of the names of the partners, proprietor, or members (URC 14(5)(a), URC 14(9)(a), MCR 54(1), (4)+(5)). The notice must be delivered in 10 days (URC 14(5)(b), URC 14(9)(b), MCR 54(2)), failing which - Delivery may be compelled, for partnerships + firms (URC 14(5)(b), URC 14(9)(b) r/w URC 14(12)+21(4), URC 30A) - The plaintiff may apply for dismissal or for striking out of the defence, for associations (URC 14(9)(b) r/w URC 14(12)+21(4)) - The plaintiff may apply to have a person declared a partner, proprietor, or member (MCR 54(6) r/w MCR 54(3)) Natural Persons – The following categories of persons have diminished capacity: - Minors: Must be duly assisted or represented by a guardian (s 17+18 Children’s Act) - Spouses Married in Community of Property: Must obtain consent from non-litigating spouse, and failure to do so will be penalised by the Court if costs are awarded against the litigating spouse (s 17(1)-(3) Matrimonial Property Act) - Mentally Impaired Persons: Have no legal capacity → a curator ad litem must be appointed to represent the party (URC 57, s 33 MCA), and a curator bonis or curator ad personam must be appointed to manage the party’s affairs (URC 57) - Prodigals: Must be assisted by a curator bonis or curator ad litem in those matters in which the prodigal has diminished capacity - Insolvents: May sue and be sued in own capacity for matters not affecting the insolvent estate or specified in s 23 Insolvency Act → if falling within this provision, the trustee of the insolvent’s estate must be sued Small Claims Courts – Natural persons only (s 7 Small Claims Courts Act). Parties to proceedings Representation – An attorney appointed to act on behalf of a client must notify all other parties that he is acting on behalf of the client (URC 16(1), MCR 52A(2)). - Power of Attorney: Protects the attorney and the client, authorises the attorney as agent to act in a specific matter (special power of attorney) or to perform all acts on behalf of the principal → Juristic Persons: The attorney must be officially instructed by the juristic entity itself SO the board/members of the entity must pass a resolution authorising the attorney to act OR receive written instruction from an authorised official representing the body in the form of an affidavit A juristic entity cannot depose to an affidavit SO a private party must be authorised to do so on the entity’s behalf, by resolution or in terms of the incorporation documents/constitution of the entity (properly identified by name or office) → ex post facto ratification is permissible (Merlin Gerin) - Representation in the High Court: A party may represent himself, or be represented by an advocate or attorney with a right of appearance (s 25(3) Legal Practice Act); juristic persons generally may not be represented by one of their officials PVL 4008 H CIVIL PROCEDURE - SKELET ON - Representation in the Magistrates’ Courts: A party may represent himself, or be represented by an advocate, attorney, or candidate attorney with a right of appearance (s 25(5) Legal Practice Act) → MCR 52(1)(a): A litigant may be represented by an attorney, advocate (Attorney’s Act, De Freitas), or candidate attorney (s 8(1) Attorney’s Act) → MCR 52(1)(b)+(c): A juristic person, partnership or group of persons may be represented by a nominated official or member - Challenging Representation: The authority of a person acting on behalf of a litigant may be challenged at any time before judgment, within 10 days of the challenger learning of that the person with authority was acting in the matter, and the person with authority may not act in the matter until he satisfies the Court that he is properly authorised (URC 7(1)+(2), MCR 52(2)) - Notice of Withdrawal as Attorney of Record: An attorney who withdraws as attorney of record must send a notice to his former client, the registrar, and all other parties stating as much (URC 16(4), MCR 52A(1)(a)), and the client must send a notice to the registrar and all other parties indicating his new attorney and service address (URC 16(2)+(3), MCR 52A(1)(b)) - Representation of Indigent Persons: In forma pauperis proceedings (URC 40), pro deo proceedings (MCR 53) Joinder – URC 6(14) and MCR 28 apply to both actions and applications. - Joinder and Causes of Action: The audi alteram partem principle requires the correct and appropriate parties to be before the Court, and the plaintiff/applicant as dominus litis must ensure that the appropriate parties have been joined → If there are no proper plaintiffs or defendants, the (stray) summons is fatally defective, as prescription has not been interrupted by valid service of a valid summons from a valid creditor to a valid debtor (Prescription Act) → If there is at least one proper plaintiff and defendant, the Court may by amendment remove or add parties as needed (URC 28, MCR 55A), as prescription has been interrupted by valid service of a valid summons from a valid creditor to a valid debtor (Prescription Act) Joinder is raised as a point in limine and may be challenged by special plea (dilatory or abatory) or exception of non-joinder or misjoinder (McIndoe), and the Court may raise the issue of joinder mero motu (Amalgamated Engineering Union, Harding) - Joinder by Necessity: Regulated by common law; the plaintiff may be forced by the defendant (by special plea or exception) to join another party that is necessary to the proceedings → The Test: Whether the party has a direct and substantial interest in the matter (Teazers Comedy Revue, Amalgamated Engineering Union) A direct and substantial interest can be difficult to determine as it is open-ended and depends on the facts and remedies sought, a common sense approach must ultimately be taken (Wholesale Provision Supplies) ❖ The subject matter of the dispute must not be considered (Amalgamated Engineering Union)There need not be a direct and substantial interest in fact, provided that the third party’s interests may be affected (Abrahamse) ❖ The third party must have a legal interest in the subject matter which could be prejudicially affected (Henri Viljoen, United Watch and Diamond, Milani, Segal, Afrisun Mpumalanga) → a commercial and financial interest is not sufficient → Pick ‘n Pay v Teazers Comedy Revue: The question is whether the order made by the Court will have a prejudicial impact on a party that is not party to the proceedings, a party may waive its right to be joined in the proceedings ❖ - Wilks: The Court may in its ultimate discretion insist that a party who waives its right to joinder nonetheless be joined as a necessary party to the proceedings Joinder by Convenience: Regulated by MCR 28, s 41+42 MCA, URC 10; the plaintiff is dominus litis so joinder is the plaintiff’s prerogative and cannot be forced (convenience is usually the reason for joinder) → The Test: Whether the issue depends on the determination of substantially the same question of law or fact which would arise in each separate action (Rabinowitz) → URC 10(1), (3)+(4), s 41+42 MCA: Several plaintiffs or defendants may sue or be sued jointly, or jointly and severally, separately, or in the alternative → The High Court: If jurisdiction can be established against one or some defendants/respondents, all defendants/respondents can be brought to the relevant court (s 21(2) Superior Courts Act) → the High Court has inherent jurisdiction to order than necessary parties be joined (Amalgamated Engineering Union) ❖ URC 10(2): A plaintiff/applicant may join several causes of action in the same action ❖ URC 10(1)+(3): More than one plaintiff/applicant or defendant/respondent may be joined in a single action PVL 4008 H CIVIL PROCEDURE - SKELET ON → The Magistrates’ Courts: Jurisdiction must be established in respect of each defendant/respondent (S 28 MCA) ❖ S 43(1) MCA: Multiple claims may be brought in a single summons, provided the claims do not individually exceed the Magistrates’ Court’s jurisdiction ❖ MCR 28(3): A plaintiff/applicant may join several causes of action in the same proceedings ❖ S 41 MCA: Any number of plaintiffs/applicants may join together in a single action against the same defendant/respondent ❖ S 42 MCA: The plaintiff/applicant may join several defendants/respondents when the plaintiff/applicant is uncertain which defendant/respondent must be proceeded against - Separation of Plaintiffs and Defendants: The Court will order separation of trials on application of a party where continued joinder would be prejudicial to the parties (URC 10(5), s 41+42 MCA, URC 28(4)) → the Court will in its discretion consider various factors - Consolidation of Actions: Multiple separate proceedings instituted against different persons may be consolidated on application by any party to the Court if the Court believes that it is convenient to do so (URC 11, MCR 28(5)) → The Court will consider whether the balance of convenience favours consolidation and whether the consolidation will cause substantial prejudice to other parties (Nel) → The Court will order consolidation if a multiplicity of proceedings and costs can be avoided by doing so - (Voluntary) Intervention: A third party may make application to the Court to become party to the proceedings at any stage in the proceedings, and must have a direct and substantial interest in the proceedings (URC 12, MCR 28(1)) → Sizwe Development: The test for intervention under URC 12 ❖ The applicant must satisfy the Court that he has a direct and substantial interest in the litigation (is a necessary party) and would be prejudiced if not permitted to intervene, that the application is seriously made, and that the applicant has a prima facie case or defence ❖ A direct and substantial interest is an interest in the relevant right and is not merely a financial (indirect) interest ❖ A final judgment or order does not bar intervention if intervention is sought for a legitimate process which can be instituted subsequent to the judgment or order → Even if the applicant has a prima facie interest, the Court may allow other considerations to weigh more heavily and refuse the application (Zuma, Gory) - (Forced) Third Party Procedure: To protect his rights, the defendant draws an outsider (who does not have a direct and substantial interest in the matter, and has no lis with the plaintiff) into the matter, thereby making the outsider a party to the proceedings → Grounds: The defendant believes that the outsider has contributed toward the plaintiff’s loss, or has indemnified the defendant against the plaintiff’s claim (URC 13(1)(a), MCR 28A(1)(a)) OR one of the parties clams that substantially the same question or issue has arisen or will arise between that party and the outsider (URC 13(1)(b), MCR 28A(1)(b)) → Procedure: A third party may be brought in even if the proceedings are closed, but the Court’s leave to send the notice will be require ❖ The third party must be sent a notice in terms of s 2 of the Apportionment of Damages Act, which affords the third party the election to intervene in the matter as a co-defendant → the Court’s order is binding on and executable against the third party • ❖ S 2 Apportionment of Damages Act is complementary to the third party procedure (Hart), applies where the claim is delictual and the third party is alleged to be contributory negligent → it must be used first where it applies If the third party does not intervene as a co-defendant, or if the Act is not applicable, the third party must be sent a notice in terms of URC 13 or MCR 28A → the Court’s order is not binding on and executable against the third party, and is only declaratory (Hart, Khumalo), the defendant must pay the full amount ordered and recover the third party’s portion in a secondary action • URC Form 7/MCR Form 43 must be attached to the third party notice, setting out the grounds on which the person sending the third party notice claims a contribution or indemnification from the third party PVL 4008 H CIVIL PROCEDURE - SKELET ON • The third party is put on terms to give a notice of intention to defend if he disputes the claim of the plaintiff against the defendant and/or the claim of the defendant for a contribution or indemnification from him → if the third party does not dispute liability as a third party, he automatically becomes party to the proceedings as a third party • The third party has 20 days from the delivery of his notice of intention to defend to file a plea to the plaintiff’s and/or defendant’s claim → depending on the third party’s plea, the third party will be joined as a third party or as a defendant in relation to the person who sent the third party notice (Geduld Lands) Change of Parties – Substitution of a party involved in legal proceedings for another party because the party dies, undergoes a change of status, or becomes incapacitated (URC 15, MCR 52(3)+(4)). Description of Parties – Citation of parties (URC 17(4), MCR 5(4)). Jurisdiction Jurisdiction is the power or competence of a court to hear and determine a matter before it, and is established at the time that proceedings are instituted, ie when the summons or notice of motion is served (Mills). Sufficient facts must be pleaded from which the Court can determine whether it has jurisdiction. Once jurisdiction is established, it generally cannot be lost. Small Claims Courts – Jurisdiction over all persons within its jurisdictional area, but not over the State (s 14 Small Claims Courts Act). jurisdiction over claims not exceeding R15,000. Concurrent jurisdiction with the district Magistrates’ Courts. High Court vs Magistrates’ Courts – The High Court has concurrent jurisdiction with the Magistrates’ Courts of that area, but it is quicker and cheaper to proceed in the Magistrates’ Courts and the High Court may penalise a party for not doing so. - Monetary Jurisdiction: The High Court may hear matters for more than R400,000; the Regional Magistrates’ Courts may hear matters for R200,000-R400,000 (the parties may consent to the Court hearing a matter for more than R400,000); the District Magistrates’ Courts may hear matters for less than R200,000 (the parties may consent to the Court hearing a matter for R200,000-R400,000) - Subject Matter Jurisdiction: Certain claims must, due to their nature, be heard in the High Court - Territorial Jurisdiction: The Court must have jurisdiction over the area in which the defendant/respondent lives or works, or in which the cause of action arose → domicile is relevant in the High Court, but not the Magistrates’ Courts The High Court – Inherent jurisdiction to hear any matter and grant any order not prohibited by common law or statute (s 169, 170 Constitution, s 21 Superior Courts Act). Exercise of inherent jurisdiction must comply with s 39(2), 173 Constitution. - Inherent Jurisdiction: A discretionary power possessed by the superior courts, traditionally exercised to → Regulate its procedure and prevent an abuse of its process → Protect its dignity, repute, and authority, and to compel observance of its lawful orders → To control and supervise its officers, and restrain irregularities in the proceedings of inferior courts → The restrain irregularities in the proceedings of administrative (and like) authorities → To create or modify remedies in the absence of a right (note: the Court may not create a right) - S 21 Superior Courts Act: Entrenches the common law principles relating to jurisdiction → may be established on the basis of residence (actor sequitur forum rei), territoriality, or where the cause of action arose (linking factor) → Residence: Natural persons (Zwissig, Mayne), companies and close corporations (the Companies Act, Bisonboard, Sibakhulu Construction), the State (Vulindlela Furniture Manufacturers), partnerships (s 2 Interpretation Act, Metlika), executors and trustees (need not all reside in the Court’s jurisdictional area) - Doctrine of Effectiveness: The most important principle underlying the Court’s jurisdiction → the Court must be able to make an effective order that can be enforced against the judgment debtor’s person or property (the doctrine of voluntary submission is also important) - Grounds of Jurisdiction: Most commonly domicile, cause of action, property (Einwald) → Ratione Domicilii: Jurisdiction on the basis of domicile or residence (Bisonboard) ❖ Domicile: Established by physical presence and intention to settle indefinitely (s 1(2) Domicile Act, Chinatex Oriental Trading), not possible to lose domicile until a new one is acquired (s 3(1) Domicile Act) ❖ Residence: The defendant/respondent must actually be residing within the Court’s jurisdiction at time that proceedings are instituted PVL 4008 H CIVIL PROCEDURE - SKELET ON → Ratione Rei Gestae: Jurisdiction on the basis of cause of action, not necessary for all facta probanda to arise within the same jurisdictional area ❖ Contract: Proceed in the Court with jurisdiction over the area in which the contract was concluded (forum contractus), or was to be performed (forum solutionis), or both (forum contractus, Veneta Mineraria Spa) ❖ Delict: Proceed in the Court with jurisdiction over the area in which the delict was committed or occurred (forum delicti commissi) → where the wrongful act and damage arise in different places, the Court most closely associated with the delict will be determined with reference to the materiality and number of ingredients thereof (Thomas) → Ratione Rei Sitae: Jurisdiction established on the basis of the property in question, proceed in the Court with jurisdiction over the area where the movable or immovable property is situated (forum rei sitae) - Types of Claims: Most commonly claims relating to property or sounding in money → Property Claims: The Court is asked to make an order which directly affects specifically identified property ❖ Movable + Immovable Property: The Court will have jurisdiction if the defendant/respondent resides or is domiciled, the movable property is located, or the cause of action arose within its jurisdictional area → it does not matter whether the claim is in rem or in personam (Hugo, Moodley) ❖ Incorporeal Property: The Court where the right resides will have jurisdiction → intellectual property (Ewing McDonald), debts, employment rights (Lek), shares (Uniroyal) Note: it is not necessary to found or confirm jurisdiction for property claims → show that some of the elements of the cause of action arose within the High Court’s jurisdiction → Money Claims: The plaintiff seeks payment of money (including a claim for specific performance not involving delivery of movable or immovable property) on its own, or as an alternative to some other claim ❖ The Court has jurisdiction over incolae and local peregrine defendants, but attachment to found or confirm jurisdiction is required in respect of foreign peregrine defendants ❖ Attachment is not permitted in respect of local peregrini, and jurisdiction must be established on the basis of residence, domicile, or where the cause of action arose (s 28(1) Superior Courts Act) → if based on the cause of action: • Contract: Where the contract was concluded, performed, or breached (Cape Explosive Works, Roberts Construction) → only part of the contract need fall within the Court’s jurisdiction (Coloured Development Corporation) • Delict: It is not necessary for every element to occur within the Court’s jurisdiction (Thomas) → Divorce: The Court will have jurisdiction if either party is domiciled or ordinarily resident in the Court’s jurisdictional area (and has been ordinarily resident within South Africa for at least a year) (s 2(1), 2(2) Divorce Act) ❖ S 2(1) Divorce Act: Proceedings are instituted when the summons is issued or when the notice of motion is filed or served → the ordinary rule does not apply ❖ URC 43, MCR 58: If a plaintiff/defendant is so impoverished that he cannot litigate or requires interim access, custody, or maintenance for the children, the Court will consider the financial position of the parties and make an appropriate order → application proceedings Note: Submission to jurisdiction will not provide the Court with jurisdiction → Status Matters: Proceedings that affect the capacity of a person, including insolvency (s 149 Insolvency Act), mental illness (Ex Parte Berry), presumption of death orders (Ex Parte Stoter, Ex Parte Govender, In Re Beaglehole), interpretation and validity of wills and administration of estates Note: Submission to jurisdiction will not provide the Court with jurisdiction - Causa Continenta: A court may exercise jurisdiction over a claim in respect of which it does not have jurisdiction to effectively deal with a claim in respect of which it does have jurisdiction (s 21(2) Superior Courts Act, Mosgas, NCS Plastics) → Allows the High Court to deal with matters over which jurisdiction of the Magistrates’ Court could not be established in terms of s 28(1)(a) MCA or s 28(1)(d) MCA - Ratione Causae Continentiae: Where multiple courts exercise jurisdiction in respect of different parts of a single matter, one of the courts may exercise jurisdiction in respect of the whole matter (Ngxuza) - Claims for Interdicts: The Court may order a person to perform an action (mandatory interdict) or to refrain from performing an action (prohibitory interdict) if, PVL 4008 H CIVIL PROCEDURE - SKELET ON → The respondent is an incola of the Court and the act is within or outside the Court’s area of jurisdiction → The respondent is a peregrinus and the act is within the Court’s area of jurisdiction The Magistrates’ Courts – Creatures of statute, powers limited by the MCA and MCR. May hear matters specified in s 26-50 MCA. - Subject Matter Jurisdiction: Certain claims may not be heard by the Magistrates’ Courts (s 46 MCA) → can the Magistrates’ Court hear this cause of action (s 29, 37(2), 46 MCA)? → Permitted Claims: Delivery or transfer of property (29(1)(a)), ejectment (29(1)(b)), right of way (29(1)(c)), liquid document or mortgage bond (29(1)(d)), credit agreements (29(1)(e)), Matrimonial Property Act (29(1)(f)), Close Corporations Act (29(1)(fA), all other actions (including delictual and contractual actions) (29(1)(g)), divorce in the Regional Court (29(1B), claims in reconvention (29(2)) → Prohibited Claims (Status): Wills (46(2)(a)), mental capacity (46(2)(b)), perpetual silence (46(2)(d)) → Prohibited Claims (Specific Performance): Specific performance (of a factual obligation (Otto)) without an alternative claim for damages (46(2)(c)) - ❖ Exceptions: Rendering of an account under R200,000 (46(2)(c)(i)), delivery or transfer of property under R200,000 (46(2)(c)(ii)), delivery or transfer of property over R200,000 with consent (46(2)(c)(iii)) ❖ If the claim for specific performance arises from a contract, the claim will not fall within the scope of 46(2)(c) Monetary Jurisdiction: General rule (s 29 MCA) and exceptions to general rule (s 38, 39, 45 MCA) → does the claim fall within the Magistrates’ Courts monetary jurisdiction (s 29, 37(1), 37(3), 38-40, 43, 45, 47 MCA)? → A single claim may not be split (40), separate claims may be combined (43(1)), only the amount in issue is considered (37(1)+(2)), interests and costs are not considered (37(3)), counterclaims exceeding jurisdiction (47) → Parties may consent to bring claims in the Court even if the claim exceeds the Court’s monetary jurisdiction (45) → The plaintiff may abandon a portion of his claim (38(1), any portion abandoned is extinguished (38(2), abandonment must be pleaded in the summons (MCR 5(6)(c)) ❖ Prove the full claim, deduct the shortfall from the amount abandoned, may not claim in excess of the Court’s monetary jurisdictional limit ❖ The plaintiff is entitled to the amount he can prove, up to the Court’s monetary jurisdictional limit → The plaintiff may deduct a debt owed from his claim (39), deduction must be pleaded in the summons (MCR 5(5)(c)) - Territorial Jurisdiction: Methods of establishing jurisdiction (s 28 MCA) → which particular Magistrates’ Court must hear the matter (s 28 MCA)? → S 28(1)(a): Jurisdiction over the place where the defendant resides, carries on business (for one’s own account), or is employed (master-servant relationship) ❖ Residence: Natural persons (Zwissig, Mayne), companies and close corporations (the Companies Act, Bisonboard, Sibakhulu Construction), the State (Vulindlela Furniture Manufacturers), partnerships (s 2 Interpretation Act, Metlika), executors and trustees (must all reside in the Court’s jurisdictional area) ❖ Carries on Business: Natural persons, companies and close corporations (Patterson, Mbonambi), the State (Patterson) → regularity is required ❖ Is Employed: Some permanence is required → S 28(1)(b): Jurisdiction over the place where the partnership’s business premises are situated or where any one of the partners resides → S 28(1)(c): Jurisdiction over proceedings incidental to the main claim (ie arise out of the same set of facts and law) → S 28(1)(d): Jurisdiction over the place where the cause of action wholly arose ❖ All material facts (facta probanda) must arise in the same area (McKenzie, Dusheiko, King’s Transport), this must be specifically pleaded (MCR 5(6)(a)) ❖ Difficulties with respect to causes of action based on delict (Thomas), and especially with causes of action based on contract (offer and acceptance, conclusion, performance, and breach are all facta probanda) → S 28(1)(e): Jurisdiction in relation to interpleader proceedings, where multiple people lay claim to the same property → S 28(1)(f): Jurisdiction where the defendant appears and does not object (ie consents) to the Court’s jurisdiction PVL 4008 H CIVIL PROCEDURE - SKELET ON → S 28(1)(g): Jurisdiction over the place where the immovable property is situated ❖ There must be a direct causal relationship between the property and the proceedings (Liebenberg), the defendant must be the owner-possessor of the property → S 28(1A): The Regional Court will have jurisdiction if either party is domiciled or ordinarily resident in the Court’s jurisdictional area (and has been ordinarily resident within South Africa for at least a year) (s 2(1) Divorce Act) Removal of Proceedings to a Different Court – - S 27 Superior Courts Act: A court with no jurisdiction may transfer a court with jurisdiction (s 27(1)(a), Amalgamated Services, Gumede), a court with jurisdiction may transfer to a court with no jurisdiction as a matter of convenience (s 27(1)(b)) → Undermines the above rules on jurisdiction, s 27(1)(a) completely overrides s 21 Superior Courts Act - S 35(1) MCA: A court with jurisdiction may transfer to a court with no jurisdiction as a matter of convenience (Credibility Sponsors, Mulder) PRE-LITIGATION ISSUES Demand A demand is a request for payment or performance of a legal obligation in an attempt to obtain satisfaction without incurring the expense of formal litigation. Demand Must Be Made – Where required by legislation or to complete a cause of action. - Required by Legislation: The Institution of Legal Proceedings Against Certain Organs of State Act (most NB), General Law Amendment Act, Customs and Excise Act, National Credit Act, Small Claims Courts Act, Credit Agreements Act, Alienation of Land Act - Required to Complete a Cause of Action: Payable on demand clauses, notice of breach clauses, placing a debtor in mora, demand to give right of cancellation → the demand must contain sufficient interest to complete the cause of action (if defective or not sent, and summons is issued, the defendant may except to the summons as not disclosing a cause of action) Costs and Interest – It is preferable to send a letter of demand before issuing a summons: - Unnecessary costs may be incurred if the plaintiff fails to deliver a letter of demand before issuing a summons - Delivery of a letter of demand is sufficient to begin the running of interest on an unliquidated debt. A letter of demand must be sent by registered mail, and the attorney may recover the costs of sending the letter only if he specifically states the cost in the letter itself (s 56 MCA). There is no obligation to pay interest until the debt becomes due, and when the debt becomes due depends on whether a date for payment has been stipulated, and whether the debt is liquid or illiquid. Small Claims Court – The plaintiff must deliver a letter of demand by hand or registered post, and allow the defendant 14 days to satisfy the claim (s 29 Small Claims Court Act). Note – A letter of demand contains only the facta probanda, not the facta probantia. Time Limits Court Days vs Calendar Days – Court days stipulated in the Rules + exclude Saturdays, Sundays, public holidays. Calendar days stipulated in the Acts + include Saturdays, Sundays, public holidays. Within a Certain Period – Exclude the first day, include the last day. After a Certain Period – Exclude the first day and the last day. Service The Court must be satisfied that the defendant/respondent receives the Court documents and is aware that legal proceedings are being brought against him. Issue – The summons/notice of motion is issued and given a case number. Service – Only the initial court documents need by served by the sheriff (URC 4+5, MCR 8+9). - The High Court: Different methods of service (URC 4(1)(a)), days and time of service (URC 4(1)(b)+(c)), electronic service (s 24 Superior Courts Act) - The Magistrates’ Courts: Different methods of service (MCR 7, 9(1)+(3)+(5)), alternative methods of service (URC 9(9)(a)) PVL 4008 H CIVIL PROCEDURE - SKELET ON - Substituted Service + Edictal Citation: Application for alternative method of service due to an inability to serve documents by the usual methods → substituted service inside South Africa (MCR 9(10)), edictal citation outside South Africa (MCR 10, URC 5) The URC and MCR regulating service of court process do not confer jurisdiction on the Court. Filing – Original documents returned to the Court to be placed in the court file. Action or Application Applications are reserved for matters in which the Court can reach a decision on the documents before it without having to sit through a trial in which witnesses give evidence and are cross-examined. An application may be brought in urgent matters, where an application is required by statute, and where no real dispute of facts is anticipated. When to Bring an Application: Room Hire – Matters may be required by statute to be brought by way of application, prohibited by statute from being deciding on application, or exist in a grey area → it must be determined whether there is a real dispute between the parties on any material question of fact which cannot be resolved on the papers and must therefore be referred for oral evidence: i. The respondent denies the applicant’s material allegations and provides evidence negating them ii. The respondent confesses to and avoids the applicant’s material allegations iii. The respondent argues that he has no knowledge of the applicant’s material allegations, but denies them and provides evidence impugning the credibility of the applicant’s deponents - The respondent admits that he can lead no evidence to dispute the applicant’s material allegations, but challenges the applicant to present the evidence viva voce subject to cross-examination A bare denial (Soffiantini, Wightman) and an allegation of no knowledge do not constitute a real dispute of fact. Determining a Material Dispute of Fact: Plascon-Evans – The two versions of applicant and respondent must be compared. Material disputes of fact may be referred for cross-examination. Relief may be granted if the uncontested allegations entitle the applicant to the relief sought. The Court is not obliged to treat every dispute of fact as material, and must consider the nature of the case before it. If the Court finds that on the remaining, undisputed allegations it can grant the relief sought, it may do so. The Court has a discretion to refer a material dispute to oral evidence. The Court tends to take a more cautious approach to application of the Plason-Evans rule. The Court’s Response to Material Disputes of Fact – The Court may dismiss the application and make an adverse costs order (MCR 55(1)(k)(i)), refer the matter for oral evidence on particular issues (URC 6(5)(g), MCR 55(1)(k)(ii), Plason-Evans), refer the entire matter to trial (MCR 55(1)(k)(ii)). If the Court finds that the application was initially good because the applicant could not have foreseen the material disputes of fact arising, the Court will not dismiss the application or refer multiple disputes to oral evidence, it will rather convert the application into a trial. Requirements for Use of an Application – The claim must be liquid, and the parties must consider statute and the common law (which requires determination of whether a material dispute of fact is foreseen). PVL 4008 H CIVIL PROCEDURE - SKELET ON LITIGATION ACTIONS Pleadings The Summons – Simple, for debts or liquidated demands (URC 17, MCR 5). Combined, for liquid and illiquid claims (URC 17, MCR 5). Provisional sentence, for claims founded on a liquid document ((URC 8, MCR 14A). Automatic rent interdict, for the lessor’s tacit hypothec (MCR 5(8), s 31 MCA). A written juridical demand issued by the clerk or registrar of the Court and served by the sheriff (URC 4, MCR 9). Signed by the plaintiff’s attorney and contain a citation of the parties, warning to the defendant, time limits and address for service, and the particulars of claim (URC 17, MCR 5) → attached to combined summons, concisely rolled into simple summons. - Special provisions relating to summons in the Magistrates’ Courts The Particulars of Claim – Include a citation of the parties, locus standi, jurisdiction of the Court, cause of action, and the prayer (URC 18, MCR 6). The Small Claims Court – The plaintiff’s summons and particulars of claim will be prepared by the plaintiff with the assistance of a legal advisor or the clerk of the Small Claims Court, and will be issued by the clerk on receipt of a valid letter of demand and after expiry of the 14-day period. Process i. The plaintiff sends a summons (MCR 5, URC 17) and particulars of claim (MCR 6, URC 18), giving details of the action and what he is claiming ii. The defendant sends a notice of intention to defend (MCR 13, URC 19), telling the plaintiff that he wishes to defend the action → Notice of intention to defend must be sent within 10 days of receiving the summons (URC 19, MCR 13(1)) → If a simple summons was used, the plaintiff must file a declaration within 15 days of receiving the notice of intention to defend (URC 20, MCR 15(1)) iii. The defendant sends a plea (MCR 17, URC 22) in which he gives details of his defence to the plaintiff’s claim → Plea must be delivered within 20 days of sending the notice of intention to defend or receiving the declaration (URC 22(1), MCR 17(1)) iv. The plaintiff sometimes sends a replication or reply in which he responds to new facts raised in the defendant’s plea BUT this is quite rare → in most cases, the pleadings close after the defendant’s plea or after the plaintiff’s replication → Replication must be delivered within 15 days after receiving the plea (URC 25(1), MCR 21(1)) The replication may be followed by other pleadings in which the parties respond to the previous pleading of the other party BUT this happens only in very complicated cases v. The points at issue between the parties are clear and the pleadings close → Pleadings close automatically 15 days after the plaintiff receives the defendant’s plea and the parties are barred from submitting further pleadings (URC 26, MCR 21B) → Pleadings are considered closed in terms of URC 29, MCR 21A APPLICATIONS The Magistrates’ Courts are creatures of statute and may hear applications only in limited circumstances → note: applications cannot be brought in respect of causes of action under s 29(1) MCA (except for applications for ejectment from residential premises in terms of PIE). Pleadings The Notice of Motion – Contents specified in URC 6 and MCR 55. URC 41A requires a notice as to mediation. Signed by the applicant or his legal representative, addressed to the registrar/clerk and respondent (unless ex parte). The Affidavit – A sworn statement made under affirmation or oath that constitutes evidence (making a false statement constitutes a criminal offence). Divided into numbered paragraphs containing separate averments, which may be supported by annexures. Each page to be signed be initialled by the deponent and commissioner of oaths. The affidavit must speak to locus standi, legal capacity, jurisdiction, urgency (where applicable), grounds for relief. It contains both material facts or pleadings setting out the cause of action (facta probanda) and evidence (facta probantia). PVL 4008 H CIVIL PROCEDURE - SKELET ON The affidavit may not contain hearsay; privileged communications; scandalous, vexatious, or irrelevant matter (MCR 55(9), URC 6(15)); inadmissible new material; irrelevant attacks on credibility or argumentative matter (excluded by inherent jurisdiction). A party may make application to the Court to strike out scandalous, vexatious, or irrelevant material from the affidavit (Beinash, Vaatz). The Court will do so if it is satisfied that the applicant for striking out will be prejudiced if the application is not granted. Process Respondent must deliver the notice of opposition within 5 days of receiving the notice of motion. The respondent must deliver the answering affidavit within 15 days (10 in the Magistrates’ Courts) of delivering the notice of opposition. The applicant has 10 days to deliver his replying affidavit, and the matter may then be set down for hearing (at least 10 days after service of the notice of motion). COSTS The Court will award costs of suit to the party who wins the matter – - Party-party costs awarded in most cases - Attorney-client costs awarded by agreement or as a punitive measure (exceptional) - Attorney-own-client costs awarded by agreement or as a punitive measure (exceptional) - Costs de bonis propriis awarded as a punitive measure - Contingency fees → see Mfengwana v RAF NOTE: THIS LAST SECTION ON LITIGATION IS A BIT THIN – BULK IT UP ALEX AMALER
