CIVIL PROCUDEDURE SEMESTER TEST 1
STUDY UNIT 6-9
Study unit 6 =
CALCULATION OF TIME LIMITS.
The requirement of something to be done WITHIN a certain TIME PERIOD can come with
various difficulty.
Remember FOLI = First Out Last In. if something needs to be done WITHIN a certain time
period you EXCLUDE the first day and INCLUDE the last day (if you are told TODAY to hand
in a essay WITHIN 5 days, the 5 day period would start running TOMORROW and end on the
5th day starting tomorrow so you would actually have 6 days excluding today starting
tomorrow and ending ON the 5th day from tomorrow).
Court days and calender days: with FOLI some days may be excluded from the time period
given (noot counted as part of it) when ACTS refers to days they reference NORMAL calender
days. When RULES refer to days they reference COURT days.
Calender days INCLUDE Saturdays, Sundays and public holidays however if the the last day
of a period of CALENDER DAYS fall on a Sunday or public holiday it is NOT counted as part
of the period and the period will end on the next day.
Court days EXCLUDE Saturdays, Sundays and public holidays so if any of the days (not just
the last day) fall on a Saturday, Sunday or public holiday that day will not be counted and the
period will end after the amount of full working days have passed
Time periods AFTER a certain period.
EXCLUDE BOTH THE FIRST AND LAST DAY
SERVICE OF LEGAL DOCUMENTS.
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Legal proceedings starts with the delivery (service) of court documents (court process)
to the defendant or respondent, by an independent official called a sheriff of the court
(sheriff of the High court and sheriff of the Magistartes court).✓Sheriffs are responsible,
among others, for the service of all process documents through which an action is
instituted, as well as for the execution of attachments and removal orders that made by
the Court (Rule 4).
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The court must be satisfied that the defendant or respondent has received these
documents (summons, notice of motion, which starts legal proceedings) and is aware
that legal proceedings are brought against them ↓
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Because of the maxim audi alteram partem rule which means “hear the other side”.
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(every person is entitled to be heard before an order or judgement is granted AGAINST
them).
There is a requirement that the opponent should be notified timeously of steps taken
against him and given an opportunity of replying to the case against him and placing his
own version before the court.
Documents initiating legal proceedings such as a summons or notice of motion are given a case
number and a court file is opened, if the address on the document is wrong it should be
amended, signed and send back to court where the registrar or clerk will reissue the document
by signing thereof.
After being issued the following documents will be sent to the sheriff for service thereof:
★ Original document, which will be returned to the court file.
★ Number of copies which needs to be served (how many defendants or respondents?)
★ An extra copy, returned to you to place on office files.
What is the sheriff’s duties?
- To explain the nature and contents of the document to the person being served, and
state in his return that he has done so.
- Hand a copy of the document to the person.
- Extra copy of the document returned to the attorney who requested that the service be
carried out together with a return of service.
If a sheriff is unable to successfully serve a summons or notice of motion?
- He will then complete a return of non-service.
Not ALL court processes has to be served by a sheriff, documents that follow the initial
summons like notice of intention to defend, a plea, or a replication needs not to be served by the
sheriff, these can be be de;evired to the service address as indicated in the summons or notion
of motion by yourself or by a messenger employed by your law firm.
Rule 4A provides that all process, other than process which initiates application proceedings,
may be served by hand at the physical address for service provided, registered post to the
postal address provided, or facsimile or electronic mail to the respective addresses provided.
Rule 4A explicitly provides that service under this rule need not be effected through the sheriff.
Interlocutory application = application to compel other side to discover, need not be served by
the sheriff. Because it is an application which is part of proceedings that are already pending
before the court. Only initial court documents in legal proceedings are served by the sheriff.
Usual methods of service in the HC.
RULE 4(1)(a) of HC rules:
Personal service: RULE 9(3)(a) MC. Should be used whenever possible, other forms
should only be used where the defendant or respondent isd elusive or untraceable.
Sheriff is in the presence of the defendant or respondentand hands relevant documents
to them. If the person is under 18 or under legal disability process must be delivered to
their guardian.
Personal service may be required in certain matters (divorce, sequastration and where
the attorney wishes to withdraw as attorney).
If the person to whom it is delivered refuses to accept the document it may be dropped
at their feet.
Leaving a copy at the place of residence or business: RULE 9(3)(b) MC. Document may
be left if the person is apparently in charge of the premises and apparently not younger
than 16. If more than one premises service can be made at either.Cohen case specific
place of domicilium.
Service at the place of employment of the person to be served: RULE 9(3)(c). Delivering
the document to a person who is apparently in authority over the person to be served,
and is apparently not younger than 16 years old.
Service at the domicilium: RULE 9(3)(d). A person’s domicilium citandi is an address
which has been chosen by that person for service of documents upon him. The purpose
of domicilium addresses is that the parties should not be required to search for one
another’s whereabouts when wishing to litigate.The plaintiff is not obliged to serve at the
domicilium address;81 he can choose to use any of the service methods provided for in
the rules.
Service on a company or a close corporation: RULE 9(3)(e). You may serve the process
at its registered office, or at its principal place of business within the court’s jurisdiction,
or in any manner provided by law. Service has to be effected by handing the process to
a responsible employee, or, if none of the employees wants to accept service, by affixing
the document to the main door of the registered office or principal place of business.
Service on an agent duly authorised in writing to accept service: RULE 9(3)(a)
Service on a partnership, firm or voluntary association: RULE 9(7)(a). The process may
be left at the place of business of the partnership, firm or voluntary association with a
person who is apparently in charge of the premises, and is apparentlyover 16 years old.
If there is no place of business, then the process may be served on a partner of the
partnership; or the proprietor of the firm; or the chairman or secretary of the managing
body of the association. Remember that in the case of a partnership, this only applies if
you are acting against the partnership as such. If you are acting against partners in their
individual capacities, the process will have to be served on each partner, using one of
the methods laid down in the rules.
Service on a local authority or a statutory body: local authorities (including
municipalities), process must be delivered to the town clerk, or city manager, or mayor of
the local authority.
Service on two or more persons being sued in their joint representative capacity: on
each person individually.
Service in legal proceedings against the state, a province, or a Minister or Deputy
Minister in his or her official capacity: RULE 9(3)(g). Process may be served at the
office of the State Attorney situated in the area of jurisdiction of the court out of which the
process was issued.
Service on prisoners: served on inmate personally.
In terms of rule 4(1)(b) of the HC service must be effected as near as possible between 7am
and 7pm and in terms of rule 4(1)(c) service may not be effected on a Sunday UNLESS the
court or a judge gives permission, only exception to this rule is that a warrant for arrest may be
validly served on a Sunday.
The methods of service in the Regional and District Magistrates’ Courts.
RULE 9 of the Magistrates court rule (pretty much the same as those of the HC)
Service by affixing a copy of the document to the outer or principal door or security gate
or placing a copy in the post-box: Service in this way is allowed if the person who is
going to be served with the process or document keeps his residence or business
closed, thereby preventing the sheriff from serving the process upon him (in terms of rule
9(5)).
Service upon curators, executors, guardians, liquidators and trustees: If two or more
curators, executors, guardians, liquidators or trustees of an insolvent estate are being
summonsed in their capacity as such, then service may be effected by serving on any
one of them (rule 9(7)(b)).
Service upon clubs, societies and similar bodies: In the case of a syndicate,
unincorporated company, club, society, church, public institution or public body, the
sheriff may serve at the local office or place of business of that body. Otherwise he may
serve on the chairman or secretary or similar officer of the body (rule 9(7)(c)).
As a general rule process, notices and other documentations are NOT served on Sundays or
public holidays. However interdicts, warrants for arrests and warrants of attachment of property
may be executed on any day at any time and any place.
Section 107 of the Magistrates’ Courts Act105 makes it a criminal offence to obstruct a sheriff in
the execution of his duties; dispose of goods attached by the sheriff; make a false declaration;
fail or refuse to point out property you own; or refuse or neglect to deliver the title deeds of
immovable property.
Substituted service.
If unable to serve by means of the the usual methods as stated abovean application to court
would have to be made for authority to serve to serve in another way = substitute service.
The HC Uniform rule 4(2)↴
If it is not possible to effect service in any manner aforesaid, the court may, upon the
application of the person wishing to cause service to be effected, give directions in
regard thereto. Where such directions are sought in regard to service upon a person
known or believed to be within the Republic, but whose whereabouts therein cannot be
ascertained, the provisions of sub­rule (2) of rule 5 shall, mutatis mutandis, apply.
The Magistrates Court Rule 9(10) provides for substitute service (inside the borders of SA) ↴
WHERE THE COURT IS SATISFIED THAT SERVICE CANNOT BE EFFECTED IN ANY
MANNER PRESCRIBED IN THIS RULE, AND THAT THE ACTION IS WITHIN IN
JURISDICTION, IT MAY MAKE AN ORDER ALLOWING SERVICE TO BE AFFECTED BY
THE PERSON AND IN THE MANNER SPECIFIED IN SUCH ORDER.
● substituted service may be used only where the defendant or respondent is known or
believed to be inside the country.
✓ May recommend an alternative method of service.
✓ convinced the court that you have been unable to locate the defendant.
✓ Proof to court that all other attempts failed.
• Steps taken to establish the Defendants whereabouts:
✓Satisfy the court that every reasonable step has been taken, include tracing agent reports,
official sources
✓Defendants last known place of residence and domicile, place of employment
✓Last place where news of him was obtained
✓Residence of his spouse, parents and other relatives (they have no knowledge of his
whereabouts)
Edictal citation.
Edictal citation (outside the borders of SA) = Magistrates court rule 10 ↴
Any process or document whereby proceedings are instituted
shall be served outside the Republic only by leave of the court.
Or HC Uniform rule 5↴
Save by leave of the court no process or document whereby
proceedings are instituted shall be served outside the Republic.
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service on persons outsideSouth Africa’s borders must be effected by way of
edictal citation in the District Magistrates’, Regional Magistrates’ and High
Court.
If the precise address is unknown, then your application will be a dual one; in
effect: (a) to ask for leave to proceed by way of edictal citation and (b) to ask
leave to use a method of substituted service.
An edictal citation is merely a special type of summons similar in almost every
respect to a normal summons except that it is addressed to the defendant
directly, and not to the sheriff as is normally the case. This is because there
may not be a sheriff, or similar officer, serving legal process in the foreign
country in which you wish to have the document served.
Note that the need to apply to court for leave to sue by edictal citation only
applies when you want to serve documents instituting legal proceedings in
another country. If you want to serve any other kind of document in another
country, then Magistrates’ Courts rule 10(3) and High Court rule 5(3) applies,
and it is not obligatory to make an application to court (you may simply request
leave to do so at any hearing at which the court is dealing with the matter).
Affidavit supporting the Application: (same would be made for substitute
service)
• Nature and extent of the claim
• Grounds upon which the claim is based
• Grounds upon which the court has jurisdiction to hear the claim
• Method of service you are seeking the court to authorise
• Last known whereabouts of the person to be served
• The enquiries that have been made to find out where the person currently is.
• Any other information which might assist the court to make a decision.
Steps taken to establish the Defendants whereabouts:
Satisfy the court that every reasonable step has been taken, include tracing
agent reports, official sources.
Last known place of residence
Last place where news of the defendant was obtained
Last known domicile
Residence of the defendants spouse, partner, parents and other near relatives
Place of birth
Details of enquiries made to ascertain the defendants present whereabouts
Details indicating that all possible sources of information about the defendant’s
whereabouts have been fully investigated, and all necessary steps have been
taken to locate the defendant.
Both substitute service and edictal citation is brought ex parte, the application approaches the
court alone, without the respondent having to be present.
Substitute via electronic media:
● In 2008 Australian court authorised substitute service using FB
● In SA - CMC Woodworking Machinery v Pieter Odendaal Kitchens. Permissible after
taken all caution as a alternative method, provided that certain factors are met.
Study unit 7 = ACTION OR APPLICATION.
In civil procedure there are only 2 ways of litigating which are to either bring an ACTION or by
launching an APPLICATION.
● Application procedure = HC Rule 6 & MC Rule 55
If your client by the face of it seems to have a remedy you have to decide to enforce this remedy
by way of either 1 of these 2 litigation options, which is crucial for your case. If you proceed your
case by application and you should have proceeded by way of action the court may dismiss the
application with costs!
To decide which litigation process to follow you need to establish the following:
• Does my client have a right?
• Has the right been violated?
• What is my client’s remedy?
• How is the remedy applied /enforced?
• Is there a Material fact of dispute
• Is there Urgency or not?
• Does Statute prescribe the use of an application or is it prohibited?
Differences between
ACTION ↷
Action proceedings have a clear separation
between the PLEADING stage and the TRIAL
& EVIDENCE stage.
PLEADING= written statements made by and
delivered between the parties, ONLY setting
out the material facts on which the parties rely
for their claim or defence. ONLY THE
MATERIAL FACTS meaning that the main
allegation on which the claim is based are set
out by the plaintiff and the main allegations on
which the defence is based by the defendant
(evidence that would be relied upon are NOT
referred to at this stage).
The plaintiff does NOT draft or sign the
pleading this is done by the legal
representative, only where the plaintiff
represents himself may he draft and sign the
&
APPLICATION ↷
Also called motion proceedings or motion.
This entire procedure is paper-based, no
leading of witnesses as seen in the trial an
devidence stage of an action. In application
procedure there is NO separation of the
pleading and evidence stage.
Evidence in application is not oral but in
writing (affidavits - statements sworn under
oath). Documents supporting the evidence
may be attached to the affidavits as
annexures. These affidavits and their
annexures are then attached to the document
yhay sets out the order form court (notice of
motion). Therefore the affidavits do not only
set out the issues of facts but also contain the
evidence which the parties need to adduce in
proof of their factual allegation known as
pleading. Because the statement of material
facts do not consist evidence there is nothing
done under oath.
Once the pleading stage is completed the
action is set down for trial and then the
parties try to prove, by evidence, the
allegations and responses contained in the
pleading.
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Plaintiff and defendant.
Real dispute of facts.
Issuing of summons by plaintiff.
Further pleadings are exchanged by
parties, namely:
-Defendant’s plea and counterclaim.
Plaintiff’s replication to defendant’s plea Plaintiff’s plea to Defendant’s counterclaim.
● After the exchange of pleadings –
preparation for trial begins.
● The action procedure ends in the trial
court, where mainly oral evidence by
the parties and their witnesses is
presented.
Difference between TRIAL COURT↷
averments. Which would then result in, when
the matter is set down for hearing, the court is
already in possession of both the pleadings
and evidence. The hearing then consist
exclusively of legal arguments by the legal
representatives.
The court can make a finding solely on the
papers before them (without oral evidence,
cross examination or witnesses).
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Applicant and respondent.
Factual dispute of such a nature that it
may be easily dealt with on affidavit or
on paper, an application may also be
used for disputes of law.
● Issuing of notice of motion and
supporting affidavit.
● Further affidavits are exchanged,
namely:
-the opposing affidavit;
-the replying affidavit.
● No written preparation for trial.
● The motion procedure ends in motion
court. In principle, no oral evidence is
presented and the parties do not
testify. The case is argued by legal
representatives on the papers before
the Court.
&
MOTION COURT↷
ACTION PROCEEDINGS are heard in trial
court.
APPLICATION PROCEEDINGS are heard in
motion court.
Defended – full trial Examination in chief,
cross examination, re-examination, closing
arguments.
Undefended – where parties have settled, or
defendant did not defend the matter
2 main types of application =
● Opposed application, require both
parties to argue issues on the papers,
only the issues in the documents
before hte court. Heard after the
unopposed matters.
● Unopposed application, last only a few
minutes and representatives present
their case and receive an immediate
decision from the magistrate / judge.
When making the decision to following an action or application proceeding?
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In the civil courts, for urgent matters, you may use the application proceedings where it
is required, not prohibited, by statute and no real dispute of fact is anticipated (disputes
of fact require oral evidence to be cross examined – not possible in an Application). 3
possible situations of this was held to exist in the Room Hire case:
Types of proceedings that MUST be brought, in terms of statute, by way
of application (liquidation of company, sequestrate debtor, rehabilitate an
insolvent)
Types of matter prohibited by statute from deciding on application (action
of divorce, action to recover damages which are unliquidated).
Inbetween the above mentioned you need to decide to make either a
action proceeding or a application proceeding. Criterion to make use of
when deciding is whether or not there is ANY REAL DISPUTE BETWEEN
THE PARTIES ON ANY MATERIAL QUESTION OF FACT. If there is
such a dispute then you will proceed by way of action in order to properly
test and challenge the evidence, the parties will need to lead the evidence
of witnesses and to have the witnesses cross-examined (cannot be done
in application) for the court to decide whose version is more probable, the
court will have to make a credibility finding after HEARING and SEEING
the witnesses testify the court cannot do this by merely reading the
respective versions contained in affidavits. If it is a urgent matter you will
bring a URGENT APPLICATION.
Plascon-Evans matter - the court held:
• that if disputes of fact become apparent on the affidavits,
• a final order (or relief with a final effect) may only be granted if the allegations in the applicant’s
affidavits, which have been admitted by the respondent, considered together with the
allegations made by the respondent, justify such an order.
How does one assess if a real dispute of facts exist or not?
Not all dispues of facts are REAL disputes of facts.
Ask yourself whether or not it is likely for the respondent to be in a position to dispute the
substance of what you are claiming in your application papers? If your case is clear cut and that
the facts that are material to your case cannot be disputed you may proceed with your
application.
A dispute will arise when the respondent denies all the material allegations and produces
positive evidence, where hte respondent admits the affidavit evidence but alledge other facts,
when the respondent concede that he has no knowledge of the main facts stated by the
applicant.
A dispute will NOT arise if the respondent give bare denial of the allegations or if the
Respondent’s version is so far-fetched or clearly untenable - Soffiantini v Mould.
Where there is a material and bona fide dispute of fact that cannot be decided on the papers, a
court may: UNIFORM RULE 6(5)(g)↷
Where an application cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the generality of the aforegoing,
it may direct that oral evidence be heard on specified issues with a view to resolving any
dispute of fact and to that end may order any deponent to appear personally or grant
leave for such deponent or any other person to be subpoenaed to appear and be
examined and cross­examined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition of issues, or otherwise.
Study unit 8 = application procedure.
NB = HC Rule 6 & MC Rule 55
The Application procedure is specifically designed to deal with matters which are capable being
decided by a court on papers before it, without the need for a trial. Consists of Notice of Motion
& Affidavit and supporting annexures.
There are 2 forms of applications:
1. Normal (on-notice) application. This form of application is when there has to be notice
given to your opponent.
2. Ex parte application. Without giving notice to your opponent. Brought on a urgent basis
which may result in noncompliance with certain rules of court, known as urgent ex parte
applications.
Certain type of applications are brought to achieve certain objectives during existing
applications or action proceedings – these are called INTERLOCUTORY APPLICATIONS.
Interlocutory applications do NOT initiate proceedings they are incidental to proceedings that
are already pending.
Let us assume that you are suing by way of action, and are busy with the pretrial procedure.
You request the other side to discover (i.e. disclose all relevant documents) in terms of High
Court rule 35(1), but they fail to deliver their discovery affidavit within the required period of 20
days. In terms of rule 35(7), you may now make application to court to compel the opposing side
to discover. This application will be an interlocutory application because it does not initiate
proceedings, but is part of proceedings that are already pending.
Urgent application becaus it is urgent it may not be possible for the applicant to comply strictly
with the rules of court relating to service nad notice periods, however courts will not let the
normal rules relating to application be disregarded without good reason (the applicant must
inform the court fully with the reason why the application is urgent, and hwy he cannot wait to
obtain relief by making the application in the normal way). The applicant may formulate his own
time period for the respondent to file an answering affidavit which he is then obliged ot obey
until the hearing, where he may then object to the time period which the applicant must then
convince the court that the urgency is of such a nature that it justified the given time period. A
applicant cannot create his own urgency!
Ex parte applications
May be brought in the following circumstances:
- In some instance the applicant is the only interested person – appointment of a curator.
- When the relief sought is a preliminary step.
- Nature of the relief sought (i.e giving notice may defeat the purpose of the application)
- Immediate relief is essential, because harm is imminent.
- Where the application is brought ex parte in terms of established court practice.
- Where the identity of the respondent/s is not readily ascertainable.
Exparte applications are brought without notice because no one else has interest in the
application or there is a reason why it would be undesirable or impossible to give notice of the
application to the respondent.
→Notice of motion
“Making an application to court”. Giving notice that a motion is going o be made to court.
Party bringing the application = applicant.
Party against whom the application is brought = respondent.
It sets out:
1. Identities and addresses of the applicant and respondent
2. Gives respondent certain time limits within which he can act (no less than 5 days after
service of the notice to the respondent, on or before when the respondent must notify
the applicant in writing that he intends to oppose the application, if he does not give
notice of his intention to oppose the matter will be set down for hearing on a day no less
than 10 days after service on the respondent).
3. Informs the respondent of the relief or remedy sought by the application.
Form 2 HC , Form 1 MC: the following information must be included in the notice of motion.
- Who is the applicant;
- Date / time application will be made
- Order that the Court will be asked to make
- Application is supported by an Affidavit
- Name / Address of the Applicant’s Attorney
- Instruction to the Registrar to set the matter down on the Roll for hearing
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Signed by the APPLICANTS ATTORNEY
→ Where the court is satisfied that no rights of other people will be affected by the ex parte relief
it will grant a final order, sometimes the court may be of the opinion that it will effect the rights of
the eventual respondent and will then not grant a final order but will order a rule nisi.
What is a rule nisi?
Rule nisis is a court order calling upon named respondents or other persons to give reasons (to
show cause) on a date set by court why the order asked by the applicant should not be made a
final order. In the HC and MC ther respondent may anticipate the rule nisi return day which
means to ask that the matter be dealt with before the return date of the rule nisi, by giving no
less than 24 hours notice.
→ intervention = rule 6(4)(b) of HC any person having a interest in the ex parte application may
apply to the court for permission to intervene in the application. This intervention must be in the
form of a notice of motion requesting leave to intervene and must be supported by an affidavit
setting out their interest in the matter. Notice must also be given to the applicant who may then
wish to file an affidavit opposing the intervention. Rule 55(1)(c) of the MC provides that notice of
an application must be given to any person if it is necessary or proper to do so.
→ requirement of utmost good faith = duty to be completely open and honest with the court, and
has to reveal all facts that may be relevant to the matter, even those facts which may be
detrimental to his case. Breach of this requirement may lead to the court dismissing the case.
Ordinary (on notice) application
The application is brought by notice of motion supported by affidavits. Interlocutory applications
must be brought on notice (MC) whereas in the HC interlocutory application may be brought on
notice, supported by affidavits.
In the HC every single peron who has a interest in the matter must be cited as a respondent.
The first step in all courts is to draw a notice of motion.
�STEP 1 = The applicants notice of motion = HC Rule Form 2(a), notice of motion for a on
notice HC application. Copies of the application paper must be served on the respondent and
the registrar of the court.
- Applicant must state the order that he wishes the court to make (order prayed).
- state the names of the persons who have deposed to affidavits in support of the notice of
motion.
- set out an address at which the applicant will accept service of documents in the matter.
The service address must be within 15 kilometres of the office of the registrar.
- sets out the respondent’s options: what he must do if he wants to oppose the
application, and what will happen if he does not do so.
- notice of motion is signed by the applicant or his duly appointed attorney.
�STEP2 = The applicants founding and supporting affidavits = main evidence in support of the
notice of motion is contained in the affidavit called the founding affidavit. Witnesses who support
hte applicants version their affidavits are called supporting affidavits. If the witness merely agree
with the version of another deponent their affidavit is called confirming affidavit.
The founding and supporting affidavits must must contain all the evidence supporting these
elements. Once all the founding and supporting affidavits have been drafted, they must be
attached to the notice of motion and sent to the sheriff for service.
Step 1 and 2 are issued by the Applicant.
�STEP 3 = Serving of the application papers = all the affidavits are duly signed before a
commissioner of oath you will deliver the original and atleast 2 copies ( and however more
depending on the number of respondents) of the notice of motion and founding and supporting
affidavits to the registrar of the court to be issued. Once the application has been issued a copy
of the papers will be served on each respondent by the sheriff. Thereafter the sheriff will file the
original notice of motion and affidavits with the registrar of the court and deliver the remaining
copies of the papers to yu together with the return of service.
�STEP 4 = Respondents notice of intention to oppose = If the respondent intends to oppose
the application, he must file a notice of opposition. In terms of HC Rule 6(5)(b)(iii) the
respondent must be allowed at least 5 court days after he receives the application papers to
deliver his notice of opposition.
If the notice of motion is served on the respondent on a place outside the jurisdiction of the
division of issue the respondent is allowed more than 5 days to deliver his notice of opposition.
In terms of the MC Rule 55(1)(e)(iii) the respondent must deliver his notice of opposition to the
applicant, and within 10 court days of this notice, deliver his answering affidavit.
�STEP 5 = Respondents answering affidavit = If the respondent, in a High Court matter, HC
Rule 6(5)(d) delivers a notice of opposition in time, he must deliver his answering affidavit within
15 court days. 10 court days in Regional and Destrict Magistrates Court matters MC Rule
55(1)(g).
Step 4 and 5 are served by the respondent.
�STEP 6 = The applicants replying affidavits = HC Rule 6(5)(e) and MC Rule 55(1)(h) deliver
replying affidavit by the applicant within 10 days after the respondents answering affidavit has
been served. Purpose of the replying affidavit is to rebut any averments made in the answering
affidavit. New matters may NOT be introduced.
�STEP 7 = Setting the matter down for hearing = delivering a notice of hearing.
�STEP 8 = Hearing of motion
Affidavits.
- statement made under affirmation or oath, also called sworn statement. Which is
signed and affirmed, or sworn to, by the person making the statement (deponent)
before a commissioner of oath.
- The information contained in a affidavit is ‘evidence’ therefore it is administered.
- Drafted in the first person.
- Cannot be amended by rules of court, deponent must seek leave of court to submit a
further affidavit to explain and correct the incorrect statements.
- It must be clear from the affidavit that the parties have locus standi to bring the
application.
- The legal capacity of the applicant must also be shown.
- The founding affidavit must contain sufficient facts to establish the court’s jurisdiction.
- If the application is an urgent application, the founding affidavit must set out the
grounds of urgency in accordance with Magistrates’ Courts rule 55(5), or rule 6(12)(b)
of the High Court Rules.
- The founding and supporting affidavits will set out the grounds upon which the relief is
claimed. In other words, sufficient facts must be set out to disclose and prove a cause
of action.If the founding and supporting affidavits fail to disclose a cause of action, the
respondent is entitled to ask the court to dismiss the application on the basis that it
discloses no grounds on which the relief may be granted.
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Inadmissible evidence in affidavits.
Affidavits may not contain the following.
Hearsay = if the applicant does not have first hand knowledge of the
facts given, he must then annex to the affidavit a supporting affidavit
known as a verifying affidavit by someone who has first hand
knowledge of the facts. In urgent application hearsay will be permitted
because of the limited time available, the applicant must however state
that the allegations are hearsay.
Privileged communication = statements made or written ‘without
prejudice’; communications between attorney and client; certain
communications between husband and wife; and state privilege.
Matter excluded by rules of court Scandalous, vexatious or irrelevant matter = MC rule 55(9), and HC
rule 6(15), scandalous > allegations that may or may not be relevant
worded in a way to be abusive or defamatory. Vexatious > allegations
that may or may not be relevant worded in a way to convey intention to
harass or annoy. Irrelevant matter > allegations that do not apply to the
matter and do not contribute to making a decision.
Inadmissible new matter = New information or issues that have not
been included in the founding affidavit may not be raised in a replying
affidavit.
Inherent jurisdiction = irrelevant attacks on credibility and argumentative
matters.
Study unit 9 = Actions
Action proceedings are to resolve a dispute between 2 or more people. Once the parties have
clarified what the dispute is they go to a independent 3rd person where both give their side of
the storie and the 3rd person then decide who “won” the argument.
Action proceedings take place in 4 stages:
1. Pleading stage.
2. Pre-trial stage.
3. Trial stage.
4. Judgement stage.
The material and factual allegations averred in a pleading are not made under oath and
therefore do not constitute evidence.Evidence will be led at the actual hearing (facta probantia),
in order to prove the material and factual allegations made in the various pleadings.
The pleading stage.
During this stage the parties the issue that are in dispute. In action proceedings all issues are
defined in writing and set out in documents called PLEADINGS. This document is then sent out
to the opposing party. The opposing party then replies to this pleading and the documents travel
back and forth between the parties. At the end of the pleading stage the parties should be clear
as to the issue that will be disputed in the trial.
The pre-trial stage.
This is where the parties will be preparing for trial. Arraging the trial date, have a look at each
others documents, ordering their witnesses to court, and so on.
The trial stage.
‘The talking war’. This stage happens in court and involves the hearing of evidnecefrom
witnesses and legal arguments from the legal representatives.
The judgement stage.
The court establishes who has ‘won’ the argument.
Steps of a pleading.
Summons.
A summons is a written judicial demand, issued by the registrar. Directed at the sheriff of the
court. The summons orders the sheriff to command the defendant to enter an appearance to
defend by a fixed day, in order to answer the claim made by the plaintiff. There are 3 main
elements of a summons:
1. Citation of parties: to identify the parties of the action. The names, addresses and
occupation of the plaintiff and defendant (if known) are required. If either party acts in
any representative capacity, the summons should set forth such capacity, and if the
plaintiff is a natural person, the plaintiff’s gender must also be stated.
2. Warning to defendant: warned of a limited time limit in which he can take steps to defend
the action known as the Dies Induciae. And warned that if he intends to defend the
matter he must give notice of this intention to both the court and the plaintiff within the
above mentioned time period. The defendant is warned that if he wishes to defend the
matter he must give an address within 15km of the court for the service of documents
3. Particulars of claim.
There are different forms of summons:
↜HC Rule 17, MC Rule 5↝
Provisional sentence summons: Used in rare instances when Plaintiff’s claim is founded on a
liquid document (cheque, mortgage bond, AOD).
Simple summon: does NOT have a separate POC. the POC are included in the body is
abbreviated form. This summons may only be used where the claim is for a fixed, certain or
ascertained amount or thing (debt or liquidated demand). Not just for specified amount of money
but also for fixed and specified things. A claim for damages will not qualify (amount can always
be disputed). Both the summons and the POC are signed by an attorney (the POC does not
need to be drafted by an attorney but it needs to be signed by one). The POC must disclose a
cause of action, in brief, does not need to comly with HC Rule 18 and MC Rule 6, it should
include enough facts to show that the plaintiff has locus standi and that the court has
jurisdiction.
A declaration is required if the matter is defendant: HC Rule 20(1) MC RULE 15(1) once NID is
delivered the plaintiff must delivery a declaration within 15 court days after receiving the NID
and file it with the court. If the plaintiff faisl to do this within the given time the defendant can bar
the plaintiff from doing it and apply for absolution from the instance or judgement in the
defendants favour. The plaintiff can apply for default judgement if the defendant fails to enter an
appearance to defend (failure to file NID within the dies induciae).
Combined summons: NB form of summons! May be used for ANY type of claim. MUST use
combined summons in cases of unliquadated claims (damages or illiquid claims, divorce). 2
parts to this form of summons:
1. The summons, a kind of notice to the defenmdant from the plaintiff via sheriff telling that
action has been instituted and giving of various forms of details.
2. Particulars of claim, attached to the summons. Containing material facts which the
plaintiff relies on for his cause of action. These facts are set out in separate annexures
attached to the summons. While the summons itself is drafted and signed by an
attorney, the particulars of claim are usually drafted by an advocate and signed by both
an advocate and an attorney in the High Court, and must comply with rule 18 of the High
Court and the similarly worded rule 6 of the Magistrates’ Courts, which relate to
pleadings generally.
Defendants actions
Intention to Defend: Once a summons has been served on a Defendant, he may:
- do nothing (then the Plaintiff will take default judgment),
- attempt to settle the matter by agreement,
- consent to judgment in the Magistrates Court,
- confess to judgment in the High Court,
- defend the matter, enter an appearance to defend and the matter will proceed on a
defended basis.
Notice of this intention to defend: This notice tells the Plaintiff and the court that the Defendant
wishes to defend the action and appoints a street address/ physical address within 15km of the
Court, for the services of further documents on the Defendant. This, simultaneously, places the
Defendant’s Attorney on record (HC Rule 19 MC Rule 13). Entering an appearance to defend
does not prevent a defendant from raising an exception or a special plea at a later stage in the
proceedings.
Delivery of this notice: The appearance to defend is entered by delivering one copy of the notice
to the registrar or clerk of the court, and one copy to the plaintiff or his attorney. A notice of
intention to defend need not be served by the sheriff of the court; it is usually delivered by a
messenger working for the defendant’s attorneys. The messenger will deliver the original and
two copies of the notice to the offices of the plaintiff’s attorneys. The receptionist at the office of
the plaintiff’s attorneys will indicate that the plaintiff’s attorneys have received the notice by
stamping the original as well as the two copies with the firm’s name and the date of service. The
receptionist will hand the original and one of the copies back to the messenger, retaining one
copy to be placed on the file of the plaintiff’s attorneys. Having served the notice, the messenger
will then file it at court, by handing the original and remaining copy to the clerk or registrar, who
will date-stamp both documents, retaining the original for the court file and returning the copy to
the messenger. Once the original notice has been placed on the court file, any dispute which
may arise as to whether or not there has been proper or timeous service may be resolved by
referring to the date stamps. The messenger will return the remaining copy of the notice to the
defendant’s attorney for filing.
Dies induciae: In both the High Court and Magistrates’ Courts there are time limits, known as
dies induciae, within which the defendant is required to enter an appearance to defend. If the
defendant fails to enter an appearance to defend within the stipulated time limit, the plaintiff may
take default judgment against him. In High Court matters, the time within which the defendant is
allowed to enter an appearance to defend depends on whether the summons was served upon
the defendant inside or outside the jurisdiction of the court which issued the summons. In terms
of High Court rule 19(1), if a summons is served inside the jurisdiction of the court which issued
it, a defendant is allowed 10 court days after service within which to deliver a notice of intention
to defend. It is important to note that the days between 16 December and 15 January, both days
inclusive, are not counted when calculating this period.81 These days are known as dies non
(literally, ‘non-days’).82 In terms of s 24 of the Superior Courts Act,83 if the summons is served
outside the jurisdiction of the court which issued it, the appearance to defend must be delivered
not less than: 1. one month after service, if the place of service is more than 150 kilometres
from the court from which it was issued;84 and 2. two weeks in any other case. - Action against
the State: 20 court days allowed to file NID - HCR 19(2) & MCR 13(2).
Plea.
“Defendants reply to plaintiffs POC and contains defence to the claim”.
2 kinds of plea:
- Plea on merits, which deals with the substance of the plaintiffs claim. “Attacks” the
validity of the cause of action with regards to the facts of the case.
HC Rule 22 MC Rule 17 sets out the requirements for plea on merits:
Time limits: within 20 court days after delivering NID (in combined summons) or
receiving the plaintiffs declaration (in simple summons) deliver his plea to the
plaintiff.
When responding to the allegations contained in the plaintiffs POC the defendant
may respond to each allegation in 1 of the following 4 ways:
- Admit the allegations, once facts are admitted they become common
cause and the plaintiff need not prove them at the trial. Any fact that may
be implied from the facts that have been admitted is also deemed to have
been admitted if not specifically denied. Should the defendant later want
to retract his admission , he will need to amend his plea with the plaintiff’s
consent or by application to court if the defendant can show an error and
no prejudice to the plaintiff.
- Deny the allegations, facts which are denied are placed in issue and must
be proven at trial. A bare denial is not allowed – the defendant must
answer the point of substance raised in the plaintiff’s POC indicating what
defence he is pursuing (unless the defence is a denial of the fact itself –
eg deny making a defamatory statement). A denial must be clear, it
should not leave the plaintiff in doubt about what he needs to prove at
trial.
- Confess and avoid the allegations, The defendant admits a particular
averment but then sets out new facts which if proved, would justify or
excuse the defendant’s admitted conduct. The avoidance part of the plea
prevents a later denial of liability being a bare denial (it explains why the
defendant believes he is not liable) – This plea shifts the onus onto the
defendant to prove the new facts raised by him.
- Respond that they do not admit the allegations and to what extend the
allegations are not admitted, This plea may only be used when the
defendant is unable to put forward one of the other 3 pleas discussed –
eg when the defendant does not know anything about a particular
allegation. Requires that the defendant give a reason for his pleading a
non-admission (i.e have no knowledge).
The defendant HAS TO plead the material facts whereupon he relies and
give an explanation of any denial.
-
Special plea, “legal objection” to some aspects of the plaintiffs claim. Normally due to an
underlying legal problem in the plaintiff’s case rather than the merits. Can either destroy
(pleas in abatement) or postpone the plaintiffs case (dilatory special pleas).
● Dilatory special pleas:
●
❖ Arbitration = in contracts clause stating that disputes must be submitted to
arbitration, ‘You cannot sue me yet. First, you must take the matter to
arbitration in accordance with our agreement.’
❖ Lis pendes = this special plea can be raised to stay a particular action on
the grounds that another action is already pending between the same
parties, on the same cause of action and in respect of the same subject
matter. ‘You cannot sue me for this. You are already suing me for the
same reason regarding the same thing.’
❖ Premature summons = this plea is raised when a summons is issued
before the cause of action is complete.
Abatement special pleas:
❖ Prescription = every cause of action has to be prosecuted within a certain time
period, failing which, it will prescribe and the defendant can no longer be found
liable. Prescription Act 68 of 1969 deals with extinctive prescription for debts:
- 3 years for normal claims
- 6 years for negotiable instruments
- 15 years for debt owed to state
- 30 years debt secured by mortgage bond or judgment debt, tax law, mineral
loyalties
➢ Period of prescription begins to run as soon as the debt is due (creditor needs
to exercise reasonable care in gaining knowledge of the debtors identity and
facts from which the debt arose).
❖ Misjoinder / non-joinder = raised where a party who should not have / should
have been joined to an action is not joined.
❖ Res Judicate = raised where the defendant is able to show that the point in
dispute has already been finally adjudicated upon between the parties.
❖ Jurisdiction = Plaintiff brings an action in a court which lacks jurisdiction – the
defendant can raise a special plea of lack of jurisdiction.
❖ Non locus standi in iudicio = if a plaintiff brings an action and lacks a real and
substantial interest in the matter the defendant can raise a special plea of non
locus standi in iudicio.
Close of pleadings:
How to deal with defective pleadings?
● HC Rule 23(1) MC Rule 19(1) - Exception = ‘legal objection’ the pleading is not legally
valid. If exception is used the defect should be ex facie (obvious) from reading the
pleading. The pleading would then be called excipiable and the party raising exception
would be called excipient. An exception may act as a ‘knock-out punch’ which is able to
bring the proceedings to an early end without the need for the action to go to trial. There
are 2 major frounds for exception:
1. Fails to disclose a cause of action / defence = elements required to sustain a a cause of
action depends of the demands of substantive law therefore no claim exists.
2. Vague and embarrassing = To constitute sufficient grounds for an exception, the
vagueness of the pleading must be such that it will result in prejudice or ‘embarrassment’
to the opposing side if it is allowed to persist. ‘strikes at the formulation of the cause of
action and not its validity’. When using this ground, the excipient must give the
opposition an opportunity to remove the cause for the embarrassment within 15 court
days. The opposing party can then amend his pleadings - If he fails to take this
opportunity, the excipient must deliver his exception within 10 court days.
● HC Rule 23 (2) MC Rule 19 (2) - strike out offensive parts of pleadings = Provides for
offending (scandalous – abusive / defamatory, vexatious –worded so as to harass ,
irrelevant – allegations of law / evidence) averment to be deleted. - Bring application
within the period allowed for the filing of a subsequent pleading - Convince the court that
the applicant will be prejudiced (diverted from the main issue by having to deal with
these matters) in the conduct of his claim / defence if the application were not granted.
● HC Rule 30 MC Rule 60 A - set aside irregular step = deals with technical breaches of
legal proceedings. After becoming aware of an irregular step the applicant must take no
further action, instead he must send written notice to the opposing party within 10 days
pointing out the irregularity and giving that party 10 days to remove the irregularity. If no
steps are taken to remove the irregularity the applicant must serve strike-out papers
within 15 court days of the expired 10 days. Court will asses the prejudice to the
applicant and make an order at the hearing (he may set aside the proceedings in
whole/part, grant leave to amend or another suitable court order) - No further steps can
be taken until the court order has been complied with.
● HC Rule 30A MC Rule 60 - enforcing compliance and condoning noncompliance =
Provides for an application to compel compliance and thereafter an application for
judgment to be taken against the opposing party - The rule also provides relief for those
failing to observe the time limits prescribed by the rules (where written consent cannot
be obtained from the opposition) - Court will consider the sufficiency and acceptability of
the explanation given for non-compliance vs the prejudice to the opposition occasioned
by the delay.
● HC Rule 28 MC Rule 55A - amendment of pleadings = Amendments may be granted at
anytime prior to judgment either by consent or by court order - The party seeking the
amendment must first serve a notice of intention to amend on all the parties (setting out
the precise amendments, what is to be deleted / inserted) calling upon them to deliver
written objections to the proposed amendments within 10 days, failing which the
amendments will be effected - If a party wished to raise an objection he must clearly and
concisely state the grounds for the objection. After receiving notice of objection the
amending party can within 10 court days make an application to court for leave to
amend. - At an interlocutory hearing the court will consider the following: - Prejudice in
granting the amendments - Bona fides of the applicant - Always allowed, unless mala
fides or result will be an injustice to the opposition (cant be compensated by costs) Serious amendments (like withdraw of an admission) might require a supporting affidavit
- Once authorised / consented to, the amending party can file the amended pages and
serve them on the opposition - The receiving party then has 15 court days to effect any
consequential amendments of their pleadings / note exceptions, bring application to
strike out or set aside irregular steps.
What is a provisional sentence summons?
Extraordinary remedy available to a creditor who has liquid documentary proof of their claim
against the debtor. To provide a plaintiff with a short cut to a kind of provisional or temporary
judgement which then becomes final if the defendant does nothing for 2 months. It is
‘extraordinary’ because it is a hybrid procedure, starts by way of a summons then proceeds by
way of affidavit and then becomes an action again.
The court will grant provisional sentence if:
1. the plaintiff’s claim is based on a liquid document; and
2. a)where the onus is on the plaintiff, he can satisfy the court that the probabilities of
success in the principal case48 are in his favour; or
3. b)where the onus is on the defendant, he is unable to produce sufficient proof to satisfy
the court that the probabilities of success in the principal case are against the plaintiff.
What is a liquid document?
Rich and other v Lagerway = document which evidences by its own terms an unconditional
acknowledgement of indebtedness in an ascertained sum of money the payment of which is due
(cheque). Requirements of a liquid document:
✓ Written instrument, Help make the plaintiff’s case watertight – fact that the defendant in
writing acknowledges his indebtedness - The cause for the indebtedness need not be stated in
the written instrument (irrelevant what the cause of the indebtedness is) - Even if defective for
the formal requirements of the document (eg unregistered mortgage bond).
✓ Signed by the defendant (or his agent), The PSS calls upon the defendant to admit or deny
their signature - Signature confirms an acknowledgement of indebtedness.
✓ Evidenced by its own terms (no need for extrinsic evidence), No need for extrinsic evidence The document need not refer specifically to the plaintiff (may have been ceded to the plaintiff) Indebtedness might arise out of an undertaking to pay at some time in the future provided the
undertaking to pay in the future is binding and unconditional.
✓ An unconditional acknowledgment of indebtedness, If any conditions are attached to the
obligation to make payment the document is not ‘liquid’ (need additional evidence to show
indebtedness) - Exception: simple condition (relating to when the debt is paid, not to the
defendant’s liability to pay)- capable of speedy proof on affidavit that the simple condition has
been met.
✓ In an ascertained sum of money.
✓ Payment of which is due.
Examples: - AOD; - promissory note; - Mortgage Bond; - bill of exchange; - guarantee; architects certificate.
PSS gives the defendant the following options, Pay immediately the claim + interests + costs;
Or oppose the matter by:
❖ Coming to court on a certain date to deny liability
❖ 12 noon 2 days before court date – file an opposing affidavit - Otherwise provisional sentence
will be granted against him/her - Once PS granted, defendant has the right to security form the
plaintiff if he/she pays the amount for which PS was granted and still wishes to defend the
matter
Consequences of provisional sentence:
- Provisional – not final judgment - Becomes final after 2 months if the defendant does nothing If the defendant seeks to challenge the judgment:
✓ Pay the full amount plus taxed costs
✓ Demand security de restituendo (also if the plaintiff issues a writ of execution)
✓ Send notice of intention to defend the principle case to the plaintiff (notifying him that you
intend to defend the matter)
✓ Convert PSS into combined summons
✓ Defendant must deliver plea within 10 days notice
✓ After 2 months / if no plea within 10 days of notice – judgment made final