HIGH COURT
PRACTICE
Syllabus
The syllabus is compiled by
Practitioners with experience in
Training Guide
Version 004 Learning Resources No. 013
Publish date: 01/01/2024
Confirmation Date: 01/11/2023
practice.
The guide for 2024 has been
revised by Advocate Donovan Pitt
and reviewed by Advocate (Dr)
James Clark, Clark Chambers
This training guide is intended as a supplementary tool for
purpose of the training at L.E.A.D’s Practical Vocational
Training School and Courses.
and Frans Haupt.
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TABLE OF CONTENTS
A.
PREFACE TO THE COURSE .......................................................................... 12
1. WELCOME AND PURPOSE ........................................................................... 12
2. WHY IS THIS SUBJECT IMPORTANT? ......................................................... 13
3. LEARNING ASSUMED TO BE IN PLACE ........................................................ 14
4. OUR APPROACH ......................................................................................... 14
5. LEARNING OUTCOMES ............................................................................... 15
6. CANDIDATE SUPPORT ................................................................................ 17
7. TIME MANAGEMENT ................................................................................... 18
8. ASSIGNMENTS ........................................................................................... 19
9. ASSESSMENTS............................................................................................ 19
B.
OVERVIEW OF HIGH COURT PRACTICE...................................................... 21
C.
PRACTICE NOTES ...................................................................................... 27
1. SOURCES.................................................................................................... 27
1.1
ACT AND THE RULES ............................................................................ 27
1.2
PRACTICE DIRECTIVES ......................................................................... 27
1.3
TEXTBOOKS AND ELECTRONIC SOURCES ............................................... 28
1.4
COMMON LAW ..................................................................................... 28
1.5
CASE LAW ........................................................................................... 29
1.6
STARE DECISIS ................................................................................... 29
1.7
WARNING REGARDING COMPLIANCE WITH RULES ................................... 29
2. PRINCIPLES UNDERLYING THE LAW OF PROCEDURE IN THE HIGH COURT 29
3. THE HIGH COURT ....................................................................................... 30
3.1
INTRODUCTION ................................................................................... 30
4. OFFICIALS OF THE COURT ......................................................................... 32
4.1
JUDGES .............................................................................................. 32
4.2
THE REGISTRAR .................................................................................. 32
4.3
THE SHERIFF ....................................................................................... 32
4.4
THE TAXING MASTER ........................................................................... 33
4.5
THE FAMILY ADVOCATE ........................................................................ 33
4.6
THE INTERPRETER ............................................................................... 33
4.7
THE COURT ORDERLY ........................................................................... 34
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4.8
THE JUDGE’S CLERK ............................................................................. 34
4.9
THE COURT STENOGRAPHER ................................................................. 34
4.10 ATTORNEYS AND ADVOCATES ............................................................... 34
4.11 THE MASTER OF THE HIGH COURT ......................................................... 34
4.12 THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS ............................. 34
4.13 THE REGISTRAR OF DEEDS ................................................................... 35
4.14 APPEARANCE IN HIGH COURT BY ATTORNEYS ......................................... 35
5. GENERAL REMARKS CONCERNING COURT ETHICS ..................................... 35
SELF-ASSESSMENT QUESTIONS....................................................................... 37
I.
THE PRE-LITIGATION STAGE ..................................................................... 38
1. INITIAL CONSULTATION AND TAKING OF INSTRUCTIONS ........................ 38
1.1
INITIAL CONSULTATION ....................................................................... 38
1.2
ENGAGEMENT LETTER / MEMORANDUM OF CONSULTATION ...................... 41
1.3
IF YOU ARE ACTING FOR A DEFENDANT/RESPONDENT, THE FOLLOWING
COULD BE CANVASSED AT THE FIRST OR SUBSEQUENT MEETING ............. 42
2. LEGAL OPINIONS OF COUNSEL / THE ATTORNEY ....................................... 43
3. THE ATTORNEY’S RESPONSIBILITIES TOWARDS THE CLIENT .................... 43
3.1
FULL INFORMATION ............................................................................. 43
3.2
FINANCIAL ASPECTS ............................................................................ 43
3.3
TIME SCHEDULES ................................................................................ 44
3.4
THE PROSPECTS OF SUCCESS ............................................................... 44
3.5
BRIEFING COUNSEL ............................................................................. 44
3.6
SETTLEMENT ....................................................................................... 45
3.7
REPORTING TO CLIENTS ....................................................................... 45
3.8
MEDIATION IN TERMS OF RULE 41A OF THE UNIFORM RULES OF COURT ... 45
4. PRACTICAL FILE ADMINISTRATION ........................................................... 48
5. CORRESPONDENCE .................................................................................... 48
6. LETTERS OF DEMAND AND NOTICE ............................................................ 49
6.1
WHEN NECESSARY ............................................................................... 50
6.2
LEGISLATIVE PROVISIONS .................................................................... 50
6.3
SPECIFIC LEGISLATIVE PROVISIONS ...................................................... 54
6.4
INTERIM INTERDICTS AGAINST THE STATE ............................................ 55
6.5
HINTS ON DRAFTING ........................................................................... 55
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6.6
ALLEGATION NOT SUFFICIENT RE COMPLIANCE WITH SECTION 129(1) ..... 56
7. THE ATTORNEY’S MANDATE ....................................................................... 56
7.1
CONTINGENCY LITIGATION ................................................................... 57
8. PRE-REQUISITES ....................................................................................... 60
8.1
THE CAUSE OF ACTION......................................................................... 61
8.2
LOCUS STANDI .................................................................................... 62
8.3
JURISDICTION (SEE SECTION 21 OF THE SUPERIOR COURTS ACT NO. 10 OF
2013) ................................................................................................. 65
8.4
THE FORMS OF PROCEEDINGS .............................................................. 73
8.5
HINTS ON DRAFTING ........................................................................... 76
SELF-ASSESSMENT QUESTIONS....................................................................... 77
II.
THE ACTION PROCEDURE ....................................................................... 79
1. INTRODUCTION ......................................................................................... 79
2. THE DIFFERENT TYPES OF SUMMONSES ..................................................... 81
2.1
SIMPLE SUMMONS ............................................................................... 81
2.2
COMBINED SUMMONS .......................................................................... 83
2.3
PROVISIONAL SENTENCE SUMMONS ...................................................... 83
2.4
HINTS ON DRAFTING ........................................................................... 83
3. THE CONTENTS, ISSUE AND SERVICE OF THE SUMMONS ........................... 84
3.1
WHEN ARE PARTIES JOINED? ................................................................ 84
3.2
WHAT IS MEANT BY THE JOINDER OF DIFFERENT CAUSES OF ACTION? ..... 88
3.3
HOW ARE THE PARTIES DESCRIBED? ..................................................... 88
3.4
GENERAL ............................................................................................ 89
3.5
DIES INDUCIAE ................................................................................... 90
3.6
ISSUING OF THE SUMMONS .................................................................. 90
3.7
SIGNATURE ......................................................................................... 91
3.8
THE DIFFERENT METHODS OF SERVICE .................................................. 91
SELF-ASSESSMENT QUESTIONS....................................................................... 95
4. JUDGMENT BY DEFAULT ............................................................................. 95
4.1
WHEN MAY JUDGMENT BY DEFAULT BE APPLIED FOR? ............................. 96
4.2
JUDGMENT BY DEFAULT GRANTED BY THE REGISTRAR ............................ 96
4.3
WHAT IS A NOTICE OF BAR? (RULE 26) .................................................. 99
4.4
FAILURE TO APPEAR AT THE HEARING.................................................... 99
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4.5
DOCUMENTS TO BE FILED IN COUNSEL’S BRIEF ...................................... 99
4.6
RESCISSION OF DEFAULT JUDGMENT.................................................... 100
5. NOTICE OF INTENTION TO DEFEND ......................................................... 101
5.1
WHAT DOES THIS NOTICE LOOK LIKE?.................................................. 101
5.2
NOTICE OF INTENTION TO DEFEND – LATE DELIVERY ............................. 101
5.3
NOTICE THAT CAN ACCOMPANY THE NOTICE OF INTENTION TO DEFEND .. 102
SELF-ASSESSMENT QUESTIONS..................................................................... 102
6. SUMMARY JUDGMENT .............................................................................. 103
6.1
WHAT ARE THE PRE-REQUISITES FOR A SUMMARY JUDGMENT? ............... 103
6.2
WHEN MAY THE PLAINTIFF APPLY FOR SUMMARY JUDGMENT?.................. 103
6.3
THE APPLICATION ............................................................................... 104
6.4
HOW MUST THE NATURE AND GROUNDS OF THE DEFENCE BE SET OUT? .. 105
6.5
HOW MUST THE SECURITY BE GIVEN?................................................... 106
6.6
WHAT APPROACH DOES THE COURT FOLLOW? ....................................... 106
6.7
WHICH DOCUMENTS MUST BE IN COUNSEL’S BRIEF WHEN HE APPEARS
FOR THE PLAINTIFF OR THE DEFENDANT? ............................................. 106
6.8
ORDERS THAT THE COURT MAY MAKE AT THE HEARING OF THE
APPLICATION FOR SUMMARY JUDGMENT ............................................... 107
SELF-ASSESSMENT QUESTIONS..................................................................... 107
7. THE DECLARATION................................................................................... 108
7.1
WHAT IS A DECLARATION? .................................................................. 108
7.2
WHEN WILL THE DECLARATION BE USED? ............................................. 109
7.3
WHAT HAPPENS WHEN THE PLAINTIFF FAILS TO DELIVER THE
DECLARATION AND ALSO DOES NOT APPLY FOR SUMMARY JUDGMENT? ... 109
SELF-ASSESSMENT QUESTIONS..................................................................... 109
8. EXCIPIABLE AND IRREGULAR PROCEEDINGS .......................................... 111
8.1
THE EXCEPTION .................................................................................. 111
8.2
IRREGULAR PROCEEDINGS I.E. STEPS TAKEN NOT IN ACCORDANCE WITH
THE COURT RULES .............................................................................. 113
8.3
APPLICATION TO COMPEL .................................................................... 114
SELF-ASSESSMENT QUESTIONS..................................................................... 118
9. DEFAULT PROCEDURE (NOTICE OF BAR).................................................. 119
10. THE DEFENDANT’S PLEA........................................................................... 120
10.1 WHEN TO BE DELIVERED?.................................................................... 121
10.2 REQUIREMENTS FOR THE PLEA ............................................................. 121
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10.3 INSTRUCTIONS TO COUNSEL ............................................................... 122
10.4 SPECIAL PLEA (VAN BLERK P33) ........................................................... 122
11. CLAIM IN RECONVENTION ....................................................................... 124
12. FURTHER PLEADINGS............................................................................... 124
12.1 REPLICATION (RULE 25(2)) .................................................................. 124
12.2 PLEA IN RECONVENTION ..................................................................... 125
12.3 REJOINDER ........................................................................................ 125
12.4 REPLICATION TO THE PLEA IN RECONVENTION ...................................... 125
12.5 THE PLEADINGS WHICH CAN FOLLOW UPON A REPLICATION BY THE
PLAINTIFF ARE AS FOLLOWS ................................................................ 125
12.6 PUBLICATION OF PLEADINGS PENDENTE LITE ........................................ 125
SELF-ASSESSMENT QUESTIONS..................................................................... 125
13. THIRD-PARTY PROCEDURE (RULE 13) ..................................................... 126
SELF-ASSESSMENT QUESTIONS..................................................................... 128
14. CLOSE OF PLEADINGS .............................................................................. 128
END OF PLEADINGS STAGE ............................................................................ 129
SELF-ASSESSMENT QUESTIONS..................................................................... 129
15. DISCOVERY – COMMENCEMENT OF PRE-TRIAL PREPARATION STAGE...... 129
15.1 SPECIFIC TYPES OF DOCUMENTS .......................................................... 131
15.2 DISCOVERY BEFORE THE CLOSE OF PLEADINGS FOR PURPOSES OF
PLEADING .......................................................................................... 132
15.3 DISCOVERY BY PERSONS NOT PARTIES TO THE PROCEEDINGS ................ 132
15.4 FAILING TO DISCOVER ........................................................................ 133
15.5 RULE 36(6) ........................................................................................ 133
15.6 DISCOVERY BEFORE AND AFTER COMMENCEMENT OF LEGAL
PROCEEDINGS .................................................................................... 133
15.7 DISCOVERY REGARDING APPLICATIONS ................................................ 134
SELF-ASSESSMENT QUESTIONS..................................................................... 134
16. ENROLMENT ............................................................................................. 135
17. CASE FLOW MANAGEMENT RULES ............................................................ 135
17.1 EXPERT WITNESS NOTICE.................................................................... 136
17.2 PLANS, PHOTOGRAPHS AND DIAGRAMS ................................................ 137
17.3 INSPECTION ....................................................................................... 137
17.4 MEDICAL EXAMINATIONS .................................................................... 137
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17.5 INSTRUCTIONS TO COUNSEL ............................................................... 137
17.6 ADVICE ON EVIDENCE ......................................................................... 137
17.7 REQUEST FOR PARTICULARS FOR PURPOSES OF TRIAL ........................... 138
17.8 THE PRE-TRIAL CONFERENCE (RULE 37) ................................................ 139
17.9 JUDICIAL CASE MANAGEMENT .............................................................. 140
17.10 HINTS ON DRAFTING .......................................................................... 141
SELF-ASSESSMENT QUESTIONS..................................................................... 141
18. GENERAL PREPARATION FOR TRIAL ........................................................ 143
18.1 THE GOLDEN RULE .............................................................................. 143
18.2 CONSULTATION WITH WITNESSES ....................................................... 143
18.3 CONSULTATION WITH WITNESSES OF THE OPPOSING PARTY .................. 144
18.4 STATEMENTS OF WITNESSES ............................................................... 144
18.5 SUBPOENAS (RULE 38) ........................................................................ 144
18.6 SEPARATION OF ISSUES – RULE 33 ...................................................... 145
18.7 PREPARATION OF COURT PAPERS ......................................................... 146
18.8 EVIDENCE ON COMMISSION ................................................................ 146
18.9 EVIDENCE ON AFFIDAVIT..................................................................... 147
18.10 CONSOLIDATION OF ACTIONS.............................................................. 147
18.11 INSTRUCTIONS TO COUNSEL ............................................................... 147
18.12 INTERPRETERS ................................................................................... 148
SELF-ASSESSMENT QUESTIONS..................................................................... 148
19. THE TRIAL – ATTORNEY’S DUTIES ........................................................... 148
20. SETTLEMENT OFFERS AND INTERIM PAYMENTS....................................... 149
20.1 THE SETTLEMENT OFFER ..................................................................... 149
20.2 A SETTLEMENT OFFER MAY READ AS FOLLOWS ...................................... 149
20.3 AN UNCONDITIONAL OFFER OF SETTLEMENT ......................................... 149
20.4 SETTLEMENT OFFER WITHOUT PREJUDICE ............................................. 149
20.5 THE ACCEPTANCE OF THE OFFER .......................................................... 150
20.6 INTERIM PAYMENTS (RULE 34A) ........................................................... 150
20.7 HINTS ON DRAFTING .......................................................................... 151
21. AMENDMENTS TO PLEADINGS AND DOCUMENTS ..................................... 151
21.1 GENERAL ........................................................................................... 152
21.2 PROCEDURE ....................................................................................... 152
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21.3 HINTS ON DRAFTING .......................................................................... 154
SELF-ASSESSMENT QUESTIONS..................................................................... 154
22. INTERLOCUTORY APPLICATIONS ............................................................. 154
23. SECURITY FOR COSTS .............................................................................. 155
23.1 WHAT DO THE RULES STIPULATE? ........................................................ 155
23.2 WHEN MAY SECURITY FOR COSTS BE DEMANDED? ................................. 157
23.3 WHAT HAPPENS IF THE SECURITY IS NOT GIVEN? .................................. 158
23.4 RULE 47A ........................................................................................... 158
23.5 AN EXAMPLE OF THE POSSIBLE WORDING OF A NOTICE IN TERMS OF
RULE 47(1) IS THE FOLLOWING............................................................ 159
SELF-ASSESSMENT QUESTIONS..................................................................... 159
24. PROCEDURE FOR PROVISIONAL SENTENCE ............................................. 160
24.1 WHEN IS THIS PROCEDURE USED? ....................................................... 160
24.2 EXAMPLES OF DOCUMENTS THAT MAY BE LIQUID DOCUMENTS ............... 161
24.3 WHAT DOES THE SUMMONS LOOK LIKE? ............................................... 162
24.4 ISSUING AND SERVING ....................................................................... 163
24.5 ENROLMENT: UNOPPOSED ACTIONS ..................................................... 163
24.6 CHECKLIST FOR COUNSEL’S BRIEF IN THE CASE OF AN UNOPPOSED
CLAIM FOR PROVISIONAL SENTENCE .................................................... 164
24.7 OPPOSED ACTIONS ............................................................................. 164
24.8 ENROLMENT OF THE OPPOSED CLAIM FOR PROVISIONAL SENTENCE ........ 165
24.9 CHECKLIST FOR COUNSEL’S BRIEF IN THE CASE OF AN OPPOSED CLAIM .. 165
24.10 WHAT IS THE POSITION WITH REGARD TO THE ONUS OF PROOF IN THE
CASE OF AN OPPOSED CLAIM FOR PROVISIONAL SENTENCE? .................. 165
24.11 WHAT ORDERS MAY THE COURT MAKE? ................................................ 165
24.12 PROVISIONAL SENTENCE IS NOT APPEALABLE ....................................... 166
24.13 EXCEPTION TO PROVISIONAL SENTENCE NOT APPEALABLE ..................... 166
24.14 TWEE JONGE GEZELLEN JUDGMENT ...................................................... 167
SELF-ASSESSMENT QUESTIONS..................................................................... 168
III.
THE APPLICATION PROCEDURE............................................................ 169
1. INTRODUCTION ....................................................................................... 169
1.1
BACKGROUND .................................................................................... 169
1.2
DIFFERENCE BETWEEN APPLICATION AND ACTION PROCEDURE ............... 170
1.3
MANNER OF BRINGING THE APPLICATION BEFORE COURT....................... 170
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1.4
INSTANCES WHERE THE USE OF THE APPLICATION PROCEDURE IS
MANDATORY ARE AS FOLLOWS ............................................................ 171
1.5
INSTANCES WHEN THE USE OF THE APPLICATION PROCEDURE IS
PROHIBITED ARE AS FOLLOWS............................................................. 171
1.6
DIFFERENT TYPES OF APPLICATIONS .................................................... 172
2. THE EX PARTE APPLICATION ................................................................... 172
2.1
WHAT IS AN EX PARTE APPLICATION? ................................................... 172
2.2
UNDER WHAT CIRCUMSTANCES IS THIS APPLICATION UTILISED? ............ 172
2.3
WHAT IS A RULE NISI? ........................................................................ 173
2.4
FORMAT OF THE EX PARTE APPLICATION ............................................... 174
3. APPLICATIONS ON NOTICE TO THE RESPONDENT ................................... 174
3.1
UNDER WHAT CIRCUMSTANCES IS THIS APPLICATION UTILISED? ............ 174
3.2
FORMAT OF APPLICATION .................................................................... 175
3.3
PROCEDURE FOR BRINGING APPLICATIONS ........................................... 175
4. THE FOUNDING AFFIDAVIT ...................................................................... 176
4.1
WHICH FACTS MUST BE SET OUT IN THE FOUNDING AFFIDAVIT? ............. 176
4.2
TAKE NOTICE OF THE FOLLOWING MATTERS IN PARTICULAR................... 176
5. THE ISSUE AND SERVICE OF THE NOTICE OF MOTION ............................. 181
6. UNOPPOSED APPLICATIONS .................................................................... 181
6.1
NOTICE OF SET DOWN ........................................................................ 181
6.2
INSTRUCTIONS TO COUNSEL ............................................................... 181
6.3
HEARING ........................................................................................... 182
7. OPPOSED APPLICATIONS......................................................................... 182
7.1
NOTICE OF INTENTION TO OPPOSE....................................................... 182
7.2
RULE 6(5)(d) ...................................................................................... 182
7.3
ANSWERING AFFIDAVIT (ALSO KNOWN AS OPPOSING AFFIDAVIT) ........... 182
7.4
COUNTER APPLICATIONS ..................................................................... 183
7.5
REPLYING AFFIDAVIT .......................................................................... 183
7.6
FURTHER AFFIDAVITS ......................................................................... 183
7.7
ENROLMENT ....................................................................................... 184
7.8
PAGINATION AND INDEXING ................................................................ 184
7.9
THE HEARING ..................................................................................... 184
7.10 DISPUTES OF FACT ............................................................................. 184
7.11 THE SO-CALLED PLASCON-EVANS RULE ................................................ 185
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7.12 REFERRAL TO TRIAL ............................................................................ 186
7.13 REFERRAL FOR ORAL EVIDENCE ........................................................... 186
8. A NUMBER OF SPECIFIC APPLICATIONS .................................................. 187
8.1
INTERDICTS ....................................................................................... 187
8.2
URGENT APPLICATIONS ....................................................................... 189
8.3
INTERPLEADERS ................................................................................. 192
8.4
APPOINTMENT OF CURATORS ............................................................... 193
8.5
APPLICATIONS FOR AN ANTON PILLER ORDER ....................................... 194
8.6
PIE APPLICATIONS .............................................................................. 196
9. REVIEW APPLICATION ............................................................................. 203
9.1
AGAINST WHICH PROCEEDINGS? ......................................................... 204
9.2
THE GROUNDS FOR REVIEW ................................................................ 204
9.3
IN WHICH WAY MUST A REVIEW BE BROUGHT?...................................... 205
9.4
MUST AN APPLICANT FIRST EXHAUST ITS INTERNAL REMEDIES BEFORE IT
CAN TAKE A MATTER ON REVIEW? ........................................................ 206
9.5
COURT’S COMMON LAW JURISDICTION TO REVIEW DOMESTIC TRIBUNAL. 206
SELF-ASSESSMENT QUESTIONS..................................................................... 207
IV.
APPEALS AND REVIEWS ....................................................................... 209
1. THE DISTINCTION BETWEEN APPEAL AND REVIEW ................................. 209
1.1
WHAT IS AN APPEAL ........................................................................... 209
1.2
WHAT IS A REVIEW ............................................................................. 209
1.3
WHEN REVIEW IS TO BE BROUGHT ....................................................... 209
1.4
WHAT IS THE MAIN DISTINCTION BETWEEN APPEAL AND REVIEW? .......... 210
1.5
SPECIALIST COURTS – APPEAL ............................................................. 211
1.6
CONSTITUTIONAL STANDARD OF REVIEW ............................................. 211
1.7
SECTION 21 OF THE SUPERIOR COURTS ACT NO. 10 OF 2013 ................. 211
1.8
GENERAL ........................................................................................... 212
1.9
CURRIE AND KLAAREN (489) “JUST ADMINISTRATIVE ACTION” IN DE
WAAL J, CURRIE I AND ERASMUS G THE BILL OF RIGHTS HANDBOOK
2001 JUTA CAPE TOWN COMMENT ON SECTION 33 AS FOLLOWS ............. 212
1.10 PAJA.................................................................................................. 213
1.11 CASE ................................................................................................. 214
1.12 COURT’S DISCRETION ......................................................................... 214
2. CIVIL APPEALS FROM THE MAGISTRATE’S COURT ................................... 214
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2.1
APPEAL FOR MAGISTRATE’S COURT DESIGNATED AS AN EQUALITY
COURT TO HIGH COURT ...................................................................... 214
3. APPEALS FROM THE HIGH COURT ............................................................ 214
3.1
THIS SECTION DEALS WITH APPEALS IN TERMS OF RULE 49 ................... 215
3.2
SUSPENSION OF JUDGMENT PENDING APPEAL ....................................... 217
3.3
NO APPEAL REGARDING SETTLEMENT ................................................... 217
3.4
DELAY BY LOWER COURT IN GRANTING LEAVE TO APPEAL ...................... 217
3.5
RULE 6(5) .......................................................................................... 218
3.6
PROCEDURE FOR AN APPEAL TO BE HEARD BY THE HIGH COURT ............. 218
4. APPEALS TO THE SUPREME COURT OF APPEAL ........................................ 219
4.1
PROCEDURE TO BE FOLLOWED ON APPLICATION FOR LEAVE TO APPEAL
TO SUPREME COURT OF APPEAL ........................................................... 219
4.2
POWERS OF THE SUPREME COURT OF APPEAL OR THE DIVISION OF THE
HIGH COURT EXERCISING APPEAL JURISDICTION (SECTION 19 OF THE
SUPERIOR COURTS ACT NO. 10 OF 2013) .............................................. 220
4.3
DISCRETION ...................................................................................... 221
4.4
GENERAL ........................................................................................... 221
4.5
RULE 16 OF SCA ................................................................................. 221
SELF-ASSESSMENT QUESTIONS..................................................................... 222
V.
EXECUTION ............................................................................................. 223
1. FORMS OF WARRANTS ................................................................................. 223
1.1
WARRANTS FOR EXECUTION ................................................................ 223
1.2
EXECUTION IN RESPECT OF COSTS....................................................... 223
1.3
EXECUTION AGAINST THE STATE.......................................................... 224
2. SALES IN EXECUTION .............................................................................. 224
2.1
MOVABLE PROPERTY ........................................................................... 224
2.2
IMMOVABLE PROPERTY ........................................................................ 225
SELF-ASSESSMENT QUESTIONS..................................................................... 228
VI. MISCELLANEOUS ASPECTS....................................................................... 229
1. VALIDATION OF DOCUMENTS .................................................................. 229
2. EVIDENCE ON COMMISSION .................................................................... 229
3. WANT OF PROSECUTION .......................................................................... 230
4. SUPERANNUATION (RULE 66).................................................................. 230
D.
FORMS AND PRECEDENTS .................................................................... 231
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EXAMPLE 1:
SIMPLE SUMMONS (FORM 9) ......................................................... 231
EXAMPLE 2:
COMBINED SUMMONS .................................................................. 232
EXAMPLE 3:
PARTICULARS OF CLAIM 1 ............................................................ 233
EXAMPLE 4:
PARTICULARS OF CLAIM 2 ............................................................ 234
EXAMPLE 5:
PARTICULARS OF CLAIM 3 ............................................................ 235
EXAMPLE 6:
SUMMONS: PROVISIONAL SENTENCE SUMMONS (FORM 3 OF THE
RULES) ....................................................................................... 236
EXAMPLE 7:
APPLICATION FOR LEAVE TO SERVE BY SUBSTITUTED SERVICE
(RULE 4(2)) ................................................................................ 238
EXAMPLE 8:
APPLICATION FOR LEAVE TO SUE BY EDICTAL CITATION (RULE 5) .... 242
EXAMPLE 9:
NOTICE OF BAR ........................................................................... 245
EXAMPLE 10: NOTICE OF INTENTION TO DEFEND ............................................... 245
EXAMPLE 11: DECLARATION ............................................................................. 246
EXAMPLE 12: PLEA .......................................................................................... 248
EXAMPLE 13: NOTICE TO THIRD-PARTY ............................................................. 249
EXAMPLE 14: DISCOVERY AFFIDAVIT AND SCHEDULES (FORM 13) ....................... 250
EXAMPLE 15: MINUTES OF PRE-TRIAL CONFERENCE (RULE 37) ............................ 254
EXAMPLE 16: NOTICE OF SET DOWN – RULE 8 OR 31(2)(a) OR 32 ........................ 256
EXAMPLE 17: NOTICE OF MOTION (EX PARTE) .................................................... 258
EXAMPLE 18: NOTICE OF MOTION (URGENT APPLICATION) .................................. 259
EXAMPLE 19: “THE LONG FORM” – FORM 2(A) .................................................... 259
EXAMPLE 20: AFFIDAVIT – COMMISSIONER OF OATHS ........................................ 261
EXAMPLE 21: NOTICE OF INTENTION TO OPPOSE APPLICATION............................ 261
EXAMPLE 22: INTERPLEADER ............................................................................ 262
EXAMPLE 23: APPLICATION FOR THE APPOINTMENT OF A CURATOR AD LITEM AND
A CURATOR BONIS ...................................................................... 265
EXAMPLE 24: NOTICE OF MOTION ..................................................................... 268
EXAMPLE 25: EXAMPLE OF AN INDEX OF AN APPEAL MATTER ............................... 271
EXAMPLE 26: APPLICATION FOR JUDGMENT BY DEFAULT ..................................... 272
EXAMPLE 27: JUDGMENT BY DEFAULT ............................................................... 273
EXAMPLE 28: APPLICATION FOR LEAVE TO APPEAL ............................................. 273
EXAMPLE 29: NOTICE OF APPEAL ...................................................................... 274
E.
REFERENCE SOURCES TEXTBOOKS .......................................................... 275
GLOSSARY OF TERMS .................................................................................... 276
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ANSWERS TO SELECTION OF SELF-ASSESSMENT QUESTIONSERROR!
NOT DEFINED.
BOOKMARK
JUDGE PRESIDENT’S DIRECTIVE ................................................................... 286
EXAMPLE OF EVICTION APPLICATION UNDER THE PIE ACT: HIGH COURT ... 299
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A.
PREFACE TO THE COURSE
1.
WELCOME AND PURPOSE
Welcome to the subject High Court Practice. We hope that you are going to enjoy
studying this subject given its very practical nature. This course is aimed at
enabling Candidates to acquire a thorough practical understanding of civil
procedure in the High Courts from the stage of taking instructions through to appeal
and review, so as to be able to litigate effectively and successfully, and to be able
to facilitate this process in such a manner that it is at all times above reproach and
reflecting high ethical standards.
Within this training guide reference is made to various Court cases, textbooks,
articles (for example De Rebus) as well as other sources and the obligation
remains on the Candidate to stay abreast of changes within the law through their
own research in order to ascertain current prevailing authorities. South Africa will
most definitely for years to come go through various legislative changes which are
occurring at a speedy pace as the country embraces its newly founded democracy.
In this training guide Candidates will also find various developmental questions on
the subject matter within this guide. Answers to these questions will not necessarily
be available to Candidates as the questions are also intended to be used by
instructors in developing the theoretical and especially the practical skills of
Candidates whilst instructing them.
In particular, the Candidate should:
•
Develop the ability to litigate effectively;
•
Be able to advise clients and execute their instructions;
•
Develop the necessary skills to draft all Court documents;
•
Understand the relationship between the profession and the Courts;
•
Understand the relationship between the Attorney and the client;
•
To be able to appraise at an early stage the factual and legal implications of
the client’s case and be able to advise the client on:
o
the prospects of success,
o
the cost implications, and
o
act in accordance with all ethical standards applicable to this
profession.
Candidates should note the following with regards to the course material:
•
Reference to a particular gender should, unless the context indicates
otherwise, be construed as to include the other gender. Although reference
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has only been made to certain Sections and Rules in the materials,
Candidates are required to familiarise themselves with the Superior Courts
Act No. 10 of 2013 and Rules in their entirety.
2.
•
As far as possible, these notes refer to the Rules of the several Provincial and
Local Divisions as they were available as of 31 December 2019. Because
relevant Legislation and the Rules are subject to constant change,
Candidates should at all times endeavour to keep abreast of all new changes
and/or amendments.
•
Judge-Presidents of the various Divisions of the High Court continuously
issue Practice Notes to regulate proceedings in their respective Divisions.
These practice notes are specific to each Division and must be noted and
adhered to by Legal Practitioners practising or appearing in a specific
Division. These practice notes are not dealt with in this guide because this
guide is used on a national basis.
•
In terms of the Superior Courts Act No. 10 of 2013 the office of the Chief
Justice is now responsible for determining how practice is to be conducted in
all Courts throughout the country.
•
A committee called the Judicial Case Flow Management Committee has been
formed in the office of the Chief Justice. During 2012, the office of the Chief
Justice disseminated a draft practice directive dealing with case
management, allocations of cases and case management conferences. The
various Divisions are presently at various stages of considering and applying
the proposals in this regard, and it must be accepted that the proposals of
the Judicial Case Flow Management Committee will be implemented in future.
WHY IS THIS SUBJECT IMPORTANT?
This subject forms part of the qualification referred to as the National Certificate in
Attorneys’ Practice, but more specifically, is part of Specific Outcomes 1 and 2 of
SAQA Unit Standard ID 116088: Applying the Practical Aspects of Trial Advocacy.
It also forms part of Module 2.1 of the School for Legal Practice curriculum and is
intended to take you one step closer to qualifying as a Legal Practitioner in terms
of the Legal Practice Act No. 28 of 2014. Apart from attending Practical Vocational
Training (PVT), you will need to serve the prescribed period of articles depending
on how you programme yourself, and to write the Competency-based Admission
Examinations for Attorneys as a final step towards applying for admission as an
Attorney. As indicated above, this subject is designed to equip you with an overall
understanding of the civil process in the High Court of South Africa irrespective of
your cause of action. This subject is fundamental if you want to practice law
irrespective of your area of specialisation. It is also important to study this subject
in an integrative way by consulting the other training guides that you will receive
during the course of the programme.
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3.
LEARNING ASSUMED TO BE IN PLACE
We assume that you have acquired subject-specific substantive or theoretical
knowledge during your B Proc and/or LLB studies. At the very least, we assume
that you are able to:
4.
•
Critically analyse fundamental legal concepts, principles, theories and their
relationship to values;
•
Understand and apply relevant methods, techniques and strategies involved
in legal research; and problem solving in theoretical and applied situations;
•
Collect, organise, analyse, and critically evaluate information and evidence
from a legal perspective; and
•
Solve complex and diverse legal problems creatively, critically, ethically, and
innovatively.
OUR APPROACH
WHAT APPROACH HAVE WE ADOPTED AS PART OF THE STUDY OF CIVIL
PROCESS IN THE HIGH COURTS?
We have discarded the old CONTENT-DRIVEN approach to the teaching of this
subject which is very practical in nature. The “old” approach usually involved an
emphasis on theoretical aspects which encouraged superficial approaches to
learning on the part of the Candidate, since Candidates often memorised large
chunks of the textbook and then regurgitated these “chunks” in the examination.
The old, content-driven approach had the effect of producing Candidates who could
write pages of memorised content without being able to implement or apply this
knowledge in everyday life. Their knowledge was often fragmented, they could not
see the bigger picture and they reconciled themselves to learning in a parrot style
fashion. In no sense were they active participants in the learning process.
The new outcomes-based approach represents a decisive move away from this “old”
approach. It is designed to make Candidates active learners, to develop certain
basic skills designed to facilitate their integration into the legal profession and to
equip them with essential tools necessary to help them become competent
members of society. The new approach has the following distinct features:
The prescribed tutorial material consists of the following component:
(a)
This guide contains the theoretical aspects of civil practice in the High Courts
and is designed to provide you with a basic understanding of the content of
the various provisions of the Superior Courts Act No. 10 of 2013, which
repealed the Supreme Court Act No. 59 of 1959. Internally, each major unit
consist of Section outcomes, content, and a number of self-assessment
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questions. These self-assessment questions are important as they often
identify important aspects of the study material.
(b)
Reference is made to important case law and textbooks. You are not required
to consult them for the main examination. They act as a source of reference
should you wish to enhance your study of certain principles of law further.
You are, however, encouraged to read the actual cases.
(c)
A number of self-assessment questions are also included at the end of almost
every unit. This component is designed to test whether you have understood
the study material, as well as to test your understanding of those aspects of
civil process that you find difficult and that you will need to revise in order to
pass this subject.
Although we provide the support and guidance that you need to master this subject,
you are required to actively work through the prescribed material in order to
integrate all the material into a coherent whole. You should not approach each
study unit with no sense of continuity and context.
5.
LEARNING OUTCOMES
The outcomes, as end-products of learning, tell you what you are supposed to know
and be able to do after you have worked your way through the prescribed material
of a study unit. The outcomes are designed to guide you through the work in a
much more focused and methodical way. They also tell you the areas that you need
to concentrate on.
You can assess how much you have absorbed by testing how well you are able to
do the listed outcomes. The outcomes may require you to explain, discuss, list,
argue, comment, or analyse a point involving key principles or concepts of civil
practice in the High Courts. However, the acquisition of knowledge is of no real use
unless you know what to do with it. By this we mean that you must understand and
learn to use the knowledge that you acquire in this module in your everyday life. It
is only by doing this that the study of civil practice in the High Court becomes
meaningful.
The following table sets out the core components of this subject which will be used
to make Candidates understand and explain the various provisions of the Superior
Courts Act No. 10 of 2013, the Uniform Rules of Court and practice directives of the
various Divisions, the assessment criterion against which you will be assessed.
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NO.
ASSESSMENT CRITERION
ASSESSMENT TASKS
1
Explain, draft, and perform all
actions related to determining
whether the High Court has
jurisdiction to hear a particular
matter.
Formative through practical
exercise using a factual/simulated
scenario class discussion and
summative through final BBST
examination.
2
Explain, draft, and perform all
actions related to the principal of
locus standi.
Formative class discussions and
case study-based assessment or
summative through final BBST
examination.
3
Differentiate between action and
application proceedings.
Formative class discussions and
case study-based assessment or
summative in terms of BBST
examination.
4
Institute action proceedings by
way of summons.
Formative class discussion and
summative examination in terms of
BBST examination.
5
Apply for default judgment.
Formative class discussion and
case study approach.
6
Explain, draft, and perform all
steps related to the procedure for
a defended matter.
Formative class discussion, role
playing, case study and summative
through BBST examination.
7
Explain, draft and perform all
actions related to third-party
procedure.
Practical exercise using a
factual/simulated scenario.
8
Prepare for trial.
Formative class discussion and
summative assessment through
BBST examination.
9
Explain, draft, and perform all
actions related to making and
accepting a settlement offer and
when to request for interim
payments.
Formative practical class exercise
and summative written test.
10
Explain, draft, and perform all
steps related to bringing an
interlocutory application.
Formative case study, discussion
and comparison and summative
class assignment and/or BBST
examination.
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6.
11
Explain, draft, and perform all
steps related to following trial
procedure.
Formative case study approach and
class discussions.
12
Explain, draft, and perform all
steps related to provisional
sentence summons proceedings.
Formative case study approach and
summative examination through
BBST.
13
Explain, draft, and perform all
steps related to application
proceedings.
Formative class discussions.
14
Explain, draft, and perform all
steps related to executing on
judgment.
Formative class discussions and
simulated exercises.
15
Explain, draft, and perform all
steps related to amending
pleadings and documents.
Formative class discussions and
simulated exercises.
16
Explain, draft, and perform all
steps related to appeal and review
proceedings.
Formative class discussions and
simulated exercises.
17
Explain, draft, and perform all
steps related to authentication of
documents.
Formative class discussions and
simulated exercises.
18
Explain when evidence may be
taken on commission.
Formative class discussions and
simulated exercises.
CANDIDATE SUPPORT
BEFORE, DURING AND AFTER SUBJECT-SPECIFIC TRAINING
Upon acceptance to the School for Legal Practice, you will attend an induction or
orientation session where you will be given a brief overview of what is expected of
you per module/subject, as well as during the entire programme. You will also
receive the course material so that you can prepare in advance for each contact or
subject-specific session. Advance preparation is fundamental so that the class
discussions are interactive, thereby ensuring that you derive maximum benefit from
the knowhow and expertise of the relevant instructor.
During the programme you will receive training in both the substantive and
procedural components of the subject-matter from the instructor who is the expert
in the subject-matter. The School Principal will also supplement your learning by
using a number of formative and summative tools to ensure that you are adequately
prepared for the final summative assessment.
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You can also count on the administrative personnel at the School to attend to all
your queries relating to when and where you need to be, signature of the register,
course material which is outstanding and so forth. Every effort will be made to
ensure that your journey at the School is enjoyable and enlightening to the extent
of developing the knowledge and the skills that are needed for you to enter the
legal profession.
Given that you spend six months to a year in a particular practical vocational
training programme, you can develop a long-standing relationship with your peers
through the networking that takes place so that you can ‘pick their brains’ when
you are serving articles and do not know what to do in a specific case.
It is also possible to develop an informal mentoring/advisory relationship with the
School Principals whilst you are serving articles and beyond as it is highly unlikely
that they will turn you away should you need guidance in understanding certain
legal principles. However, the School Principals cannot under any circumstances
usurp the authority of your Principal who remains responsible for overseeing your
development during your period of articles as a contractual nexus governs the
Principal-Candidate relationship in terms of the Legal Practice Act No. 28 of 2014.
7.
TIME MANAGEMENT
The training at the School for Legal Practice is quite intensive, therefore, you must
manage your time properly. In order to help you to achieve the outcomes listed
above, we have provided the following information to help you create a study
programme that will suit your individual needs.
ITEM
SCHEDULE
Number of formal lectures set for this
subject, including trial advocacy
sessions.
Approximately 24 hours, plus 24 hours
for case study and mock trial sessions.
Number of written assignments that you Between 10 and 16 per assessment
may need to do as part of the practical criteria as set out in 4 above.
exercises allocated to firms and/or
individually. In most instances it is
usually group-based case studies that
are attempted.
One written self-assessment class test. At least three days before the final
examination at the discretion of the
individual School Principals.
1 x final summative examination – 4 hours with 30 minutes reading time.
Broad-based Skills test (BBST).
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Individual learning that must take place Depends on individual needs.
daily.
Note that your study programme must consider these guidelines together with your
commitment to the entire practical vocational training programme otherwise you
run the risk of concentrating on one subject to the detriment of the other important
subjects as well.
8.
ASSIGNMENTS
You will find that we have incorporated a number of self-assessment questions into
each of the study units. The activities are based on the subject-matter that has
been covered. The activities are designed to test your understanding of the
principles and concepts relating to civil procedure in the High Courts. As we
mentioned before, the self-assessment questions are also intended to test whether
you know how to apply the principles to concrete situations in simulated scenarios
and later in real-life situations. When completing these self-assessment questions,
you should refer back to and research this guide, and the Rules and authorities
cited at the beginning of the relevant Chapter.
The feedback to the activities is contained at the end of this training guide. This
feedback will help you to assess whether you understand a particular component
or not. If your answers differ markedly from the feedback, this means you need to
revisit the study unit to gain a greater understanding of its content.
The self-assessment assignments are also important as they test your drafting
capacity in particular. It is also designed in such a way that it helps you to revise
for the summative assessment that will take place at the end of the programme.
Apart from that, you will be given a number of subject-based assignments to
attempt during the casework sessions which are very practical in nature. You will
receive two case studies which will cover action and motion process and you will be
required to simulate the events from the point of consultation with your client, to
attending to the trial of the matter at Court, to presentation of your case. In the
process you will attempt to do a number of tasks such as create client files, draft
letters, draft pleadings and prepare for trial.
9.
ASSESSMENTS
As already indicated, this subject, together with Magistrate’s Court Practice and
Legal Costs, forms part of Module 2.1 of the School curriculum. Formative
assessments through class discussions, mini tests and self-assessment
assignments will take place throughout the training on this subject and others as it
is intricately linked to a number of other subjects such as Matrimonial Matters and
Divorce, Commercial Litigation and so forth.
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You will be required to write a final summative examination referred to as the
Broad-based Skills Test (BBST) on a date to be confirmed. This examination is 4
hours with 30 minutes reading time and the mark allocation is 75 marks. You must
obtain a sub-minimum of 50 percent to pass this final test.
Note:
Candidates who are attending the Five-week Practical Vocational Training Courses and
who simply purchase the material for the purpose of studying for the Competency-based
Admission Examinations do not have to comply with clauses 5, 6, 7 and 8 mentioned
above.
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B.
OVERVIEW OF HIGH COURT PRACTICE
The attention of Candidates is drawn to the fact that these notes are only meant to
give an overview of practice in the High Court. Different practices exist in the
different Divisions of the High Court. Candidates must see to it that they are aware
of the Practice Rules of the Division in which they wish to practice. Candidates must
study the Rules and relevant portions of the textbooks where indicated.
Candidates should have a thorough practical understanding of civil procedure (with
regard to various causes of action) in the High Court, from the stage of taking
instructions through to appeal, taking into consideration aspects such as ethics,
costs, drafting of bills of costs, other Courts and alternative ways of dispute
resolution.
IN PARTICULAR CANDIDATES SHOULD:
1.
Understand the functioning of the Courts with specific reference to the
various officials and the Courts in which civil litigation can be conducted.
2.
Develop a good understanding of the Rules of Court in practical application.
3.
Understand the relationship between the profession and the Court with
special reference to the Attorney’s responsibility as an officer of Court.
4.
Understand the relationship between the Attorney and client, be able to
appraise at an early stage the factual and legal implications of the client’s
case and be able to advise the client on:
•
Considering the prospects of success and possible difficulties. These
difficulties should be discussed with the client as soon as possible –
firstly because the client should understand potential dangers but
secondly, if the client knows what the problem is, they could possibly
provide you with facts which could address the problem.
•
Cost implications.
•
What the litigation process will entail, especially regarding procedure
and timing.
5.
Know the facts of your client’s case, know the applicable law, correctly
conceptualise, and formulate your client’s claim or defence, use the correct
procedure, and know the contents of your file.
6.
Know that pleadings have a threefold function, namely:
i.
They must ensure that both parties know what the points of issue
between them are so that each party knows what case he/she must
meet. He/she can thus prepare for trial knowing what evidence he/she
requires to support his/her own case and to meet that of the opponent.
The object of a pleading is to clarify the issues between the parties
and a pleader cannot be allowed to direct the attention of the other
party to one issue and then at the trial, attempt to canvas another.
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ii.
Pleadings are to assist the Court by defining the limits of the action.
The Court may allow amendments at any stage of the proceedings.
The object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause prejudice or
would prevent full enquiry. But within these limits the Court has a wide
discretion. For pleadings are made for the Court and not the Court for
pleadings.
iii.
Pleadings place the issues raised in the action on record so that when
judgment is given, such judgment may be a bar to the parties litigating
again on the same issues, thus enabling a party to raise a defence of
res judicata if the other party attempts to raise the same issues.
See Becks Theory and Principles of Pleadings in Civil Actions 6th edition 2002 43 and
44.
7.
Realise that this course is focused on developing the drafting skills of
Candidates. The legal knowledge that Candidates have must now find
expression in the ability to formulate and present the client’s case in Court
through the correct pleadings and/or application.
8.
The following statement by Wessels J in Benson and Simpson v Robinson
1917 WLD 126 still remains relevant after more than ninety years:
‘The Plaintiff shall state in concise terms what facts he intends to rely on and
to prove and the Defendant shall do the same so that on the day of trial
neither party shall be taken by surprise to both litigants from which the State
and the lawyers alone derive profit.’ It has, therefore, often been stated by
our Courts and it cannot be too often stated, that the object of requiring the
parties to file pleadings is to enable each side to come to trial prepared to
meet the case of the other.
9.
When drafting a summons or a plea, or when drafting a founding affidavit or
answering affidavit, make sure that you have alleged all such facts as are
necessary to enable you to base your legal argument on such facts.
10.
When drafting your document, make sure that you allege that you have
complied with all prior legal requirements where applicable, e.g., Sections
129 and 130 of the National Credit Act No. 34 of 2005, or the Institution of
Legal Proceedings Against Certain Organs of State Act No. 40 of 2002 – both
in regard to the requirement of a prior despatch and service of a letter of
demand.
11.
When conceptualising your client’s claim or defence, particular consideration
must be given as to whether any constitutional matter is to be raised. In
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
2012 (3) BCLR 219 (CC) the Court noted with approval and repeated the
following dictum by Ngcobo J in Prince v President, Cape Law Society,
and Others 2001 (2) SA 388 (CC) where Ngcobo J stated as follows:
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‘Parties who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought to be challenged at the
time they institute legal proceedings. In addition, a party must place before
the Court information relevant to the determination of the constitutionality
of the impugned provisions. Similarly, a party seeking to justify a limitation
of the constitutional right must place before the Court information relevant
to the issue of the justification. I would emphasise that all this information
must be placed before the Court of first instance.
Moseneke D C J went on to state: ‘it is so that the test of proper pleading in
Prince related to a challenge to a constitutional validity of a provision in a
statute. That test, however, is of equal force where, as in the present case,
a party seeks to invoke the constitution in order to adapt or change an
existing precedent or a rule of the common law or of customary law in order
to promote the spirit, purpose and objects of the Bill of Rights. Litigants who
seek to invoke the provisions of Section 39(2) must ordinarily plead their
case in a Court of first instance in order to warn the other party of the case
that they have to meet, and the relief sought against it.’
IMPORTANT LEGISLATION
On 23 August 2013 two Acts came into operation which is of significant importance
in regard to the practice in the High Courts. These two Acts are referred to below
with short extracts and commentary.
1.
Constitution Seventeenth Amendment Act No. 72 of 2012
1.1
Section 165 of the Constitution was amended and determines that the
Chief Justice is the head of the judiciary and exercises responsibility
over the establishment and monitoring of norms and standards for the
exercise of the judicial functions of all Courts (Section 1).
1.2
Section 167 of the Constitution is amended to constitute the
Constitutional Court as the highest Court, not only in constitutional
matters, but also in any other matter if the Constitutional Court grants
leave to appeal on the grounds that the matter raises an arguable
point of law of general public importance which ought to be considered
by that Court and where it makes the final decision whether the matter
is within its jurisdiction (Section 3).
1.3
Section 168 of the Constitution was amended to provide that the
Supreme Court of Appeal may decide appeals in any matter arising
from the High Court of South Africa or a Court of a status similar to
the High Court of South Africa, except in labour or competition matters
to such extent as may be determined by an Act of Parliament.
1.4
The Supreme Court of Appeal may only decide appeals, issues
connected with appeals and any other matter that may be referred to
it in circumstances defined by an Act of Parliament.
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2.
Superior Courts Act No. 10 of 2013
2.1
In terms of Schedule 1 the Supreme Court Act No. 59 of 1959 is
repealed in its entirety.
2.2
The Constitutional Court consists of the Chief Justice (CJ), the Deputy
Chief Justice (DCJ) and nine other Judges. The seat of the Court is
Johannesburg, but the CJ can determine that it holds its sittings
elsewhere (Section 4).
2.3
The Supreme Court of Appeal (SCA) consists of the President, Deputy
President and so many other Judges as may be determined. The seat
of the Court is in Bloemfontein, but the President of the SCA can
determine that the Court can hold hearings elsewhere (Section 5).
2.4
Section 6 provides for the constitution of the High Courts of South
Africa and for the establishment of local divisions.
At present High Court Divisions are
2.5
2.4.1
Eastern Cape Division with its main seat in Makhanda
(previously Grahamstown);
2.4.2
Free State Division, with its main seat in Bloemfontein;
2.4.3
Gauteng Division, with its main seat in Pretoria;
2.4.4
KwaZulu-Natal Division, with its main seat in Pietermaritzburg;
2.4.5
Limpopo Division, with its main seat in Polokwane;
2.4.6
Mpumalanga Division, with its main seat in Mbombela;
2.4.7
Northern Cape Division, with its main seat in Kimberley;
2.4.8
North West Division, with its main seat in Mahikeng;
2.4.9
Western Cape Division, with its main seat in Cape Town.
In terms of Section 6(2), subject to the provisions of Section 6(3)(c),
the Minister may, after consultation, establish Local Courts for a
Division. The various Local Divisions are:
2.5.1
Eastern Cape Local Division, Bhisho;
2.5.2
2.5.2 Eastern Cape Local Division, Mthatha;
2.5.3
Eastern Cape Local Division, Gqeberha (previously Port
Elizabeth);
2.5.5
Eastern Cape Circuit Court, East London;
2.5.
KwaZulu-Natal Local Division, Durban;
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2.5.7 Limpopo Local Division Thohoyandou;
2.5.8
Gauteng Local Division Johannesburg;
2.5.9 Mpumalanga Local Division, Middelburg;
2.5.10 Limpopo Local Division, Lepalale.
3.
In terms of Section 7(1), the Judge President of a Division may establish
Circuit Courts.
4.
Section 12(1) provides that a matter before the Constitutional Court must be
heard by at least eight Judges.
5.
Section 13 provides that proceedings before the SCA must ordinarily be
presided over by 5 Judges, but the President of the SCA may direct that a
civil or criminal appeal be heard before a Court consisting of at least three
Judges.
6.
Section 14 determines that a Court of a Division must be constituted before
a single Judge when sitting as a Court of first instance but the JP or DJP may
direct that any matter be heard by not more than 3 Judges.
7.
Section 16 deals with appeals generally. Section 17 provides that leave to
appeal may only be granted if the Judge or Judges are of the opinion that
the appeal will have a reasonable prospect of success, or that there is some
other compelling reason why the appeal should be heard, including the
existence of conflicting judgments.
8.
Section 18(1) determines that unless otherwise ordered, the operation and
execution of a decision which is the subject of an application for leave to
appeal or of an appeal, is suspended pending the decision of the application
or appeal. Section 18(3) sets out the grounds upon which a Court can order
that the order not be suspended in terms of Section 18(1) above.
9.
INFORMAL SETTLEMENT
Over and above a referral to arbitration or mediation, Legal Practitioners can
often best serve their clients to timeously consider the possibility of
settlement in litigation matters. Settlement must not be seen as a sign of
weakness. To the contrary, it is the hallmark of common sense.
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C.
PRACTICE NOTES
RANGE STATEMENT:
Explain the provisions of the Superior Courts Act No. 10 of 2013, the Uniform Rules of
Court, the Rules, and Practice Directives of the various divisions. Explain, draft, and
perform all actions to determine the sources of High Court Practice.
SECTION OUTCOMES:
After completing this Section, you should be able to:
List the sources of High Court Practice and explain the relevance of each.
Explain the strategic planning that goes into successful High Court practice.
List the various High Court officials and explain their functions.
List the various High Court divisions.
Explain the general ethics involved in High Court practice.
1.
SOURCES
1.1
ACT AND THE RULES
The most important sources are the Superior Courts Act No. 10 of 2013, the
Uniform Rules of Court and the Rules of the various divisions.
In terms of the Constitution Seventeenth Amendment Act, the Chief Justice
is appointed as the head of the judiciary. The Act further provides for a single
High Court of South Africa, and that the Constitutional Court is the highest
Court in all matters.
1.2
PRACTICE DIRECTIVES
In the various Provincial divisions, the Judges President from time-to-time
issue practice directives which contain important information regarding
practice and procedure in the Division in which it was issued.
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1.3
TEXTBOOKS AND ELECTRONIC SOURCES
•
D Harms: Civil Procedure in the Superior Courts, LexisNexis,South
Africa;
van Loggerenberg D E Erasmus Superior Court Practice, Juta, Cape Town
2015;
1.4
•
Dendy M and Loots C (Herbstein & Van Winsen) The Civil Practice of
the Superior Courts of South Africa, 6th Edition, Juta, Cape Town,
2022;
•
Joffe, Neukircher, Fourie, Haupt High Court Motion Procedure: A
Practical Guide, Lexis Nexis;
•
Marnewick C G : Litigation Skills for South African Lawyers, 4th edition
LexisNexis.
•
Mullins J and Da Silva C , Morris: Technique in Litigation; Juta 2010
•
Peter van Blerk: Legal Drafting: Civil Proceedings, Juta (Second Edition
2015) Jutastat;
•
Lexis Nexis Consolidated Practice Directives;
•
S Pete and others: Civil Procedure: A Practical Guide, 3rd edition
Oxford University Press, 2017;
•
All Candidates should keep abreast with the practice directives issued
by the Judges President of the Courts of the relevant jurisdictions;
•
Case Management in our Courts: Hussain, Barnard, Hughes, A LSSA
L.E.A.D. Guide.
COMMON LAW
Certain common law principles play an important role in the procedural law
in the High Court, for example, the common law principles regarding
determination of jurisdiction.
The inherent jurisdiction of the High Court entails that the High Court can in
principle do anything, as long as it is not prohibited to do so. If a case thus
serves before the High Court for which provision is not made in the Rules,
the High Court is authorised to deal with that case in accordance with its
inherent jurisdiction.
The High Court can thus mero motu order a party to furnish particulars of
an allegation in a pleading, it can strike out certain parts of pleadings or join
further Defendants, or order interim relief to prevent prejudice.
It can also in terms of its inherent jurisdiction prevent abuse of Court
procedure and prevent vexatious litigation. The High Court also has an
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inherent disciplinary competence in respect of Legal Practitioners regarding
misconduct or unprofessional behaviour.
1.5
CASE LAW
Candidates are advised to keep up to date with relevant Court decisions as
reported from time to time. Candidates are advised to read “De Rebus”
regularly, especially the “Practice Notes” in the same publication. Articles
published from 2012 onwards are accessible online from the De Rebus
website. Articles published prior to 2012 are available on request.
1.6
STARE DECISIS
The principle of stare decisis is well established in South African law. In
terms of this principle a lower Court is bound by the decisions of a higher
Court.
In Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports)
Ltd 2004 (3) SA 160 (SCA) the Court found it necessary to restate this
principle and remind the lower Court of its importance.
1.7
WARNING REGARDING COMPLIANCE WITH RULES
In Makuwa v Poslson 2007 (3) SA 84 (T) at 88 G the Court sounded the
following warning regarding the non-compliance with the Rules of Court.
‘Undoubtedly, it is time to sound a stern warning that the Courts will not
countenance non-compliance with the Rules of Court and practice, unless
there are justifiable circumstances warranting condonation for the omission
or default. Those Legal Practitioners whose conduct in any way (is) to simply
let the practice and administration of justice be undermined will incur the
displeasure of the Court and invariably attract an exemplary order of costs.’
2.
PRINCIPLES UNDERLYING THE LAW OF PROCEDURE IN THE HIGH COURT
The Law of Procedure applicable in the High Court can only be an effective
procedure if it pursues certain principles that are designed to ensure a fair legal
process. If one looks at the broad framework of the Western Adversary System of
the Law of Civil Procedure (which principles also underlie the South African Law of
Civil Procedure), the following principles are pursued:
•
All persons must have equal effective access to an independent and impartial
judiciary. This also entails that the costs involved in, and the duration of,
litigation must be reasonable.
•
Throughout the proceedings the parties must be afforded equal opportunity
to present their respective cases to Court.
This requirement is specifically evident in the audi alteram partem-principle
which ensures that:
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•
The Defendant is notified of the proceedings.
•
The parties are respectively informed of the nature of their opponent’s case,
as well as the grounds on which it is based.
•
Both parties are afforded the opportunity to state their respective cases to
the Court.
In principle the parties must be able to determine whether to institute or defend an
action and to determine the scope of the dispute.
Furthermore, it ought to be confined to the parties which evidentiary material they
wish to present in corroboration of their respective cases. There must thus be party
control. The principle can however be qualified by granting the Court an active and
managing role especially insofar as the accumulation of evidentiary material and
the further course of the proceedings are concerned.
During the presentation of the parties’ respective cases provision must be made for
direct oral communication between the parties (personally or by means of their
Legal Representatives) and the Court.
This does, however, not exclude the possibility that important elements of the
presentation, such as the evidentiary material, can be in writing.
The main proceedings (final trial) must in principle occur in public.
The Court must consider the evidentiary material on rational grounds. The Court
must motivate its judgment.
The decision of the Court must be final and binding. Provision must however be
made for appeal or review.
3.
THE HIGH COURT
3.1
INTRODUCTION
In terms of the Constitution of the Republic of South Africa Act No. 108 of
1996 (Sections 165, 166(b), and (c), 168, 169 and Section 16 of Schedule
6) the High Court consists of the Constitutional Court, the Supreme Court of
Appeal and such Provincial and Local Divisions with such areas of jurisdiction
as described by law.
See Chapter 2 of the Superior Courts Act No. 10 of 2013.
The Constitutional Court is not dealt with in this guide but in the guide
“Constitutional Law Practice”.
The Constitutional Court is situated in Johannesburg (but can, if necessary,
convene elsewhere) and is the highest Court in all constitutional matters and
any other matter if the Constitutional Court grants leave to appeal on the
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grounds that the matter raises an arguable point of law of general public
importance which ought to be considered by the Court (Section 167 of the
Constitution). It deals only with constitutional matters and issues connected
with decisions on constitutional matters, including whether Acts of Parliament
and the conduct of the President and Executive are consistent with the
Constitution, including the Bill of Rights. Its decisions are binding on all persons,
including organs of State, and on all other Courts. The Court consists of the
Chief Justice of South Africa, the Deputy Chief Justice and nine other Justices.
3.1.1 The Supreme Court of Appeal
The Supreme Court of Appeal (SCA) situated in Bloemfontein is purely a
Court of appeal and is not a Division of the High Court. It is thus not a Court
of first instance and has no original jurisdiction. It consists of a President and
Deputy President and such number of Judges of Appeal as the President on
the advice of the Judicial Services Commission may from time to time
determine.
The ordinary quorum in civil matters is five Judges unless the Judge
President directs otherwise. The Judgment of the majority of the Judges is
the Judgment of the Court.
Decisions of the Supreme Court of Appeal are binding on every Division of
the High Court except the Constitutional Court. The Supreme Court of Appeal
is the final Court of Appeal, save for matters falling under the jurisdiction of
the Constitutional Court.
Section 168(3) of the Constitution states that the SCA may decide appeals
on any matter arising from the High Court of South Africa or a Court or status
similar to the High Court, except in respect of labour and competition matters
to such extent as may be determined by an Act of Parliament (a commentary
on this aspect is given in the appeals Chapter at the back of this guide).
In terms of Section 168(3)(b), the SCA may decide any appeal, issues
connected with appeals and any other matter that may be referred to it in
circumstances defined by an Act of Parliament.
NOTE: A “Court of first instance” means a Court where legal proceedings can
normally be instituted.
THE DIFFERENT DIVISIONS OF THE HIGH COURT
3.1.2 The Provincial (Main Seat) and Local (Seat) Divisions
The Provincial (main seat) and Local (seat) Divisions of the High Court serve
as Courts of first instance, but also possess appeal competence in certain
matters heard in the lower Courts and in certain matters heard in the High
Court in first instance.
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In general, a single Judge presides when a High Court sits as a Court of first
instance in a civil matter, but where an important question needs to be
decided; it is heard by a Full Court (Full Bench) consisting of three Judges.
When an appeal is noted against the Judgment of a single Judge, the appeal
is heard by three Judges (where the Provincial Division hears the appeal) or
by the SCA. This aspect will be dealt with under the appeal procedure.
The Provincial Divisions, in whose area of jurisdiction there is also a Local
Division, have concurrent jurisdiction in respect of the area of the Local
Division. This means that a Provincial Division exercises equal jurisdiction
with the Local Division in the latter’s area. This does not apply vice versa.
4.
OFFICIALS OF THE COURT
4.1
JUDGES
Judges are appointed by the President from the ranks of senior Advocates,
senior Attorneys, and senior Academics on recommendation by the Judicial
Services Commission.
4.2
THE REGISTRAR
The Registrar is a senior official of the Department of Justice and is the head
of the Court Administration at every Provincial or Local Division. The
pleadings are issued from his/her office and are also filed there. S/he
oversees the Court files (Rule 3).
The Registrar determines the form and quantum of security to be furnished
in terms of Uniform Rule 47. According to Section 11 of the Superior Courts
Act No. 10 of 2013, the Minister may, subject to the laws governing the public
service, appoint to the High Court a Court Manager, one or more Assistant
Managers, Registrars, assistant Registrars, and other Officers whenever they
may be required for the Administration of Justice or the execution of the
powers and the authorities of the Court.
Candidates and Legal Practitioners must note that there is no Clerk of the
Court of the High Court. This person bears the title “Registrar”.
4.3
THE SHERIFF
Sheriffs are the executive Officers of the Court. They are appointed by the
Minister in terms of Section 2 of the Sheriffs Act No. 90 of 1986, to a Lower
and/or a High Court, and they fall under the supervision of the South African
Board for Sheriffs established under Section 7 of the Act.
The Sheriff performs the executive actions authorised by law within the
jurisdiction of the Court for which he is appointed: he is responsible for the
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service of the process instituting action or motion proceedings and the
execution of attachment and removal orders that are made by the Court.
4.4
THE TAXING MASTER
The Taxing Master is an officer of the Court in the office of the Registrar who
must see to it that, where costs were awarded, the bills of costs of all Legal
Practitioners comply with the provisions of the Rules with regard to costs.
Rule 70(3) stipulates that the Taxing Master shall, on taxation, allow all such
costs and expenses as appear to him to have been necessary or proper for
the attainment of justice or to defend the rights of any party. The Taxing
Master, therefore, has a wide discretion to allow costs as party and party
costs; however, this is done in accordance with the tariff as set out in Rule
70. Before a successful party is entitled to recover the costs of the action
from the other party, his bill of costs must first be taxed unless the parties
agree on the costs.
4.5
THE FAMILY ADVOCATE
In terms of the Mediation in Certain Divorce Matters Act No. 24 of 1987 the
Minister appointed certain officials in the public service at each division of
the High Court as Family Advocates to exercise the powers and perform the
duties granted to them under this Act or any other law.
In terms of Section 4 of the abovementioned Act the Family Advocate shall,
after the institution of a divorce action or the lodging of an application for
the variation, rescission or suspension of an order with regard to custody or
guardianship of, or access to a child made in terms of the Divorce Act No. 70
of 1979, or if the Family Advocate is requested to do so by any party or by
the Court concerned, institute an enquiry to enable the Family Advocate to
furnish the Court at the hearing of the action or application with a report and
recommendations on any matter concerning the welfare of each minor or
dependent child of the marriage concerned or to report on such matter as
the Court may have referred to the Family Advocate.
4.6
THE INTERPRETER
Interpreters or sworn translators (in terms of Rule 59) play an important role
in the functioning of the Courts. Any witness is entitled to speak in his mother
tongue in Court. It is the duty of the Attorney concerned to arrange for an
interpreter to assist a witness who will testify in a language other than
English or Afrikaans. An interpreter has to be properly sworn in and as such
must be admitted and enrolled by any Division of the High Court as a sworn
translator, whose competency in the language that they will be translating
has to be certified.
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4.7
THE COURT ORDERLY
The Court orderly is an officer in the Registrar’s office who assists the Court
in the orderly progress of the proceedings. He/she will, for example, call out
witnesses’ names, fetch documents from the bar and hand them up to the
Judge.
4.8
THE JUDGE’S CLERK
Judge’s Clerks are appointed for all the Judges. The Judge’s Clerk is the
personal Clerk of the Judge and must assist the Judge in diverse matters, for
example, the collection of law reports, the taking of messages, the making
of telephone calls etc. Judge’s Clerks may be seen as a kind of a personal
secretary for every Judge. Usually, no Legal Practitioner will see a Judge in
Chambers unless the Judge’s Clerk accompanies him or her to the Judge. It
is, therefore, etiquette to make an appointment with a Judge through the
Judge’s Clerk.
4.9
THE COURT STENOGRAPHER
They are usually placed in the Courts by a private organisation that is
contracted by the State to see to the mechanical recording of all the
proceedings in the High Court so that, if required, a written record of those
proceedings can be produced. A record is usually only typed if the Legal
Practitioners request it or if the Court orders that the record be typed.
4.10 ATTORNEYS AND ADVOCATES
Attorneys and Advocates are now known as “Legal Practitioners” in terms of
the Legal Practice Act No. 28 of 2014.
Legal Practitioners are officers of the High Court who are properly qualified
and admitted as such and must always act with the necessary dignity and
respect towards the Court and towards each other. Courtesy must be the
hallmark of all communications between Legal Practitioners and the judiciary
and their staff.
4.11 THE MASTER OF THE HIGH COURT
The Master is appointed by the Minister in terms of Section 2 of the
Administration of Estates Act No. 66 of 1965. He/she is in charge of the
administration of deceased and insolvent estates, as well as the
administration of the property of minors and persons under curatorship.
He/she often submits reports to the Court in terms of the provisions of the
Insolvency Act No. 24 of 1936 and the Companies Act No. 71 of 2008.
4.12 THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
The National Prosecuting Authority (NPA) is governed by the National
Prosecuting Authority Act No. 32 of 1998, and grants the rights to the NPA
to, inter alia, institute criminal proceedings on behalf of the State. The NPA
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is accountable to the Minister of Justice and Correctional Services and is
headed by the National Director of Public Prosecutions (NDPP).
4.13 THE REGISTRAR OF DEEDS
This official is appointed in terms of the Deeds Registries Act No. 47 of 1937,
and often submits reports to the Court in disputes concerning immovable
property.
4.14 APPEARANCE IN HIGH COURT BY ATTORNEYS
In terms of the Legal Practice Act No. 28 of 2014, which came into power on
1 November 2018, Legal Practitioner means an Advocate or Attorney
admitted and enrolled as such in terms of Sections 24 and 30 of the Act
respectively.
Section 25(1) states that any person who has been admitted and enrolled to
practise as a Legal Practitioner in terms of this Act, is entitled to practise
throughout the Republic.
Sub-section 2 states that a Legal Practitioner, whether practising as an
Advocate or an Attorney, has the right to appear on behalf of any person in
any Court in the Republic or before any board, tribunal, or similar institution,
subject to sub-sections (3) and (4) or any other law.
Sub-section 3 requires an Attorney who wishes to appear in the High Court,
the Supreme Court of Appeal or the Constitutional Court to apply to the
Registrar of the Division of the High Court in which he or she was admitted
and enrolled as an Attorney for a prescribed certificate to the effect that the
Applicant has the right to appear in the High Court, the Supreme Court of
Appeal or the Constitutional Court and which the Registrar must issue if he
or she is satisfied that the Attorney has been practising as an Attorney for a
continuous period of not less than three years.
5.
GENERAL REMARKS CONCERNING COURT ETHICS
•
Legal Practitioners must be suitably dressed.
•
Witnesses must as far as possible be dressed neatly and formally.
•
When a person enters or leaves the Court, a courtesy bow is made in the
direction of the Bench. Everyone stands up when the Judge enters and when
he/she leaves the Court.
•
When a Legal Practitioner stands up to address the Court or to raise
objections, his/her opponent must sit down.
•
The form of address for a Judge in the Court is: “MY LORD / MY LADY” or
“YOUR LORDSHIP / YOUR LADYSHIP” and outside the Court it is “JUDGE”.
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•
In certain jurisdictions the relevant Judge President from time-to-time issues
directives as to the mode of address in the relevant Court.
•
No Legal Practitioner may see a Judge in chambers in connection with a case
unless accompanied by the Judge’s Clerk. Your opponent must always
accompany you when a Judge is seen in chambers in connection with an
opposed case.
•
In terms of Practice Directive 2007 (4) SA 1 SCA in the Supreme Court
of Appeal the presiding Judge is to be addressed as:
o
“the Court” – individual members of the Bench to be referred to by
surname preceded by “Justice”. The Court and Court documents are
open and available to the public.
•
The general rule is that the Court and Court documents are available to the
public unless there is statutory limitation.
•
In Independent Newspapers (Pty) Ltd v Minister for Intelligence
Services; Freedom of Expression Institute in re: Masetlha v President
of the Republic of South Africa and Another 2008 (8) BCLR 771 (CC)
it was stated that the right to an open Court hearing and the right to report
on it does not automatically mean that Court proceedings must necessarily
be open in all circumstances. It was also held that in an instance where the
interest of justice might require that the public be excluded from Court
proceedings or access to Court records be restricted, the Court is required to
weigh the competing rights or interests carefully. This is with a view to
ensuring that the limitation it places on open justice is properly tailored and
proportionate to the end it seeks to attain.
•
It is the duty of the Legal Practitioner, especially if acting for a Plaintiff or
Applicant to ensure that the Court file is paginated, indexed, complete and
available for the Judge.
You should always be honest and honourable. Know and uphold the Rules of the
Legal Practice Council (LPC). The final Code of Conduct for all Legal Practitioners
(attorneys and advocates) as well as all Candidate Legal Practitioners has been
published by the Legal Practice Council (LPC). The Code is effective from 29 March
2019.
•
All Legal Practitioners shall:
o
Honour, respect and promote the values enshrined in the Bill of Rights;
o
Maintain the highest standards of honesty, integrity and independence
at all times;
o
Act with care and skill, honour undertakings and maintain the
reputation and high standards required in the performance of their
duties;
o
Conduct themselves with courtesy and respect towards participants in
proceedings, especially persons without legal representation, so as to
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ensure compliance with the rules and procedures for the fair conduct
of such proceedings;
o
Maintain the highest standards of professionalism and promptly
respond to correspondence and messages from colleagues, clients and
members of the public;
o
Comply with all ethical and professional rules of practice;
o
Respect the legal privilege and confidentiality that exists with clients
and former clients;
o
Subject to the laws as regards contingency fees, and the rules and
guidelines as regards advertising, not engage in any form of activity
that may be construed as touting;
o
Extend to all colleagues, Judges, academics, professionals, litigants,
and candidates, including persons from foreign jurisdictions, cordiality
and respectfulness at all times.
SELF-ASSESSMENT QUESTIONS
(a)
Create a diagram in which you illustrate the structure of the High Courts in South
Africa. (8)
(b)
Create a diagram in which you identify the key role players in High Court practice
and what their functions are. (10)
(c)
Within the context of a set of facts, role play how you would address the Presiding
Officer in the various High Courts. (10)
(d)
What is meant by a “Court of First Instance”? (2)
(e)
What is “stare decisis”? (2)
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I.
THE PRE-LITIGATION STAGE
RANGE STATEMENT:
Explain, draft, and perform all actions to determine when the High Court has jurisdiction
to adjudicate a matter as well as attend proper consultation with a client.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain the importance of taking proper instructions.
•
Consult with a client in a given set of facts to ensure that proper instructions are
taken.
•
Brief and consult with Counsel.
•
Negotiate and record settlement of a matter.
•
Draft proper legal documents.
•
Open and administer files in an Attorney’s practice.
•
Draft a Power of Attorney.
•
Establish jurisdiction of the Court to hear a particular matter in a given set of facts.
1.
INITIAL CONSULTATION AND TAKING OF INSTRUCTIONS
1.1
INITIAL CONSULTATION
The most important outcome of the consultation with the client is to establish
a relationship between Attorney and client, to obtain the necessary facts, to
advise the client and to obtain instructions from the client.
Cases often go wrong because proper instructions were not taken from the
outset. The more meticulously the matter is handled from the start, the
better your prospects of success. The initial interview sets the tone for your
entire working relationship. In the case of a new client, ask a question or two
to make him/her feel at ease.
Create in your office an environment which communicates to your client “This
is who I am”. Select furnishing and accessories, subject to your budget,
which reflect what you think is important so that when they see your
surroundings, they see you in an appropriate light.
Obtain the full name, identity number, residential and work addresses,
residential and work telephone, and cellular telephone numbers and if
applicable, fax number, and e-mail address of the client as well as telephone
numbers and addresses of friends and/or relatives. If the client acts on behalf
of a legal entity, obtain the particulars of the legal entity and or alternative
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contact persons. There is nothing worse than being unable to contact your
client at a moment’s notice or having to inform your opponent that you have
difficulty in locating your client. Attorneys are obliged to comply with FICA
as they are regarded as Accountable Institutions. The Financial Intelligence
Centre (FICA) Amendment Act 1 of 2017 extends Attorney’s duties to
understanding the client and risks associated with the client.
Explain to your client that the meeting is confidential. Explain that you can
deal with everything the client says and that it can be detrimental if he holds
back vital information from you. He must realise that he has complete
amnesty within certain boundaries. Take this responsibility very seriously
and see to it that your office staff do likewise.
It is often best to first have a general conversation in order to gain
background knowledge and then to take down the client’s complete
statement.
When interviewing the client bear in mind the following:
•
Who is the Plaintiff? (locus standi i.e. capacity to sue and interest
in the subject matter of the litigation) and correct citation.
•
Who is the Defendant? (locus standi i.e. capacity to be sued
interest in the subject matter of the litigation) and correct citation
•
Which Court has the capacity to hear the matter? (jurisdiction)
•
What is the cause of action?
It may be useful to dictate the client’s version point by point, in paragraph
form in his/her presence so that the client can hear for himself/herself how
the Attorney understands the instructions. The client must be allowed to
interrupt and correct where necessary.
Instead of dictating, Attorneys often take down notes by hand. The client
should preferably know exactly what the Attorney writes in the notes. It is,
therefore, a good practice to speak out aloud while you are taking down the
notes. Cryptic loose notes like "divorce, summons, public servant, and 2
children ± 600 per month, Tel number 12678" are certainly not sufficient for
subsequent use.
It will often be a good idea to pre-set a time for your interview. It gains
respect for you from the client, and it defines the playing field. A verbose
client will know that he must condense his story. Other clients will recognise
that you are working to a schedule and require co-operation. However, make
sure you allow enough time for the interview/consultation.
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Often a client will begin at the point where they have been wronged. Reassure the client that you will listen attentively but that you need to begin at
the beginning and have a chronological course of events so that you can
know to ask the correct questions to gain the necessary facts.
Inform your client that you will sometimes need to ask direct questions to
gain insight into the matter. Then ask the necessary questions, even if they
are embarrassing. The answers will be far less embarrassing than when given
in open Court for the first time.
Always note the date of prescription on the front cover of your file in bold.
You will never regret it. Many clients might feel they have done their part by
providing you with a plastic bag full of documents. Request that the client
arrange the documents themselves as their own intimate knowledge of the
matter will put them in a far better position to do so and will save on fees for
time spent by the Attorney and will also put the Attorney in a better position
to grasp all the facts.
Introduce your Candidate Attorney and secretary if necessary. Contact with
your staff as being part of the legal team is also important. It might then be
easier for him to communicate with them directly from time to time.
Ensure that the client takes notes of the documents and information that you
need from him/her.
Follow up the consultation with a short, written summary of the facts and
your advice to the client. In this way misunderstandings are prevented and
both the Attorney as well as the client are obliged to pay attention to all
relevant facts i.e., dates, names, places, and times. Should the Attorney give
an undertaking to the client or request the client to do something, it should
also be recorded, for example: “I undertake to phone Mr X…” or “the client
will bring me copies of all the receipts….” Clients rarely grasp the importance
of corroboration of their version by documents or witnesses.
The Attorney should re-iterate the importance of this even if he fails to see
the relevance. Assure your client that you will manage the matter to the best
of your endeavours to ensure a positive outcome. Discuss the risks involved
in any event.
Make sure that before the consultation is over, and after you have gathered
what your instructions are that you discuss the cost estimate of the matter
and the outline of the work to be done in respect of each stage of the litigation
process. Even though the Legal Practice Act No. 28 of 2014 is currently only
partially in operation it is a good idea to already get into the habit to discuss
the cost estimate with the client having special regard to Section 34 and 35
(7-8) thereof.
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‘(7):
When any Attorney or an Advocate referred to in Section 34(2)(b) first receives
instructions from a client for the rendering of litigious or non-litigious legal
services, or as soon as practically possible thereafter, that Attorney or Advocate
must provide the client with a cost estimate notice, in writing, specifying all
particulars relating to the envisaged costs of the legal services, including the
following:
(a)
The likely financial implications including fees, charges, disbursements,
and other costs.
(b)
the Attorney’s or Advocate’s hourly fee rate and an explanation to the
client of his/her right to negotiate the fees payable to the Attorney or
Advocate.
(c)
an outline of the work to be done in respect of each stage of the litigation
process, where applicable.
(d)
the likelihood of engaging an Advocate, as well as an explanation of the
different fees that can be charged by different Advocates, depending on
aspects such as seniority or expertise.
(e)
if the matter involves litigation, the legal and financial consequences of the
client’s withdrawal from the litigation as well as the costs recovery regime.
(8):
Any Attorney or an Advocate referred to in Section 34(2)(b) must, in addition to
providing the client with a written cost estimate notice as contemplated in subsection (7), also verbally explain to the client every aspect contained in that
notice, as well as any other relevant aspect relating to the costs of the legal
services to be rendered’.
1.2
ENGAGEMENT LETTER / MEMORANDUM OF CONSULTATION
Matters which could be considered at or arising from the first or subsequent
consultation with the client could include (as well as many others not
mentioned infra) the following:
1.2.1
Request all relevant documentation.
1.2.2
Obtain all information.
1.2.3
Discuss merits and quantum.
1.2.4
Enquire about possible witnesses.
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1.2.5
Is an inspection in loco necessary?
1.2.6
Is a letter of demand required – are there any legal requirements in
regard to the letter of demand, e.g., National Credit Act No. 34 of
2005?
1.2.7
Identify the Plaintiff.
1.2.8
Identify the Defendant.
1.2.9
Is a mora letter to remedy a breach necessary?
1.2.10 Whether cancellation or specific performance, where applicable, is
most appropriate.
1.2.11 Does the client know what the Defendant’s version is and what is the
client’s reaction thereto?
1.2.12 Are there any arbitration clauses which need to be given effect to?
1.2.13 Note the date of prescription.
1.2.14 Is a settlement possible?
1.3
IF YOU ARE ACTING FOR A DEFENDANT/RESPONDENT, THE
FOLLOWING COULD BE CANVASSED AT THE FIRST OR SUBSEQUENT
MEETING
1.3.1
Date of service of summons/application.
1.3.2
Is the matter urgent?
1.3.3
Note date of filing of intention to defend or notice to oppose.
1.3.4
Obtain all relevant facts and documentation.
1.3.5
Is an inspection in loco necessary?
1.3.6
Obtain client’s response to the Plaintiff’s/Applicant’s claim.
1.3.7
Consider and research technical defences, locus standi, misjoinder,
non-joinder, prescription, relevant legislation, arbitration, lis
pendens, issues e.g., estoppel, agreement null and void and/or
suspensive conditions not fulfilled, etc.
1.3.8
Will witnesses be available and obtain statements?
1.3.9
Will expert evidence be necessary?
1.3.10 Consider and research legal position relevant to causa/defence.
1.3.11 Discuss and consider facts which could exclude liability and/or reduce
quantum of damages.
1.3.12 Consider Plaintiff’s obligation to mitigate damages.
1.3.13 Consider and discuss possible counterclaim.
1.3.14 Consider whether an application for discovery prior to plea in terms
of Rule 35(14) is necessary.
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1.3.15 Consider possible exception.
1.3.16 Is a settlement possible?
2.
LEGAL OPINIONS OF COUNSEL / THE ATTORNEY
Should the Attorney decide to obtain a legal opinion from Counsel (in those
instances where the Attorney elects to do so), he/she must send a summary of all
the relevant facts as well as copies of all the relevant documents to Counsel with
specific instructions concerning the aspects on which he/she wants the opinion.
Should the Attorney feel that there are aspects on which Counsel himself would
possibly want to question the Client, he/she should arrange a meeting with the
client and Counsel.
In the last-mentioned case, the Attorney ought to give as much information as
possible to Counsel before the consultation to enable Counsel to properly prepare
for the consultation and to do the necessary prior legal research.
In appropriate circumstances, the Attorney should give Counsel his/her own views
on the matters at issue and the results of his/her own research.
3.
THE ATTORNEY’S RESPONSIBILITIES TOWARDS THE CLIENT
Never see the rules of ethics in isolation. The Attorney’s conduct must speak of
professionalism and a sense of duty, whether interviewing the client in your office
or conducting a trial in the High Court. You will do well to read through your notes
on professional conduct and ethics again at this stage. It is, therefore, not the
intention to repeat the rules of ethics here. Only certain facets are emphasised.
3.1
FULL INFORMATION
The Attorney must, as mentioned above in 1, always endeavour to ascertain
all relevant information from the outset. Should he/she come across
“inconsistencies” in the client’s version, he/she ought to point them out to
the client and insist on gaining further information to establish the true facts.
In this way he/she might assist the client to recall certain other facts.
The Attorney should also explain to the client the procedure applicable to the
case, including time guidelines and expected time to completion.
Remember that you are educating the client about a system with which he/
she may have had extremely limited contact.
3.2
FINANCIAL ASPECTS
From the outset the Attorney has to speak to the client about the financial
aspects. The Attorney should always give the client an indication of the
approximate anticipated costs of litigation, if necessary up to certain stages.
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It is good practice to account to one’s client on a regular basis. Clients are
entitled to this frankness from their Attorney.
Should the Attorney deem it necessary to brief Counsel, or for that matter
any type of expert witness, such as a medical doctor, an actuary or any
potential witness who will be charging a fee, the Attorney should first discuss
this possibility with the client, explaining the reasons for requiring the
person’s evidence or opinion and reaching an agreement with the client on
the provision to be made by the client for the payment of such
disbursements.
TIME SCHEDULES: Time is precious and needs to be applied wisely. Keep
an accurate record of all time spent on a file. This is the only way to
ensure that you do not undercharge or overcharge. Comprehensive
records also facilitate the drafting of a Bill of Costs if this becomes
necessary later. Time Sheets in law terms.
3.4
THE PROSPECTS OF SUCCESS
When considering when to take on a case, look at the subject area. Is this
an area with which you feel comfortable or where you are willing to learn at
your own expense? It is unfair to expect a client to subsidise your education.
The Attorney must at all times be absolutely honest with the client. Be
realistic when discussing the possible outcome in a matter. Once again it
should be remembered that the more thoroughly an Attorney knows the
facts, the better he/she will be able to explain and express a view on the
prospects of success to the client.
The client should understand, as far as possible, the factual and legal issues
at stake. This will not only enable him/her to make informed decisions about
his/her own case, but also to be of more assistance to you.
The facts provided by the client during first consultation are limited or have
not been fully ventilated. Be wary of expressing an opinion on prospects of
success too early in the litigation process.
3.5
BRIEFING COUNSEL
The Attorney and the Advocate always work together as a team. Advocates
can be briefed to present cases in the High Court, but then the Advocate
does so with the full support and co-operation of the Attorney. Attorneys
may not abandon their responsibilities in this regard. Remember that it is the
Attorney who gives instructions to the Advocate.
An Attorney is at all times entitled to instruct Counsel with the client’s
consent, to assist him/her should he/she consider it necessary and in the
best interest of the client. An Attorney may decide which Advocate he/she
wants to brief for a specific case. In this regard Attorneys usually build
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working relationships with particular Advocates for specific types of cases.
Remember that one’s choice of Advocate is always governed by the principle
that the Attorney acts in the client’s best interest.
Various Advocates are specialists in certain fields. It is worth making the
queries as to which Counsel may be best suited to deal with your client’s
matter.
3.6
SETTLEMENT
Settlement offers must be made carefully and accurately and in accordance
with the Attorney’s written mandate from his client. The client must be
consulted at all times and the Attorney must keep the client well informed.
Remember, it is after all the client’s money!
The timing of the making of a settlement offer could have a strategic effect
and could also have cost implications.
3.7
REPORTING TO CLIENTS
The most common complaint of clients concerning Attorneys is that they
were not kept informed of developments in the case. Report to the client on
a regular basis throughout the case. Appreciate that your client may be under
commercial and/or emotional stress and your regular reporting could
diminish their stress.
This should be encompassed in an engagement letter.
3.8
MEDIATION IN TERMS OF RULE 41A OF THE UNIFORM RULES OF
COURT
In terms of the impact of and compliance with Rule 41A of the Uniform Rules
of Court, be aware of the following:
This is how Rule 41A prepares the ground for litigants to mediate, before
they venture to Court.
Sub-rule (2)(a) compels a Plaintiff or Applicant to file a prescribed Rule 41A
Notice of agreeing or opposing referral of the dispute to mediation, together
with the summons or motions.
Secondly, sub-rule (2)(b) compels the Defendant or Respondent to also file
a prescribed Rule 41A Notice of agreeing or opposing mediation, before a
plea or opposing papers may be filed.
The above notices, according to sub-rule (2)(c), must be substantially in
accordance with Form 27 of the First Schedule. According to sub-rule (2)(d),
the said notices will be without prejudice and not filed with the Registrar.
The purpose is not to disclose the parties’ positions in regard to mediation to
the trial Judge until the end of the trial.
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If one or both parties decide to oppose mediation, then they must clearly
and concisely indicate their reasons in their sub-rule (2) notices that the case
is or is not capable of being mediated.
The purpose of sub-rule (2) is to compel parties to announce their positions
on mediation early on.
This does not automatically open the door to mediation. The Rule requires a
second step, namely a formal referral to mediation.
Sub-rule (3) provides that the parties may at any stage of the proceedings,
notwithstanding sub-rule (2), refer their dispute to mediation, provided that
leave of the Court is necessary if the hearing has commenced, or a Judge or
Rule 37A case management Judge may in terms of sub-rule (3)(b) direct the
parties to consider referring a dispute to mediation.
Sub-rule (3) does not however explain how the referral to mediation takes
place. Sub-rules (4)(a) and (b) show the way.
The Steps
The first step is for the parties to file a joint minute in terms of sub-rule 4(a)
that records their decision to mediate the dispute or any aspect of the
dispute.
The effect of the first step according to sub-rule (4)(c) is that the time limits
for pleadings, notices and affidavits are suspended from the date of filing the
above joint minute to the conclusion of the mediation, provided that any
party who believes the suspension is being abused may approach the Court
to uplift the suspension.
In terms of sub-rule (4)(d) the mediation has to be concluded 30 days from
the date of the signature of the joint minutes filed in accordance with subrule (4)(a), provided that a Court may on good cause extend the period.
The second step in terms of sub-rule (4)(b) is for the parties to enter into an
agreement to mediate.
The norm in mediation practice is that the parties sign an agreement to
mediate before mediation and in which they agree on the following:
1.
Appointment of a suitably qualified mediator;
2.
The costs of the mediation, including the costs of the mediator;
3.
When and where the mediation is to take place.
The third step is when the mediation takes place as per the agreement to
mediate. All communication and disclosures, whether oral or in writing, made
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at mediation proceedings are confidential and inadmissible as evidence in
terms of sub-rule (6), except as provided by law or discoverable under the
rules.
Upon conclusion of the mediation, the following steps need to be taken:
In terms of sub-rule (7)(a), the parties and the mediator have to inform the
Registrar and other parties by Notice that the mediation has been completed.
If they fail to do so, sub-rule (7)(b) provides that the suspension of the time
limits under this rule nevertheless lapses, unless a Court decides otherwise.
In terms of sub-rule (8)(b), the parties and the mediator have to file a joint
minute within 5 days after the conclusion of the mediation, indicating:
Whether a full or partial settlement was reached or whether mediation was
unsuccessful, inclusive of the issues on which agreement had been reached,
and that no hearing by the Court is required.
It is the joint responsibility of the parties in terms of sub-rule (8)(c) to file
the (8)(b) joint minute with the Registrar.
Sub-rule (8)(a) provides that the mediation shall be deemed to have been
completed 30 days after the date of the signing of the joint minute referred
to in sub-rule (4)(a) and that the suspension of time limits shall also then
lapse.
If the mediation concludes before the expiry of the 30 days, the parties may
file the notice contemplated in sub-rule (7)(a) to confirm that the mediation
has been completed. This is to ensure that the 30-day suspension of time
limits for Court processes can be uplifted earlier.
Sub-rule (8)(d) provides that no offer or tender made ‘without prejudice’ in
terms of this sub-rule shall be disclosed to the Court at any time before
judgment has been given.
Sub-rule (8)(e) provides that Rule 41 applies mutatis mutandis if the
parties reached a settlement during mediation. Rule 43(3) provides that if a
settlement has been reached, the Attorney for the Plaintiff has to inform the
Registrar. Rule 41(4) provides that any party to a written settlement signed
by all the parties may apply for Judgment in terms of the settlement on five
days’ notice.
Sub-rule (9)(a) provides that unless the parties agree otherwise, the parties
shall pay the liability of the fees of the mediation in equal proportions.
Sub-rule (9)(b) provides that when an order for costs of the action or
application is considered, the Court may have regard to the sub-rule (2)
notices, or any offer or tender referred to in sub-rule (8)(d).
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Any party may bring the above notices or offers to the attention of the Court.
4.
PRACTICAL FILE ADMINISTRATION
The key to successful litigation, especially in complicated High Court cases, includes
meticulous file administration. From the outset the file must be kept neat and
orderly. The aim is to keep different types of documents together in date sequence.
A ring file with different partitions is very useful when a case becomes
comprehensive. However, if there is not too much documentation, an ordinary file
cover with different sub-file covers can be used. Each Attorney uses his own
preferred method of maintaining his file in a good, orderly fashion. The different
sub-divisions in the Attorney’s file can, for example, consist of the following:
•
Statements;
•
Correspondence;
•
Processes or pleadings;
•
Memoranda (including legal opinions);
•
Exhibits and documents;
•
Legal aspects (including photostats of Court decisions and statutory
provisions) that may play a key role in the litigation;
•
Medico–legal or other expert reports and summaries;
•
Client’s documents / Discovery.
It is a good idea to make short notes on the front or inside of the file cover
concerning the highlights of the progress of the case, e.g., consultations and the
exchange of pleadings. Such notes have two objectives:
5.

It gives a chronological survey of the progress of litigation, and

It immediately gives the Attorney an idea of the time spent on a particular
case.
CORRESPONDENCE
It must be remembered that even the simplest of letters by an Attorney may later
become the subject of penetrating enquiry and/or argument in the High Court. Even
more important, the absence of a letter where the circumstances require one (i.e.,
objecting to the conduct of the other party or denying the contents of a letter) can
make the difference between success and failure of your client’s case.
See McWilliams v First Cons. Holdings 1982 (2) SA 1 (A) at 10E-11B
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Unless the circumstances demand otherwise, letters should be brief, formal, and
courteous. It often helps when letters are written in numbered paragraph form.
Letters must contain complete file references.
If letters are written without prejudice, they should be clearly marked as such.
There is no special magic in the phrase “without prejudice”. It is not the phrase
that creates the privilege, but the contents of the letter. A communication that is
intended to form part of a bona fide attempt to settle a dispute between the parties
is privileged, regardless of the presence or absence of the words “without prejudice”.
In order for a letter or part thereof to be privileged, the following three requirements
must be present:
i.
There must be a dispute between the parties.
ii.
The letter must constitute a bona fide attempt to settle the dispute.
iii.
The letter or the relevant part thereof must form an integral part of the
settlement negotiations.
See Schmidt: Bewysleer: LAWSA Vol. 9
If letters are sent by registered post, they must be marked as such and the
registered post slips should be attached to the file copy of the letter.
Telephone calls, messages and conversations must be recorded on paper
contemporaneously. Cryptic code words and abbreviations on odd scraps of paper
do not constitute proper minutes of a conversation.
Do not litigate in correspondence unless you are negotiating a settlement. Save
your arguments for the Courtroom.
When letters of demand are written they must be phrased with great care, almost
like a pleading – all essential allegations must be made clearly, but concisely.
Cancellation: Think carefully before writing a letter of cancellation, get a second
opinion from a colleague or Counsel before committing yourself. Premature
cancellations are a disaster. Your opponent can regard your abortive cancellation
as a repudiation and in turn cancel because of it.
6.
LETTERS OF DEMAND AND NOTICE
Legal proceedings, whether instituted by way of summons or notice of motion are
usually preceded by a demand to the other party claiming the relief which the party
instituting the proceedings are seeking.
In terms of the definition of “demand” in Section 4 of the Prescribed Rate of Interest
Act No. 55 of 1975 as amended, a demand means a written demand setting out
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the creditor’s claim in such a manner as to enable the debtor reasonably to assess
the quantum thereof and is required to determine the date from which mora
interest shall commence to accrue in the absence of a contractual stipulation. The
prescribed rate of interest is calculated at the Reserve Bank Repurchase Rate plus
3.5% Since 1 May 2023 the prescribed rate of interest is 11.25%.
6.1
WHEN NECESSARY
If a demand is an essential element of the cause of action, in other words, if
a prior demand is a condition precedent to liability, legal proceedings may
not be commenced with until the liability is complete because the cause of
action must exist at the time when the proceedings are commenced.
A demand made before the commencement of proceedings may be
significant in relation to costs. If proceedings are launched without a prior
demand and the Defendant or Respondent tenders or performs the relief
claimed, he may not be held liable for costs.
6.2
LEGISLATIVE PROVISIONS
There are several legislative provisions requiring the Plaintiff to give prior
notice of his intent to commence legal proceedings and stipulating the period
of such notice. These provisions are peremptory and strict compliance with
the prescribed periods of time is essential. The Court has no discretion to
condone any failure to comply, unless empowered by statute to do so.
The Institution of Legal Proceedings Against Certain Organs of State Act No.
40 of 2002 was assented to on 24 November 2002. This Act amends fourteen
Acts in regard to prescription periods and the giving of notice to an organ of
state as defined. The ambit of this guide does not permit a comprehensive
discussion of all the new provisions, but the contents of the Act must be
studied. The provisions hereunder may have been amended to a larger or
lesser degree and may possibly only apply during the transition period.
See the article in De Rebus April 2009 p47.
Some of these are mentioned below:
6.2.1
Institution of Legal Proceedings against Certain Organs of
State Act No. 40 of 2002
The Institution of Legal Proceedings against Certain Organs of State
Act No. 40 of 2002, came into operation on 28 November 2002, and
amends or repeals the limitation and prescription periods contained
in Sections of 14 Acts, inter alia, the:
o
Black Administration Act No. 38 of 1927;
o
Defence Act No. 44 of 1957;
o
Public Service Act Proclamation No. 103 of 1994;
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6.2.2
o
South African Police Service Act No. 68 of 1995;
o
The South African National Roads Agency Limited and National
Roads Act No. 7 of 1998;
o
Correctional Services Act No. 111 of 1998;
o
Intelligence Services Act No. 38 of 1994; and
o
the whole of the Limitation of Legal Proceedings (Provincial and
Local Authorities) Act No. 94 of 1970.
Applicability
The Act applies to any debt, whether it arose prior to or after the
commencement of the Act, except where the claim was already
extinguished by prescription before 28 November 2002, or in respect
of which legal proceedings were instituted before the said date.
6.2.2.1 Definitions
”debt” in terms of Section 1(1) means any debt arising from any
cause of action:
(a)
(b)
which arises from delictual, contractual or any other liability,
including a cause of action which relates to or arises from any:
(i)
act performed under or in terms of any law; or
(ii)
omission to do anything which should have been done
under or in terms of any law; and
for which an organ of state is liable for payment of damages,
whether such debt became due before or after the fixed date.
Organ of state means:
a)
any national or Provincial department;
b)
a municipality contemplated in Section 151 of the Constitution;
c)
any functionary or institution exercising a power or performing
a function in terms of the Constitution, or a Provincial
constitution referred to in Section 142 of the Constitution;
d)
the South African Maritime Safety Authority established by
Section 2 of the South African Maritime Safety Authority Act,
1998 (Act No. 5 of 1998);
e)
The South African National Roads Agency Limited
contemplated in Section 3 of The South African National Roads
Agency Limited and National Roads Act No. 7 of 1998 (Act of
1998); and
f)
Any person for whose debt an organ of state contemplated in
paragraphs (a) to (e) is liable (see Section 1(1) vii).
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6.2.2.2 Prescription
In terms of Section 2(2) a debt which became due before 28
November 2002, which has not been extinguished by prescription
and in respect of which legal proceedings have not been instituted or
a debt which became due after 28 November 2002 will be
extinguished in terms of the provisions of Chapter 3 of the
Prescription Act No. 68 of 1969.
In other words, the same rules applicable to other debts now apply
with regard to claims against state organs.
6.2.2.3 Notice
In terms of Section 3 of the Act:
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless:
(a)
the creditor has given the organ of state in question notice in
writing of his or her or its intention to institute the legal
proceedings in question; or
(b)
The organ of state in question has consented in writing to the
institution of that legal proceedings:
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(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all
the requirements set out in sub-section (2). Sub-section
(2) requires a notice to be given:

within six months from the date on which the
debt became due, be served on the organ of
state.

such notice must briefly set out:
o
the facts giving rise to the debt; and
o
such particulars of such debt as are within
the knowledge of the creditors. For
purposes of sub-section (2)(a) - a debt
may not be regarded as being due until the
creditor has knowledge of the identity of
the organ of state and of the facts giving
rise to the debt, but a creditor must be
regarded as having acquired it by
exercising reasonable care, unless the
organ of state willfully prevented him or her
or it from acquiring such knowledge;
(Section 3(3)).
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6.2.2.4 Condonation
If an organ of state relies on a creditor’s failure to serve the required
notice, the creditor may apply to Court for condonation of such
failure.
The Court may grant condonation if it is satisfied that the debt has
not been extinguished by prescription, that good cause exists for the
failure of the creditor and that the organ of state was not
unreasonably prejudiced by the failure (Section 3(4)). The provisions
of this Section were considered in Madinda v Minister of Safety
and Security 2008 (4) SA 312 (SCA). It was held that the
determination of “good cause” entailed a consideration of all those
factors which had a bearing on the fairness of granting condonation
and affecting the proper administration of justice.
Relevant factors might include:

Prospects of success in a proposed action;

The reasons for the delay;

The sufficiency of explanation offered;

The bona fides of the Applicant and

Any contribution by other persons or parties to the delay and
the Applicant’s responsibility, therefore.
The requirements in condonation applications are set out in Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4)
SA 109 (SCA), where it was held that:
•
The requirements of this sub-section are conjunctive and must
be established by the Applicant for condonation (at 113A).
•
The Applicant is required to set out fully the explanation for
the delay, which must cover the entire period of the delay and
be reasonable (at 117B).
•
The Court must be satisfied that the requirements laid down in
this sub-section have been met – in practical terms this means
the “overall impression” made on a Court by the facts set out
by the parties (at 116G).
•
In general terms, the interests of justice play an important role
in condonation applications (at 117B).
6.2.2.5 Service (Section 3(4))
Service of notice
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Service of the notice can be effected by delivery by hand, sending by
certified mail or transmitting by facsimile or electronic mail. If a
notice was sent by electronic mail or transmitted by facsimile, the
claimant must:
•
take all reasonable steps to ensure that the notice has been
received by the officer or person to whom it was so sent or
transmitted; and
•
containing any proof that it was sent or transmitted; setting
out the “reasonable steps” taken; and
•
indicating whether confirmation of the receipt of the notice has
been obtained and, if applicable, the name of the officer or
person who has given that confirmation.
Service of process
Any process by which any legal proceedings are instituted must be
served in the manner prescribed by the Rules of the Court in question
for the service of process.
Section 5 of the Act also sets out requirements or refers to other
legislation regarding the responsible functionary upon whom process
must be served.
In conclusion, the Act also prescribes that no process may be served
before the expiry of a period of 30 days after notice was served on
the organ of state. If any process was served before the expiry of the
30-day period, such process must be regarded as having been served
on the first day after the expiry of such period.
6.3
NATIONAL CREDIT ACT
34 OF 2005: An example of specific
legislative provisions with regard to letters of demand is to be found
in Section 129 (read with Section 130) of the National Credit Act No.
34 of 2005. Here, in applicable cases and if the consumer is in
default, the credit provider may (the word “may” is misleading
because the credit provider may not commence any legal
proceedings unless the notice has been provided) draw the
consumer’s notice in writing thereto and propose that the consumer
refers the agreement to a debt Counsellor, alternative dispute
resolution agent, consumer Court or Ombud with the intent that any
dispute be resolved, or that a plan be agreed upon by the parties to
bring payments up to date. The credit provider may not enforce the
agreement unless at least ten business days have elapsed since the
credit provider has delivered the notice and the consumer has been
in default for at least twenty business days .
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Wherever there are such legislative provisions with regards to inter alia
letters of demand or prior notice, the causa should allege compliance
therewith. Failure to do this could give rise to an exception being raised
against the document.
Since the promulgation of the National Credit Act No. 34 of 2005 (NCA),
Section 129 has been a fruitful source of litigation with a number of
conflicting decisions being handed down by various decisions of the High
Court. In Sebola v Standard Bank of South Africa Ltd 2012 (5) SA 142
(CC), it was held that mere despatch of the Section 129 letter of demand
did not suffice and at very least, the Plaintiff must obtain a “track and trace”
printout from the post office to show that the letter was delivered to the
relevant post office. Also see Kubyana v Standard Bank of South Africa Ltd
2014 (3) SA 56 (CC).
In terms of the National Credit Amendment Act 19 of 2014 the section 129
notice must be delivered to the consumer either by registered mail or to an
adult person at the location designated by the consumer. Proof of delivery is
satisfied by confirmation by the postal service or its authorised agent of
delivery to the relevant post office or postal agency or by signature or
identifying mark of the recipient in case of delivery by hand. This is dealt
with extensively in Magistrate’s Court Practice.
6.4
INTERIM INTERDICTS AGAINST THE STATE
See the General Law Amendment Act No. 62 of 1955.
No Court may issue any rule nisi operating as an interim interdict against
the government of the Republic, a Provincial administration or any Minister,
Administrator, (now Premier of a Province) or other officer of the government
or administration in his capacity as such, unless notice of his or her intention
to apply for such a rule accompanied by copies of the application were served
on the Respondent at least 72 hours before the hearing of the application or
such lesser period as the Court may consider to be reasonable in the
circumstances.
6.5
HINTS ON DRAFTING
6.5.1
The requirements pertaining to various types of letters of demand in
terms of a number of statutes require the particular attention of the
person drafting legal documents, especially drafting a causa in
particulars of claim.
6.5.2
It is therefore imperative that the Attorney apprises herself/himself
before drafting a causa if any statutory requirement exists as to
whether a prior letter of demand needs to be given or sent to the
Defendant before the issue of summons, and if so, what period must
be given in the letter of demand and what period should elapse after
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the despatch of the letter of demand and before summons can be
issued. Specific reference must also be taken as to whether the
requirement is to merely give notice or to draw the Defendant’s
attention to some or other fact.
6.5.3
In these notes, reference is made to only one example in this regard,
viz the National Credit Act No. 34 of 2005, which reads as follows:
‘129(1) If the consumer is in default under a credit agreement, the credit provider – (a)
may draw the default to the consumer in writing...’ and
‘130(1) Subject to sub-section (2), a credit provider may approach the Court for an
order to enforce a credit agreement only if, at that time, the consumer is in
default and has been in default under that credit agreement for at least 20
business days and:
(a)
6.5
at least 10 days have elapsed since the credit provider delivered a notice
to the consumer as contemplated in Section 86(9), or in Section 129(1)
as the case may be.’
ALLEGATION NOT SUFFICIENT RE COMPLIANCE WITH SECTION
129(1)
In terms of the foregoing, it appears that it will not be sufficient to make a
bold allegation that the Plaintiff has complied with requirements of Section
129(1) of the said Act. The method of compliance must be alleged and
thereafter proven at the trial.
7.
THE ATTORNEY’S MANDATE
See Rule 7.
Since 1 January 1988, a Power of Attorney is no longer necessary to issue a
summons or to give notice of intention to defend, but an Attorney may in certain
circumstances have to provide proof of his authority to act.
The authority of an Attorney to act on behalf of a party may within 10 days after it
has come to the notice of the party that such an Attorney is so acting, or with leave
of the Court on good cause shown any time before Judgment, be disputed. If this
occurs, the Attorney must provide proof of his authority to act e.g., by filing of a
Power of Attorney.
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In terms of Rule 5 of the Supreme Court of Appeals, a Power of Attorney need not
be filed but the authority of a Legal Practitioner to act on behalf of any party may,
within one month after it has come to the notice of any other party that the Legal
Practitioner is so acting or with leave of the Court on good cause shown at any time
before judgment be disputed by notice, whereafter upon expiry of one month after
service of the notice, the Legal Practitioner shall no longer act, unless a Power of
Attorney is lodged with the Registrar within that month.
In MEC for Economic Affairs, Environment and Tourism, Eastern Cape v
Kruizenga and Another 2010 (4) SA 122 (SCA), the Court laid down important
guidelines in respect of the scope of an Attorney’s mandate to consent to a
judgment against his/her client.
7.1
CONTINGENCY LITIGATION
A contingency fee agreement can be defined as an agreement between a
Legal Practitioner and a client, based on a future event probably occurring,
whereby the parties agree that:
(a)
the Legal Practitioner agrees to charge no fee if the client’s matter is
unsuccessful; and/or
(b)
in the event of success, the Legal Practitioner may charge a fee in
excess of that usually charged, as compensation for the risk taken.
The Contingency Fees Act No. 66 of 1997 (the Act) is an enabling statute in
that it enables Legal Practitioners to enter into certain contingency
agreements with their clients, which agreements were previously unlawful in
terms of the common law on account of them facilitating gambling in
lawsuits. These agreements are known as ‘pactum de quota litis’ and are
called maintenance and champerty.
The Contingency Fees Act No. 66 of 1997 is not a constraining statute in that
it does not prohibit any contingency agreement. The purview of the
Contingency Fees Act No. 66 of 1997 is limited to those contingency
agreements, which are unlawful in terms of the common law. The
Contingency Fees Act No. 66 of 1997 does not affect lawful ‘common law’
contingency agreements. This is confirmed in the case of Fluxmans Inc v
Levenson 2017 (2) SA 520 (SCA). At para 32, Zondi JA (Theron JA and
Van der Merwe JA concurring) held ‘that it is incorrect that the Act prohibits
the conclusion of a “common law” contingency fees agreement. The Act
permits the parties to conclude such agreement. It in fact allows them to do
something that would otherwise be unlawful under the common law. In other
words, the Act was enacted to overcome the prohibition, which existed under
the common law [Price Waterhouse Coopers Inc and Others v National
Potato Co-operative Ltd 2004 (6) SA 66 (SCA) para 41]’.
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Further the judgment of Zondi JA clarifies the often-misconstrued statement
of Southwood AJA in the matter of Price Waterhouse Coopers Inc and
Others v National Potato Co-Operative Ltd 2004 (6) 66 (SCA) at para
41G that ‘[a]ny contingency fee agreement between such parties [the Legal
Practitioners and their clients] which is not covered by the Act is therefore
illegal.’ The statement of Southwood AJA is restricted to the unlawful
‘common law’ contingency fee agreements, as it is only these agreements,
which come within the purview of the Act. The Contingency Fees Act No. 66
of 1997 does not cover lawful common law contingency fee agreements,
which therefore remain legal.
In other words, the Contingency Fees Act No. 66 of 1997 neither prescribes
contingency fee agreements, which are legal under the common law, nor
creates a new category of illegal contingency fee agreements. This view is
confirmed by Wallis JA in the minority judgment in the case of Mostert and
Others v Nash and Another 2018 (5) SA 409 (SCA) at para 145 where
he held that ‘[t]here was no blanket prohibition on remuneration being
dependent on the outcome of an uncertain future event. To the extent that
certain other cases decided in the High Court may have suggested that any
agreement between an Attorney and client that made fees payable on the
happening of an uncertain future event were “unlawful contingency fees,”
these cases were wrongly decided’.
The Contingency Fees Act No. 66 of 1997 deals only with unlawful ‘common
law’ contingency fee agreements and legitimises these agreements by
regulating the terms and conditions, which must be introduced into the
agreements. If the Contingency Fees Act No. 66 of 1997 were not followed
strictly, the unlawful contingency agreements would remain unlawful. (The
form and content of contingency agreements legitimised by the Contingency
Fees Act No. 66 of 1997 are set out in Sections 2 and 3 of the Act.)
But in the Constitutional Court case of Ronald Bobroff & Partners Inc v
De La Guerre; South African Association of Personal Injury Lawyers
v Minister of Justice and Constitutional Development [2014] ZACC 2
on the 20th of February 2014 the common law contingency fee agreement
practise in general was declared to be unlawful and such agreements invalid,
as was reiterated in the case of Bobroff and Another v National Director
of Public Prosecutions (194/20) [2021] ZASCA 56; [2021] 3 All SA 1
(SCA); 2021 (2) SACR 53 (SCA) (3 May 2021) when Acting Judge of
Appeal, Judge J W Eksteen, referred back to the aforementioned
Constitutional Court case and in paragraph 27 stating the following: “In due
course some clients, including Ms de la Guerre, challenged the lawfulness of
the common law contingency fee agreement. Her matter was pursued all the
way to the Constitutional Court where, on 20 February 2014, the practice
was declared to be unlawful and the agreement invalid.”.
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The investigation of a contingency fee agreement is a two-step procedure,
namely:
o
to establish that the agreement is void in terms of the common law
on account of it being champertous (gambling in lawsuits); and
o
to ascertain whether the champertous agreement has been permitted
by the Act.
Resort to the Contingency Fees Act No. 66 of 1997 is only required if the first
step establishes the existence of champerty.
The fact that payment of an Attorney’s fee is made subject to the happening
of a future uncertain event, does not in itself constitute a champertous
arrangement. Financial assistance given in good faith to help a litigant
prosecute an action in return for a reasonable recompense or interest in the
suit has, for a very long time, not been regarded as unlawful. This was held
to be the case by Kotze CJ in Thomas Hugo and Fred J Möller NO v The
Transvaal Loan, Finance and Mortgage Company [1894] 1 OR 336 at
339 – 341 (which is quoted by Southwood AJA in Price Waterhouse
Coopers Inc at para 27). This judgment justifies the exclusion of the
aforesaid financial arrangement from the purview of the Act; it is not an
unlawful common law contingency agreement requiring legitimisation under
the Act.
In terms of the Contingency Fees Act No. 66 of 1997 (“the Act”),
“normal fees” are those fees normally charged by and Attorney/Advocate to
do legal work for a client.
Contingency fees are fixed fees by an Attorney for legal work done for a
client. The contingency fee will usually be 25% of the amount awarded to a
client in a Court case if the client is successful in his/her case. The basis of
the agreement between the Attorney and his/her client is on a “no-win-nofee” basis.
Attorneys may not simply agree with clients to charge contingency fees.
There are strict requirements set down by the Contingency Fees Act No. 66
of 1997 that must be followed before an Attorney can charge contingency
fees. If the requirements are not complied with, the agreement is not valid,
and a contingency fee arrangement cannot exist between the Attorney and
his/her client.
1.
There must be an explicit agreement between the Attorney and his/her
client that the fees levied will in terms of a contingency fee agreement
and not the fees prescribed by the Legal Practice Council.
2.
The agreement must be in writing and signed by both parties.
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3.
The Attorney will only be entitled to any fees for services rendered if
the matter that he/she is handling for a client is successful. We usually
see these types of agreements in third party claims (when you were
in an accident and claim from the Road Accident Fund). If the matter
is not successful, the Attorney will not be paid and will then not be
able to give the client a bill – the Attorney will have worked for free
(the client usually pays for expenses).
4.
In the case of a contingency fee agreement: if the client wins his case,
the Attorney will be entitled to a portion of the amount that the client
has won. Therefore, instead of fees, (sending a statement with
itemised items), the Attorney will receive a fixed amount and the fixed
amount will be determined by the amount awarded to the client. This
can have the result that an Attorney can get higher fees than he/she
is entitled to charge as prescribed by the Legal Practice Council.
5.
The Act, therefore, prescribes that if the Attorney is going to receive a
higher fee (than what he/she is usually entitled to) as a result of the
high amount awarded, then that higher fee may not exceed the normal
fees that the Attorney is entitled to charge by more than 100%.
6.
The Contingency Fees Act No. 66 of 1997 further prescribes that the
Attorney’s fee may not be higher than 25% of the total amount
awarded to the client.
Clients must understand that a contingency fee agreement is a carefully
regulated agreement and must not allow an Attorney or any other person
that they enter into such an agreement to charge more than they would have
been entitled. Nearly all contingency fee agreements are entered into
between Attorneys and their clients in claims against the Road Accident Fund,
or medical negligence claims. The Attorney will carry all the expenses and
costs up to date of trial, or settlement before and then the Attorney will take
his/her fee from the client’s amount awarded. It has been all over the
newspapers over the years of how some Attorneys take more from their
clients than they should. It doesn’t mean that the Attorney must always get
25% of the client’s awarded fees. The Court said very recently in Masango
v Road Accident Fund 2016 (6) SA 508 (GJ), that the Contingency Fees
Act did not mean that an Attorney can charge 25% at all times, as the 25%
was merely set as the maximum the Attorney can charge in a contingency
fee agreement. The Attorney must have delivered the services to make
him/her entitled to the full 25% of the client’s awarded claim.
8.
PRE-REQUISITES
Erasmus Superior Court Practice van Loggerenberg D E
Amlers Precedents of Pleadings, Harms LTC, 9th Edition;
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The Matrimonial Property Act No. 88 of 1984;
The Divorce Act No. 70 of 1979;
The Superior Courts Act No. 10 of 2013.
8.1
THE CAUSE OF ACTION
Liability never originates in vacuo. It is always based on a legal fact,
resulting in an obligation. This legal fact can be called the cause of action.
Such legal fact may originate from a contract, a delict, or various other
causes.
In the case of a contract, the parties thereto are contractually bound, and
should one party commit breach of contract, the other party would in
principle be entitled to either enforce the contract or to cancel it and claim
damages.
In the case of a delict, the injured party will be entitled to claim compensation
from the wrongdoer or if there is a threatening injustice, the other party can
be prevented to commit the delict by means of an interdict.
No attempt is made to list the “other causes” exhaustively. Two examples
are:
i.
A father is liable to pay maintenance for his minor child, in which case
the legal fact giving rise to the obligation is fatherhood.
ii.
If one person is unjustly enriched at the expense of another, the law
provides that the prejudiced person has a claim against the recipient
on the grounds of unjust enrichment.
A cause of action may briefly be described as a legal fact giving rise to an
obligation, which results in liability. Liability only follows when the cause of
action is complete.
To determine whether the cause of action is complete, notice must be taken
of the relevant legal principles in each particular case. Normally a letter of
demand is not necessary before the Plaintiff may institute an action against
the Defendant. However, there are cases where written notice or a letter of
demand is essential for the completion of the Plaintiff’s cause of action.
In this regard there are primarily three categories, namely:
i.
Where a contractual relationship exists, it may firstly be necessary to
place the party in default in mora before action may be taken against
him or her. To determine when a letter of demand (notice) is
necessary, the principles of the law of contract must be taken into
account.
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ii.
When the parties (usually in the case of a contract) expressly or tacitly
agreed that a letter of demand (notice) must first be delivered before
an action may be instituted.
iii.
Where statutory provisions determine that a letter of demand (notice)
is a pre-requisite as set out in 6.2 (Letters of Demand and Notice).
When drafting any legal document, care should be taken to formulate the
client’s causa or defence with regard to all relevant facts and legal
requirements. Compliance with all legal requirements must be alleged in the
Court documentation.
Example 1:
If you are drafting a combined summons against a State
organ pursuant to the Institution of Legal Proceedings Against
Certain State Organs Act No. 40 of 2002, the drafter must
allege compliance with Section 3 of the said Act in regard to
the sending of a letter of demand within the six-month period
from the date on which the debt became due.
Example 2:
If the Legal Practitioner is drafting a claim for damages for
personal injury, the causa must contain all the relevant
information required by Rule 18(10) of the Rules of Court.
(Rule 18 contains various such requirements which must be taken into
account when drafting the causa – see below).
Further, when drafting the causa, Candidate Legal Practitioners should make
sure that every prayer contained in the summons is based on the factual
statements in the particulars of claim.
8.2
LOCUS STANDI
Locus standi in iudicio is the capacity to act as litigant i.e., the capacity to
sue or to be sued.
The phrase locus standi is also used in another context, namely the
requirement that a party to litigation must have a direct and substantial
interest in the right, which is the subject matter of the litigation. Thus, in the
case of a person requesting legal relief, there must have been an
encroachment or threat of his or her rights or interests. In the case of a
person that defends (in an action) or opposes (in an application) the granting
of the legal relief, his or her rights or interests must stand to be affected by
the requested legal relief.
However, Section 38 of the Constitution of the Republic of South Africa
creates an exception to this general rule as it provides for group actions:
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“anyone listed in this Section has the right to approach a competent Court,
alleging that a right in the Bill of Rights has been infringed or threatened,
and the Court may grant appropriate relief, including a declaration of rights.
The persons who may approach a Court are:
a)
anyone acting in their own interest.
b)
anyone acting on behalf of another person who cannot act in their
own name.
c)
anyone acting as a member of, or in the interest of, a group or class
of persons.
d)
anyone acting in the public interest.
e)
an association acting in the interest of its members.”
The general rule is that every natural person with full legal capacity has the
capacity to litigate. Persons without full legal capacity need the assistance of
someone with the authority to litigate on their behalf. Others with full legal
capacity may be subject to certain limitations in being able to sue or to be
sued.
The question whether a person has locus standi to sue or be sued may be
dealt with on exception.
The following categories of persons do not have locus standi in iudicio:
8.2.1
Minors
Natural persons under the age of 18 are called minors. Minors under
the age of 7 are incapable to act. It means that such a person (even
with the assistance of his/her guardian) may not act as a litigant. In
such a case the guardian must act on his/her behalf, although the
claim is still rightfully the minor’s claim.
If s/he has no guardian, the Court must be approached by way of
application so that a curator ad litem may be appointed for him/her.
Minors between the ages of 7 and under 18 have limited capacity to
act. This means that they, in contrast with minors under the age of
7, may act as litigants provided that their lack of capacity to litigate
is cured by the assistance of a guardian. In such a case the claim is
still rightfully the minor’s claim, and the claim is instituted in his/her
own name, while s/he is assisted by his/her guardian. In this
category of minors, the guardian may also, as in the case of minors
under the age of 7, institute the claim on behalf of the minor (in the
guardian’s name).
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Where a minor sues or is sued in one of the ways set out above, the
minor is the party to the action and the guardian appears in his
representative capacity only.
The guardian cannot be held responsible for payment of costs or
damages awarded against the minor, save where the guardian has
acted mala fide, recklessly or negligently.
In certain instances, a minor may litigate without being assisted by
a guardian or curator ad litem:
•
in an application for the appointment of a curator ad litem;
•
where the Court grants him leave to sue unassisted; and
•
an application for leave to marry without parents’ consent.
NOTE: A minor has locus standi if he is married or has been declared
a major or has been tacitly emancipated.
8.2.2
Persons Under Curatorship
Curatorship is the official supervision under which an adult person or
his estate remains, where he is incapable of managing his own
affairs.
In this regard one can mainly distinguish between the following
appointments:
8.2.3
•
A curator bonis who is appointed to administer a person’s
property and affairs in general;
•
A curator ad litem who is appointed by the Court to represent
a person, whether a minor or a major, in civil litigation;
•
Mentally disabled persons have no locus standi in iudicio, an
interdicted prodigal has limited legal capacity, analogous to
that of a minor and an unrehabilitated insolvent has diminished
locus standi in iudicio.
Married Persons
It is important to note that Section 11 of the Matrimonial Property
Act No. 88 of 1984, was substituted by Section 29 of the General Law
Fourth Amendment Act No. 132 of 1993, and that the common law
marital power was abolished from 1 December 1993. A married
woman may now sue or be sued without the assistance of her spouse.
Note:
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However, that such spouses married in community of property cannot sue or defend
legal proceedings without the written consent of the other spouse (Section 17(1) of the
Matrimonial Property Act No. 88 of 1884).
Written permission, however, is not necessary with regard to:
8.2.4
•
actions between spouses;
•
the spouses’ separate property;
•
the recovery of damages due to the commission of a delict
against one of the spouses; and
•
any matter relating to a spouse’s profession, trade, or
business.
Subject to certain conditions, natural persons may sue or be
sued
Judges of the High Court may only be sued or subpoenaed with
consent of the Judge President.
Members and Officers of Parliament. No civil proceeding in which a
member or officer of Parliament is a Defendant may be brought to
trial in a Court that holds its sittings elsewhere than at the seat of
Parliament (Cape Town). Their right to sue is not affected.
Diplomats. In terms of the Diplomatic Immunities and Privileges Act
No. 37 of 2001, as amended, diplomats and envoys from other states
are immune from the civil and criminal jurisdiction of South African
Courts. A sending state may waive this immunity in writing.
Fugitives from Justice. Persons wilfully avoiding the execution of
processes of the South African Courts through voluntary exile or
hiding may not sue. They may, however, defend actions brought
against them.
Alien Enemies. Persons who voluntarily reside or carry-on business
in a country of war with South Africa may not, while the war is in
progress, sue in South African Courts. They may be sued.
8.3
JURISDICTION (SEE SECTION 21 OF THE SUPERIOR COURTS ACT NO.
10 OF 2013)
Jurisdiction is generally defined as the legal competence of a Court to hear a
specific matter and to grant an order in relation to it.
Before litigation is instituted, it must first be determined which Court has
jurisdiction.
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First, it must be determined whether the matter lies within the competence
of an inferior Court or may be entertained only by a Superior Court. To
proceed in the High Court on a claim within the jurisdiction of a Magistrate’s
Court will expose the Plaintiff to the danger of being awarded costs on the
scale applicable to Magistrates’ Courts. Courts are increasingly reluctant to
hear matters that fall within jurisdiction of Magistrates’ Courts.
Far more serious consequences may flow from a decision to institute
proceedings in the Magistrate’s Courts in a matter, which only the High Court
may entertain. The Court will, upon objection by the Defendant or even mero
motu, decline jurisdiction and quash the proceedings with the result that the
Plaintiff will have to pay wasted costs.
The High Court has, unlike the inferior Courts, inherent jurisdiction. Put
differently, whereas the Magistrate’s Court may do nothing unless authorised
to do so by law, the High Court may do anything unless forbidden by law.
Certain limitations on the jurisdiction of the High Court are imposed by
common law, but more often by statute. So, for example, the High Court is
deprived of original jurisdiction in certain matters reserved by statute for
special tribunals, for instance, water Courts, special Courts for hearing
income tax appeals, the Court of a Commissioner of Patents, the Courts of
Admiralty and the special Courts for appeals emanating from the Competition
Board. The jurisdiction of the High Court has also essentially been ousted in
respect of labour matters, and it has only limited jurisdiction under the
Restitution of Land Rights Act No. 22 of 1994 or the Land Reform (Labour
Tenants) Act No. 3 of 1996.
There is a presumption against legislative ouster or interference with the
jurisdiction of the High Court, and the inherent jurisdiction of the High Court
has been retained by the Constitution of the Republic of South Africa Act No.
108 of 1996.
The Constitutional Court, as pointed out previously, does not form part of
the High Court, but may decide only on constitutional and connected matters,
and makes the final decision on whether a matter falls within its jurisdiction.
The April 2003 edition of De Rebus contains an informative article by Mervyn
Dendy in regard to the choice of forum in civil proceedings on pages 32 to
34.
A High Court has no jurisdiction to hear an appeal from a Military Court but
does have the jurisdiction to hear a review of a decision of the Military Court
or to review any other judicial or quasi-judicial finding.
The High Court and the Labour Court do not have concurrent jurisdiction in
respect of disputes emanating from Section 158(1) of the Labour Relations
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Act No. 66 of 1995 (LRA). These Courts, however, do have concurrent
jurisdiction to adjudicate a review arising from Section 158(1)(g) of the LRA.
In terms of Section 173 of the Constitution, the Constitutional Court, the SCA
and the High Court all have inherent power to protect and regulate their own
processes and to develop the common law, taking into account the interests
of justice.
In Standard Bank of South Africa Ltd and others v Thobejane and others and
similar matters [2021] ZASCA 92 the SCA held that the High Court must
entertain matters within its territorial jurisdiction that fall within the
jurisdiction of a Magistrates’ Court , if brought before it, because it has
concurrent jurisdiction with the Magistrates’ Court. It further held that the
High Court is obliged to hear matters that fall within the monetary jurisdiction
of the Magistrates’ Court because the High Court has jurisdiction. The Court
further held that a Division of the High Court is obliged to hear matters that
fall within the jurisdiction of a local seat of that Division because the main
seat has concurrent jurisdiction.
This was confirmed by the Constitutional Court in South African Human
Rights Commission v Standard Bank and others [2022] ZACC 43.
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8.3.1
Jurisdiction of a Division
Once you have decided that the High Court has jurisdiction, you will
then have to decide in which of the divisions discussed in 3.2.2 you
are going to institute proceedings.
In terms of Section 21 of the Superior Courts Act No. 10 of 2013, a
Provincial or Local Division has jurisdiction:
•
over all persons residing or being in its area of jurisdiction;
•
in relation to all causes arising within the area of its
jurisdiction; and/or
•
in relation to all matters of which it, according to law, may take
cognisance.
The Section uses indefinite wording because the intention of the
legislature was to interfere as little as possible with the common law
and recourse must therefore be had to common law principles to
ascertain whether a particular Provincial or Local Division has
competency to adjudicate a particular matter.
For jurisdictional purposes, the principal place of business of a
company is the place where the central control and management of
a company is situated.
The general common law principles are:
8.3.1.1 The Doctrine of Effectiveness
In Steytler N.O. v Fitzgerald 1911 AD 295, the Court declared:
“A Court can only be said to have jurisdiction in a matter if it has the
power not only to take cognisance of the suit, but also of giving effect
to its judgment”. Therefore, the fact that a Defendant resides in the
area of the Court’s jurisdiction will not give that Court jurisdiction if
the claim relates to the transfer of property not within the area of
jurisdiction and in respect of which the order cannot be enforced by
Court.
Similarly, the doctrine of effectiveness has led to the finding that
South African Courts are generally not prepared to adjudicate a
matter against a foreigner unless the foreigner has been arrested or
his goods have been attached.
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The term "effectiveness" must not be approached too literally. It can
never be equated to a guarantee that the judgment will be enforced
fully.
8.3.1.2 The Doctrine of Submission
This doctrine entitles a Court that would otherwise not have
jurisdiction to hear a matter against a specific person to obtain the
necessary jurisdiction based on the consent of such person, either by
positive consent, or negatively by not objecting to the capacity of the
Courts to entertain the case against him.
The submission by a Defendant of his person to the jurisdiction of a
Court can only be effective if the Court is entitled to adjudicate the
cause of action.
8.3.1.3 The principle of Actor Sequitur Forum Rei
This principle entails that the Plaintiff must take the case to the forum
of the Defendant and institute action in the Court in whose area the
debtor resides or carries on business.
8.3.2
The Common Law grounds of Jurisdiction include:
8.3.2.1 Ratione domicilii
At common law, the only Court entitled to adjudicate matters relating
to status is the Court of the relevant party’s domicile. This applied
to inter alia legitimacy, minority, and marriage. Money claims
against a Defendant domiciled within the Court’s area of jurisdiction
may be heard by that Court.
The provisions of the Divorce Act No. 70 of 1979 (Section 2(1)(v) as
amended by the Domicile Act No. 3 of 1992 brought a statutory
intervention with regard to the High Court jurisdiction in matrimonial
matters.
Divorce Actions
Section 2(1) of the Divorce Act No. 70 of 1979 stipulates that a
Provincial or Local division of the High Court (and now a Regional
Court) will have jurisdiction in a divorce action if the parties or any
one of the parties is:
(a)
‘domiciled in the area of jurisdiction of the Court on the said
date of which the action is instituted;
(b)
is ordinarily resident within the area of the said Court and was
ordinarily resident in the Republic of South Africa for a period
of not less than one year immediately prior to the date.’
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A Court that has jurisdiction in terms of Section 2(1) of the Divorce
Act No. 70 of 1979 will also have jurisdiction with regard to a
counterclaim filed by the Defendant.
In AS v CS 2011 (2) SA 360 WCC the Court held that a same–sex
marriage could be dissolved by a competent Court and was capable
of dissolution under Section 3 of the Divorce Act No. 70 of 1979, and
that any ancillary or pendente lite relief contemplated under the
Divorce Act No. 70 of 1979 was available to same sex partners. this
also includes orders for maintenance under Section 7(2) of the
Divorce Act No. 70 of 1979 and Rule 43 of the Uniform Rules of Court.
Decrees regarding nullity of the marriage
The jurisdiction with regard to nullity is not regulated by the Divorce
Act No. 70 of 1979. In this case the common law principles are still
applicable, and we distinguish between:
Marriage ab initio null and void
The Local or Provincial division of the High Court in whose area of
jurisdiction the marriage took place has jurisdiction to annul the
marriage.
Such jurisdiction can also be exercised by:
•
the Court of common domicile of the parties; and
•
the Court of domicile of the Plaintiff.
Where the marriage is voidable
In such a case, a valid marriage was concluded, but due to certain
circumstances that were present at the conclusion of the marriage,
the Court may be approached to annul the marriage. Such an order
amounts to a change in the status of the parties and will consequently
only be granted by the forum domicilii of the parties. Where the
parties do not have their domicile at the same place, the forum
domicilii of either of the parties may be approached.
8.3.2.2 Ratione contractus
In cases of contractual claims, the nexus lies in the fact that the
contract in dispute was concluded within the Court’s jurisdiction, or
that the contract was to have been performed wholly or in part within
its area of jurisdiction or that the breach occurred there.
8.3.2.3 Ratione delicti commissi
In cases of claims that arise from delict, the delict must have been
committed within the area of jurisdiction of the Court.
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8.3.2.4 Ratione rei sitae
In claims for relief with regard to a real right or an immovable
property, the Court will have jurisdiction if such real right or property
is situated within the Court’s territorial limits.
8.3.2.5 Continentia causae
Cohesion of cause of action - important in class action suits. Section
21(1)(b) provides for more than one action to be brought by different
parties on the same dispute – Permanent Secretary, Department
of Welfare, Eastern Cape, and Another v Ngxuza and Others
2001 (4) SA 1184 (SCA).
8.3.2.6 Appeals and Reviews
Decision taken with Court jurisdiction.
8.3.3
Confirmation
attachment
and
Founding
of
Jurisdiction
through
In order to comply with the doctrine of effectiveness, it may be
necessary for a Plaintiff to attach the person or the goods of the
Defendant in order to found or confirm jurisdiction.
8.3.3.1 Founding jurisdiction
The South African common law, read with the Superior Courts Act
No. 10 of 2013, provides for the rules pertaining to the attachment
to either found or confirm jurisdiction in South Africa. The attachment
of property to found or confirm jurisdiction is regarded as an
extraordinary remedy and should be granted with caution.
Section 28 of the Superior Courts Act No. 10 of 2013 further prohibits
the attachment of property against a person who is a resident in
South Africa in order to found jurisdiction. However, the common law
provides for the attachment of the property of a person who is not a
resident, whether such property is immovable, movable, or
incorporeal (such as shares). See the matter of Gavin Cecil
Gainsford NO & Two Others (Joint Trustees of Tannenbaum,
BD Estate) Cloete Murray NO & SARS (HC 55517/2014) (26
August 2015) for the attachment of shares to found jurisdiction.
8.3.3.2 Confirming jurisdiction
In terms of Section 21 of the Supreme Court Act No. 59 of 1959
(repealed), the Court may order the attachment of property to
confirm jurisdiction. This is subject to the provisions of Section 28 of
the Act.
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The common law had to be developed by abolition of the rule and the
adoption, in its stead, where attachment was not possible, of the
practice according to which a South African High Court would have
jurisdiction if the summons was served on the Defendant while in
South Africa and there was sufficient connection between the suit and
the area of jurisdiction of the Court concerned so that disposal of the
case by that Court was appropriate and convenient.
8.3.4
Concurrent Jurisdiction
It is of course possible that more than one Court could have
jurisdiction in respect of a particular matter.
This may be the result of the provisions of the Act (e.g., the Provincial
Division of the Transvaal Gauteng, KwaZulu-Natal and Eastern Cape
exercise concurrent jurisdiction, in the areas of the Local divisions of
the Witwatersrand situate in Johannesburg, Durban and Coast and
South Eastern Cape, respectively), or as a result of divergent
common law rules.
The jurisdiction of the High Court is excluded in some cases in terms
of specific statutory provisions, e.g., the Extension of Security of
Tenure Act No. 62 of 1997. See in this regard Khumalo v Potgieter
2001 (3) SA 63 SCA.
The Interim Rationalisation of Jurisdiction of High Courts Act No. 41
of 2001 grants the Minister the power to alter the area of jurisdiction
of any High Court and regulates the transfer of proceedings from one
High Court to another High Court.
In Chirwa v Transnet Limited & Others 2008 (4) SA 367 CC it
was held that legislative intention did not confirm labour jurisdiction
on High Court but to empower the Labour Court to deal with
constitutional disputes arising from employment relationships. The
jurisdiction of the Labour Court was extended to employment matters
that implicate constitutional rights. The employee was to first exhaust
statutory remedies in Labour Court before approaching the High
Court.
8.3.5
Jurisdiction of a Court
The choice of a domicilium citandi et executandi is not enough to
establish jurisdiction in a Court. See Geyser v Nedbank Ltd and
Others: in re Nedbank Ltd v Geyser 2006 (4) SA 544 (W) at
546 D – E.
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8.4

An objection by a Defendant that a Court lacks jurisdiction is
normally raised by a special plea.

A judgment given by a Court that does not have jurisdiction is
a nullity.

If jurisdiction exists at the time of the institution of the
proceedings, it continues throughout the proceedings, even if
the original ground of jurisdiction falls away.

The Promotion of Administrative Justice Act No. 3 of 2000
(PAJA) has relevance in regard to determining jurisdiction in
proceedings for the judicial review of administrative action.

Section 6(1) of PAJA provides that “Any person may institute
proceedings in a Court or a tribunal for the judicial review of
administrative action”.

Section 6(2) provides “A Court …. has the power to judicially
review ….”.

The definition of “Court” for the purposes of PAJA is “…. A High
Court or another Court …. within whose area of jurisdiction,
the …. party whose rights have been affected is domiciled or
ordinarily resident ….”

In B O Mahony N.O. and others v M E C Health and Social
Development Eastern Cape and others WCC case
number 1444/15, the Court recognised that PAJA creates a
new statutory ground of jurisdiction based on the Applicant’s
domicile or residence (H-W van Eetveldt De Rebus June 2016
p36  37).
THE FORMS OF PROCEEDINGS
Another preliminary procedural issue in the judicial process which must be
resolved concerns the selection of the correct form of proceedings.
The two fundamental forms of procedure in the High Court are trial actions
and applications. (Two additional forms of procedure which may be used in
certain circumstances are provisional sentence proceedings and stated cases,
to which we refer later in these notes).
The basic difference between the trial or action procedure and the application
procedure is that in a trial oral evidence is heard by the Court, whereas in
application proceedings the evidence is placed before the Court in the form
of written statements, signed and sworn to by the witnesses. These
statements are called affidavits. The differences between the action and
application procedure are briefly referred to below:
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ACTION
APPLICATION
Parties are referred to as Plaintiff and Parties are referred to as Applicant and
Defendant.
Respondent.
Deals with substantial factual dispute/s.
Not such a substantial factual dispute that it
cannot be dealt with “on the papers” before
the Court.
Commences with the issuing of a summons Commences with the issuing of a notice of
which must be served by the Sheriff on the motion and supporting founding affidavit.
Defendant/s.
Further pleadings are exchanged by the Further affidavits are exchanged, namely:
parties, namely:

answering affidavit; and

Defendant’s plea and counterclaim

replying affidavit (if applicable).

Plaintiff’s reply to Defendant’s plea

Plaintiff’s plea to Defendant’s
counterclaim.
After the exchange of pleadings, a stage There is no written “preparation for trial”
called “preparation for trial” follows. Certain stage.
preparatory steps are then taken such as
discovery of documents and expert notices.
The action procedure ends in the trial Court The motion procedure ends in the Motion
where mainly oral evidence by the parties Court. In principle no oral evidence is
and their witnesses are presented.
presented, and the parties do not testify.
The case is presented by their legal
representatives on the “papers before the
Court”.
The action procedure usually takes longer and is usually more costly than
the application procedure.
Examples of relief that are usually sought by means of application are the
following:
•
Eviction – subject to PIE Act No. 19 of 1998 where necessary;
•
Interdicts;
•
Rei vindicatio;
•
Cancellation of contracts;
•
Mandament van spolie.
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Examples of relief that have to be requested by way of motion only are the
following:
•
Sequestration;
•
Liquidation;
•
Certain interim relief in matrimonial matters (Rule 43 – applications).
Where the motion procedure may not be used at all and only by way of
action:
•
Damages claims;
•
Divorce proceedings.
In some cases, there is a choice between action and application procedure.
The choice is not unrestricted. The test in every case is whether it could or
should have been foreseen that a real dispute of fact will arise which cannot
be resolved without oral evidence. It is important to consult the following
case in this regard:
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
A real dispute of facts arises:
•
Where the Respondent denies substantial factual allegations of the
Applicant and makes conflicting factual allegations against those of the
Applicant, which the Applicant denies.
•
Where the Respondent admits substantial factual allegations, but on
the other hand alleges facts which the Applicant disputes.
•
Where the Respondent alleges that he does not have knowledge of the
allegations made by the Applicant, but that the Applicant or his
deponents are unreliable, untrustworthy, or prejudicial and that
certain facts upon which the Applicant relies to prove the main facts
are untrue.
•
Where the Respondent merely denies the allegations made by the
Applicant without making any counter allegations, a real dispute of
fact does not arise.
What happens then?
Where an application cannot properly be decided on the papers (e.g., where
a real dispute of fact arose), the Court may dismiss the application or make
such order as to it seems meet with a view to ensuring a just and expeditious
decision.
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In particular, but without affecting the generality of the foregoing, it may
direct that oral evidence be heard on specified issues with a view of resolving
any dispute of fact and to that end may order any deponent to appear
personally or grant leave for him or any other person to be subpoenaed to
appear and be examined and cross-examined as a witness; or it may refer
the matter to trial with appropriate directions as to pleadings or definition of
issues, or otherwise.
In practice the said principles are usually applied as follows:
•
If the dispute of fact was foreseeable, the Court may dismiss the
application with costs.
•
If the dispute of fact was not foreseeable, the Court may refer the
matter for evidence where the dispute is simple and a speedy
determination of the dispute desirable.
•
If the dispute of fact was not foreseeable, and the issue is
comprehensive or complicated, the Court may refer the application to
trial with appropriate directions as to the exchange of pleadings.
•
In practice it unfortunately often happens that a party erroneously
starts with application procedure which could result in the application
being dismissed with costs, irrespective of the merits of the
application.
It is most important to remember that if a dispute of fact is foreseen the
application procedure should not be used. The action procedure must be
used.
See M Dendy “Choice of Procedure in Civil Litigation” 2003 May De Rebus p35-37.
8.5
HINTS ON DRAFTING
8.5.1
It is not sufficient that a causa contains a bald statement that the
honourable Court has jurisdiction in the matter.
8.5.2
The Plaintiff must allege the factual basis to find the legal conclusion
that a Court does have jurisdiction over the Defendant or the subject
matter – e.g., the Defendant resides, or the delict was committed, or
the contract was signed within the Court’s jurisdiction.
8.5.3
A Defendant may (depending upon circumstances) raise the defence
of the absence of jurisdiction by way of a special plea or exception.
8.5.4
In the High Court, a Defendant who does not raise the absence of
jurisdiction prior to litis contestatio is deemed to have submitted
to such jurisdiction.
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See Amlers Precedents on Pleadings 7th Edition under the heading Jurisdiction.
SELF-ASSESSMENT QUESTIONS
(a)
Create a checklist that you would use to take proper details and instructions from
a client in a given set of facts. (10)
(b)
Describe the following parties with reference to Rule 17 of the Uniform Rules of
Court in the relevant pleadings: (10)
(i)
the only trustee of a trust as Plaintiff;
(ii)
a minor under the age of seven years as Plaintiff;
(iii)
a minor above the age of seven years as Plaintiff;
(iv)
the Minister for Safety and Security (Institution of Legal Proceedings Against
Certain Organs of State Act No. 40 of 2002, Section 5(1)(b)(ii)) as
Defendant;
(v)
the executor of a deceased estate as Plaintiff;
(vi)
a Close Corporation;
(vii)
a profit company;
(viii) a private company;
(ix)
a personal liability company;
(x)
a public company;
(xi)
a voluntary organisation.
Cognisance must be taken of the description of all the parties set out in Erasmus and
following pages:
(c)
Using imaginary facts, draft a brief to Counsel. (10)
(d)
Create a client file in a given set of facts ensuring that you capture the most salient
components that would constitute a workable and viable file. (10)
(e)
The following is the relevant part of a return of service in the type of action
mentioned. Indicate whether you expect that the Court will accept service as
sufficient in each of the matters and briefly give your reasons:
(i)
In an unopposed divorce action: “On 1 June 2016, I have personally served
the annexed summons on the Defendant at his place of residence by showing
the original to him, handing over a copy thereof to him and explaining the
nature and seriousness thereof to him.”
(ii)
In a divorce action which was originally opposed but in which a deed of
settlement was subsequently concluded: “On 1 June 2016, I served the
annexed summons on the Defendant at his place of residence in his
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temporary absence by handing a copy thereof to his son, Peter, who alleged
that he was 15 years old.”
(iii)
In an unopposed claim for payment of a sum of money: “On 1 June 2016, I
served the annexed summons on the Defendant by leaving a copy thereof at
a prominent place under a rock in the chosen domicilium citandi et
executandi, which is a vacant stand.”
(iv)
In an unopposed claim against a partnership: “On 1 June 2003, I served the
annexed summons on the Defendant at his place by handing over a copy
thereof to Mrs Venter, the wife of the senior partner, personally in his
temporary absence after I had shown the original to her and explained the
nature and seriousness thereof to her.”
(f)
Look for jurisdiction question in past exam papers.
(g)
True or false: An Attorney must have a signed mandate from a client at all times
before he may act in a matter. (4)
(h)
List the categories of persons who do not have locus standi to litigate on their
own. (8)
(i)
Distinguish between locus standi and jurisdiction. (4)
(j)
Briefly discuss the factors that one would consider to establish whether a High Court
has power to hear a particular matter. (10)
(k)
Draft an application to confirm jurisdiction in given set of facts. (15)
(l)
Tabulate the difference between action and application process in the High Court.
(12)
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II.
THE ACTION PROCEDURE
RANGE STATEMENT:
Explain, draft, and perform all actions to institute action proceedings by way of
summons.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
List and explain the pre-requisites for an action.
•
Distinguish between curator bonis, curator ad litem, and curator ad
personam.
•
Distinguish between an incola and peregrinus.
•
Determine whether the pre-requisites have been complied with in a given set of
facts.
•
Distinguish between the different types of High Court summonses.
•
Draft the different types of summonses on a given set of facts.
•
Draft an application for joinder.
•
Distinguish between the different methods of service of a summons.
•
Draft an application for edictal citation and substituted services in a given set of
facts.
•
Understand what is meant by a debt and a liquidated demand.
•
Distinguish between misjoinder and non-joinder.
1.
INTRODUCTION
Erasmus et al: Superior Court Practice
Rules 17 and 18; Forms 9 and 10; Examples 1 – 5
A TIMETABLE CONTAINING THE TIME PERIODS ALLOWED OR REQUIRED FOR ALL
PROCEDURES IN TERMS OF THE SUPERIOR COURTS ACT NO. 10 OF 2013 AND THE
RULES APPEARS IN FOLLOWING PAGES.
The action procedure which is initiated by way of summons is divided into three
stages:
•
The pleadings stage;
•
The preparation for trial; and
•
The trial itself.
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A pleading is a document wherein the substantial facts whereupon a party’s claim
or defence is based are set out.
The allegations contained in a pleading are not made under oath and thus do not
amount to evidence. At a trial, evidence (which mainly entails oral evidence) is
presented to prove the factual allegations made in the pleadings.
The following written documents are pleadings:
•
The Plaintiff’s summons;
•
The Defendant’s plea;
•
The Defendant’s counterclaim;
•
The Plaintiff’s reply;
•
The Plaintiff’s plea to Defendant’s counterclaim;
•
The request for further particulars;
•
The reply to the request for further particulars.
A simple summons must be signed by an Attorney and all other pleadings are signed
by an Attorney with the right to appear in the High Court or by an attorney and an
Advocate or an Attorney plus an Attorney authorised to appear in the High Court.
ONE CAN DISTINGUISH BETWEEN THREE KINDS OF SUMMONSES IN THE HIGH
COURT, NAMELY:
•
A simple summons;
•
A combined summons; and
•
A provisional sentence summons.
Rule 16A provides that if any person raises a constitutional issue in an application
or action, notice thereof shall be given to the Registrar at the time of filing the
affidavit or pleading.
In Shaik v Minister of Justice and Constitutional Development 2004 (3) SA
599 (CC) at 610H it was stated that the purpose of the rule is to bring to the
attention of persons who may be affected or have a legitimate interest in the case,
the particularity of the constitutional challenge, and to enable them to take steps
to protect their interest.
Rule 16A also makes provision for an amicus curiae. An amicus curiae assists
the Court by furnishing information or argument regarding questions of law or fact.
An amicus curiae is not a party to the litigation but believes that the Court’s
decision may affect its interest. The amicus curiae differ from an intervening
party who has a direct interest in the outcome. An amicus curiae joins the
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proceedings as a friend of the Court and to assist the Court because of its expertise
or interest in the matter.
(Found in class action suits)
(Hoffmann v South African Airways 2001 (1) SA 1 (CC) at 27H – 28D)
The underlying principle of the action procedure is to deal with disputes of fact. The
action procedure and the rules relating thereto are fundamentally designed to
clearly define the facts in dispute and to attempt to reduce the factual dispute as
much as possible prior to the trial.
2.
THE DIFFERENT TYPES OF SUMMONSES
2.1
SIMPLE SUMMONS
Rule 17 and Form 9.
2.1.1
What does the Simple Summons look like?
The simple summons does not embody all the particulars of claim; it
merely sets out the nature of the claim. It is followed by full
particulars of claim in the form of a declaration only if the Defendant
enters an appearance to defend.
2.1.2
When is the Simple Summons Issued?
The simple summons can only be used for a debt or liquidated
demand.
2.1.2.1 Claims for payment of a debt
A claim for a debt (usually ex contractu) is a liquidated demand. An
example thereof is a claim for the payment of the (balance of the)
purchase price of goods purchased and delivered, money lent and
advanced etc.
Note that a claim for damages (ex contractu or ex delicto) is
almost always unliquidated and that in all these instances the simple
summons should not be used. Examples of these are the cost to
repair defective and unskilled work, compensation for contractual
claims and claims for injuries or for repairing the damage caused by
motor vehicle collisions (compensation for delictual claims).
2.1.2.2 Claims for delivery
A claim for the delivery of a specified movable asset or for the
delivery of an account is a liquidated demand.
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2.1.2.3 Claims for transfer
A claim for the registration of transfer of immovable property is a
liquidated demand.
2.1.2.4 Claims for eviction
A claim for the eviction of a person from a specific property is a
liquidated demand subject to the provisions of PIE, if relevant.
2.1.2.5 Claims for the cancellation of a contract
A claim for the cancellation of a contract is a liquidated demand.
2.1.2.6
In terms of Rule 17(3)(d) the Plaintiff may indicate in the summons
that he/she/it shall accept service in any manner envisaged in terms
of the Rules other than at the physical or postal address and shall
indicate a preference in this regard e.g., by some electronic means.
2.1.2.7
Where there are two or more Defendants the pre-amble to the prayer
can read as follows: “Wherefore the Plaintiff prays for judgment
against the First and Second Defendants, the one paying, the other
to be absolved, as follows: ….”
NOTE:
Claims in matrimonial matters
Matrimonial claims e.g., divorce orders or nullity suits, cannot be enforced by a simple
summons. In these cases, a combined summons must be used.
Claims for a declaratory order
A claim for a declaratory order is not a liquidated demand and a combined summons
or the application procedure (if appropriate) must be used.
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2.2
COMBINED SUMMONS
(Rules 17 and 18) and Form 10.
2.2.1
What does the Combined Summons look like?
When the claim is not for payment of a debt or liquidated demand
there must be annexed to the summons a document (particulars of
claim) setting out the material facts relied upon by the Plaintiff in
support of his claim. The form of summons is in substance a
combination of a summons and a declaration, and is accordingly
known as a combined summons, thus eliminating the necessity of a
separate declaration.
2.2.2
When is the Combined Summons used?
A combined summons may be used in all cases where action
procedure is appropriate. This means that one does not have to
distinguish in this case between liquidated and unliquidated claims,
but additional costs of a combined summons may not be recovered
if a simple summons would have sufficed.
This form of summons differs from a simple summons in that a
statement (particulars of claim) which contains the material facts
relied upon by the Plaintiff in support of his claim must be attached
to the summons.
It further differs from a simple summons in that the particulars of
claim must be signed by both Attorney and an Advocate, or by an
Attorney who has the right of appearance in the High Court. In the
case of a simple summons (to which no particulars of claim are
attached) only an Attorney (whether he has the right of appearance
in the High Court or not) needs to sign.
2.3
PROVISIONAL SENTENCE SUMMONS
The topic is discussed below.
2.4
HINTS ON DRAFTING
2.4.1
Drafters must appreciate that the causa of the Plaintiff’s claim must
contain all factual allegations necessary to find the Plaintiff’s claim.
(The same applies to a plea in regard to a Defendant). The Plaintiff
must further allege compliance with all legal requirements.
2.4.2
If any allegation has not been made in the summons (or a plea) it
cannot be considered in Court during the trial.
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2.4.3
3.
Besides the factual allegations referred to above, the drafter must
comply strictly with all legal requirements and make the necessary
allegations as to such compliance – see the Chapter on letters of
demand above.
THE CONTENTS, ISSUE AND SERVICE OF THE SUMMONS
Erasmus et al: Superior Court Practice
Rules 1, 3, 4, 5, 10, 12, 17, 18, 67(a)(I) Rules 17 and 18 are crucial.
Examples 1 – 5
CONTENTS OF THE SUMMONS:
Various basic matters concerning the contents of the summons are briefly
discussed.
Legal Practitioners must be careful when making allegations in pleadings which
could be defamatory. Check and re-check the facts with client and the Legal
Practitioner should satisfy himself/herself as to the probable truth and correctness
of the allegations. The Legal Practitioner should never assume facts on behalf of
their client. The facts and allegations should preferably be confirmed to the Legal
Practitioner by the client in writing.
3.1
WHEN ARE PARTIES JOINED?
All persons who have a direct and substantial interest in the relief that may
possibly be granted by the Court must be jointed as parties to the action.
Hartland Implemente (Edms) Bpk v Enal Eiendomme BK en andere
2002(3) SA653 NC. They may be joined as co-Plaintiff or co-Defendant. If
a person has an interest and ought to have been joined, but was not joined,
the Court will as a general rule, not adjudicate the matter until such person
has been joined.
Keep in mind that persons may themselves intervene as Plaintiffs or
Defendants. Rule 12 provides that someone who is entitled to join as coPlaintiff, or who is merely liable to be joined as Defendant in an action, may
after notice to all parties at any stage of the proceedings, apply for leave to
intervene as a Plaintiff or Defendant.
Parties can join and be joined as a matter of convenience in terms of Rule
10.
One can distinguish between two types of joinders, namely of convenience
and compulsory joinder.
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a)
Joinder of convenience
Rule 10 of the Uniform Rules of Court provides that more than one
person can act as co-Plaintiffs in a matter. Various persons can also
be sued as co-Defendants in one action.
In both instances there is the proviso that the issues in dispute “must
depend on the determination of basically/substantially the same
questions of law or fact” that arose in each action. Furthermore,
Uniform Court Rule 12 determines that a person who is entitled to act
as a co-Plaintiff in an action, or who may be joined as a co-Defendant,
may with leave of the Court intervene as Plaintiff or Defendant to the
action.
From the wording of Rule 12, it is clear that the competence of a
person to intervene in a case as Plaintiff or Defendant is equal to his
competence to act as co-Plaintiff or co-Defendant ab initio (from the
commencement of the proceedings).
In Vitorakis v Wolf 1973 3 SA 928 (W) the application of this
principle is explained as follows:
“… the mere fact that the Applicant has not a common cause of action
or common ground with the Plaintiff in the action is irrelevant. Plaintiffs
may join if they have separate claims and may even claim
alternatively. The only prerequisite to the exercise of this right is that
their right to relief is dependent upon the determination of
substantially the same question of law or fact” (on p 931E).
(This approach ought to apply also where various persons are joined
as co-Defendants or wish to enter into a case as co-Defendants).
Although the joinder of parties as Plaintiffs or Defendants usually takes
place ab initio, when the matter is instituted, it can also take place
thereafter on initiative of a party.
The Courts approach the joinder or entry of a party in terms of the
above rules on:
“considerations of common sense and convenience, and strive to
assist litigants to get to grips as inexpensively and expeditiously as
possible without enforcing sheer formality whenever this is only
calculated to produce a litiscrescence or procedural advantages,
such as greater clarification of issues” (Vitorakis-case, p 932 E-G).
This approach is in accordance with the goals of the above rules, which
are designed to avoid a multiplicity of actions and escalation of
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litigation costs in circumstances where a dispute between various
parties can conveniently be adjudicated in one action.
It is important to keep in mind that in cases of joinder of convenience,
it is not necessary that a person who wishes to intervene in a matter
must have such a substantial interest in the matter that their rights
are directly affected by an order that the Court may make. That is the
test for compulsory joinder, in which event other considerations apply.
b)
Compulsory joinder
Compulsory joinder usually applies where a person’s rights can be so
directly affected by an order that the Court may make, that
her/his/their joinder as a party to the proceedings are essential for the
final adjudication of the matter.
Joinder of such an essential party can take place on initiative of the
Plaintiff when the action is instituted. It can also happen on request of
the Defendant or by order of the Court once the action has already
been instituted. The party whose rights are concerned can also
approach the Court and request to be joined as a party to the matter.
Finally, the Court can, in the event of the non-joinder of a necessary
party, mero motu (out of own accord) raise the issue and give
directives to secure his/her/its rights (Toekies Butchery v Stassen
1974 4 SA 771 (T)).
The test to determine whether joinder of a party is essential or not, is
phrased as follows in practice:
‘If a third party has, or may have, a direct and substantial interest in
any order the Court might make in proceedings or if such order could
not be sustained or carried into effect without prejudicing that party,
he is a necessary party and should be joined in the proceedings, unless
the Court is satisfied that he has waived his right to be joined. Such a
person is entitled to demand as of right that he be joined as a party
and cannot be required to establish in addition that it is equitable or
convenient that he should be joined as a party. In fact, where he is a
necessary party in this sense the Court will not deal with the issues
without a joinder being effected, and no question of discretion or
convenience arises’ (Herbstein and Van Winsen 167).
This “direct and substantial interest” is described as ‘a legal interest in
the subject matter of the action which could be prejudicially affected
by the judgment of the Court’ (United Watch and Diamond Co v
Disa Hotels 1972 4 SA 409 (K) 415 (H)).
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The same idea is found in the following:
“… (it is) an interest in the right which is the subject matter of the
litigation and is not merely a financial interest which is only an indirect
interest in such litigation” Henry Viljoen (Pty) Ltd v Awerbuch
Brothers 1953 2 SA 151 (O) 169.
A mere financial interest is not sufficient.
An example of such a direct and substantial interest is the interest of
co-owners in a case in respect of the common property. The rights of
each co-owner are directly involved in the dispute and “if any one of
them is not joined either as Plaintiff or Defendant, the right or
obligation sued upon is incomplete” (Herbstein and Van Winsen 170).
When two or more Defendants are cited in a summons, there must be
a pre-amble to the prayer reading as follows:
‘Wherefore the Plaintiff prays for judgment against the (state the
number of Defendants), the one paying, the other to be absolved’.
c)
Non-joinder and misjoinder
You must distinguish between non-joinder and misjoinder.
Non-joinder means that an essential party has not been joined, in
other words, a person whose joinder is compulsory, has not been
joined. If, however, it would merely be convenient to join a person and
he is not so joined, it does not amount to non-joinder.
Misjoinder entails the joinder of a party that has no interest in the
matter. In such a case the question is not if the relevant person is a
necessary party (in other words, whether his joinder is compulsory)
but merely whether his joinder of convenience is justified. If it is
justified, there is no problem, but if not, it amounts to misjoinder.
A party to proceedings who wishes to raise an objection against the
non-joinder of a necessary party or the misjoinder of another party,
can do so by means of a special plea, or in the event of an application,
by means of a point in limine.
d)
Waiver of the “right to joinder”
A person who has a “right to joinder” can waive such right and accept
to be bound to the judgment of Court, in which event it will not be
necessary to join such person (Toekies Butchery v Stassen 1974 4
SA 771 (T)).
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3.2
WHAT IS MEANT BY THE JOINDER OF DIFFERENT CAUSES OF
ACTION?
See in general Rule 10 and Erasmus et al; Superior Court Practice.
Distinguish between the following cases:
A Plaintiff may join several causes of action in the same action against the
Defendant (or Defendants).
Several Plaintiffs, each of whom has a claim, whether jointly, jointly and
severally, separately or in the alternative, may join in one action against the
same Defendant (or Defendants), provided that the right to relief of all the
Plaintiffs depends upon the determination of substantially the same question
of law or fact which, if separate actions were instituted, would arise in each
action.
Several Defendants may be sued in the same action, whether jointly, jointly
and severally, separately or in the alternative, provided that the question
arising between them or any of them and any of the Plaintiffs depends upon
the determination of substantially the same question of law or fact.
Care should be taken not to incorrectly duplicate or split civil claims. In Le
Roux v Dey 2011 (6) BCLR 577 CC the Plaintiff had instituted action for
damages for defamation and infringement of dignity arising from the same
facts. The Court held that a Plaintiff could not succeed in separate claims for
both defamation and infringement of dignity arising from the same facts.
NOTE:
Where the validity of a law is challenged, the party challenging the validity shall join
the Provincial or National Executive responsible for the administration of the law. If a
rule is challenged the Rules Board must be served with the Court papers in that
challenge. (Rule 10A)
3.3
HOW ARE THE PARTIES DESCRIBED?
Rule 17(4)(a) provides that the surname and first names or initials by which
the Defendant is known to the Plaintiff, his residence or place of business
and, where known, the Defendant’s occupation and employment address
and, if the Defendant is sued in any representative capacity, such capacity.
Rule 17(4)(b) provides that the full names, gender, and occupation and the
residential or business address of the Plaintiff must be mentioned. Where he
sues in a representative capacity, such capacity. See Golden Harvest (Pty)
Ltd v Zen-Don CC 2002 (2) SA 653 (0) for a discussion on the substitution
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of a correct citation for an incorrect citation i.e., amendment not involving a
new legal entity, but merely correcting an incorrect description.
For examples of citation of parties refer to Erasmus and Amlers.
3.4
GENERAL
In terms of Rule 18: (Include the entire Rule)
•
The title of the action, including a description of the parties and the
number assigned to the action by the Registrar shall appear at the
head of the summons (and every subsequent pleading).
•
Each Court document is headed by reference to the name of the
relevant division.
•
Every pleading shall be divided into paragraphs and sub-paragraphs,
and each thereof shall be consecutively numbered.
•
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim, defence, or
answer to any pleading, with sufficient particularity to enable the
opposite party to reply thereto.
•
A party who in his pleadings relies upon a contract shall state whether
the contract is written or oral and when, where and by whom it was
concluded. If the contract is written, a true copy thereof or the part
relied on in the pleading shall be annexed thereto.
•
It is not necessary to state the circumstances from which an alleged
implied term can be inferred.
•
If the action is founded in delict, the delict complained of, the time
when, the place where and the manner in which the delict was
committed, and the amount of damages claimed are necessary detail.
Rule 18(10) provides:
•
A Plaintiff suing for damages shall set them out in such manner as will
enable the Defendant reasonably to assess the quantum thereof.
•
Provided that a Plaintiff suing for damages for personal injury shall
specify; his/her date of birth.
The nature and extent of the injuries, the nature, effects, and duration
of the disability alleged to give rise to such damages and shall as far
as practically state separately what amount, if any, is claimed for:
o
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medical costs, hospital, and similar expenses and how these
costs and expenses are made up; pain and suffering, stating
whether permanent or temporarily and which injuries caused it
disability in respect of:
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
the earning of income (stating the earnings lost to date
and how the amount is made up) and the future
estimated loss and the nature of the work the Plaintiff will
in future be able to do;

the enjoyment of amenities of life (giving particulars) and
stating whether the disability is temporary or permanent
and disfigurement, with a full description thereof and
stating whether it is temporary or permanent.
NB: This Rule is of paramount importance and must be rigidly complied with.
In terms of Rule 18(12), any non-compliance with the Rule shall be deemed
to be an irregular step.
3.5
DIES INDUCIAE
Appears in both Simple and Combined summons – records the number of
days allowed for the Defendant to deliver its Notice of Intention to Defend Defendant within the jurisdiction of the Court, minimum of 10 Court days
after service of the summons (Rule 19(1)) read with Rule 1 - definition of
“court day”.
Simple or Combined summons - Defendant outside the jurisdiction of
the Court concerned, in terms of Section 24 of Superior Courts Act
No. 10 of 2013
The time to enter appearance to defend a summons served outside the Court
from which the summons was issued is one month (if the place where it must
be served is further than 150 kms from the seat of the Court) and two weeks
(where the distance is less than 150kms).
Simple and Combined summons – in an action against a Minister, Deputy
Minister, officer, or servant of the State, in his capacity as such, the State,
the Premier of any Province, not less than 20 Court days after service of the
summons (Rule 19(2)).
The Provisional Sentence summons – not less than 10 Court days after
service of the summons (Rule 8(1)).
Note that the days between 16 December and 15 January, both inclusive, shall not be
calculated in the time allowed within which to deliver a notice of intention to defend.
This time is known as dies non.
3.6
ISSUING OF THE SUMMONS
A summons must be issued by the Registrar of the relevant division of the
High Court.
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A summons not thus issued is null and void (Republikeinse Publikasie
(Edms) Bpk v Afrikaanse Publikasie (Edms) Bpk 1972 (1) SA 773
(A)). This is not the case with applications – a notice of motion may,
depending on the urgency thereof, be served validly before notice to the
Registrar.
Under normal circumstances, a summons is issued on any Court Day, i.e.,
weekdays from 9 a.m. to 1 p.m. and from 2 p.m. to 3 p.m. No process may
be issued or filed after 3 p.m., except for a notice of intention to defend but
then before 4 p.m. (Rule 3).
The Registrar may in exceptional circumstances issue process and accept
documents at any time and shall do so when directed by a Judge. (Rule 3:
Minister of Police v Johannes and Another 1982 (3) SA 846 (A)).
Every summons shall be signed by the Attorney and shall contain an
Attorney’s physical address, within 25 kilometres of the office of the
Registrar together with the Attorney’s postal address and, where available,
the Attorney’s fax address and electronic e-mail address. The same
provisions apply where there is no Attorney of record. The Plaintiff may
indicate in the summons whether the Plaintiff is prepared to accept service
of all subsequent documents and notices in the suit through any manner
other than the physical address or postal address and, if so, shall state such
preferred manner of service (Rule 17(3)(d)).
3.7
SIGNATURE
Whilst a simple summons does not have to be signed by an Advocate, a
combined summons must be signed by an Attorney and an Advocate (or by
an Attorney who has been granted the right of appearance in the High Court.
See The Right of Appearance in Courts Act No. 62 of 1995, Section 3(4) or
by the Plaintiff and the Defendant personally.
The fact that an Attorney holds a certificate under Section 4(2) of the Right
of Appearance in Courts Act No. 62 of 1995 does not entitle him to sign
pleadings for use in another division. See Zeda Car Leasing (Pty) Ltd t/a
Avis Fleet Services v Pillay 2007 (3) SA 89 D and CLD. But see the
contrary judgment of Swain J in the matter of Liberty Group Limited v
Singh & Another 2012 (5) SA 526 (KZD).
3.8
THE DIFFERENT METHODS OF SERVICE
All process by which an action or an application is initiated must be effected
by the Sheriff. Urgent applications need not necessarily, depending upon the
urgency, be served by the Sheriff. Service must be effected as near as
possible between the hours of 7:00 and 19:00. All subsequent processes can
be served by the parties themselves in terms of the Rules.
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Except for the issue or execution of a warrant of arrest, no service or
procedural step shall be validly effected on a Sunday, unless a Court or a
Judge otherwise directs (Rule 4(1)(c)).
Rule 4(1)(a) prescribes the following manner of service by the Sheriff on the
Defendant/Respondent:
Rule 4 (1)(a)
Service
Service of any process of the Court directed to the Sheriff and subject to the provisions
of paragraph (aA) any document initiating application proceedings shall be effected by
the Sheriff in one or other of the following manners:
(i)
By delivering a copy thereof to the said person personally: Provided that where
such person is a minor or a person under legal disability, service shall be
effected upon the guardian, tutor, curator or the like of such minor or person
under disability;
(ii)
by leaving a copy thereof at the place of residence or business of the said
person, guardian, tutor, curator, or the like with the person apparently in charge
of the premises at the time of delivery, being a person apparently not less than
sixteen years of age. For the purposes of this paragraph when a building, other
than a hotel, boarding-house, hostel or similar residential building, is occupied
by more than one person or family, 'residence' or 'place of business' means that
portion of the building occupied by the person upon whom service is to be
effected;
(iii)
by delivering a copy thereof at the place of employment of the said person,
guardian, tutor, curator, or the like to some person apparently not less than
sixteen years of age and apparently in authority over him;
(iv)
if the person so to be served has chosen a domicilium citandi, by delivering
or leaving a copy thereof at the domicilium so chosen;
(v)
in the case of a corporation or company, by delivering a copy to a responsible
employee thereof at its registered office or its principal place of business within
the Court's jurisdiction, or if there be no such employee willing to accept service,
by affixing a copy to the main door of such office or place of business, or in any
manner provided by law;
(vi)
by delivering a copy thereof to any agent who is duly authorised in writing to
accept service on behalf of the person upon whom service is to be effected;
(vii)
where any partnership, firm or voluntary association is to be served, service
shall be effected in the manner referred to in paragraph (ii) at the place of
business of such partnership, firm or voluntary association and if such
partnership, firm or voluntary association has no place of business, service shall
be effected on a partner, the proprietor or the chairman or secretary of the
committee or other managing body of such association, as the case may be, in
one of the manners set forth in this rule;
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(viii)
where a Local Authority or Statutory Body is to be served, service shall be
effected by delivering a copy to the town Clerk or assistant Town Clerk or mayor
of such Local Authority or to the secretary or similar officer or member of the
board or committee of such body, or in any manner provided by law; or
(ix)
if two or more persons are sued in their joint capacity as trustees, liquidators,
executors, administrators, curators or guardians, or in any other joint
representative capacity, service shall be effected upon each of them in any
manner set forth in this rule. [Rule 4 (1) (a) amended by GN R2410 of 30
September 1991.] (aA) Where the person to be served with any document
initiating application proceedings is already represented by an Attorney of
record, such document may be served upon such Attorney by the party initiating
such proceedings.
[Para. (aA), previously para. (a)bis, renumbered by GN R2410 of 30 September
1991.]
In terms of the Correctional Services Act No. 8 of 1959, Section 87(3)
whenever it becomes necessary to serve the civil process of any Court upon
any prisoner, the person charged with the service of the process shall, before
serving such process, hand a copy thereof to the member of the Prisons
Service in charge of the prison in which the prisoner is detained, and such
member shall thereupon permit and facilitate the service of the process upon
the prisoner personally. By the time this is read this Act might have been
repealed alternatively undergone major amendments.
Service is effected by the Sheriff exhibiting the original process to the person
on whom service must be effected, explaining the nature and contents
thereof and leaving a copy with the person. The Sheriff then prepares a
return of service in which he explains how service was effected. The original
return is filed in the Court file. A copy of return of service is sent to the
Attorney.
In terms of Government Gazette Number 35450 of 22 June 2012 notice
number R. 464, the Rules Board amended various rules. Of relevance to this
Section is that a new Rule 4A has been inserted which refers to the service
of documents which do not fall under Rule 4(1)(a) above.
Rule 4A reads as follows:
1.
‘4A(1) Service of all subsequent documents and notices, not falling
under Rule 4(1)(a) in any proceedings on any other party to the
litigation may be effected by one or more of the following manners to
the address or addresses provided by that party under Rules 6(5)(b),
6(5)(d)(i),17(3), 19(3) or 34(8) by: (a) hand at the physical address
for service provided; or (b) registered post to the postal address
provided; or (c) fax or electronic mail to the respective addresses
provided.
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2.
An address for service, postal address, fax address or electronic
address mentioned in Sub-Rule 1 may be changed by the delivery of
notice of a new address and thereafter service may be affected as
provided for in that Sub-Rule at such new address.
3.
Chapter III, Part 2 of the Electronic Communications and Transactions
Act No. 25 of 2002 is applicable to service by fax or electronic mail.
4.
Service under this Rule need not be effected through the Sheriff.
The filing with the Registrar of originals of documents and notices referred
to in this Rule shall not be done by way of fax or electronic mail’.
If service cannot be effected in any of the ways set out above, e.g. because
the person on whom service must be effected evades service or cannot be
traced, the Court may be approached for further directions as to how service
must be effected.
One of the manners of service the Court may prescribe is substituted service.
Substituted service may, for example, be effected by means of publication
of a notice in a newspaper.
An application for leave to sue by way of edictal citation (Rule 5) is made
where the process is to be served upon a person outside the Republic.
The following must be set out in the founding affidavit supporting the
application:
•
The nature and extent of the Applicant’s claim;
•
The grounds upon which the claim is based and upon which the Court
has jurisdiction to entertain the claim;
•
The manner of service which the Court is requested to authorise. If
such manner is one other than personal service, the last-known
whereabouts of the person to be served and the inquiries made to
ascertain his present whereabouts must be alleged.
In an application for leave to sue by substituted service (Rule 4(2)) and the
Applicant establishes that:
1.
none of the normal forms of service set out in the Rules are available,
although the other party is believed to be in the RSA.
2.
there was the likelihood that notice will be brought to the attention of
the Respondent and the Respondent’s right to privacy would not be
infringed, substituted service via Facebook message to the
Respondent’s Facebook page could be allowed. Legal certainty would
require that such notice also be published in a Local newspaper – Rule
4A(1)(c).
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The normal practice is to issue a citation which is equivalent to a summons
and an Intendit which is the equivalent of a declaration and to have them
served on the Respondent simultaneously.
Service of the process in a foreign country must be accompanied by a sworn
translation.
In its summons, the Plaintiff must appoint an address within 25 kilometres
of the office of the Registrar in terms of Rule 17.
In an application for leave to sue by edictal citation, once it appeared
prima facie that the Court had jurisdiction and it was clear that the action
was not vexatious and was properly before the Court, the Court had no
discretion to refuse the relief as the Applicant was entitled to the relief as of
right.
Leave to sue by edictal citation was not relief as such but was simply a
process required to bring an action into being.
O’Rian Pacific Traders ENC v Spectrum Shipping Limited 2006 (2) SA 586 CPD
at 587 C-E.
SELF-ASSESSMENT QUESTIONS
(a)
(a)
Rule 18 of the Rules of the High Court relates to pleadings generally. With regard
to matters in which a Plaintiff sues for damages for bodily injuries, the Rule contains
certain specific requirements, which must be complied with in the particulars of
claim. List these requirements. (5)
(b)
What is the effect of non-compliance with Rule 18? (1)
(c)
You act for a Defendant who is served with a summons which does not comply with
the provisions of Rule 18. List the steps that you will take to protect your client’s
rights as well as time limits within which these steps should be taken. (4)
(d)
Draft the document, which is the last step in the process, assuming that the Plaintiff
has not taken steps to rectify the defect. No supporting affidavit is required. Use
such imaginary facts as may be necessary to draft your answer. You may omit the
headings. (5)
(e)
Distinguish the periods a Defendant has to serve and file a Notice of Intention to
Defend of a summons where the address of service is outside the Court’s
jurisdiction and is (a) more than and (b) less than 150km from the Court. (2)
4.
JUDGMENT BY DEFAULT
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RANGE STATEMENT:
Explain, draft, and perform all actions to apply for default judgment.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain the meaning of default judgment.
•
List the types of default judgment and the circumstances wherein they can be
applied for.
•
Explain the procedure that must be followed to distinguish between liquid and
illiquid claims.
•
Follow the procedure in the High Court to obtain default judgment in a simulated
scenario.
•
Draft a request for default judgment in respect of a liquidated amount.
•
Draft a brief to Counsel for default judgment in respect of an illiquid claim in a
given set of facts.
•
Distinguish the various factual circumstances where application can be made for
the rescission of a default judgment.
Erasmus et al: Superior Court Practice - Section 23 of the Superior Courts Act No. 10
of 2013
Rules 26, 31 and 39 and Examples 26 and 27
4.1
4.2
WHEN MAY JUDGMENT BY DEFAULT BE APPLIED FOR?
•
Where the Defendant is in default with his Notice of Intention to
defend.
•
Where the Defendant failed to plead after service on him of a Notice
of Bar in terms of Rule 26.
•
Where the Plaintiff failed to deliver a Declaration (again after a Rule
26 notice).
•
Where the Plaintiff or Defendant failed to appear at the hearing (after
due notice).
•
Where Defendant’s defence is struck out Plaintiff may apply for default
judgment.
JUDGMENT BY DEFAULT GRANTED BY THE REGISTRAR
Section 23 read with the Rules provide that the Registrar may grant
judgments by default in instances where the claim is for a debt or is otherwise
liquidated and where the Defendant is in default with his notice of intention
to defend. In these instances, Counsel is thus no longer briefed to make
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application for judgment by default in open Court. According to the decision
in Entabeni Hospital Ltd v Van der Linde; First National Bank of SA
Ltd v Puckriah 1994(2) SA 422 (N) it is mandatory that all these
applications be brought before the Registrar, and they are no longer dealt
with by a Judge in open Court.
A written application for judgment by default is filed by the Plaintiff with the
Registrar.
Note:
Various Divisions have practice directives relating to Default Judgments. These are
important and binding.
The Registrar may in terms of Rule 31(5)(b):
•
grant judgment as requested;
•
grant judgment for part of the claim only or on amended terms refuse
judgment wholly or in part;
•
postpone the application for Judgment on such terms as s/he may
consider just;
•
request and receive oral or written submissions;
•
require that the matter be set down for hearing in open Court.
Rule 31(5)(c) provides that the Registrar must record any judgment or
direction given by him/her.
The Registrar shall grant judgment for costs in an amount of R200.00 plus
the Sheriff’s fees if the value of the claim as stated in the summons, apart
from any consent to jurisdiction, is within the jurisdiction of the Magistrate’s
Court and, in other cases, unless the application for judgment requires costs
to be taxed or the Registrar requires a decision on costs from the Court,
R650.00 plus the Sheriff’s fees. In a case where there is a prior agreement
between the parties that Attorney and client costs will be payable in the event
of legal proceedings, the Registrar is not only entitled but also obliged to
award Attorney and client costs (Bloemfontein Board Nominees Ltd v
Benbrook 1996 (1) SA 631 (O) at 635(D)).
Any party dissatisfied with a judgment granted or direction given by the
Registrar may, within 20 days after he has acquired knowledge of such
Judgment or direction, set the matter down for reconsideration by the Court.
(Rule 31(5)(d)). In Erf 1382 Sunnyside (Edms) Bpk v Die Chipi BK 1995
(3) SA 569 (T) it was ruled that the facts and the grounds upon which the
matter is brought before the Court for reconsideration must be stated clearly
in either the Notice of Enrolment or by way of affidavit or be placed before
the Court in another acceptable way.
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In cases where the claim is not liquid, (in other words the amount claimed is
not fixed and determinate, e.g., a claim of damages) evidence must be given
during the application for judgment by default to prove the quantum of the
Plaintiff’s damages.
Because of the extraordinary delays experienced in some divisions in respect
of the granting of default judgment by the Registrar, Attorneys have in some
instances taken to approaching the Court on Notice of Motion for such default
judgment. This procedure was disapproved in Lendeijer & Another NNO v
Butter 2010 (3) SA 348 (ECP).
In Gundwano v Steko Development CC 2011 (8) BCLR 792 CC it was
held to be unconstitutional for a Registrar of a High Court to declare
immoveable property executable when granting default judgment in terms
of Rule 31(5) of the Uniform Rules of Court where such order would permit
the sale in execution of a house (personal home) of a person.
In most Divisions Registrars are no longer permitted to grant default
judgments in matters falling within the ambit of the National Credit Act. Theu
v FirstRand Auto Receivables Ltd and another [2020] ZAGPPHC 319; Xulu v
Standard Bank of SA Ltd [2021] ZAKNPHC 51; Ramukuela v FirstRand Auto
Receivables [2022] ZALM PPHC 4 ; Ngandela v ABSA Bank Ltd [2023]
ZAECELCC 6 but contra Nedbank Ltd v Mollentze [2022] ZAMPMHC 5
Candidates are to check the Practice Directives of the Division where they
are practising.
Where execution is sought against the homes of indigent debtors who run
the risk of losing their security of tenure after judgment on a money debt,
further judicial oversight of the execution process by a Court was a necessity.
This means that in future Plaintiffs/Applicants will have to place such relevant
facts before the Court as to enable it to exercise its judicial oversight of the
execution process.
It should be noted that the above oversight would appear to be unnecessary
where the fixed property which may be subject to attachment and execution
is not the personal/residential home of the debtor.
See Erasmus et al: Superior Court Practice.
Most divisions of the High Court have specific Practice Directives in this regard.
Example 9
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4.3
WHAT IS A NOTICE OF BAR? (RULE 26)
When the Defendant is in default of delivery of his plea, application for
judgment by default cannot merely be made, but the Defendant must be
barred (Rule 26). This means that a notice of bar must first be served and
filed (See Example 9).
If the Plaintiff is in default of delivering his declaration, the Defendant must
serve a notice of bar on the Plaintiff to deliver his declaration.
However, the Defendant is not entitled to apply for judgment against the
Plaintiff in such case but may only apply for absolution from the instance of
the Plaintiff’s claim.
4.4
FAILURE TO APPEAR AT THE HEARING
If the Defendant does not appear at the hearing, the Plaintiff may apply for
judgment by default against the Defendant provided that the claim is liquid.
If the claim is not liquid, the Plaintiff may still apply for judgment by default
provided that evidence concerning the damage is tendered (Rule 39(1)).
If the Plaintiff does not appear at the hearing, the Defendant may ask for
absolution from the instance or may move for judgment in his favour
provided he has presented the necessary evidence (Rule 39(3)).
4.5
DOCUMENTS TO BE FILED IN COUNSEL’S BRIEF
Which documents must be filed in Counsel’s brief in matters brought before
the Court?
If the Defendant is in default with his notice of intention to defend, the brief
must include at least the following:
•
a copy of the summons;
•
a copy of the return of service;
•
a copy of the notice of set down;
•
statement(s) or other document(s) to prove the quantum of Plaintiff’s
damage.
Where the Defendant is in default with his plea:
•
a copy of the summons (and, if a simple summons has been used, the
declaration);
•
a copy of the notice of intention to defend a copy of the notice of bar;
•
a copy of the notice of set down which was served on the Defendant.
Where the Plaintiff is in default with his declaration:
•
a copy of the simple summons;
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4.6
•
a copy of the notice of intention to defend a copy of the notice of bar;
•
a copy of the notice of set down.
RESCISSION OF DEFAULT JUDGMENT
4.6.1
Default Judgment in the High Court can be rescinded in terms
of the provisions of:
•
Rule 31(1)(6)
•
Rule 31 (2) (b);
•
Rule 42;
•
The common law;
•
The grounds on which the application for rescission is based
must have existed at the time that the judgment was granted.
4.6.1.1 Rule 31(6)
The requirements are that:

Consent must be obtained from the Plaintiff – Form 2B must
be used.

If the judgment debt, interest, and cost have been paid – Form
2B must be used.
4.6.2
Rule 31(2)(b)
The requirements are that:
4.6.3
•
The judgment must have been a default judgment granted by
the Court or Registrar;
•
due to the failure to file an appearance to defend or plea; and
•
the application for rescission must be made on the long form
of Notice of Motion, must be served and filed within 20 days
after the Defendant became aware of the judgment and must
show good cause and absence of wilfulness, show bona fides
and with a reasonable explanation for the default and an
explanation of his/her defence.
Rule 42
The Court may vary, rescind, or amend an order or judgment
erroneously sought or erroneously granted or corrects an ambiguity
or patent error or a mistake common to both parties.
This application is brought on the long form of Notice of Motion. The
reader is cautioned to distinguish between circumstances prevailing
under Rule 42(1)(a), 42(1)(b) and 42(1)(c), discussions of which
goes beyond the parameters of this study guide.
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The most common type of application under Rule 42 is normally
under Rule 42(1)(a) where application is made for rescission of
default judgment granted on the grounds that the summons did not
disclose a cause of action (see Marais v Standard Credit
Corporation Ltd 2002 (4) SA 892 (W) at 897 and Smit v Olivier
(18322/2008) [2011] ZAWCHC 414).
4.6.4
Common Law
This is limited to circumstances where the application is not dealt
with under Rules 31 or 42. To succeed under the common law,
sufficient cause must be shown, which means that there must be a
reasonable explanation for the default, the application must be bona
fide and must show a bona fide defence which prima facie has
some prospects of success.
The application is brought by way of long form Notice of Motion. The
ground for the application may be fraud, iustus error (under certain
circumstances), or when new documents have been discovered.
A judgment cannot be set aside merely because the parties thereto
agree to such rescission. See Vilvanathan and Another v Louw
NO 2010 (5) SA 17 (WCC).
5.
NOTICE OF INTENTION TO DEFEND
Erasmus et al: Superior Court Practice
Example 10
5.1
WHAT DOES THIS NOTICE LOOK LIKE?
The Defendant must give a physical address within 25 kilometres of the office
of the Registrar where all documents in the action can be served upon him.
5.2
NOTICE OF INTENTION TO DEFEND – LATE DELIVERY
What happens when the notice of intention to defend is delivered late?
A notice of intention to defend which was delivered late may not be ignored,
provided that default judgment has not been granted yet.
In terms of Rule 19, when the Defendant delivers a Notice of Intention to
Defend, he/she shall therein give his/her full residential address or business
address, postal address and where available fax and electronic mail address
and shall appoint an address not being a post office box or poste restante
within 15 kilometres of the office of the Registrar. The Defendant may
indicate in the Notice of Intention to Defend whether the Defendant is
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prepared to accept service of all subsequent documents and notices in the
suit through any manner other than the physical address or postal address
and if so, shall state such preferred manner of service.
The Plaintiff may, at the written request of the Defendant, deliver a consent
in writing to the exchange or service by both parties of subsequent
documents and notices in the suit by way of fax or electronic mail.
5.3
NOTICE THAT CAN ACCOMPANY THE NOTICE OF INTENTION TO
DEFEND
When the Defendant gives notice of intention to defend s/he may also deliver
a notice that requires the Plaintiff, in the case of a firm or a partnership, to
supply the full name and residential address of the proprietor or of each
partner, as the case may be. See Rule 14(5) and (6).
SELF-ASSESSMENT QUESTIONS
(a)
X causes a High Court summons issued from the Gauteng Division,Pretoria to be
served on Y. Indicate the dies (days) within which Y must serve and file his notice
of intention to defend in each of the following instances:
i.
Y resides in the geographical area of the Gauteng Division. (1)
ii.
Y resides outside the geographical area of the Gauteng Division but within
150 kilometres from the seat of the Court. (1)
iii.
Distinguish between the modes of calculating the respective days referred to
in your answers to 1.1 and 1.2 above. (2)
iv.
Y is cited in his official capacity as Minister of Justice and Constitutional
Development. (1)
v.
What happens if Y does not file his notice of intention to defend timeously?
(2)
vi.
When can a Defendant serve and file a Notice of Bar? (2)
vii.
What is meant by “further judicial oversight” in regard to the attachment of
houses of indigent Defendants? (4)
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6.
SUMMARY JUDGMENT
RANGE STATEMENT:
Explain, draft, and perform all actions to apply for summary judgment.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
List the pre-requisites for summary judgment.
•
Determine whether an illiquid claim can establish a counter claim as part of the
opposition to an application for summary judgment.
•
Draft an application for summary judgment in a given set of facts.
•
Determine what the Defendant can do to prevent summary judgment being
entered against him/her.
•
Draft an opposing affidavit to summary judgment.
•
Brief Counsel for an application for summary judgment in a given set of facts.
•
Prepare and present argument for a request for summary judgment or its
opposition in a given set of facts.
Erasmus et al: Superior Court Practice
Rule 32
6.1
WHAT ARE THE PRE-REQUISITES FOR A SUMMARY JUDGMENT?
Where the Defendant has delivered notice of intention to defend, the Plaintiff
may apply for summary judgment only on claims:
•
based on a liquid document;
•
for a liquidated amount in money;
•
for delivery of specified movable property
or for ejectment.
6.2
WHEN MAY THE PLAINTIFF APPLY FOR SUMMARY JUDGMENT?
Rule 32 has been amended from 1 July 2019. The application for summary
judgment must be made within 15 days after the Defendant has pleaded.
The Plaintiff should not request summary judgment when he/she is already
aware of a defence which is bona fide and reasonable. In terms of Rule 9,
the Court may order that the action be stayed until the Plaintiff has paid the
costs of the application.
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See South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588
TPD.
6.3
THE APPLICATION
If the claim is founded on a liquid document, a copy of the document must
be annexed to the affidavit. The application must be set down on a date not
less than 15 days from the date of delivery.
The Plaintiff must, in the affidavit, verify the cause of action and the amount,
if any claimed, and identify any point of law relied upon and the facts upon
which the Plaintiff’s claim is based, and explain briefly why the defence
pleaded does not raise any issue for trial.
The application may read as follows:
“PLEASE TAKE NOTICE that the Plaintiff intends to make application on ____ (insert
date), at ____ am or as soon thereafter as Counsel may be heard, for summary
judgment in terms of the prayers set out in the Plaintiff’s summons for:
1.
_________
2.
_________
3.
_________
And further take notice that the accompanying affidavit of _________, marked
Annexure “A”, will be used by the Plaintiff in support of the application.
Kindly place the matter on the roll for hearing accordingly.”
Notice is given to the Registrar and to the opponent.
In Absa Bank v Le Roux & Others 2014(1) SA 475 WCC it was held that
an officer of a corporate Plaintiff may rely on data messages for his/her
personal knowledge in deposing to an affidavit. The Court added that it would
be salutary for the deponent to also explain why the evidence was not being
adduced by an affidavit of someone with direct knowledge of the facts. In
the portion to be signed by the Commissioner of Oaths at the end of an
affidavit, the gender of the deponent must be clearly stated.
Read the notes in Superior Court Practice (Erasmus et al) about the proper interpretation
of Rule 32(2) and D1 – 394.
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COURSES OPEN TO THE DEFENDANT
The Defendant may either file an affidavit in which s/he discloses the nature
and grounds of her/his defence, or s/he may give security to the Plaintiff to
the satisfaction of the Registrar to satisfy any judgment, including costs,
which may be granted against her/him, (Rule 32(3)) or the Defendant can
raise a technical legal point or can raise a counterclaim.
In Soil Fumigation Services Lowveld cc v Chemfit Technical Products
(Pty) Ltd 2004 (6) SA 29 SCA it was confirmed that a Defendant may also
file a counterclaim whether liquidated or unliquidated, provided it contained
a full disclosure of the nature and grounds thereof as well as the material
facts upon which it relies.
If the Defendant raises an unliquidated counterclaim, it should be quantified
to an amount exceeding Plaintiff’s claim for it to constitute a defence to
Plaintiff’s claim.
The provisions of the substituted Rule 32 may be dealt with here. They are
quite significant.
6.4
HOW MUST THE NATURE AND GROUNDS OF THE DEFENCE BE SET
OUT?
The affidavit must be delivered five days before the hearing of the matter. It
must be set out in detail and may not merely be a denial.
A bona fide defence must be established. Muller and Others v Botswana
Development Corporation Ltd 2003 (1) SA 651 SCA.
Opposing affidavit must set out “fully” the facts which, if proved, will
constitute a defence: Citibank NA South African Bank v Paul N.O. and
Another 2003 (4) SA 180T.
It is open to the Defendant to raise a claim in reconvention but then the
nature, grounds and material facts of such claim must be set out fully.
The counterclaim may be one that is liquidated or unliquidated. If the
quantum of the counterclaim is less than that of the main claim, the
Defendant will have a defence only if he pays the difference.
The Defendant does not bear the onus to prove his defence.
See further Erasmus et al: Superior Court Practice.
NB:
A replying affidavit by the Plaintiff is not permissible.
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6.5
HOW MUST THE SECURITY BE GIVEN?
In practice, the Plaintiff and the Defendant agree upon the form of the
security and if the Court accepts it, it is regarded sufficient. The amount of
security must be sufficient to satisfy the claim contained in the summons
together with the costs.
6.6
WHAT APPROACH DOES THE COURT FOLLOW?
In substance, the Plaintiff should do what is required of him by the Rule.
Undue formalism should be avoided.
(Lohrman v Vaal Ontwikkelingsmaatskappy 1979 (3) SA 391 (T) at
393H – 396B).
Should the Court give leave to the Defendant to proceed with his defence,
the matter will proceed to trial.
The Defendant does not have to set out his defence in the same detail as in
a plea, but he must supply sufficient detail to enable the Court to decide
whether he has a bona fide defence (Maharaj v Barclays National Bank
Ltd 1976(1) SA 418 (a); Breitenbach v Fiat 1976 (2) SA 226(T)).
The test is not whether the Court is convinced of the probabilities of the
Defendant’s defence or of his credibility, but whether there is a reasonable
possibility that the defence he advances may succeed on trial.
A Court would normally not allow a purely technical defence to defeat an
application for summary judgment, especially where the Defendant did not
suffer any prejudice due to the irregularity complained of. (See Liberty
Group Limited v Singh & Another 2012 (5) SA 526 (KZD)).
6.7
WHICH DOCUMENTS MUST BE IN COUNSEL’S BRIEF WHEN HE
APPEARS FOR THE PLAINTIFF OR THE DEFENDANT?
•
A copy of the summons;
•
A copy of the return or service (optional as the action is defended);
•
A copy of the notice of intention to defend;

A copy of the plea and counterclaim (if there is one);

A copy or the original of the liquid document;
•
A copy of the application for summary judgment together with the
supporting affidavit;
•
A copy of the opposing affidavit, if any.
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6.8
ORDERS THAT THE COURT MAY MAKE AT THE HEARING OF THE
APPLICATION FOR SUMMARY JUDGMENT
The Court has discretion to grant summary judgment if the Defendant did
not file security or was unable to satisfy the Court that he has a bona fide
defence.
The Court can grant summary judgment for a portion of the claim and grant
leave to defend on the balance of the claim – see Brandhouse Limited v
SASFIN Bank Limited (2009) 1 all SA 22 (SCA).
If the Defendant satisfies the Court that he does have a bona fide defence
or if the Defendant gives security, the Court must give leave to defend, and
the action will proceed to trial.
The leave to defend may be given unconditionally or subject to such terms
as to the giving of security, the time allowed for the delivery of pleadings or
otherwise, as the Court deems fit.
Orders as to costs:
•
Should leave to defend be granted, costs are usually reserved for
decision by the trial Court.
•
Where the Plaintiff, in the opinion of the Court, knew that the
Defendant relied on a contention which would entitle him to leave to
defend or if there is a fatal defect in the application, e.g. if the claim
is for something that is not included in the list in paragraph 6.1 above,
the Court may award costs to the Defendant and furthermore order
that the action be stayed until the Plaintiff has paid the Defendant’s
costs and that such costs be taxed between Attorney and client.
•
Should it later appear at the trial that the Defendant raised an
unreasonable defence and that the Plaintiff actually should have
succeeded with his application for summary Judgment, the Court may
order the Plaintiff’s costs of the application to be taxed on the scale
between Attorney and client.
SELF-ASSESSMENT QUESTIONS
(a)
You act on behalf of the Plaintiff. The Defendant enters appearance to defend the
matter and has pleaded, whereupon you receive instructions to apply for summary
judgment. Now attempt the following:
(i)
In respect of which liquidated demands may summary judgment be applied
for? (4)
(ii)
Using your own facts in as far as it is necessary, draft the Applicant’s affidavit
in support of the application. You may omit any headings as well as the
Commissioner of Oaths attestation clause. (6)
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(iii)
Briefly discuss the two avenues open to the Defendant, should s/he wish to
resist the application. (2)
(b)
Rule 32(1) lists four types of claims for which an application for summary judgment
is competent. What are they? (8)
(c)
The affidavit filed in support of the application for summary judgment must be
deposed to by someone who can express an opinion on two issues. What are they?
(d)
“One of the ways in which a Defendant may successfully oppose a claim for
summary judgment is by satisfying the Court by affidavit that he has a bona fide
defence to the claim. Where the defence is based upon facts, in the sense that
material facts alleged by the Plaintiff in his summons, or combined summons, are
disputed or new facts are alleged constituting a defence, the Court does not attempt
to decide these issues or to determine whether or not there is a balance of
probabilities in favour of one party to the other.”
Per Corbett JA in Maharaj v Barclays National Limited 1976 (1) SA 418 (A)
at 426. The Court enquires into two matters and if satisfied on these matters, must
refuse summary judgment, either wholly or in part, as the case may be. What are
these two matters? (4)
(e)
Define and give examples of four liquid documents. (4)
(f)
Define and give four examples of a liquidated amount in money. (4)
7.
THE DECLARATION
RANGE STATEMENT:
Explain, draft, and perform all actions related to the declaration.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain what a declaration is.
•
Establish when and by whom a declaration should be delivered.
•
Draft a declaration in terms of Rule 18 in a given set of facts.
Erasmus et al: Superior Court Practice
Rule 20 and Example 11
7.1
WHAT IS A DECLARATION?
Where a simple summons is issued, it is the equivalent of what would have
been the particulars of the claim, if a combined summons had been issued.
It contains the particulars of the Plaintiff’s claim and the relief which is
requested.
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It fully expounds the Plaintiff’s claim, not only concisely as in the case of a
simple summons.
7.2
WHEN WILL THE DECLARATION BE USED?
It will be used when the Plaintiff sued by means of a simple summons and
the Defendant gave notice of intention to defend.
The Plaintiff must then deliver the declaration within 15 days of receipt of
the notice unless the Plaintiff successfully applied for summary judgment.
If summary judgment was refused, the Plaintiff must deliver the declaration
within 20 days after judgment was refused, unless the Court ordered another
period. See Rule 32 (8A).
7.3
WHAT HAPPENS WHEN THE PLAINTIFF FAILS TO DELIVER THE
DECLARATION AND ALSO DOES NOT APPLY FOR SUMMARY
JUDGMENT?
The Defendant may serve a notice of bar on the Plaintiff requiring him to
deliver his declaration within 5 days after service of the notice.
If the Plaintiff still fails to deliver his declaration, the Defendant may apply
for absolution from the instance or, after adducing evidence, for judgment
(Rule 31(3)).
An order for absolution from the instance is an order granted either at the
end of the Plaintiff’s case or at the end of the whole case, dismissing the
Plaintiff’s claim. Its effect is to leave the parties in the same position as if the
case had never been brought for a judgment of absolution from the instance
does not amount to res judicata and the Plaintiff is entitled to proceed
afresh.
Erasmus et al: Superior Court Practice
Rule 20 and Example 11
SELF-ASSESSMENT QUESTIONS
(a)
Your client is Finance Bank Limited. Its registered address is 1 Church Street,
Pretoria. Your client has lent and advanced monies on overdraft to Maria Botha at
the Church Street Branch of your client in terms of a written agreement between
the parties concluded in January 20…..
Miss Botha is a major and is residing at 43 Bergsig Flats, 11 Groot Street, Pretoria.
The brother of Miss Botha, Albert Botha, bound himself as surety and co-principal
debtor for the payment of any amount which Miss Botha may owe to your client. In
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the Deed of Suretyship, Albert Botha has renounced inter alia the legal exception
beneficium ordinis seu excussionis et divisionis. Your client supplied you with
a copy of the Deed of Suretyship.
Mr Botha is residing at the same address as Miss Botha. Miss Botha did not operate
the overdraft facility on a proper basis and your client has called up the facility.
Miss Botha is presently liable towards your client for payment of the amount of
R1 126 000 together with interest thereon at the rate of 22% per annum from 25
June 20…. In terms of the agreement between the parties the interest is calculated
and capitalised monthly.
The facts are the same as the assignment on page 94 above. You have issued and
served the simple summons and both Defendants entered appearance to defend.
(b)
(i)
Draft the declaration. (20)
(ii)
The above declaration was drafted by you. After service thereof your client
instructed you that the written agreement between your client and Miss
Botha was actually concluded on 6 May 20… Draft a notice of amendment in
terms of Rule 28 in which you give notice of the proposed amendment of the
declaration.
Your client is Mr P Jones, the sole member of Good Homes CC. He is a builder. Mr
P Jones entered into a written contract with Mr J Lewis that he would build a house
for him. The agreement stated that Good Homes CC would build a 150 m2 house at
a rate of R6 000 per m2, which gives a total price of R900 000. The payments would
be made in instalments and on completion of the house, a final payment of
R500 000 would be made 10 days after handover of the house. The house was
finished on 30 July 20…. Mr J Lewis failed and/or refused to make the final payment
of R150 000. Mr P Jones comes to see you to get his money.
Answer the following questions:
(i)
What procedure would you advise your client is the correct one to take to
claim payment? (1)
(ii)
Which summons would you advise your client to use and state why? (3)
(iii)
Summons is served on Mr J Lewis and he files a Notice of Appearance to
Defend. What would you advise your client to do next? (1)
(iv)
Within what time period must you take this next step? (1)
(v)
What options are open to Mr J Lewis to avoid judgment against him? (1)
(vi)
What does the Court consider if it would grant Mr J Lewis leave to defend?
(2)
(vii)
Draft the declaration on behalf of your client. Include the headings. Make up
your own facts where necessary. (10)
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8.
EXCIPIABLE AND IRREGULAR PROCEEDINGS
RANGE STATEMENT:
Explain, draft, and perform all actions related to the excipiable and irregular
proceedings.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Indicate what is meant by excipiable.
•
Indicate the various types of exceptions and who can raise them.
•
Explain the consequences of upholding or dismissal of an exception.
•
Draft an exception in a given set of facts.
•
Draft an application in terms of Rule 30(1).
Erasmus et al: Superior Court Practice
Van Blerk P47
8.1
THE EXCEPTION
The exception is raised when the excipient alleges that a pleading against
which s/he excepts is inherently defective and is a legal objection. For
purposes of the exception the Court will accept the correctness of the
Respondent’s factual version.
8.1.1
Grounds for an Exception
In terms of Rule 23(1) an exception may be raised on the following
grounds:
•
that the pleading is vague and embarrassing;
•
that the particulars of claim do not disclose a cause of action;
or
•
that the plea does not disclose a defence.
A distinction must be made between the exception and the
application to strike out. The latter is only used to strike out certain
allegations in a pleading (in other words only a portion of a pleading)
without having an effect on the balance of the pleading. An exception,
however, is raised against a pleading as a whole. The purpose of the
exception is to bring an end to the matter or at least a part thereof.
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8.1.2
When must the Exception be raised?
The exception must be raised within the period allowed for the filing
of any subsequent pleading (Rule 23(1)).
8.1.3
The Form of the Exception
8.1.3.1 Before an exception can be raised on the grounds that it is
vague and embarrassing, or an application to strike out, the
party intending to take the exception should by notice within
10 days of receipt of the pleading, afford his opponent an
opportunity to remove the cause of complaint within 15
days.
8.1.3.2 In terms of Rule 23(1) the notice of exception must clearly
state the ground(s) for the exception. The exception must
also contain a prayer.
Barclays National Bank Ltd v Thompson 1989 (1) SA
547 (A) at 552;
Group Five Building Ltd v Government of The Republic
of South Africa (Minister of Public Works and Land
Affairs) 1993 (2) SA 593 (A); Princeps (Edms) Bpk v
Van Heerden NO 1991 (3) SA 842 (T) at 845;
Nel and Others NNO v McArthur and Others 2003 (4)
SA 142 (T).
8.1.4
This Notice may, for example, be drafted in the following Form
“PLEASE TAKE NOTICE that unless the Plaintiff removes the cause of complaint set
out hereunder within 15 days, the Defendant intends to raise an exception against the
Plaintiff’s Particulars of Claim on the grounds that the said Particulars of Claim are vague
and embarrassing.”
The complaint is as follows:
The Plaintiff alleges in paragraph 3 of his Particulars of Claim that the Defendant’s
“conduct resulted in a breach of contract or that some other unlawful act was
perpetrated against the Plaintiff”.
“The above allegation is vague and embarrassing because it is not clear on what grounds
the Plaintiff alleges that he suffered damage.”
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8.1.5
The Notice of Exception may, for example, be drafted in the
following form
“PLEASE TAKE NOTICE that the Defendant hereby raises an exception against the
Plaintiff’s Particulars of Claim by reason of the fact that the Particulars of Claim do no
indicate that the Plaintiff has locus standi because there are no allegations that the
Plaintiff personally sustained the damage he alleges.
WHEREFORE the Defendant prays that the exception be upheld, that the Plaintiff’s
Particulars of Claim be set aside with costs alternatively that the Plaintiff be given leave,
if so advised, to file amended Particulars of Claim within one month.”
8.1.6
The Hearing of the Exception
After the application has been delivered, the party must apply to the
Registrar to set the matter down 15 days after delivery thereof. The
exception is heard as an opposed motion and the Court may uphold
the exception or dismiss it or order that the adjudication of the
exception stands over until the hearing of the matter.
8.1.7
Except in cases of Exception to Jurisdiction of Court, a
dismissed Exception is not appealable
Maize Board v Tiger Oats Ltd and Others 2002 (5) SA 365 SCA.
An exception that is upheld is appealable.
8.1.8
The Test on Exception
Southernpoort Developments (Pty) Ltd (previously known as
Tsogo Sun Ebhayi (Pty) Ltd) v Transnet Ltd 2003(5) SA 665
(W) adopted the following approach to exceptions:
8.2
•
The excipient must establish that the pleading is excipiable on
every reasonable interpretation.
•
The pleader is entitled to a charitable interpretation.
•
Minor blemishes can be cured by further participation.
•
The pleadings must be read as a whole.
•
This approach was followed in Francis v Sharp & Others
2004 (3) SA 230 C.
IRREGULAR PROCEEDINGS I.E. STEPS TAKEN NOT IN ACCORDANCE
WITH THE COURT RULES
A party to proceedings wherein an irregular step has been taken by the other
party may in terms of Rule 30 apply to Court to have the irregular step set
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aside. This applies to actions as well as motion proceedings. There is no
definition of an irregular proceeding.
Erasmus mentions some examples identified through case law:
•
Where a summons was not served in accordance with the Rules;
•
Where an address for service of documents did not appear from the
summons;
•
Where pleadings were not signed in accordance with the Rules;
•
Where the particulars of claim in an action for damages did not
comply with the requirements set out in Rule 18;
•
Where there has been a premature enrolment;
•
Where an irregular notice of bar has been served;
•
Where review proceedings have been brought by way of action
procedure.
Within 10 days of becoming aware of the irregular step the Applicant must
send a written notice requesting remedial to his opponent, requesting him to
remove the cause of complaint within 10 days, provided that the Applicant
himself/herself has not taken a further step in the proceedings after having
become aware of the irregularity. (A notice of intention to defend is not
regarded as a further step.)
Where the opponent fails to timeously remove the cause of complaint the
Applicant must then apply to Court within 5 days after expiry of the time
granted to remove the cause of complaint, for the proceeding to be set aside.
8.3
APPLICATION TO COMPEL
Where a party has failed to comply with the Rules, his opponent may apply
to Court for an order to compel him to comply with a request or with the
Rules by means of an application to Court, e.g., failure to provide further
particulars for purposes of trial or failure to deliver a discovery affidavit.
Rule 30A determines that:
•
Where a party fails to comply with these Rules or with a request made
or notice given pursuant thereto, or with an order or direction made
in a judicial case management process referred to in Rule 37A, any
other party may notify the defaulting party that he or she intends,
after the lapse of 10 days from the date of delivery of such notice, to
apply for an order that such Rule, notice or request, order or direction,
be complied with or that the claim or defence be struck out.
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•
Where a party fails to comply within the period of 10 days
contemplated in sub-rule (1), application may on notice be made to
the Court and the Court may make such order thereon as it deems fit.
•
The precedent given hereunder can be used, for example, where the
other side has failed to discover or has failed to deliver particulars for
purposes of trial.
The undermentioned example does not give the Court headings, but the
usual Court heading will be used with reference to the division of the High
Court and the names of the parties with case number.
NOTICE TO COMPEL DELIVERY OF NOTICES IN TERMS OF RULE 35(1), (6), (8),
(9) AND (10)
DISCOVERY
KINDLY TAKE NOTICE that the Plaintiff shall apply to this Honourable Court on
Tuesday 11 November 20..at (time) or as soon thereafter as it can be heard for an order
in the following terms:
1.
The Defendant/Respondent is directed to furnish the reply to the Notice in terms
of Rule 35(1), (6), (8), (9) and (10) which was served and filed on 27 July 20…
its Discovery Affidavit within five (5) days of service of the Order of this
Honourable Court on the Plaintiff’s/Applicant’s / Defendant’s/Respondent’s
Attorney.
2.
If the Defendant/Respondent fails to comply with the provisions of paragraph 1
above, the Plaintiff/Applicant is hereby given leave to apply to this Honourable
Court on these papers, duly supplemented in so far as may be necessary, and on
five (5) days’ notice to the Defendant/Respondent’s Attorney for an Order
dismissing the Defendant’s/Respondent’s defence to the Plaintiff’s claim, and the
Defendant’s/Respondent’s counterclaim, with costs.
3.
The Defendant/Respondent to be ordered to pay the costs of this application.
4.
The Plaintiff/Applicant is granted such further other or alternative relief as this
Honourable Court may deem fit.
TAKE FURTHER NOTICE that the affidavit of ____, Attorney of record, annexed hereto
will be used in support thereof.
The above notice is accompanied by an affidavit, usually by the
Attorney of record.
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I, the undersigned
______________
do hereby make oath and say that:
AFFIDAVIT BY XXXXXXXX
1.
I am a major fe/male Attorney practising under name and style of__________.
2.
The facts herein contained are within my personal knowledge and belief, unless
stated to the contrary and are true and correct.
3.
I am the Attorney of record for the Plaintiff herein.
4.
The attached Notice in terms of Rule 35(1), (6), (8), (9) and (10) to Discover,
being Annexure "CRDP1" was served on the Defendant’s/Respondent’s
Attorney on ______________ as more fully appears from the signature
appearing on page 3 thereof and was filed with the Registrar of this Honourable
Court on _____________.
5.
As no response was received to the said notice I addressed a letter to the
Defendant’s/Respondent’s Attorney on ____________, attached hereto as
Annexure “CRDP2”.
6.1
The penultimate paragraph of the said letter addressed hereto as Annexure
"CRDP2" reads as follows: "To this end we require your client’s discovery
affidavit to be filed on or before 4 July 20 _______.
6.2
Again, no response was received from the Defendant’s Attorney.
7.
The Plaintiff/Applicant is being prejudiced
Defendant’s/Respondent’s discovery affidavit.
by
the
non-delivery
of
the
_________________
DEPONENT
Thus, signed and sworn to by the deponent before me at ______________ on
______________ who stated that he/she knows and understands the
contents of the affidavit, that it is true and correct and that the oath is binding
upon his/her conscience.
_____________________
COMMISSIONER OF OATHS
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If the Respondent does not comply with the Court order to deliver
the documentation or further particulars, the following application is
made.
APPLICATION TO DISMISS DEFENDANT’S DEFENCE AND COUNTERCLAIM
KINDLY TAKE NOTICE that the Plaintiff shall apply to this Honourable Court on
Tuesday 24 February 20___ at (time)or as soon thereafter as it can be heard for an
order in the following terms:
1.
The Defendant’s/Respondent’s defence to the Plaintiff’s/Applicant’s claim as well
as the Defendant’s/Respondent’s counterclaim is dismissed with costs.
2.
The Defendant/Respondent is ordered to pay the costs of this application.
3.
Further and/or alternative relief.
TAKE NOTICE FURTHER that the affidavit of ________________, Attorney of record
for Plaintiff is annexed hereto.
AFFIDAVIT BY XXXXXXXX
I, the undersigned
do hereby make oath and say that:
1.
I am a major male Attorney practising under name and style of _________.
2.
The facts herein contained are within my personal knowledge and belief, unless
stated to the contrary and are true and correct.
3.
I am the Attorney of record for the Plaintiff herein.
4.
The Order of this Honourable Court dated 11 November 20___ was served on
the Attorney acting for the Defendant on 21 January 20___ and filed with the
Registrar of this Honourable Court on the same date as more fully appears from
the attached copy of the Notice of Filing attached hereto as Annexure "CRDP1".
5.
Shortly after the service and filing as aforesaid, the Defendant’s Attorney
telephoned me to advise that she had spoken to the Defendant, advised him of
the contents of the Order of this Honourable Court dated 11 November 20___
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and had received instructions from him to obtain an extension of time in which
to comply with the said order.
6.
When I refused such request, the Defendant’s Attorney advised that if the
Defendant did not give them instructions to comply with the said Court Order
dated 11 November 20___, she would withdraw as Attorneys of record.
7.
On 28 January 20__, I received the attached Notice of Withdrawal as Attorney of
record for the Defendant, annexed hereto as Annexure “CRDP2”.
8.
The Defendant has not complied with the Court Order dated 11 November 20__.
9.
I shall cause a copy of this application to be served on the Defendant at the
address indicated by his erstwhile Attorney as being his last known address.
WHEREFORE I pray that it may please this Honourable Court to grant an Order
dismissing the Defendant’s/Respondent’s defence to the Plaintiff’s/Applicant’s claim and
the Defendant’s/Respondent’s counterclaim with costs, including the costs of this
application.
_____________
DEPONENT
Thus, signed and sworn to by the deponent before me at ______ on _____ who
stated that he/she knows and understands the contents of the affidavit, that
it is true and correct and that the oath is binding upon his/her conscience.
______________________
COMMISSIONER OF OATHS
SELF-ASSESSMENT QUESTIONS
Your client hands you a combined summons that was served on him. The relevant portion
of the particulars of claim relating to the cause of action is set out hereunder. For purposes
of answering the question, you may assume that the parties were cited correctly, that the
Court has jurisdiction to entertain the matter, that the quantum of the claim for damages
was set out correctly and that the relevant relief was sought in the prayers.

At all relevant times that the Plaintiff was the driver of a Porsche vehicle with
registration number ABC123GP.
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
On the 1st of January 2024 and at the intersection of Black and Blue Streets,
Johannesburg, a collision occurred between the vehicle driven by the Plaintiff and
a BMW vehicle with registration number XYZ456GP, driven by the
Defendant.

As a result of the aforementioned collision, the Plaintiff suffered damages in the
amount of R610 000, being the fair and reasonable costs of repair of the vehicle
restoring it to its pre-collision condition …”
9.
i.
On which two grounds can an exception be raised against summons? (2)
ii.
Draft the exception that you will raise against the particulars of claim. (7)
iii.
Define the term ‘excipiable’. (3)
iv.
List the instances when an irregular step is deemed to have taken place as
developed in practice. (10)
DEFAULT PROCEDURE (NOTICE OF BAR)
Erasmus et al: Superior Court Practice
Rules 26 and 27 and Example 9
A Defendant who fails to deliver his plea within the time laid down in the Rules or
within the time granted to him in terms of an extension, may be barred by the
Plaintiff party. A Plaintiff failing to file a declaration to his simple summons within
the time lay down in the Rules may likewise be barred.
A party is barred through a notice that is served upon him, in which it is demanded
that the relevant pleading be delivered within five days after the notice of bar has
been served.
Should he fail to deliver the pleading, he will be barred from delivering it
subsequently.
Take notice that the days between 16 December and 15 January (both inclusive)
shall not be counted in the time allowed for the delivery of any pleading. This time
is known as the dies non.
Removal of the notice of bar/uplift the bar. Application may be made to the Court
to remove a notice of bar or uplift the bar, but good cause must be shown.
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10.
THE DEFENDANT’S PLEA
RANGE STATEMENT:
Explain, draft, and perform all actions related to the Defendant’s plea.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain the function of and general requirements for a plea.
•
Explain the clause ‘brevitatis causa’ with regard to a counterclaim.
•
Indicate when a counterclaim should be delivered.
•
Explain the consequences of a failure to plea or counterclaim.
•
Draft a plea or counterclaim with regard to a given set of facts.
•
Distinguish between the plea and special plea.
•
Cite the Plaintiff in reconvention and Defendant in reconvention.
•
Draft a replication and a duplication.
Erasmus et al: Superior Court Practice
Rules 18 and 22 and Example 12
Van Blerk P29
Rule 22(2) states that a Defendant in its plea shall “either admit or deny or confess
and avoid all material facts alleged in the combined summons or declaration and
state which of the facts are not admitted and to what extent and shall clearly and
concisely state all material facts upon which the Defendant relies”.
Van Blerk P29 states as follows: ‘If there is a golden rule in drawing a plea, it is
this: never admit anything unless one is sure that one’s instructions entitle one to
do so. The reason for this is that if the Defendant seeks to amend its plea or
withdraw the admission at a later stage it must show that there is a reasonable
explanation for the error and that there is no prejudice to the Plaintiff in making
the withdrawal of the admission.
Apart from the consequences to a Legal Practitioner in the event that the Defendant
is refused the amendment, there is always the embarrassment of explaining his or
her own error to the Court.’
Rule 22(3) provides that every allegation or fact in a combined summons or
declaration which is not stated in the plea to be denied or to be not admitted shall
be deemed to be admitted. The consequence of this is that the failure to deal with
an allegation amounts to an admission. In the light of this, it is suggested that a
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useful approach to the drafting of a plea is to identify which allegations of fact in
the particular paragraph or paragraphs being pleaded to are to be admitted, record
an express admission of them and thereafter conclude with a general denial in the
following terms: save as aforesaid, the Defendant denies each and every allegation
herein contained as if specifically traversed.
However, be careful to comply with the provisions of Rule 18 and state the terms
upon which the Defendant relies upon when making its denial.
10.1 WHEN TO BE DELIVERED?
In the case of a combined summons the Defendant has to deliver a plea
within 20 days after the delivery of his notice of intention to defend.
In the case of a simple summons the Defendant also has to deliver his plea
within 20 days after the service of the declaration.
Where a Defendant in a provisional sentence action has given notice of his
intention to enter into the principal case, he must within 10 days thereafter
deliver a plea. However, it is extremely important to appreciate that failure
to do so in this instance means that provisional sentence ipso facto becomes
a final judgment and the security given by the Plaintiff lapses.
If the Defendant wants to institute a claim in reconvention, it must (in the
absence of agreement with the Plaintiff or an order of Court) be delivered
simultaneously with a plea.
10.2 REQUIREMENTS FOR THE PLEA
The plea must in general comply with the following requirements (Rules 22
and 18):

All the material facts alleged in the combined summons or declaration
must be admitted or denied or confessed and avoided. Every allegation
of fact by the Plaintiff not admitted or denied will be deemed to be
admitted.

All the material facts on which the Defendant relies for its defence
must be stated clearly and concisely. If any explanation or qualification
of any denial is necessary, it must be provided.

If the Defendant relies on a contract, it must be stated whether it was
a written or an oral contract, and when, where and by whom it was
concluded. In the case of a written contract, a true copy of the contract
or the part relied upon must be attached to the plea.

If the Defendant is represented, the plea must be signed by an
Attorney and an Advocate or by an Attorney who has the right of
appearance in the High Court. The Defendant may sign the plea
personally.
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
A plea, which does not comply with these requirements, may be set
aside in terms of Rule 30 – see the provisions of Rule 22(5) in this
regard.

A Defendant may admit the allegations of a claim in his plea, but
request that the judgment be postponed until judgment on his claim
in reconvention. The prayer may read as follows: “WHEREFORE the
Defendant prays for judgment in its favour together with costs,
alternatively that judgment on the claim in convention be suspended
until further adjudication of the claim in reconvention filed herewith,
and thereafter that the Plaintiff’s claim be dismissed with costs”. Such
a claim in reconvention may be raised even if the claim in reconvention
is for a lesser amount than the claim in convention and even if the
claim in convention is for a liquidated amount and the claim in
reconvention is a claim for damages (Du Toit v De Beer 1955 (1)
SA 469 (T)).

In the case of a claim for damages based on a delict it may be pleaded
that the Plaintiff’s own negligence contributed to the damages and an
apportionment of damages between joint wrongdoers may be
requested. Note that the Court may make an apportionment even
though the Defendant did not claim an apportionment (AA Mutual
Insurance Association Ltd V Nomeka 1976 (3) SA 45 (A). See
also Ndaba v Purchase 1991 (3) SA 640 (N)).
10.3 INSTRUCTIONS TO COUNSEL
Considering the requirements set out above, Counsel must be supplied with
complete instructions if s/he is required to draft a plea. The following
documents must accompany his/her instructions:
•
In the case of a combined summons, a copy thereof and in the case of
a simple summons a copy of the summons and declaration.
•
Full instructions with regard to the Defendant’s defence.
•
Copies of all documents relevant to the Defendant’s defence, e.g.,
correspondence and the contract if a written contract is relied upon.
•
Statements, if any, recorded from the Defendant and his potential
witnesses. The summary judgment application papers, if applicable.
10.4 SPECIAL PLEA (VAN BLERK P33)
What is a special plea? A special plea does not raise a defence on the merits
of the Plaintiff’s claim but raises a special defence apart from the merits. A
special plea, depending on its nature, may be dilatory or declinatory. In the
case of a dilatory special plea, the special defence that is raised does not
abate the Plaintiff’s claim and in the case of a declinatory plea the special
defence that is raised has as its object to abate or quash the Plaintiff’s claim
together.
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10.4.1 The following are examples of dilatory special pleas:
Lis pendens:
if the same cause of action is pending between the
same parties in another Court, the Defendant may
plead lis pendens;
Arbitration:
if the parties have agreed previously that the dispute
will be subjected to arbitration, the Defendant may
raise it as a special plea. In the case of PCL
Consulting (Pty) Ltd t/a Phillips Consulting SA
v Tressou Trading 119 (Pty) Ltd 2009 (4) SA
68 (SCA) it was held that an arbitration clause in a
contract did not mean that Court proceedings were
incompetent. The Defendant could either apply for a
stay of the proceedings in terms of Section 6 of the
Arbitration Act No. 42 of 1965, or it could file a
special (dilatory) plea wherein a stay of the
proceedings would be sought pending the
determination of the dispute by arbitration.
Non-joinder:
if the Plaintiff failed to join another party who has a
direct and real interest in the proceedings, the
Defendant may raise it as a special plea.
All of the above are aimed at delaying the Plaintiff’s claim until the
cause of the objection has been addressed adequately.
10.4.2 The following are examples of pleas in abatement:
Prescription:
if the Plaintiff’s claim is completely or partially
prescribed, prescription may be raised as a special
plea.
Res judicata: when the same cause of action between the same
parties has already been tried and finally decided
upon by some other Court, a special plea of res
judicata may be raised. A Defendant can
successfully raise the exceptio rei judicatae if
he/she was sued again on the same cause of action
when he/she had previously been absolved from the
instance, provided that the earlier order dismissing
the application had made a decision on the merits of
the matter – MV Wisdom C United Enterprises
Corporation v STX Pan Ocean Company Limited
2008 (3) SA 585 (SCA).
Absence of jurisdiction: if the Court does not have jurisdiction, the
Defendant may raise it as a special plea.
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Note that the special plea must always be filed as part of the plea. It is set out first in
the plea under the heading “special plea”. In other words, the Defendant must thereafter
proceed to “plead over” on the merits.
11.
CLAIM IN RECONVENTION
Erasmus et al: Superior Court Practice
Rule 24
A Defendant who wants to institute a claim in reconvention must do so
simultaneously with the filing of her/his plea. A claim in reconvention may,
however, be delivered at a later stage with the consent of the Plaintiff or, if s/he
should refuse, by an order of the Court upon application on notice. (Van Jaarsveldt
v Nel 1974 (1) SA 103 (T)). A claim in reconvention must comply with the same
requirements as a declaration.
If the Defendant is entitled to take action against any other person as well as the
Plaintiff, he may with the leave of the Court proceed in such action by way of a
claim in reconvention against the Plaintiff and such other persons, in such manner
and on such terms as the Court may direct.
The Defendant may also raise a conditional claim in reconvention against the
Plaintiff. It means that s/he may subject her/his claim in reconvention to the failing
of the claim in convention or the defence. A conditional claim in reconvention is
often raised in actions for damages resulting from injuries sustained in motor
vehicle collisions.
For the sake of convenience, parties in reconvention, once cited, are referred to in
the claim in reconvention as described in the claim in convention, i.e., Defendant
claims against the Plaintiff.
12.
FURTHER PLEADINGS
Erasmus et al: Superior Court Practice
Rule 25
12.1 REPLICATION (RULE 25(2))
Within 15 days of the service upon him/her of a plea, the Plaintiff shall, where
necessary, deliver a replication to the plea. A replication, which is merely a
bare denial of allegations in the plea, is unnecessary (Rule 25(2)). This
means that if the Plaintiff does not replicate, the allegations contained in the
plea will be deemed to be denied.
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The following cases are examples of where a Plaintiff will replicate to a
Defendant’s plea:
•
Where the Plaintiff wishes to rely on estoppel.
•
Where the Plaintiff admits certain allegations in the plea but wishes to
qualify his/her admission as in the case of a confession and avoidance.
•
Where the Defendant pleads prescription.
•
A replication cannot introduce a new cause of action or differ from the
original declaration or combined summons.
12.2 PLEA IN RECONVENTION
The Plaintiff must within 15 days after the service upon him/her of a claim in
reconvention, file a plea to that claim. The latter plea must comply with Rule
22.
12.3 REJOINDER
Within 10 days after delivery of a replication, the Defendant may deliver a
rejoinder, where necessary, on the Plaintiff’s replication. The Defendant’s
rejoinder may be followed up with a surrejoinder from the Plaintiff and after
that a rebuttal and surrebuttal may follow. All these further pleadings must
be served within 10 days after delivery of the previous pleading. In terms of
the Rule, the leave of the Court is not necessary for the filing of such further
pleadings.
12.4 REPLICATION TO THE PLEA IN RECONVENTION
Within 10 days after a delivery of a plea in reconvention, the Plaintiff shall,
where necessary, deliver a replication to that plea.
12.5 THE PLEADINGS WHICH CAN FOLLOW UPON A REPLICATION BY THE
PLAINTIFF ARE AS FOLLOWS
•
The Defendant can file a rejoinder;
•
The Plaintiff can file a surrejoinder;
•
The Defendant can file a rebuttal;
•
The Plaintiff can file a surrebuttal.
12.6 PUBLICATION OF PLEADINGS PENDENTE LITE
No general principle prohibits the publication without consent of references
to documents filed in civil proceedings which do not reflect adversely upon
the litigant. The public interest to be taken into account. Publication is
however prohibited if anyone is defamed or disparaged in documents filed or
if the publication may influence the outcome of the case.
Romero v Gauteng Newspapers Ltd and others 2002 (2) SA 431 WLD.
SELF-ASSESSMENT QUESTIONS
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(a)
Your client hands you a summons which was served on him on 14 February 2022.
The cause of action arose from a motor vehicle collision that happened on 10
January 2019…. Draft the special plea that you will serve and file. Do not plead over
on the merits. You may omit the heading and the particulars of the Plaintiff’s and
Defendant’s Attorneys. (5)
(b)
You act for the Plaintiff in the following actions in the High Court. Very briefly
indicate what your next step ought to be.
13.
(i)
The Plaintiff’s claim is for the cost of repairing his motor vehicle which was
damaged whilst it was parked at the side of the road when the Defendant
drove into it when he fell asleep behind the wheel. The Defendant entered
appearance to defend. (2)
(ii)
Your client’s claim is for the purchase price of goods sold and delivered in
respect of which your client has provided you with orders and delivery notes
both of which have been signed by the Defendant. The Defendant has
entered appearance to defend. (1)
(iii)
After the close of pleadings, you requested further particulars to enable you
to prepare for trial. The time for furnishing the particulars has expired and a
letter to the Defendant’s Attorney did not have the desired effect. (1)
(iv)
The Defendant has failed to enter an appearance to defend despite the
expiry of the period allowed in the summons for him to do so. (1)
(v)
Your client’s summons is based on a delict that was committed two years
before service of the summons. The Defendant has pleaded prescription as
his only defence. (2)
(vi)
An important witness of your client is reluctant to come to Court. (1)
THIRD-PARTY PROCEDURE (RULE 13)
RANGE STATEMENT:
Explain, draft and perform all actions related to third-party procedure.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain the third-party procedure.
•
List the requirements for third-party proceedings.
•
Draft a third-party notice with regard to a given set of facts.
•
Explain third-party procedure and Section 2 of the Apportionment of Damages
Act No. 34 of 1956.
Erasmus et al: Superior Court Practice
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Van Blerk P53
Rule 13 and Example 13
13.1 A party to an action or an application can involve another party in such action
or application by causing a third-party notice to be served by the Sheriff on
such person.
13.2 A third-party notice can be issued under the following circumstances:
13.3
•
Where the party in the action claims that s/he is entitled, in respect of
any relief claimed against her/him to a contribution or indemnification
from the third-party; or
•
Where any question or issue in the action is substantially the same as
a question or an issue which has arisen or will arise between such
party and the third-party and should properly be determined not only
as between any parties to the action but also as between such parties
and the third party or between any of them.
The third-party notice must contain the following:
•
the nature and grounds of the claim of the party issuing it;
•
the question or issue to be determined;
•
the relief or remedy claimed.
13.4
The formulation of the claim follows that of a pleading and the rules relating
to pleadings are mutatis mutandis applicable.
13.5
The third-party notice must be served before the close of pleadings. After
the close of pleadings, the notice may only be served with the leave of the
Court. The notice must be accompanied by a copy of all pleadings filed in
the action up to date of service of the notice. In application proceedings the
notice must be accompanied by all notices of motion and affidavits which
have been filed from date of service of the original notice of motion.
13.6
A discussion of the applicable principles is found in Mercantile Bank Ltd v
Carlisle and Another 2002 (4) SA 886 WLD.
13.7
The third party is, after service upon him of a third-party notice, a party to
the action. If s/he intends to defend/oppose s/he must deliver a notice of
intention to do so.
13.8
Third-party procedure is complementary to, and does not supersede, the
procedure laid down by Section 2 of the Apportionment of Damages Act No.
34 of 1956. In terms of the latter, a judgment is given, and in terms of the
former only a declaratory order.
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13.9
In the case of joinder under Rule 13(1)(a), no judgment sounding in money
may be sought against the third party. IPF Nominee (Pty) Ltd v Nedcor
Bank Ltd Basfour 130 (Pty) Ltd Third Party 2002 (5) SA 101 WLD.
All that can be sought is an apportionment of fault in the form of a
declaratory order.
13.10 The third-party notice referred to in the example above and containing the
information referred to in paragraph 13.3 above will be in the form of a
declaration or combined summons containing all the necessary allegations
to find a cause of action.
13.11 Whilst it is normally a Defendant who invokes the provisions of Rule 13, the
Rule does not preclude the Plaintiff in an appropriate case from giving a
third-party notice.
SELF-ASSESSMENT QUESTIONS
(a)
Using an imaginary set of facts, draft a third-party notice. (15)
(b)
Explain when a third-party notice is used. (5)
(c)
Can a third-party notice be served after close of pleadings? (1)
14.
CLOSE OF PLEADINGS
RANGE STATEMENT:
Explain, draft, and perform all actions related to close of pleadings.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Indicate when pleadings are deemed to be closed.
•
Explain the importance of litis contestatio.
•
Brief Counsel for trial in a given set of facts.
•
Apply for a trial date.
Erasmus et al: Superior Court Practice
Rule 29
The close of pleadings (litis contestatio) is a concept that is used to indicate that
from a given moment the parties are no longer entitled to exchange pleadings. This
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means that both parties had ample opportunity to define their cases by way of
pleadings.
Pleadings are deemed to be closed in terms of Rule 29:
•
if any of the parties joined issue without alleging any new matter and without
adding any further pleadings;
•
if the last day allowed for filing of a replication or subsequent pleading has
elapsed and it has not been filed;
•
if the parties agree in writing that the pleadings are closed, and such
agreement is filed with the Registrar;
•
if the parties are unable to agree as to the close of pleadings, and the Court,
upon the application of a party, declares them closed.
END OF PLEADINGS STAGE
SELF-ASSESSMENT QUESTIONS
(a)
Explain the provisions of Rule 29 of the Uniform Rules of Court. (8)
(b)
Draft a notice requesting the allocation of a trial date in a High Court matter. (5)
15.
DISCOVERY – COMMENCEMENT OF PRE-TRIAL PREPARATION STAGE
RANGE STATEMENT:
Explain, draft, and perform all actions related to following pre-trial procedure –
preparation for trial – discovery.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Draft a notice in terms of Rule 35(1), (5) and (10).
•
Draft a discovery affidavit.
•
Draft an application to compel discovery.
•
Explain how tape recordings are handed in.
•
Explain failure to discover.
•
Explain the different privileged documents and how they are handled in a
discovery affidavit.
•
Distinguish between discovery prior to and after close of pleadings.
•
Administer an office file in order to ensure effective discovery.
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Erasmus et al: Superior Court Practice
Rule 35 and Example 14
The principle underlying discovery is that no party may for any purpose use a
document at the trial if the document has not been disclosed previously.
The other party in the matter, who was not obliged to discover such document, will
however be entitled to use such document at the trial.
Note that in terms of Rule 35(15) tape recordings are treated just like documents
and must also be disclosed. The term “tape recording” also includes a soundtrack,
film, magnetic tape, record, or other material on which visual images; sound or
other information may be recorded. In Metropolitan Health Corporate (Pty) Ltd
v Neil Harvey & Associates (Pty) Ltd and Another (WCC) [2011] ZAWCHC
358, Baartman J held that tapes on which a company backed-up its electronic
information was discoverable.
Discovery is aimed at giving parties the opportunity to inspect documents before
such documents are used at the trial. It prevents parties from being surprised by
all sorts of “new” evidence at the trial.
A party who fails to make discovery in time, runs the risk that s/he may be
precluded from using documents which s/he intends to use in the course of the
trial, or s/he runs the risk that a postponement will be granted with an order for
costs against her/him.
When discovery is done, the Electronic Communications and Transactions Act 2002
No. 25 of 2002, should be taken into consideration. Section 15 of the mentioned
Act discusses the admissibility and evidential weight of data messages:
’15.(1) In any legal proceedings, the rules of evidence must not be applied so as to
deny the admissibility of a data message, in evidence(a)
on the mere grounds that it constituted by a data message; or
(b)
if it is best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not in its original form.
15.(2) Information in the form of a data message must be given due evidential weight.’
… and
15.(4) A data message made by a person in the ordinary course of business, or a copy
or printout of or an extract from such data message certified to be correct by
an officer in the service of such person, is on its mere production in any civil,
criminal, administrative or disciplinary proceedings under any law, the rules of
a self-regulatory organisation or any other law, admissible in evidence against
any person and rebuttable proof of the facts contained in such record, copy,
printout or extract.’
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The Act defines a ‘data message’ as: “means data generated, sent, received or
stored by electronic means and includes:
(a)
Voice, where the voice is used in an automated transaction; and
(b)
A stored record”.
A further look into the definitions as contained in this Act will give an idea of
different types of data messages. It might be prudent to, when doing discovery, to
indicate when a specific document being discovered is a data message not in the
format usually expected of documents.
15.1 SPECIFIC TYPES OF DOCUMENTS
15.1.1 General
All documents and tape recordings not privileged and relating to any
matter in question in such action (whether such matter is one arising
between the two parties concerned or not) and which are or have at
any time been in the possession or control of such other party must,
within 20 days after the other party request it by notice in writing,
be discovered on affidavit. This procedure is only applicable after the
close of pleadings, except with the leave of a Judge. Schedule I Part
I.
15.1.2 Qualification
A party is only obliged to make discovery of documents and tape
recordings which are detrimental to his own case, or which may
advance the case of his adversary. Documents or tape recordings
which only tend to advance the case of the party making the
discovery need not be disclosed unless such party intends to use
them at the trial.
15.1.3 Privileged documents or tape recordings
Documents or tape recordings which are privileged need not be
disclosed, but must be stated and identified individually (and not only
in general).
In this regard it is important to note that statements of witnesses
taken for purpose of the proceedings, communications between
Attorney and client and between Attorney and Advocate, pleadings
and affidavits and notices in the action, shall be omitted. See, with
regard to privilege: Schedule I Part II.
See Contango Trading SA v Central Energy Fund SOC Ltd 2020
(3) SA 58 (SCA) (13 December 2019) for a discussion of litigation
privilege and what the requirements are.
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Erasmus et al: Superior Court Practice
15.1.4 Other documents or tape recordings
If any party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the former may give
notice to the latter requiring him to make the same available for
inspection, or to state on oath within 10 days that such documents
are not in her/his possession, in which event s/he shall state their
whereabouts if known to her/him. (Rule 35(3)).
15.1.5 Documents not in possession or control of the other party
If a party wishes to avoid being surprised by documents and tape
recordings which may possibly be used by the other party, but which
are not in the possession or control of the other party, s/he may
demand from the other party to specify in writing particulars of dates
of and parties to documents or tape recordings intended to be used
at the trial of action on behalf of the other party. (Rule 35(8)).
15.2 DISCOVERY BEFORE THE CLOSE OF PLEADINGS FOR PURPOSES OF
PLEADING
After appearance to defend has been entered, any party to any action may,
for purposes of pleading, require any other party to make available for
inspection within five days a clearly specified document or tape recording in
her/his possession which is relevant to a reasonably anticipated issue in the
action and to allow a copy or transcription to be made thereof. (Rule 35(14)).
See Cullinan Holdings v Mamelodi Stadsraad 1992(1) SA 645 (T)
15.3 DISCOVERY BY PERSONS NOT PARTIES TO THE PROCEEDINGS
Where a registered company as defined in the Road Accident Fund Act No.
56 of 1996 is a party to an action, any party may obtain discovery against
the driver or owner of the vehicle insured by such company. The same applies
to the driver of a vehicle that is owned by a person, State, government, or
body as defined in the abovementioned Act. Where the Plaintiff sues as a
company, the Defendant has the same rights against the cedent as
mentioned above.
See Rule 35(5) and Rule 38(1)(b).
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15.4 FAILING TO DISCOVER
If a party fails to make discovery, the other party may apply to the Court for
an order to compel discovery. If discovery is insufficient, the other party
must first make use of Rule 35(3) and if the other party still fails to make
discovery, the Court may order sufficient discovery and, at further default
thereof, the Court may upon application strike out the claim or defence. (Rule
35(7)).
Any party to any proceeding may at any time before the hearing thereof
deliver a notice as near as may be in accordance with Form 15 of the first
schedule to the Uniform Rules of Court to any other party in whose pleadings
or affidavits reference is made to any document or tape recording to produce
such document or tape recording for her/his inspection and to permit him to
make a copy or transcription thereof. Any party failing to comply with such
notice shall not, save with the leave of Court, use such documents or tape
recording in such proceedings, provided that any other party may use such
document or tape recording (Rule 35(12)). This sub-rule is applicable in
cases where the documents do not appear in the discovery affidavit. It is
even applicable in applications.
It is essential that the documents be sorted in proper chronological order,
paginated, and supplied with an index. Clear legible copies must be made for
the other party, Counsel, the witnesses, and the Court. Their documents
must be put in order well in advance.
In this regard, it is extremely important that the Attorney should do her/his
work properly. Many High Court cases result in disappointment for the clients
because the Attorney failed to make the necessary arrangements for
discovery in good time.
15.5 RULE 36(6)
In Rule 36(6) of the Uniform Rules, the words “make available” mean to
cause property to be placed at the disposal of or to be accessible to a litigant
requiring its inspection. A litigant is not required to do more than that.
Zandry v Randle Yachts CC 2006 (5) SA 301 (C).
15.6 DISCOVERY BEFORE
PROCEEDINGS
AND
AFTER
COMMENCEMENT
OF
LEGAL
In terms of the Promotion of Access to Information Act No. 2 of 2000, certain
persons have rights of access to records held by the State and of private
bodies in as much as the access is required for exercise or protection of any
rights. This Act has no impact on the discovery procedure and once Court
proceedings begin, access to the information is governed by Uniform Rules
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of Court and the provisions of PAIA are no longer applicable as between the
parties.
See Rule 35(5) and Rule 38(1)(b).
15.7 DISCOVERY REGARDING APPLICATIONS
In terms of the provisions of Rule 35(13) of the Uniform Rules of Court,
discovery does not apply in application proceedings as a matter of course.
Rather, a litigant in application proceedings who sought discovery had to
approach the Court for an appropriate direction. Discovery was made in
application proceedings only in exceptional circumstances. In our new
constitutional dispensation, where parties were able to acquire access to
information in the possession of others before launching application
proceedings, an even stricter approach had to be adopted.
Factors relevant to a determination whether exceptional circumstances
existed were:
1.
The fact that the Court was exercising a discretion in determining the
application.
2.
Principles of fairness and equity.
3.
Whether the Applicant for discovery was the Applicant or the
Respondent in the main proceedings.
4.
The stage of the main proceedings.
5.
The nature of the main proceedings and the evidence already adduced.
6.
The extent of the discovery sought.
SELF-ASSESSMENT QUESTIONS
(a)
Read the following set of facts:
You act for the Defendant in a defended High Court action which is coming to trial
in two months’ time. Shortly after the pleadings had closed, you served a Rule
35(1) notice on the Plaintiff’s Attorneys calling on the Plaintiff to discover. There
has been no response. You need the Plaintiff’s discovery affidavit and an
opportunity to inspect and copy relevant documents you believe are in the Plaintiff’s
possession. Without this opportunity, your client is being prejudiced in her/his pretrial preparation. A letter addressed to the Plaintiff’s Attorney in which you remind
her/him of the request to discover has not elicited any response. As your request
for the Plaintiff’s discovery affidavit have been ignored, you advise your client to
launch an interlocutory application.
Now answer the following questions:
(i)
What is an interlocutory application? (2)
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(ii)
Would you use the:

Short form notice of motion (Form 2); or the

Long form notice of motion (Form 2(a)? (1)
(iii)
Who serves the application? (1)
(iv)
Upon whom is it served? (1)
(v)
Draw the form of order prayed for inclusion in the notice of motion. Omit the
heading, preamble, and the ending of the notice of motion. Begin your
answer with the words “for an order in the following terms:” and restrict your
answer to the form of relief you want the Court to grant your client. (5)
(vi)
Draw the affidavit which will be filed in support of the application. Omit the
heading and the Commissioner of Oaths attestations clause. Do not repeat
the relief which the Defendant seeks in the affidavit. (8)
(vii)
After the close of pleadings, any party to an action may call for discovery. In
appropriate circumstances, a party to an action may call on another party to
make a clearly specified document or tape recording available for inspection
at any time after an appearance to defend has been entered. What are those
circumstances? (1)
(viii) When are pleadings considered closed? (4)
(vix) What is the relevance of Rule 35(14) and how does it differ from the other
discovery provisions? (3)
16.
ENROLMENT
Application for a trial date must be made in writing to the Registrar. The Registrar
then sends lists to the Attorneys in which s/he informs them on which day the trial
will take place. It is the duty of the Plaintiff’s Attorney to give notice to the opponent
and all other parties of the day on which the trial will take place. Such notice must
be given within 10 days after the Registrar has supplied a date.
This notice reads as follows:
“PLEASE TAKE NOTICE that the trial in the abovementioned case is set down for
hearing on the … day of … 20… at (time) or as soon thereafter as the case may be
heard.”
Note that if the Plaintiff fails to set the matter down for hearing within the time
allowed therefor, the Defendant is then entitled to set the matter down for hearing.
Each Provincial Division may have its own rules in this regard.
17.
CASE FLOW MANAGEMENT RULES
In certain divisions, the Courts are adopting a more active role in overseeing pretrial preparation. Directives are issued which require the parties under supervisions
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of a Judge (in terms of Rule 37(8)) to complete all their pre-trial preparations in
order to certify the matter ready for trial, whereupon trial dates are then allocated.
RANGE STATEMENT:
Explain, draft, and perform all actions related to the following pre-trial procedure –
preparation for trial.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Draft a notice requesting the Plaintiff to subject himself to a medical examination.
•
Draft a notice in terms of Rule 36(9)(a) and (b).
•
Draft a notice in terms of Rule 36(10).
•
Explain the importance of proper preparation for trial.
•
Explain the reasons for using an expert witness.
•
Request further particulars in a given set of facts to prepare for trial.
•
Draft a notice in terms of Rule 37(1).
•
Compile a preparation for trial checklist.
•
Hold a pre-trial conference.
•
Explain the procedure to be used when plan, diagrams, photos, models, and
objects are intended for use at the trial.
Erasmus et al: Superior Court Practice
Rules 21, 36, 37 and 38; Example 15
17.1 EXPERT WITNESS NOTICE
No person shall, save with the leave of the Court or the consent of all the
parties to the suit, be entitled to call as a witness any person to give evidence
as an expert upon any matter upon which the evidence of expert witnesses
may be received unless s/he has, not more than 30 days after the close of
pleadings if s/he is the Plaintiff or not more than 60 days after close of
pleadings if s/he is the Defendant, delivered a notice of his intention to do
so. Not more than 90 days after close of pleadings if s/he is the Plaintiff and
not morethan 120 days after the close of pleadings if s/he is the Defendant,
deliver a summary of such expert’s opinion and her/his reasons therefor.
Rule 36(9)(a) and (b). The parties must endeavour to appoint a single joint
expert and file a joint minute.
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17.2 PLANS, PHOTOGRAPHS AND DIAGRAMS
No person shall, save with the leave of the Court or the consent of all the
parties, be entitled to tender in evidence any plan, diagram, model, or
photograph unless s/he has, not more than 60 days after close of pleadings,
delivered a notice stating his intention to do so, and has offered inspection
thereof and required the party receiving notice to admit the same within 10
days of receipt of the notice. (Rule 35).
17.3 INSPECTION
If it appears that the state or condition of any property of any nature
whatsoever, whether movable or immovable, may be relevant with regard to
the decision of any matter in issue in any action, any party may at any stage
give notice requiring the party relying upon the existence of such state or
condition of such property or having such property in her/his possession or
under her/his control, to make it available for inspection or examination, and
may in such notice require that such property or a fair sample thereof
remains available for inspection or examination for a period of not more than
10 days from the date of the receipt of the notice. (Rule 36(6) and (7)).
17.4 MEDICAL EXAMINATIONS
Any party to proceedings in which damages or compensation in respect of
alleged bodily injury is claimed shall have the right to require any party
claiming such damage or compensation, whose state of health is relevant for
the determination thereof, to submit to medical examination. Any party
requiring another party to submit to such examination shall deliver a notice
specifying the nature of the examination required, the person or persons by
whom, the place where and the date (being not less than 15 days from the
date of such notice) and time when it is desired that such examination shall
take place. Any party to such an action may at any time by notice in writing
require any person claiming such damage to make available in so far as he
is able to do so to such party within 10 days any medical reports, hospital
records, medical imaging eg X-ray photographs or other documentary
information of a like nature relevant to the assessment of such damages,
and to provide copies thereof upon request. (Rule 36(1) to (5)).
17.5 INSTRUCTIONS TO COUNSEL
In the event that an Attorney wishes to make use of Counsel in a trial, it is
important that Counsel is briefed as soon as possible in order to reserve
him/her for the trial. The Advocate must receive all relevant documentation
as soon as possible to enable him to properly prepare for the trial.
17.6 ADVICE ON EVIDENCE
If there is any doubt about which evidence must be presented, Counsel can
be briefed for some advice on evidence. The costs of this advice on evidence
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may be taxed as costs between party and party in the event that a cost order
is received. All the pleadings must be submitted to Counsel together with
copies of all statements of witnesses already taken down.
It is also desirable that the brief for advice on evidence is given after
discovery has been made, because Counsel can have insight into the
discovered documents of both parties. Counsel must be urged (and be put in
a position) to prepare the advice well in advance of the trial to enable you to
give effect thereto as part of your pre-trial preparation.
17.7 REQUEST FOR PARTICULARS FOR PURPOSES OF TRIAL
(Van Blerk P63)
After the close of pleadings any party may, not less than 20 days before trial,
deliver a notice requesting only such further particulars as are strictly
necessary to enable him to prepare for trial. Such request shall be complied
within 10 days of receipt thereof by the other party. The request for further
particulars and the reply thereto shall be signed by an Attorney and an
Advocate, or by an Attorney who has the right of appearance in the High
Court, save where the party concerned is litigating in person.
If the party requested to furnish any particulars as aforesaid fails to deliver
it timeously or sufficiently, the party requesting the same may apply to Court
for an order to compel their delivery. Should the party requested to furnish
further particulars still fail to comply with such an order, the Court may be
requested on application to dismiss the action or to strike out the defence.
In order to prevent the abuse of this procedure, the Court shall at the
conclusion of the trial mero motu consider whether the further particulars
were strictly necessary and shall disallow all costs of and flowing from any
unnecessary request or reply, or both, and may order either party to pay the
costs thereby wasted, on an Attorney and client basis or otherwise.
The idea with the request for further particulars for purposes of trial in terms
of Rule 21 is not to elicit evidence but to ascertain what case your client must
meet, e.g., in a case involving the death of a person as a result of a motor
vehicle collision the following are possible examples of questions which may
be put:
AD ACTUARIAL REPORT BY MR J JONES
1.
Is the Defendant prepared to admit the contents of this report?
2.
If not, what is the basis of the denial?
AD PHOTOGRAPHS AND SKETCH PLAN
1.
Does the Defendant rely upon the sketch plan as being correct?
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2.
If not, the Defendant is requested to indicate in what respect the
sketch plan is incorrect.
3.
The Defendant is requested to indicate whether it is going to rely on
the photographs as being correct.
4.
If not, the Defendant is requested to indicate in what respects the
photographs are incorrect.
17.8 THE PRE-TRIAL CONFERENCE (RULE 37)
Within 15 days after a party receives notice of the trial date, s/he shall deliver
a discovery affidavit and within 5 days after the receipt of the said notice,
the Plaintiff shall deliver a notice in which s/he appoints a date, time and
place for a pre-trial conference.
If the Plaintiff fails to do this, the Defendant may deliver such a notice within
30 days after the expiration of the period of 5 days in which the Plaintiff
should have delivered such notice.
Not later than 10 days prior to the pre-trial conference, each party shall
furnish every other party with a list of:
•
the admissions which he requires;
•
the enquiries which he will direct, and which are not included in a
request for particulars of trial;
•
other matters regarding preparation for trial which s/he will raise for
discussion.
Minutes of the pre-trial conference shall be prepared and shall be signed by
or on behalf of every party.
From these minutes the following shall appear:
•
the date, place and duration of the conference and the names of the
persons present;
•
if a party feels that s/he is prejudiced because another party has not
complied with the Uniform Rules of Court, the nature of such noncompliance and prejudice;
•
that every party claiming relief has requested his opponent to make a
settlement proposal and that such opponent has reacted thereto;
•
whether any issue has been referred by the parties for mediation,
arbitration or decision by a third party;
•
whether the case should be transferred to another Court;
•
which issues should be decided separately in terms of Rule 33(4);
•
the admissions made by each party;
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•
any dispute regarding the duty to begin or the onus of proof;
•
any agreement regarding the production of evidence by way of an
affidavit;
•
which party will be responsible for the copying and other preparation
of documents;
•
which documents or copies of documents will, without further proof,
serve as evidence of what they purport to be, which extracts may be
proved without proving the whole documents or any other agreement
regarding the proof of documents.
Minutes of such a conference shall be prepared by the Plaintiff.
The minutes shall be filed with the Registrar not later than 25 days to the
trial date. (Each division may have its own requirements and time limits in
this regard).
A Judge may, if deemed advisable, at any time at the request of a party or
mero motu call upon the Attorney or Advocates for the parties to hold or to
continue a conference before a Judge in chambers or as has been the practice
in certain divisions the Courts convene a Rule 37(8) conference in Court to
reduce delays occasioned by the preparation for trial, especially in RAF
matters.
Except in respect of an attendance before a Judge, no Advocate’s fees shall
be allowed on a party and party basis in respect of a pre-trial conference
held more than 10 days prior to the hearing.
A Judge in chambers may without hearing the parties order deviation from
the time limits in this rule.
In Rauff v Standard Bank Properties 2002 (6) SA 693 (W) Flemming D
J P refers to the duty to hold the pre-trial conference timeously and to use
the conference to make evidential disputes clear.
17.9 JUDICIAL CASE MANAGEMENT
From 1 July 2019, a new Rule 37A has been operating.
A judicial case management system shall apply at any stage after a notice of
intention to defend is filed:
a)
To such categories of defended actions as the Judge President of any
division may determine in a practice note or directives; and
b)
To any other proceedings in which judicial case management is
determined by the Judge President, of own accord, or upon the request
of a party, to be appropriate.
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The provisions of Rule 37 shall not apply, save to the extent expressly
provided in this Rule, in matters which are referred for judicial case
management.
Each division must draft a practice note or directives as to how this Rule will
operate in that division. See an example of such a directive that was issued
in the Gauteng Division, Pretoria and the Gauteng Local Division,
Johannesburg which took effect from 1 July 2019 as issued by the Judge
President of the Gauteng Division D Mlambo. This directive can also be
observed in terms of how the trial certification process works. It must be
noted in particular that the Judge will require the parties to agree and record
the triable issues.
17.10 HINTS ON DRAFTING
17.10.1 One of the matters referred to above and which requires to be
addressed at the pre-trial conference and in the pre-trial minutes is
whether the matter should be referred to mediation.
17.10.2 Attorneys should not gloss over this aspect and merely reply in the
negative. They should give specific consideration to the possibility
of mediation in appropriate cases.
17.10.3 In the matter of unreported case of Brownlee v Brownlee South
Gauteng High Court case number 2008/25274, Brassey AJ
made the following comments in his judgment dated 25 August
2009:
•
“One of the matters that must be considered in a pre-trial
conference is whether the dispute should be referred for
possible settlement by mediation. In the present case the
legal representatives of the parties had no hesitation in
answering this question in the negative. (paragraph 49)
•
Mediation can produce remarkable results in the most
unpropitious of circumstances, especially conducted by one
of the several hundred people who have been trained in the
process. The success of the process lies in its very nature.
(paragraph 50)
•
If mediation is appropriate in commercial cases how much
more apposite in family disputes. (paragraph 52)”.
SELF-ASSESSMENT QUESTIONS
(a)
Describe what remedy your client has, in the following circumstances:
(i)
The Defendant failed to file his plea within the prescribed period. (1)
(ii)
You have requested further particulars for the purpose of trial and the
Defendant fails to supply it. (1)
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(b)
(iii)
The Plaintiff’s claim has prescribed. (1)
(iv)
You want to change the amount which you claimed for in your summons. (1)
You act for a shopkeeper who is being sued for damages in the High Court arising
from personal injuries allegedly suffered by a Plaintiff who slipped and fell in your
client’s shop.
(i)
Describe the document that the Plaintiff’s Attorney will have to file before the
hearing in order to be able to lead evidence to establish the quantum of the
Plaintiff’s claim. When should it be filed? (4)
(ii)
Your client tells you that he is suspicious of the integrity of the medical
Practitioner that the Plaintiff has consulted, and he suspects that the
Practitioner and the Plaintiff may have conspired with each other to
exaggerate the severity of the Plaintiff’s injuries. What steps can you take?
(2)
(iii)
Your client tells you that the floor in the part of the shop in which the Plaintiff
fell has since been altered, but before it was altered, he took photographs of
it. You feel that if the Court were to see the photographs it would show that
the Plaintiff’s claim is improbable. What steps would you take to use the
photographs in the conduct of your client’s case? (2)
(c)
What is the fundamental purpose of the Rule 37 pre-trial conference? Very briefly
explain your answer. (3)
(d)
Who must attend the pre-trial conference? (1)
(e)
Who must sign the minutes of the pre-trial conference? (1)
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18.
GENERAL PREPARATION FOR TRIAL
RANGE STATEMENT:
Explain, draft, and perform all actions related to general preparation for trial.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain which witnesses may be consulted and when.
•
Explain why issues such as quantum and merits are separated for purposes of trial.
•
Index and paginate a Court file.
•
Subpoena a witness.
•
Brief Counsel for purposes of trial.
Erasmus et al: Superior Court Practice
Rule 38 and 62
18.1 THE GOLDEN RULE
Preparation must be done fully and timeously, as early as is reasonably
possible.
18.2 CONSULTATION WITH WITNESSES
Consultations with the client or witnesses must be thorough. It means that
all relevant facts must be discussed, particularly facts that may be
detrimental to the client’s case.
It is improper to tell a person who is interviewed what to say, or to bring him
under the impression that his version must be coloured in a specific way.
Some people may be under the impression that during such a consultation
their evidence will be groomed to sound good. In such a case it is the duty
of the Attorney to inform the person that it is expected of him to speak only
the truth.
The Attorney must at all times be aware that s/he acts as an officer of the
Court and may under no circumstances be a party to the distortion of
evidence or the production of false evidence.
The foregoing does not mean that the version of a witness may not be tested
against other known facts or the objective probabilities. The process,
however, remains a search for the truth.
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18.3 CONSULTATION WITH WITNESSES OF THE OPPOSING PARTY
The general principle is that the litigant’s legal representatives are entitled
to consult with any persons whom they believe are in possession of
information that will help the client in the preparation or presentation of
her/his case.
This right is not taken away from the legal representative of the litigant
merely because the other party has already summoned such a person to give
evidence in the case or because he has already been consulted with.
The only restrictions to this right are the following:
•
Where the trial has already started, but before the person has given
evidence, s/he may not be consulted with until the legal
representative/s of the other party has been given adequate notice of
the proposed consultation. Should the legal representative/s of the
opposition object to the proposed consultation, such objection does not
prevent the consultation and the legal representatives of the other party
are not entitled to be present at the consultation.
•
Where the trial has already started and a person has already given
evidence for the opposition in the matter, such person may only be
consulted with if the legal representative/s of the opposition are
adequately informed of the proposed consultation. In such a case the
legal representative/s of the opposition are entitled to be present at the
consultation unless they have waived such right. A mere objection to
the consultation is, however, no impediment.
18.4 STATEMENTS OF WITNESSES
In general, it is permissible for Legal Practitioners to take statements from
proposed witnesses, but as a rule no affidavits should be taken, except where
it is necessary in cases where evidence must be adduced on affidavit.
18.5 SUBPOENAS (RULE 38)
Any party desiring the attendance of any person to give evidence at the trial,
may as of right issue a subpoena for that purpose, as near as may be in
accordance with Form 16 of the First Schedule to the Rules, containing the
names of not more than four persons.
Service of a subpoena must be effected by the Sheriff in the prescribed
manner.
If a witness has in his/her possession or under his/her control any deed,
instrument, document, or object which the party requiring his/her
attendance desires to produce in evidence, the subpoena must be in
accordance with Form 16A and specify such document or object and require
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him/her to produce it to the Court at the trial. Such a subpoena is called a
subpoena duces tecum. Such a witness shall hand over the deed, etc. to
the Registrar as soon as possible and thereafter the parties may inspect it
and make copies of it.
Whenever any person subpoenaed to attend any civil proceedings as a
witness fails without reasonable excuse to obey the subpoena and it appears
from the return of the Sheriff that the subpoena was served upon the person
to whom it is directed and that his/her reasonable expenses (calculated in
accordance with the prescribed tariff framed under Section 42(1) of the
Supreme Court Act No. 59 of 1959 (repealed)), have been paid or offered to
him/her, or if he fails to remain in attendance, the Court may issue a warrant
directing that s/he be arrested and brought before the Court at a time and
place stated in the warrant.
18.6 SEPARATION OF ISSUES – RULE 33
If it appears to the Court that there is a question of law or of fact that may
conveniently be adjudicated before evidence is led or separately from any
other question, the Court may mero motu and shall on application of any
party, direct a separation of issues unless it appears that the issue cannot
conveniently be decided separately.
Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E).
In the case of an action in terms of the Compulsory Motor Vehicle Insurance
Act No. 56 of 1972 or the Motor Vehicle Accidents Act No. 84 of 1986, or the
Multilateral Motor Vehicle Accidents Fund Act No. 93 of 1989, or the Road
Accident Fund Act No. 56 of 1996, and on application of a party to such action
that the question of liability (the merits) be decided separately, a Court can
decide to separate the adjudication of the merits and the determination of
the quantum, unless it appears that the question cannot be conveniently
decided separately.
The application of the abovementioned Rule was examined in the Local
Transitional Council of Delmas and Another v Boshoff 2005 (5) SA
514 (SCA):
The following considerations, which are not exhaustive, should be kept in
mind when considering an application for a separation of issues:
18.6.1 A thorough evaluation of the pleadings should be undertaken to
determine what the issues are.
18.6.2 Having determined the issues, consider whether there are issues
which may conveniently be decided separately and which, if dealt
with separately, will shorten the duration or facilitate determination
of the action.
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18.6.3 In making this determination, the litigant must keep in mind the
nature of the cause of action and/or defence relied on, and the
various elements required to be proved or disproved.
Practical consideration such as the length of the trial of all issues are dealt
with at once, as opposed to one where the separation as ordered, should also
be considered.
See the Article “Separation of Issues in Terms of Rule 33(4)” by Van
Loggerenberg, Dicker and Malan De Rebus August 2005 at page 30.
18.7 PREPARATION OF COURT PAPERS
It is the duty of the Plaintiff’s Attorney to arrange, paginate and bind together
all delivered papers and to deliver a complete index thereof at least five days
before the hearing. See Rule 62(4). In practice it means the following:
•
all pleadings are bound together and numbered consecutively in one
bundle and then such bundle is indexed.
•
all notices which are filed at Court are bound together and numbered
consecutively and then the bundle concerned is also indexed.
•
copies of both indexes must be served on the other party.
•
handwritten annexures to pleading or notices should be retyped for
easy legibility. If voluminous, the Rule 36(9) summaries should be
bound, paginated, and indexed. There are significant changes to Rule
36(9) which may be dealt with here.
•
if at a trial a variety of other documentation is going to be used (e.g.,
correspondence or other documentary proof) such papers must be
bound together in a bundle, numbered consecutively and provided
with a separate index.
Again, certain divisions may have directives regarding the preparation of the
Court file, the preparation of indexes prior to the allocation of trial dates.
Failure to see to it that the Court file is indexed and paginated in time may
cause the Court to strike the case from the roll with an order for costs against
the Plaintiff. It may also cause the Court to order the Attorney of the Plaintiff
to pay the wasted costs out of his own pocket. Each division also has
directives of how the bundles must be compiled, when the Court file should
be finalised and finally enrolled, and which directives must be consulted.
18.8 EVIDENCE ON COMMISSION
A Court may, on application on notice, in any matter where it appears
convenient or necessary for the purpose of justice, make an order for taking
the evidence of a witness before or during the trial before a Commissioner.
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18.9 EVIDENCE ON AFFIDAVIT
A Court may at any time, on good cause shown, order that all or any of the
evidence be given on affidavit instead of witnesses appearing at the trial to
give oral evidence. Where it appears to the Court that the other parties
reasonably require the attendance of a witness for cross-examination, and
such a witness can be produced, the evidence of such witness shall not be
given on affidavit. (Rule 38(2)).
This procedure is, however, limited and is usually only applicable when it is
impossible or very inconvenient for a witness to attend the Court proceedings
and where his evidence shall be merely formal in nature.
18.10 CONSOLIDATION OF ACTIONS
Where separate actions have been instituted and it appears to the Court
convenient to do so, it may upon the application of any party thereto and
after notice to all interested parties, make an order consolidating such
actions, whereupon the said actions shall proceed as one (Rule 11).
The provisions of Rule 10 will apply in such a case with the necessary
alteration and the Court may make any order, with regard to the further
proceedings.
The Court may give one judgment disposing of all matters in dispute in the
said action.
18.11 INSTRUCTIONS TO COUNSEL
In the event that an Attorney wishes to not conduct the trial himself but brief
Counsel, Counsel must be provided with complete instructions for purposes
of the trial. It is improper to send only the Attorney’s office file to the
Advocate.
Counsel’s brief must contain at least the following:
•
copies of all pleadings;
•
copies of all statements of witnesses’ copies of all relevant
documentation;
•
copies of all expert notices and summaries of expert evidence
•
copies of discovery affidavits of both parties;
•
copies of all relevant documentation discovered by the opposition;
•
copies of all relevant correspondence exchanged between the different
Attorneys having a bearing on the points in issue, copies of all previous
opinions and memoranda drafted by Counsel;
•
a copy of the advice on evidence if it has already been prepared.
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18.12 INTERPRETERS
It has to be kept in mind that it is the duty of every Attorney to see to it that
there is an interpreter available during the trail should one or more witnesses
not be able or prepared to testify in Afrikaans or in English, or any other
language in which the witness will testify in.
SELF-ASSESSMENT QUESTIONS
(a)
For the hearing of the application for appointment of a curator bonis after receipt
of the curator ad litem’s report you are requested to draft a comprehensive index
for the contents of the Court file. When answering this question Candidates must
prove that they know what an index looks like, as well as which documents and
annexures will be present in the Court file. You may omit the headings. (12)
(b)
Your client is the holder of a cheque dated 12/2/2019 drawn by Smith Brothers, a
partnership, on the Standard Bank of South Africa, Bloemfontein Branch. It was for
an amount of R180,000.00 and deposited on 13/2/2019 in your client’s account
held at ABSA, Cape Town. From the endorsements on the front and reverse sides
of the cheque you see that the cheque was presented for payment on 14/2/2019
and dishonoured on the same day because of lack of funds. You decide to use the
provisional sentence summons. You have followed all the steps and are ready for
trial. Draft a brief to Counsel instructing him to represent your client in this matter.
(10)
19.
THE TRIAL – ATTORNEY’S DUTIES
It is once again emphasised that it is the duty of the Attorney to support the
Advocate in the conduct of the trial. For this reason, the Attorney or at least his
Candidate Attorney ought to be present during the course of the whole trial. The
Attorney should have a thorough knowledge of the facts of the case, the law
involved and the relevant rules of evidence and procedures. The golden rule in any
Court proceedings is that the Attorney must be fully prepared.
So-called “brilliant questions” or “clever arguments” are never discovered or
formulated in Court – they are the result of preparation, preparation and more
preparation before the trial. Always understand the difference between a clever
argument and a wise argument. In broad terms, an Attorney would conduct his
client’s case and put forth clever arguments. The Judge however will dispense
justice on the basis of a wise argument, and it behoves a Legal Practitioner to
include wise argument in his presentation of the case to the Court.
What orders may a Court give at the end of a trial?
•
Judgment in favour of the Plaintiff as prayed or determined by the Court.
Dismiss the Plaintiff’s claim in toto or as determined by the Court.
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•
Grant absolution from the instance. Carmichele v Minister of Safety and
Security and Another 2001 (1) SA 489 (SCA) and thereafter reported
under reference 2001 (4) 938 CC.
•
Grant judgment on or dismiss counterclaim.
In the matter Four Wheel Drive Accessory Distributors CC v Rattan NO 2019
(3) SA 451 (SCA) (26 September 2018) the Court held that judgment must be
confined to issues raised by the parties, and the Court should not decide issues
irrelevant to the outcome of the case.
Erasmus et al: Superior Court Practice
Rules 34 and 34A
20.
SETTLEMENT OFFERS AND INTERIM PAYMENTS
20.1 THE SETTLEMENT OFFER
The words “payment in Court” have fallen into disuse. The term “settlement
offer” is now used. When the Defendant tries to settle a case, s/he does not
pay the money to the Registrar. S/he makes a settlement offer either
unconditionally or without prejudice. The settlement offer is signed either by
the Defendant personally or by his/her Attorney if s/he has been authorised
thereto in writing by his/her client.
20.2 A SETTLEMENT OFFER MAY READ AS FOLLOWS
“Please take notice that in terms of the written authorisation of the Defendant, the
amount of R50 000.00 is hereby offered together with the taxed costs to date, without
prejudice to the Defendant’s rights, in full and final settlement of the Plaintiff’s claim.”
20.3 AN UNCONDITIONAL OFFER OF SETTLEMENT
If the offer is made unconditionally with regard to the entire claim, the
opposite party may accept it. The litigation comes to an end.
Note that an unconditional offer may also be made in respect of part of the claim. The
opposite party may accept this offer and still continue with litigation in respect of the
balance of the claim.
20.4 SETTLEMENT OFFER WITHOUT PREJUDICE
This offer means that the party who makes the offer denies liability. The offer
is made only to try and settle the case out of Court. If the opposite party
accepts this offer, litigation comes to an end, and s/he cannot continue with
litigation for the balance of the claim.
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20.5 THE ACCEPTANCE OF THE OFFER
The party to whom the offer or tender is made is entitled to accept it within
15 days after receipt of notice thereof. After 15 days have expired, the offer
may be accepted only with the written consent of the party who made the
offer. The Court may also, under certain circumstances, authorise the party
to whom the offer or tender was made to accept it after 15 days have
expired.
Note that an offer that is made without prejudice may not be disclosed to the Court. In
practice this means that the notice that contains the offer may not be in the Court files
when the case is set down for hearing.
The aim of the offer made without prejudice is not only to bring litigation on
an early end, but also to protect the party who makes the offer against costs
should the opposite party not accept the offer and a lower amount is
subsequently granted by the Court.
Should the offer not be accepted, the trial continues in the usual way. After
judgment has been granted, the contents of the offer may be disclosed to
the Court in order to request the Court to reconsider its order as to costs in
the light of the offer that was made, and the amount ultimately awarded by
the Court.
20.6 INTERIM PAYMENTS (RULE 34A)
20.6.1 General
In an action for damages for personal injuries or the death of a
person, the Plaintiff may, at any time after the expiry of the period
for the delivery of the notice of intention to defend, apply to the Court
for an order directing the Defendant to make an interim payment in
respect of his/her claim for medical costs and loss of income arising
from his/her physical disability or the death of a person. Such order
can only be made if the Court is satisfied that:
•
the Defendant has in writing admitted liability or the Plaintiff
has obtained judgment on the merits for damages, the
quantum of which is still to be determined, and
•
the Defendant is covered by insurance or has the means to
enable him to pay.
20.6.2 Procedure
In the supporting affidavit to such application the following must be
set out:
•
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the grounds for the application;
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•
the amount claimed;
•
any documentary proof relied upon an allegation that the
opposite party admitted liability in writing;
•
or that the Plaintiff has obtained judgment against the
Defendant for damages to be determined. A copy of the written
admission of liability or Court order must be attached to the
affidavit. (Rule 34A(4)).
An allegation that the Defendant is insured in respect of the Plaintiff’s
claim or that he has the means at his disposal to enable him to make
such a payment. (Rule 34A(5)).
20.7 HINTS ON DRAFTING
20.7.1 Attorneys must be particularly careful in regard to settling matters if
the client is not present or does not sign the settlement agreement
personally.
20.7.2 Too many instances occur where a client expresses gratitude when a
matter is settled, thereby possibly obviating a Court appearance only
to have the gratitude replaced with anger and recrimination when
she/he is called upon to pay in terms of the settlement.
20.7.3 The client should always sign the deed of settlement or give a written
mandate thereto, if need be, by fax or e-mail or SMS.
21.
AMENDMENTS TO PLEADINGS AND DOCUMENTS
RANGE STATEMENT:
Explain, draft, and perform all actions related to amendment to pleadings and
documents.
SECTION OUTCOMES:
After completing this Section, you should be able to:

Distinguish between a pleading and a document.

Explain the procedure to be followed to amend a document.

Draft an amendment to summons in a given set of facts.

Draft an objection to the amendment.

Draft an application for amendment.

Follow the procedure to correct an affidavit.

Discuss the principles regarding amendment to new cause of action, substituted
parties, withdrawal of an admission.
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Erasmus et al: Superior Court Practice pp D1 – 329 to D1 – 338A Rule 28.
21.1 GENERAL
A variety of reasons may exist why a pleading or a document (not an
affidavit) must be amended, e.g., the amount claimed in the summons is
wrong or a material allegation in the plea is omitted.
Should an affidavit have to be rectified, a supplementary affidavit has to be
made in which the error is rectified, or further allegations are made.
The relevant rule distinguishes between a pleading and a document, which
does not include an affidavit.
Pleadings include the following: a simple summons, a declaration, a
combined summons, a plea, a claim in reconvention, a request for further
particulars for purpose of trial and the answer to that, a replication and a
rejoinder and the other pleadings referred to above.
Documents include annexures to the pleading and notices. With regard to
notices, it also includes the annexures, e.g., a summary of an expert’s
opinion and his/her reasons for it.
21.2 PROCEDURE
Any party desiring to amend any pleading or document shall give notice to
all other parties to the proceedings of his intention to amend and shall furnish
particulars of the amendment. Such notice states that unless written
objection to the proposed amendment is made within 10 days the party
giving notice will amend the pleading or document in question. If no such
objection is made, the party who received such notice shall be deemed to
have agreed to the amendment. The other party shall thereupon, within 10
days of the expiration of the period for objection, effect the amendment, by
serving and filing the amended pages. Failure to adhere to the time periods
may result in the amendment failing as not being properly effected.
If objection is made within the said period, which objection must clearly and
concisely state the grounds on which it is founded, the party wishing to
amend may within 10 days of the receipt of such objection apply to Court on
notice for leave to amend and set the matter down for hearing. Unless the
Court directs otherwise, the party who is given leave to amend must effect
such amendment by delivering pages in their amended form within 10 days.
When an amendment to a pleading has been delivered, the other party shall
be entitled to plead thereto or amend consequentially any pleading already
filed by him within 15 days of the receipt of the amended pleading. He may
also raise an exception, bring an application to strike out or file a replication.
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A party giving notice of amendment shall, unless the Court otherwise orders,
be liable to pay the costs occasioned thereby to any other party.
Amendments may also be effected to pleadings or documents at the
commencement of or during the trial.
The general principle is that a party desiring to amend his/her pleading or
document, must give notice thereof as early as possible to the opposite party.
Should an amendment be requested shortly before or during the trial and
such amendment is prejudicial to the opposite party in the conduct of his
case, the Court may grant a postponement on request of the opposite party
and order the party desiring the amendment to pay the wasted costs.
Should a party wish to effect an amendment within 10 days of the
commencement of the trial, the prescribed 10 days for objecting to it can of
course not be allowed. In that case, the notice must state that the
amendment will be requested at the commencement of the trial.
Amendments will normally be allowed unless the application is mala fide or
would cause an injustice to the other side which cannot be cured by an order
as to costs and, where appropriate, a postponement.
•
An amendment that will introduce a new cause of action may in
principle be allowed.
•
An amendment that contains the withdrawal of an admission will only
be allowed by the Court if such admission has been made in error and
there is no prejudice to the other side.
•
The affidavit supporting such an application to amend must contain
evidence of the circumstances under which the admission was made
in error.
Tengwa v Metrorail 2002 (1) SA 739 (C);
Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd 2001 (4) SA 211 (W).
Where the proposed amendment is bad in law and excipiable, the Court will
not grant an amendment.
See: Krischke v Road Accident Fund 2004 (4) SA 358 (W).
In Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 (C)
it was held that although a Court of appeal was in principle empowered to
grant an amendment of the pleadings, this power would be sparingly
exercised, and an amendment would only be allowed in cases where the
Court was satisfied that the other side would not be prejudiced hereby.
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21.3 HINTS ON DRAFTING
21.3.1 Care should be taken when applying for an amendment which would
introduce a new causa so that you do not encounter prescription
problems.
21.3.2 Prescription in regard to the amended causa would run until the date
that the Court grants the amendment (if the Court granted the
amendment), and the prior service of the summons based on the old
causa would not interrupt prescription of the new causa.
SELF-ASSESSMENT QUESTIONS
(a)
The declaration in self-assessment exercise under Unit 7 was drafted by you. After
service thereof, your client instructed you that the oral agreement between your
client and Miss Botha was actually concluded on 6 May…. Draft a Notice of
Amendment in terms of Rule 28 in which you give notice of the proposed
amendment of the declaration. (10)
(b)
Can an affidavit be amended? How do you rectify an error? (4)
22.
INTERLOCUTORY APPLICATIONS
RANGE STATEMENT:
Explain, draft, and perform all actions related to interlocutory applications.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain the concept of interlocutory.
•
Identify and apply the appropriate interlocutory application in a given set of facts.
Rule 6(11)
It must be kept in mind that a Court case often consists not only of a single trial,
but that all kinds of applications may be brought in the course of the litigation
between the parties to give effect to the Rules discussed above. For that matter,
interlocutory relief may be asked for in the course of a case from the issuing of the
summons to the final hearing of the case.
The term interlocutory refers to an application which arises between the beginning
and the end of a lawsuit or proceeding to either decide a particular point, or matter
that is not the final issue of the entire controversy or prevent irreparable harm
during the pendency of the lawsuit.
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Rule 6(11) deals with interlocutory applications which are described as 'applications
incidental to pending proceedings.' An application is incidental to pending
proceedings if it is subordinate or accessory to while at the same time being distinct
from the main proceedings.
Interlocutory applications are brought on notice supported by such affidavits as the
case may require and are set down at a time assigned by the Registrar or as
directed by a Judge.
Interlocutory and other applications incidental to pending proceedings need not be
served by the Sheriff. Service may be effected upon the Attorney of record of the
Respondent by the party initiating the proceedings.
The provisions of the Rules relating to the time for filing answering and replying
affidavits do not apply to interlocutory applications. Further affidavits in
interlocutory applications must be filed within a reasonable time; prima facie in
the absence of special circumstances, this would not be longer than the times
prescribed in terms of Rule 6(5).
Examples of interlocutory applications include applications to compel discovery,
applications to compel a reply to a request for further particulars and applications
for maintenance pendente lite.
23.
SECURITY FOR COSTS
RANGE STATEMENT:
Explain, draft, and perform all actions related to security for costs.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Indicate when security for costs can be requested and when.
•
Discuss the consequences of non-compliance with a request for security for costs.
•
Draft an application requesting security for costs.
Erasmus et al: Superior Court Practice
Rule 47: Section 13 of the Companies Act No. 61 of 1973 read with the new Companies
Act No. 71 of 2008
23.1 WHAT DO THE RULES STIPULATE?
The party entitled and desiring to demand security for costs from another
shall, as soon as practicable after the commencement of proceedings, deliver
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a notice setting forth the grounds upon which such security is claimed, and
the amount demanded. (Rule 47(1)).
A substantial delay in applying for security may warrant a refusal thereof by
the Court.
See ICC Car Importers (Pty) Ltd v A Hartrodt SA (Pty) Ltd 2004 (4) SA 607 (W).
If the amount of security is contested, the Registrar shall determine the
amount. (Rule 47(2)). If the party refuses to furnish security, the other party
may apply to Court on notice for an order that such security be given and
that the proceedings be stayed until such order is complied with (Rule 47(3)).
The following could act as a guideline for the usual order requested by the
Applicant:

The Respondent is directed to furnish the Applicant with security for
costs in an amount to be determined by the Registrar. The
Respondent’s claim under case number XYZ/2007 is stayed until such
time as the Respondent has furnished the aforesaid security for costs.

The Applicant is granted leave to approach this Court on the same
papers, duly supplemented where necessary, to seek a dismissal of
the Respondent’s claim, with costs, in the event that the Respondent
does not furnish the required security within 30 days of the
Registrar’s determining the quantum of that security.

That the Respondent pays the costs of the application.
Note that the Rules do not indicate in which case one party is entitled to demand security
from another, but that the Rules only indicate the procedure to be followed when security
is applied for.
In an application for security for costs against a company Plaintiff, the
discretion to order such security is vested in the Court and such discretion is
to be exercised with due regard to the right of access to Court guaranteed
by Section 34 of the Constitution. On the one hand, the Court would weigh
the potential injustice to the Plaintiff or Applicant if it was prevented from
pursuing a legitimate claim. On the other hand, the Court would consider the
potential injustice to the Defendant if it succeeded in its defence but could
not recover its costs.
See Jiddey No v J C Barnard and Partners 2007 BCLR 125 (CC).
The probability that a company would be unable to meet an adverse costs
order did not justify the inference that it would be unable to furnish security,
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as these were different issues. – MTN Service Provider (Pty) Ltd v Afro
Call (Pty) Ltd 2007 (6) SA 620 SCA.
23.2 WHEN MAY SECURITY FOR COSTS BE DEMANDED?
23.2.1 Actions by peregrini
Where the Plaintiff or Applicant either in convention or reconvention
is a peregrinus of the Republic and does not own unmortgaged
immovable property in the Republic, the Defendant or Respondent is
entitled to demand security for the costs for the action from the
Plaintiff or Applicant. Where the peregrinus is however domiciled
in the RSA and such domicile has a fair measure of permanency,
he/ she should in this context not be deemed to be a peregrinus.
(See Alam v Minister of Home Affairs 3414/2010 ZAECPEHC
12 (16 February 2012)).
23.2.2 Actions by a company or close corporation
Section 13 of the Companies Act No. 61 of 1973 made provision for
a Defendant to request a company or close corporation to provide
security for costs if there was reason to believe that the company or
its liquidator would be unable to pay the costs of the Defendant or
Respondent if successful in his/her defence. The new Companies Act
No. 71 of 2008 does not have a similar provision.
At common law an incola company could not give security for costs
of proceedings and there was no exception to this rule.
In Haitas v Port Wild Props 12 (Pty) Ltd 2011 (5) SA 562 (GSJ)
at 565H- 565B, the Court, relying on its inherent power to regulate
it on process and develop the common law and taking into account
the interest of justice held that Courts should not hesitate to order
such a party to file security for costs, stressing however that each
case should be decided on its own facts.
In Ngwenda Gold (Pty) Ltd v Precious Prospect Trading 80
(Pty) Ltd unreported GSJ case 2011/31664 dated 14
December 2011 Van der Merwe AJ disagreed with the Haitas case
and dismissed the application for costs.
For analysis of this uncertain position see D E van Loggerenberg and
J Malan (Security for Costs by Local Companies (2012) 75 THRHAR
609) who contend that both Haitas and Ngwenda were wrongly
decided and that the absence of a provision similar to Section 13 of
the previous Act was probably the result of an oversight on the part
of the legislator, which contention is strengthened by the fact that
the legislator left Section 8 of the Close Corporations Act No. 69 of
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1984 intact and unaffected in framing the new Act, and that
legislative intervention was necessary to rectify the situation.
The matter has now been determined by the SCA: Boost Sports
Africa Pty Ltd v South African Breweries Pty Ltd 2015 (5) SA
38 SCA. Both companies and closed corporations can, given the
relevant circumstances, be ordered to provide security.
23.2.3 Actions by insolvent
An insolvent who acts as the Plaintiff or the Applicant may be ordered
to furnish security for costs of the action or application. The Court
will not ordinarily give such an order unless the Defendant or
Respondent can prove that the action or application is reckless or
vexatious.
23.2.4 Vexatious or reckless
This occurs when there is an abuse of the Court process. Examples
would be where the action is obviously unsustainable or where
proceedings are employed for an ulterior purpose.
23.3 WHAT HAPPENS IF THE SECURITY IS NOT GIVEN?
The Court may, if security is not given within a reasonable time, dismiss any
proceedings instituted or strike out any pleadings filed by the party in default,
or make such other order as complied with (Rule 47(3)).
23.4 RULE 47A
A person to whom legal aid is rendered by the Legal Aid Board is not
compelled to give security for the costs of the opposing party unless the
Court directs otherwise.
See Article “Applications for Security for Costs” by Van Loggerenberg, Dicker
and Malan (De Rebus August 2007, 28).
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23.5 AN EXAMPLE OF THE POSSIBLE WORDING OF A NOTICE IN TERMS OF
RULE 47(1) IS THE FOLLOWING
•
“KINDLY TAKE NOTICE that the Respondent hereby demands security for costs
from the Applicant in the amount of R250 000,00 (Two Hundred and Fifty
Thousand Rand).
•
TAKE NOTICE FURTHER THAT the amount of R250 000,00 (Two Hundred and
Fifty Thousand Rand) is a reasonable estimate of the costs which the Respondent
would incur and for which the Applicant would be liable should the above
Honourable Court rule in favour of the Respondent and award costs in favour of
the Respondent.
•
TAKE NOTICE FURTHER THAT the Respondent is entitled to request security
for costs on the basis that, inter alia (here you will set out the grounds for the
request for security).”
SELF-ASSESSMENT QUESTIONS
(a)
Briefly discuss Rule 47 of the Uniform Rules of Court. (8)
(b)
Using imaginary facts, draft a notice in terms of Rule 47(1) of the Uniform Rules of
Court. (10)
(c)
Briefly list the power that a Court has at the end of a trial in a case where security
for costs have been requested. (8)
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24.
PROCEDURE FOR PROVISIONAL SENTENCE
RANGE STATEMENT:
Explain, draft, and perform all actions related to the procedure for provisional sentence.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Indicate when a provisional sentence summons will be issued.
•
Explain the procedure for bringing an application for provisional sentence and
opposing one.
•
Explain the various orders that a Court can make with regard to provisional
sentence.
•
Draft the particulars of claim for provisional sentence in a given set of facts.
•
Draft an opposing affidavit to a provisional sentence application.
•
Prepare a brief to Counsel for an unopposed or opposed application for
provisional sentence.
Erasmus et al: Superior Court Practice
Rule 8 and Examples 6 and 16
De Rebus June 2003 p29-31: A step-by-step summary
Joffe
Provisional sentence is a hybrid procedure containing elements of both action and
motion procedure. It is instituted by way of summons but adjudicated on affidavits.
The summons must allege all facts necessary to find a cause of action and the
Defendant must be informed of the consequences of the failure to pay the amount
claimed and the right to demand security for the restitution thereof if the amount
is paid.
The summons must not contain the underlying facts and the causa must be drafted
and be based on the causa arising from the bill of exchange.
24.1 WHEN IS THIS PROCEDURE USED?
It is a special form of summons (Form 3). It is only used where the cause of
action is based on a liquid document.
A liquid document may be generally defined as a written instrument signed
by the Defendant or her/his agent evidencing an unconditional
acknowledgment of indebtedness in a fixed sum on money (Jones v Kok
1995 (1) SA 677 (A) at 685J). There are documents which do not comply
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with this definition but on which provisional sentence may nevertheless be
granted, e.g., an architect’s certificate, which is referred to below.
Do not confuse the concept liquid document with the concept “liquidated
claim”. A liquidated claim is a claim for something specific, e.g., ejectment,
or delivery, or payment of R150 000.00. (A claim for damages is usually not
a liquidated claim because the Court still must determine the quantum
thereof).
24.2 EXAMPLES OF DOCUMENTS THAT MAY BE LIQUID DOCUMENTS
24.2.1 A written acknowledgment of debt
This is usually a liquid document provided that it is clear from the
document itself that all the conditions as discussed above are
complied with.
24.2.2 Negotiable instruments
Bills of exchange and promissory notes are usually liquid documents,
provided that the Plaintiff can prove that s/he is the holder thereof.
24.2.3 Judgments
Provisional sentence may be granted on a judgment of the
Magistrate’s Court or on a foreign judgment, provided that a copy of
the Magistrate’s Court judgment and, in the case of a foreign
judgment, a certified copy duly authenticated, is attached to the
provisional sentence summons.
See Blanchard, Krasner & French v Evans 2004 (4) SA 427
(W).
24.2.4 Mortgage bonds
A mortgage bond must be approached carefully. Usually covering
bonds stipulate that the mortgagor acknowledges indebtedness up to
a specified maximum amount. It does not necessarily imply that the
mortgage lent and advanced an amount equal to the maximum. If
the extent of the mortgagor’s liability is to be determined by another
document, e.g., certificate by a bank, the covering bond will not be
a liquid document. The particular document must be analysed to
determine whether it complies with the requirements of a liquid
document or not.
24.2.5 Deeds of sale
These should also be carefully considered. Not every deed of sale is
necessarily a liquid document. Deeds of sale are reciprocal
agreements which place an obligation on the seller to deliver and an
obligation on the purchaser to pay. Usually, the purchaser is only
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liable for payment after the seller has delivered. This means that
liability (in contrast with payment) is subject to a condition. It is not
a “simple condition” for the purposes of provisional sentence.
See: Rich and Others v Lagerwey 1974 (4) SA 748 (A).
24.2.6 Architect’s certificate
An architect’s certificate given under a building contract is usually a
liquid document. It must be stressed once again that the nature and
content of the document concerned must be analysed properly to
determine whether it is really a liquid document or not. In the case
of an architect’s certificate, the building contract pursuant to which it
was given, must also be attached to the provisional sentence
summons.
Keep in mind that a Plaintiff may decide to use a simple or even combined summons
when his cause of action rests upon a liquid document. Usually, however, the provisional
sentence summons is used as the provisional sentence procedure has many advantages
for the Plaintiff. Examples of liquid documents that are most common are amongst
others, mortgage bonds.
24.2.7 A lease agreement
See Woolfsons Credit (Pty) Ltd v Holdt 1977 (3) SA 720 (N).
24.3 WHAT DOES THE SUMMONS LOOK LIKE?
Rule 8(1) provides that the example, as set out in Form 3 of the first
schedule, must be used.
The wording of the instruction in the Form, “here set out the cause of action”
could read as follows:
‘(amount) together with interest thereon at the rate of ..........% per annum a tempore
morae, claimed by the Plaintiff as being an amount due and payable by Defendant to
Plaintiff by virtue of a cheque dated .......... drawn by Defendant on the ...............bank
...............(address) in favour of the Plaintiff and of which cheque Plaintiff is the holder.
The said cheque was duly presented for payment at the bank aforesaid where same was
dishonoured by non-payment as a result of lack of funds in the account of Defendant at
the said bank. The said cheque remains unpaid and is in Plaintiff’s possession. A copy
of the said cheque is annexed hereto marked’.
(Also take note that cheques have become something of the past now
in South Africa, but civil and criminal litigation is still possible on
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them. Note that the prescription period for claims based on cheques
is six years.)
The form has to be adapted to meet the circumstances of each particular
case.
A copy of the liquid document must be attached to the completed summons
form.
It must be emphasised that Rule 8(3) provides that copies of all documents
upon which the claim is founded shall be annexed to the summons and
served with it. If there is a nexus between the documents, e.g., in the case
of a building contract which stipulates that the certificate of an architect is
sufficient to prove the amount to be paid to the building contractor, all the
relevant documents must be attached, i.e., the building contract as well as
the architect’s certificate.
A photocopy of the liquid document must be attached to the summons. The
front and reverse sides must be photocopied. It is dangerous to attach the
original documents – they may get lost! The original document is handed up
by Counsel from the bar at the hearing of the application for provisional
sentence, the dies induciae must be calculated accurately and filled in on
the summons form. In some jurisdictions there may be different rules.
If the Defendant is within the jurisdiction of the Court, a minimum period of
10 Court days must expire from the date on which the summons was served.
If the Defendant is outside the jurisdiction of the Court, the provisions of
Section 27 of the Superior Courts Act No. 10 of 2013 apply and 2 weeks (14
calendar days) or one month (30 calendar days) must expire, depending on
the distance between the Courthouse and the place where service is to be
affected. .
24.4 ISSUING AND SERVING
The provisional sentence summons is issued by the Registrar and served by
the Sheriff and the rates relating to issue and service of simple/combined
summons apply.
24.5 ENROLMENT: UNOPPOSED ACTIONS
After the dies induciae have expired, the matter must be set down for
hearing before 12h00 a.m. on the Court Day but one preceding the day upon
which the provisional sentence application is to be heard. Provisional
sentence applications are heard together with the ordinary applications.
For an example of a notice of set down, see EXAMPLE 16 at the end of the
guide.
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When service of the summons was defective or the dies induciae
insufficient, the matter cannot be postponed on the date for which it has
been set down. In such cases it must be removed from the roll and the
summons, with a fresh date of hearing, must be served again. On omission
to set the matter down for hearing on the date appearing in the summons,
the Plaintiff may subsequently set it down for hearing upon service of a notice
of set down.
24.6 CHECKLIST FOR COUNSEL’S BRIEF IN THE CASE OF AN UNOPPOSED
CLAIM FOR PROVISIONAL SENTENCE
The following must be placed in the brief:
•
A copy of the provisional sentence summons.
•
A copy of the return of service.
•
The original liquid document. Where a mortgage bond is relied upon,
the original mortgage bond does not have to be handed in (it is too
precious a document to file in a Court file). A Court will generally
accept a notarially certified copy of the mortgage bond.
•
The notice of set down which at the same time constitutes the draft
order. At the hearing of the application Counsel will usually ask for “an
order in terms of prayers 1, 2, and 3 of the notice of set down.”
24.7 OPPOSED ACTIONS
The Defendant personally or his/her legal representative on his behalf, may
appear in Court and raise his defences; or
The Defendant may file an answering affidavit as s/he is notified to do in the
summons. Where s/he relies on a defence which appears ex facie the
summons or the documents sued on, s/he need not file an affidavit dealing
with the objection.
When such an affidavit is filed, the Plaintiff is permitted to file a replying
affidavit. Only two sets of affidavits will usually be permitted, although the
Court does have discretion to permit the filing of further affidavits if good
cause is shown.
The Defendant may take points in limine on for instance the ground that
the summons does not comply with the Rule. The Defendant may attack the
liquid document by, for instance, alleging that it is not his or her agent’s
signature that appears on the document. S/He may allege that the document
is not liquid. S/He may raise a defence underlying the liquid document by,
for instance, alleging that s/he was released from payment or that the
amount claimed has been paid. The Defendant may raise a liquid or illiquid
counterclaim as a defence. There is a large number of defences that may be
raised by the Defendant.
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24.8 ENROLMENT OF THE OPPOSED CLAIM FOR PROVISIONAL SENTENCE
The application is set down in the manner in which opposed applications are
usually set down. However, the precise procedure may vary between
Divisions.
24.9 CHECKLIST FOR COUNSEL’S BRIEF IN THE CASE OF AN OPPOSED
CLAIM
•
Copy of the summons together with the documents on which the claim
rests.
•
Copy of the return of service.
•
The original liquid document.
•
A copy of the Defendant’s answering affidavit.
•
A copy of the Plaintiff’s affidavit.
•
A copy of the notice of set down.
24.10 WHAT IS THE POSITION WITH REGARD TO THE ONUS OF PROOF IN
THE CASE OF AN OPPOSED CLAIM FOR PROVISIONAL SENTENCE?
Should the Defendant deny the liquidity of the document (e.g., the
authenticity of the signature or the authority of his/her agent), the onus of
proof will rest on the Plaintiff.
Should the Defendant rely on an underlying defence, i.e., a defence on the
merits, the onus of proof will rest on the Defendant.
24.11 WHAT ORDERS MAY THE COURT MAKE?
The Court may:
•
Adjourn the proceedings on good cause shown.
•
Give final judgment.
•
Grant provisional sentence, where the Plaintiff discharged his/her
onus, proof will rest on the Defendant.
•
The Court may refuse provisional sentence. In such a case the
Defendant is usually ordered to file a plea within a stated time. The
Court may make a suitable order as to costs.
•
The effect of a provisional sentence is that the Defendant may only
enter into the principal case if s/he has satisfied the amount of the
judgment and taxed costs or if the Plaintiff on demand fails to furnish
security in terms of Rules 8(9) and 8(10).
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The Plaintiff shall on demand furnish the Defendant with security de
restituendo to the satisfaction of the Registrar against payment of the
amount due under the judgment. (Rule 8(9)).
The Defendant must deliver a notice of his intention to enter into the principal
case within two months of the granting of provisional sentence. Should s/he
fail to do this, the provisional sentence automatically becomes final after two
months (Rule 8(11)).
The Plaintiff may, at any time after provisional sentence has been granted,
issue a warrant of execution against the Defendant. If the Defendant against
whom provisional sentence has been granted notified the Plaintiff of his/her
intention to enter into the principal case but fails to deliver his plea within 10
days thereof, the provisional sentence automatically becomes final (Rule
8(11)).
24.12 PROVISIONAL SENTENCE IS NOT APPEALABLE
The common law does not provide the Defendant with any right of appeal
but classifies a provisional sentence as a pure or single interlocutory order
against which no appeal can lie.
The decision to grant provisional sentence is not final in effect and is
susceptible to alteration by the Court hearing the principal case.
Provisional sentence is not definitive of the parties’ rights and does not
determine the issues between them finally.
See: Avtjoglou v First National Bank of Southern Africa Ltd 2004 (2) SA 453
(SCA)
24.13 EXCEPTION TO PROVISIONAL SENTENCE NOT APPEALABLE
In Smit v Scania South Africa (Pty) Ltd 2004 (3) SA 628 (SCA) it was
stated that it is possible in exceptional circumstances that a provisional
sentence may be appealable.
The following two examples of a causa for a provisional sentence summons
are found in Harms page 83:
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Claim based on a dishonoured cheque.
•
Plaintiff is the holder of a cheque dated (date) for the sum of (amount)
drawn by the Defendant in favour of “cash” upon the (specify).
•
Branch of the (specify) bank.
•
Plaintiff duly presented the cheque for payment on (date) and the
cheque was dishonoured by non-payment, the Defendant having
countermanded payment thereof.
•
Notice of dishonour is dispensed with in terms of Section 48(2)(c) of the
Bills of Exchange Act No. 34 of 1964, since the Defendant has
countermanded payment of the cheque.
•
Notwithstanding due demand, the Defendant has failed to pay to the
Plaintiff the aforesaid sum of (amount). A copy of the face and reverse
side of the said cheque is annexed hereto and marked Annexure “A”.
Claim based on Section 81 of The Bills of Exchange Act No. 34 of 1964
Plaintiff is the true owner of a cheque (number) drawn by A upon B Bank for
the sum of (Rx), the cheque was crossed as authorised by The Bills of
Exchange Act No. 34 of 1964 and bore the words “not negotiable”.
The cheque was stolen by C and possession passed thereafter to the
Defendant, who gave consideration for the cheque.
The cheque was thereafter paid by B Bank under circumstances that did not
render B Bank liable, in terms of the Act, to the Plaintiff as true owner of the
cheque.
Plaintiff suffered a loss equal to the value of the cheque by virtue of the theft
of the cheque.
(Since December 2020 no new cheques can be issued in South Africa
but those that were issued are still susceptible to civil and criminal
litigation for the time being.)
24.14 TWEE JONGE GEZELLEN JUDGMENT
24.14.1 The preceding contents of this Chapter must now be read in
conjunction with and subject to the judgment of the Constitutional
Court of South Africa in Twee Jonge Gezellen (Pty) Ltd &
Another v Land and Agricultural Development Bank of SA t/a
The Landbank & Another 2011 (5) BCLR 505 (CC).
24.14.2 The head note of this judgment reads as follows: “Rule 8 of the
Uniform Rules of the High Court – provisional sentence procedure
declared to be inconsistent with the Constitution and invalid to the
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extent that it does not give to Courts a discretion to refuse
provisional sentence where (a) the nature of the defence raised
does not allow the Defendant to show a balance of success in his or
her favour without the benefit of oral evidence; (b) the Defendant
is unable to satisfy the judgment debt; and (c) outside “special
circumstances”, the Court has no discretion to refuse provisional
sentence – common law developed so that Courts will in future have
a discretion to refuse provisional sentence only in circumstances
where the Defendant demonstrates (a) an inability to satisfy the
judgment debt; (b) an even balance of prospects of success in the
main case on the papers; and (c) a reasonable prospect that oral
evidence may tip the balance of prospective success in his or her
favour – declaration of invalidity not to affect any claim for
provisional sentence that has been finally determined as at the date
of the Court’s order by a judgment at first instance or by
settlement.”
SELF-ASSESSMENT QUESTIONS
(a)
May the Court hear oral evidence at the hearing of a provisional sentence? (2)
(b)
Within what time period must the Defendant enter the principal case if the Court
grants provisional sentence? (1)
(c)
What happens if provisional sentence was granted and the Defendant entered a
Notice of Intention to Defend, but fails to deliver a plea? (2)
(d)
Read the following set of facts:
Your client is the holder of a cheque, dated 12/2/2019 drawn by Smith Brothers, a
partnership on the Standard Bank of South Africa, Bloemfontein Branch. It was for
an amount of R180,000.00 and deposited on 13/2/2019 in your client’s account
held at ABSA, Cape Town. From the endorsements on the front and reverse sides
of the cheque you see that the cheque was presented for payment on 14/2/2019
and dishonoured on the same day, as a result of lack of funds. You decide to use
the provisional sentence summons.
Now answer the questions that follow:
(i)
Which other summons/es available in the High Court may be used? (1)
(ii)
You decide to use the provisional sentence summons and the Defendant files
an opposing affidavit. Can you now file a replying affidavit? (1)
(iii)
Define a liquid document. (3)
(iv)
Draft the cause of action. (6)
(v)
Upon whom does the onus of proof rest in provisional sentence proceedings?
Discuss. (4)
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III. THE APPLICATION PROCEDURE
RANGE STATEMENT:
Explain, draft and perform all actions related to application proceedings.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain the difference between action and application proceedings.
•
Decide in a given set of facts whether application proceedings are normally used,
mandatory or may not be used at all.
•
Determine whether a dispute of fact exists in a given set of facts.
•
Explain the meaning of a rule nisi and ex parte.
•
Explain when ex parte and urgent applications may be used.
•
Draft an urgent ex parte application in a given set of facts.
•
Draft an application on notice of motion in a given set of facts.
•
Draft a founding affidavit.
•
Explain the general procedure to serve applications.
•
Draft a notice of set down in an unopposed application.
•
Draft certain specific applications – mandament van spolie / Rule 57
application/interpleader affidavit.
•
Draft a review application in a given set of facts.
•
Describe the procedure to follow in review applications.
1.
INTRODUCTION
Note that the expressions “application” and “motion” are often used as synonyms.
Further take note that specific applications in insolvency, matrimonial and
commercial proceedings are dealt with in the training guides relating to those
proceedings. They should be regarded as an integral part of High Court Procedure.
1.1
BACKGROUND
An application consists of a notice of motion and a founding affidavit,
(together with any supporting documents (annexures)) as to the facts upon
which the Applicant relies for relief (Rule 6(1)).
Union Finance Holdings Ltd v IS Mirk Office Machines 11 (Pty) Ltd
and Another 2001 (4) SA 842 WLD.
Although such an application is usually issued by the office of the Registrar
before it is served, it is not a mandatory requirement. Service of such an
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application before it is issued is not a nullity. This is in contrast with the
provision that a summons must first be issued by the Registrar before it is
served.
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies
(Edms) Bpk 1972 (1) SA 773 (A).
Seeing that the application procedure is much quicker and less expensive
than the action procedure, it is often a consideration to rather approach the
Court for the necessary relief by means of the application procedure.
1.2
DIFFERENCE BETWEEN APPLICATION AND ACTION PROCEDURE
In certain instances, legislation prescribes that the application procedure is
compulsory, and in these instances the action procedure cannot be used.
Similarly, action proceedings are compulsory for certain types of legal
matters and the application procedure is not permitted in those instances.
Aside from instances where either the application or the action procedure is
mandatory, the choice of which procedure to adopt depends on whether
there is a real dispute of fact between the parties.
If there is a genuine dispute of fact, the application procedure cannot be
used, and the claimant must proceed by way of an action. Where the Court
is able to decide the dispute by considering written evidence in the form of
affidavits and does not need to hear oral evidence in order to adjudicate the
matter, an application rather than an action can be instituted.
The principal characteristic which distinguishes between the action and
application procedures is that in an action the Judge will hear oral evidence
from witnesses who testify in Court, whereas in an application the Judge will
receive only written evidence in the form of affidavits.
1.3
MANNER OF BRINGING THE APPLICATION BEFORE COURT
Applications are brought in one of two ways:
•
On notice to the Registrar only, where no other person is affected –
ex parte.
•
On notice to the Registrar and any other person affected by the
application - Rule 6(1) and 6(2) – on notice of motion.
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1.4
INSTANCES WHERE THE USE OF THE APPLICATION PROCEDURE IS
MANDATORY ARE AS FOLLOWS
When there is no dispute of fact but only a dispute of law or manner of
application of the law. Examples of instances where use of application is
mandatory are as follows:
•
In appeals from one Court to another – i.e., Section 20 of the Superior
Courts Act No. 10 of 2013, Rules 3,5, 7 and 8 of Supreme Court of
Appeal;
•
Rule 43 application;
•
Review applications in terms of Rule 53;
•
Rescission of judgment applications;
•
Interlocutory application;
•
Interdicts;
•
Third-party procedure;
•
Joinder of parties;
•
Consolidation of actions;
•
Sequestration / Liquidation;
•
Leave to sue by edictal citation / substituted service;
•
Appointment of a curator;
•
Admission as a Legal Practitioner.
Where the claimant requires urgent relief, he/she would adopt the application
procedure. In terms of Uniform Rule 6(5)(g), a Court may, where an
application cannot properly be decided on affidavits, refer the matter to trial
with appropriate directions as to pleadings or definition of issues, or
otherwise.
Haupt t/a Soft Copy v Brewers Marketing Intelligence 2006 (4) SA
458 (SCA) at 468 J.
1.5
INSTANCES WHEN THE USE OF THE APPLICATION PROCEDURE IS
PROHIBITED ARE AS FOLLOWS
When there is a dispute of fact and a dispute of law the correct medium to
utilise is the action procedure. The examples of instances in which it is
compulsory to use the action procedure are as follows:
•
Personal injury claims;
•
Motor vehicle accident claims;
•
Divorce matters.
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Personal injury and motor vehicle accident claims are usually brought by way
of action. It would be permissible however, in such instances, to proceed by
way of application if, for example, it could be shown that there was no dispute
on liability or quantum.
1.6
DIFFERENT TYPES OF APPLICATIONS
Some authors identify six different types of applications:
2.
•
Applications by notice;
•
Ex parte applications;
•
Interlocutory applications;
•
Urgent applications;
•
Interim matrimonial applications (Rule 43 applications); and
•
Review applications.
THE EX PARTE APPLICATION
Herbstein & van Winsen: The Civil Practice of the Supreme Court of South Africa 4th
edition pp 350, 351 and 355.
Examples 17 and 18.
Erasmus et al.
2.1
WHAT IS AN EX PARTE APPLICATION?
An ex parte application is an application in which the Applicant/s are not
initially obliged to give notice to any other party.
2.2
UNDER WHAT CIRCUMSTANCES IS THIS APPLICATION UTILISED?
An Applicant may apply for relief by way of an ex parte application under
the following circumstances:
i.
where an order is sought that does not affect another person and the
Applicant is the only interested party to the proceedings, e.g.,
application for admission as a Legal Practitioner;
ii.
Where notice of the application to the other party will frustrate the
requested relief, e.g., an Anton Piller application;
iii.
Where preliminary relief is essential and there is no time to give notice,
and where the Respondent will be given notice once the urgent relief
is granted before any final relief is granted (see 2.3 below);
iv.
Where final relief is required so urgently that notice is not possible, in
this regard see paragraph 8.2 below;
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v.
Where a nulla bona return is relied upon in the case of an application
for sequestration and no notice of the application is given to the
Respondent; and
vi.
In certain very specific circumstances where it is not possible to give
notice to the other side and/or for a preliminary step in the
proceedings, for example an application for leave to sue by edictal
citation or substituted service, or an application for the appointment
of a curator where the person concerned is mentally incapacitated /
lacks legal capacity, or an application for the attachment of property
to found or confirm jurisdiction.
As a general rule, any party affected by the order sought must be given
notice. Therefore, except where there is no other party affected, ex parte
applications are to be avoided in preference to applications on notice unless
there are good grounds for adopting the ex parte application procedure.
Applicants cannot adopt the ex parte procedure merely as a means of
gaining an advantage over the Respondent. There must be a strong
foundation for the contention that notice would frustrate the relief/there is
insufficient time/the Respondent will not be unfairly prejudiced by the
absence of notice.
2.3
WHAT IS A RULE NISI?
In some instances, urgent relief is required by the Applicant, but he/she
recognises that the Judge will not permanently impact the rights of another
party without that party having the opportunity to oppose a final order.
A rule nisi is the form of order which can be used in these circumstances.
The application need not necessarily be served on the other party at the
outset i.e., it commences as an ex parte application. Some interim relief
may be granted at the first Court hearing, but the rule nisi will stipulate a
date by which the Respondent must show why the order ought not to be
made final and a second hearing will take place in due course. The interim
order and the application papers will then be served on the Respondent, so
that he/she has the opportunity of opposing the granting of a final order.
Where an ex parte application has been launched and the Judge is not
prepared to grant a final order as sought by the Applicant because the Judge
requires that the Respondent be given the opportunity to oppose the
application, the Judge may elect instead to grant a rule nisi form of order.
In some instances, the application might from the outset be on notice, (i.e.,
not ex parte) and the rule nisi form of order can also be used in these
circumstances, e.g., in an application for liquidation.
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On the return day, the Court may confirm the rule nisi – in other words it
may grant the final relief. Alternatively, the Court may adjourn the hearing
and extend the rule nisi accordingly. In other words, the Court might extend
the period of operation of the interim order until the future date when the
matter will eventually be argued. If the Respondent succeeds, the Court may
dismiss the rule nisi. This puts an end to the operation of the interim order
and means that the final order is not granted.
An example of a rule nisi is attached.
2.4
FORMAT OF THE EX PARTE APPLICATION
In an ex parte application the notice of motion is addressed to the Registrar
and, where there is no other party interested in the application, there will be
no Respondent. It must be supported by an affidavit as to the facts upon
which the Applicant relies for relief.
The notice of motion is headed with the name of the Court to which the
application is made and sets out the name of the Applicant. The notice must
set out the form of order sought, specify the affidavit filed in support and
request the Registrar to place the matter on the roll. It must be as near as
possible to Form 2 in the schedule to the Rules.
Erasmus: Superior Court Practice See Example 17.
In ex parte applications good faith is an absolute necessity.
If any material facts have not been disclosed in the founding affidavit,
whether they were wilfully suppressed or negligently omitted, the Court may
on that ground alone dismiss an ex parte application. (Erasmus B1 – 42).
3.
APPLICATIONS ON NOTICE TO THE RESPONDENT
Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa, 4th
edition pp 351, 355 –6.
Examples 19, 20 and 21.
Erasmus et al: Superior Court Justice.
Van Blerk 54-55.
3.1
UNDER WHAT CIRCUMSTANCES IS THIS APPLICATION UTILISED?
All applications other than those brought ex parte, e.g., interim matrimonial
and review applications, must be brought on notice of motion as near as
possible in accordance with Form 2(a) of the first schedule to the Rules of
the Court.
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It is addressed not only to the Registrar but also to any person against whom
relief is claimed (the Respondent/s) as well as any person to whom it is
necessary or proper to give notice of the proceedings.
3.2
FORMAT OF APPLICATION
The notice of motion is headed with the name of the Court to which the
application is made and sets out the name(s) of the Applicant(s) and the
Respondent(s). The notice sets out the form of order sought and specifies
the affidavit filed in support of the application.
It makes provision for the address within 25 kilometres of the office of the
Registrar at which the Applicant will receive notice and service of documents
in the application.
It sets out a day not less than 10 days after service of the notice on the
Respondent on or before which the Respondent is required to notify the
application in writing, whether s/he intends to oppose the application and a
date if no notice to oppose is received when the application will be set down
for hearing not less than 10 days after service.
Care should be taken that every person who has a legal interest in the matter
be cited and also that persons who are by law deemed to be interested be
notified so that they may report, e.g., in certain applications under the
Insolvency Act No. 24 of 1936, the Companies Act No. 61 of 1973 and the
Deeds Registries Act No. 47 of 1937, notice to the Master, the Registrar of
Companies and the Registrar of Deeds is required.
3.3
PROCEDURE FOR BRINGING APPLICATIONS
If the application is brought against any Minister, Deputy Minister, Premier
of a province, office, officer, or servant of the State in his capacity as such,
the State or province, this date should not be less than 15 days after the
service of the notice of motion.
After delivery of her/his notice to oppose, the Respondent must file her/his
opposing affidavit(s) within 15 days. The Applicant may file her/his replying
affidavit(s) within 10 days thereafter.
If the Respondent intends to raise a question of law only, s/he must give
notice of her/his intention to do so within 15 days after s/he has given notice
of her/his intention to oppose the application.
The notice of motion supported by the founding affidavit must be served on
the Respondent by the Sheriff.
De Rebus July 2003 page 39-43 contains a synopsis of application (motion)
proceedings.
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4.
THE FOUNDING AFFIDAVIT
Van Blerk PG 67 to 78.
4.1
WHICH FACTS MUST BE SET OUT IN THE FOUNDING AFFIDAVIT?
The essential allegations and supporting evidence which must be set out in
the founding affidavit include:
i.
Those facts necessary to support the contention that the parties have
locus standi;
ii.
Those facts necessary to support the contention that the Court has
jurisdiction;
iii.
Those facts necessary to make out a cause of action; and
iv.
Those facts necessary to justify the relief sought.
For a discussion of one of the requirements see Union Finance Holdings
Ltd v I S Mirk Office Machines II (Pty) Ltd 2001 (4) 842 (W).
4.2
TAKE NOTICE OF THE FOLLOWING MATTERS IN PARTICULAR
Read Rule 17(4).
The affidavit must consist of paragraphs that are consecutively numbered,
and every paragraph must contain separate factual allegations: See Rule
62(3).
If more than one factual allegation appears in a paragraph, it should be
divided into sub-paragraphs. It is important to draft the founding affidavit in
such a way that the Respondent may simply refer to the paragraphs of the
application in his answering affidavit.
4.2.1
Introducing the deponent
The affidavit in an application replaces the oral evidence led in a trial.
A witness in a trial will be asked a number of preliminary questions
directed at informing the Court who the person is and what role they
play in relation to the facts which will form the content of the
evidence to be led – questions which are intended to demonstrate
the weight which the Court ought to give to their evidence. Similarly,
in an application the first portion of the affidavit deals with
introducing the deponent (the person who will sign the affidavit).
The full names of the deponent must be reflected as well as the
deponent’s relationship or connection, if any, to the Applicant. The
deponent may be the Applicant if the Applicant is a natural person,
he/she may be an employee / agent / shareholder etc. of the
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Applicant if the Applicant is a juristic person or may merely depose
to the affidavit by virtue of the fact that he/she has personal
knowledge of the facts set out in the affidavit without having any
connection with the Applicant.
The deponent’s residential or employment address ought to be
stated.
It is necessary to identify the source of the information which is set
out in the affidavit. The deponent is usually the person with personal
knowledge of all of the facts set out in the affidavit – he/ she is in
that event the source of the information. He/she should make this
clear by stating that the allegations set out in the affidavit are within
his/her personal knowledge and by confirming that the facts are true
and correct. Where allegations made in the affidavit are not within
the personal knowledge of the deponent, these allegations are
essentially hearsay evidence.
Where an affidavit sets out facts based on “second-hand”
information, the deponent must state the basis of his or her
knowledge or belief, i.e., name the source of this information and
state that the allegations of fact are true and correct to the best of
his or her information, knowledge, and belief. Failure to state the
source of the information or grounds of belief in the founding affidavit
is an irregularity that cannot be cured in a replying affidavit. The
persons who have supplied this information to the deponent of the
founding affidavit ought to depose to confirmatory affidavits which
are filed with the founding affidavit in order to convert these factual
allegations from hearsay to direct evidence.
Where the deponent is not the Applicant but acts in a representative
capacity, for example, the director of a company, which company is
the Applicant, he/she must expressly state that he/she has the
necessary authority to depose to the affidavit and to bring the
application on behalf of the Applicant. Where the Applicant is a juristic
person, it is advisable to obtain a resolution from the Applicant
authorising the deponent to act on its behalf in deposing to affidavits
and taking all steps to bring and prosecute the application. Failure to
attach such a resolution to the affidavit does not render the
procedure invalid, but if the deponent’s authority is questioned as
envisaged in Rule 7(1), proper evidence of authority must be
produced. It is accordingly good practice to attach a resolution to the
affidavit to eliminate any doubt in this regard. See example at the
back of the guide.
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4.2.2
Description of the Parties
The next aspect to be covered in the founding affidavit is the
identification of the parties to the application. The full names of the
Applicant must be set out together with:
i.
its registration numbers if applicable, and
ii.
the type of juristic person, e.g., “a private company registered
with limited liability in accordance with the laws of the Republic
of South Africa”.
A voluntary association is described as follows:

“a voluntary association duly constituted in terms of its
constitution”. Where a juristic person has been created
in terms of statute, this must be included in the
description e.g. “The First Respondent is ……………., a
juristic person established in terms of Section …. of the
………. Act No ... of ….”.
Where the rights or obligations which are the subject of the
application arise from a particular status, this must be dealt
with in the description, e.g., where a financial service provider
such as an insurance broker is cited, the description should
include the allegation that it is an authorised financial services
provider; or
iii.
if the Applicant is a natural person, his/her gender; and
iv.
the Applicant’s address - residential address / principal place
of business or employment / registered address / domicilium
citandi et executandi; and
v.
where the Applicant is acting in an official capacity e.g.,
liquidator / executor / trustee / curator, this must be stated,
and the relevant letters of authority annexed to the founding
affidavit e.g. “The Applicant is …. an adult male liquidator who
conducts business from … and who acts in his capacity as the
duly appointed liquidator of …. (In liquidation). A copy of the
letters of authority evidencing his appointment is annexed
hereto marked …”; and
vi.
Where a party sues or is sued in a representative capacity, this
must be stated e.g. “The Applicant is … a Member of the
Executive Council for the KwaZulu-Natal Department of
Education who is cited in his official and representative
capacity”.
The Respondent must be described in the same way.
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In certain types of application there are specific additional
requirements to be met. For example, in an application for
sequestration the date of birth, identity number and marital status of
the person to be sequestrated and of his/her spouse must be
included.
The parties must be described with sufficient particularity as to
identify them and whether or not they have the relevant locus
standi. Addresses are required for identification purposes but also,
in the case of the Respondent, to substantiate once the return of
service is furnished, the contention that the Respondent has received
proper service and may also found the jurisdiction of the Court.
4.2.3
Exposition of facts and legal consequences which flow
All relevant facts must be stated. The rule is that an Applicant must
state his case in his founding affidavit. The Applicant must lay out
his/her cause of action in terms of which the application is based, all
the evidence that the Applicant relies, must be stated. The Applicant’s
allegations must be restricted to those that are relevant to ensure
that the Applicant obtains the relief sought. (Reynolds NO v
Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W)). Where s/he fails to
make essential allegations in her/his founding affidavit s/he will not,
as a general rule, be allowed to make it in her/his replying affidavit.
The Applicant may only amend the cause of action by preparing a
supplementary affidavit (Nedbank Ltd v Hoare 1988 (4) SA 541
(E)). The Applicant must once again request his relief in his founding
affidavit or refer back to his notice of motion.
Keep in mind that the Court is asked to make factual findings on the
papers before it, and that the correct finding can only be made if the
Court is in possession of all the facts. These facts must be set out
simply, clearly and in chronological order. Avoid argumentative
matter.
All factual allegations, necessary for the cause of action in question,
must be set out in the founding affidavit. For example, if the cause
of action is breach of contract, the Applicant must set out the relevant
facts concerning the conclusion of and material terms of the contract,
state facts supporting the contention that the Applicant has complied
with its contractual obligations and set out facts supporting the
contention that the Respondent has failed to comply with its
contractual obligations. See Rule 18(6) regarding what facts
concerning the conclusion of a contract must be set out in the
founding affidavit in an application in which the cause of action is
specific performance of contractual obligations or damages arising
from a breach of contract.
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Whilst the Applicant ought not to set out his/her legal argument in
the founding affidavit, it is necessary to set out the legal conclusion
which arises from the facts, e.g., based on the facts set out, that the
Respondent has breached its contractual obligations.
The Applicant must set out the facts which justify the relief sought.
For example, if the Applicant is claiming damages arising from a
breach of contract, he/she must set out facts evidencing his/her
patrimonial loss, the quantum thereof and that these losses arise
from the breach.
Remember, the necessary allegations to prove the claim plus the
evidence must be set out because an affidavit is BOTH a pleading and
constitutes the evidence.
It is also important that the Applicant attaches all supporting
documentation by way of annexures in support of all the facts. It is
not necessary that such documents be originals, but the originals
should be readily available should they be called upon.
If the annexures to the Applicant’s founding affidavit consist of
handwritten documents (e.g., letters), a typed version of the written
document must be attached as well. The annexures must be clearly
marked in bold, black letters on the top right-hand side of the page
so that the Court will not have trouble in finding the annexures.
It is not open to a deponent to merely annex to his or her affidavit
documentation and to request the Court to have regard to it. What is
required is the identification of the portions thereof on which reliance
is placed and an indication of the case which is sought to be made
out on the strength thereof. It cannot be expected of a party to trawl
through lengthy annexures to the opponent's affidavit and to
speculate on the relevance of facts contained in such annexures.
What usually happens in practice is that the Applicant says in closing:
“I, therefore, respectfully request the Honourable Court to grant
relief as set out in the Notice of Motion”.
The founding affidavit is closed by way of a sworn statement or by
way of a solemn statement. Concerning the procedure at the
attesting of an affidavit, reference must be made to Section 10 of
Justices of the Peace and Commissioners of Oaths Act No. 16 of 1963,
read together with the Regulations issued in terms of the Act.
The Applicant may attach to his founding affidavit so-called verifying
(confirmatory) affidavits where needed.
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These will be affidavits of persons who give evidence in their
affidavits in which they briefly support (confirm) the factual
allegations that the deponent makes in the main founding affidavit.
In other words, they are witnesses for the Applicant.
Affidavits should not contain hearsay, inadmissible evidence and
other objectionable matter, e.g., irrelevant or scandalous or
vexatious matter.
Vaatz v Law Society of Namibia 1991 (3) SA 563 (NM).
5.
THE ISSUE AND SERVICE OF THE NOTICE OF MOTION
All applications are issued by the Registrar of the High Court. Like a summons,
applications are served by the Sheriff (Rule 4). In cases where it is impossible
because of time constraints to have the documents served by the Sheriff (i.e., in
an urgent application), service may be effected in any way or the application may
be brought to the attention of the Respondent by any means. In these cases, the
manner in which the application was brought to the attention of the Respondent
must be set out clearly. See paragraph 8.2 below concerning urgent applications.
6.
UNOPPOSED APPLICATIONS
6.1
NOTICE OF SET DOWN
In terms of the provisions of Rule 6(4)(a), every application that is brought
ex parte shall be filed with the Registrar and set down before noon on the
Court Day but one proceeding the day upon which it is to be heard. Every
application other that one brought ex parte, and which is brought in
accordance with Form 2(a) and which is unopposed, may be placed on the
roll for hearing by giving the Registrar notice of set down before noon on the
Court day but one proceeding the day upon which the same is to be heard.
The date on which the matter will be heard, in the event that it is unopposed,
will have been stipulated in the Notice of Motion (Form 2(a)) and this serves
to notify the Respondent of the date. The Notice of Set Down is nonetheless
required in order to notify the Registrar that the matter will proceed on an
unopposed basis on that date. In this regard, Example 16 may be used with
the necessary amendments.
6.2
INSTRUCTIONS TO COUNSEL
In the event that you decide to brief Counsel, the following documents must
be included in Counsel’s brief:
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6.3
•
A copy of the application.
•
If it is an application in accordance with Form 2(a), (where the
Respondent did not give notice of intention to oppose), a copy of return
of service.
•
A copy of the notice of set down.
HEARING
In the case of an ex parte application where no other person has an interest
in the matter, the Court may grant final relief. In other cases, the Court will
order that the application be served on that person before a final order can
be granted. A rule nisi may be granted in certain cases but see paragraph
2.3 above and 8.2 below.
7.
OPPOSED APPLICATIONS
Erasmus: Superior Court Practice D1 – 47 to D1 – 92.
Rule 6(5) and Examples 21 and 22.
7.1
NOTICE OF INTENTION TO OPPOSE
Where the Respondent intends to oppose the application, s/he must file
her/his notice of intention to oppose within 10days of service of the
application (Rule (5)(b) and 6(5)(d)(ii)).
7.2
RULE 6(5)(d)
In terms of Rule 6(5)(d), any person opposing the grant of an order sought
in a Notice of Motion shall within the time stated in the said Notice give notice
in writing to the Applicant that he/she intends to oppose the application and
in such notice shall appoint an address within 25 kilometres of the office of
the Registrar as well as such person’s postal, fax or electronic mail addresses
where available and state the preferred method of service of subsequent
documents.
See Example 21.
7.3
ANSWERING AFFIDAVIT (ALSO KNOWN AS OPPOSING AFFIDAVIT)
Within 15 days thereafter the Respondent must deliver her/his answering
affidavit together with any documentation on which s/he relies and also any
verifying affidavits of witnesses which confirms the case of the Respondent
(Rule 6(5)(d)(ii)).
The Respondent will in this affidavit clearly state whether they admit or deny
the allegations of the relevant paragraphs in the founding affidavit. Where
the Respondent has a version to put forth this must be set out.
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Note that if the Respondent intends to raise a point/s in limine or any
question of law only, s/he need not deliver an answering affidavit, but only
a notice in which s/he sets out the point/s in limine which he intends to
raise (Rule 6(5)(d)(iii)).
7.4
COUNTER APPLICATIONS
If a Respondent requires more than the mere dismissal of the application and
costs, s/he may bring a counter application or may join any party to the
same extent as would be competent if the party desiring to bring such Court
application or join such party were the Defendant in action and the other
parties to the application were parties to such action (Rule 6(7)).
In the latter event Rule 10 shall apply mutatis mutandis.
In practice it means that the Respondent who wants to bring a counter
application usually sets out such a counter application in her/his responding
affidavit under the heading “Counter Application”. In other words, it is not
necessary to file two separate affidavits.
If a counter application is brought, the time periods with regard to
applications apply mutatis mutandis.
A counter application must be accompanied by the relevant Notice of Motion.
7.5
REPLYING AFFIDAVIT
Within 10 days of service upon him of the answering affidavit, the Applicant
may deliver a replying affidavit.
The Applicant will not be permitted to add new evidence in this affidavit which
is not in the founding affidavit. The determining criteria is whether prejudice
will be caused to the other party by the introduction of new information.
(Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA))
7.6
FURTHER AFFIDAVITS
The general rule is that only the three sets of affidavits referred to above are
permitted. The Court may in its discretion permit the filing of further
affidavits (Rule 6(5)(e)), upon application. There must however be a
reasonable explanation as to the introduction of these additional affidavits.
The standard utilised by the Courts is to act in the best interests of fairness
and justice.
Leave to file further affidavits will be refused where the party wishing to file
the further affidavit cannot show bona fides and that the delay will not
prejudice the other party.
Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N).
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A litigant cannot take it upon himself / herself to file further affidavits without
obtaining the leave of Court. Further affidavits filed without the leave of Court
can be regarded as pro non scripto (as if it had never been filed).
Standard Bank of SA Ltd v Sempersadh and Another 2005 (4) SA 148.
7.7
ENROLMENT
Where an answering affidavit is delivered, the Applicant may apply to the
Registrar of allocate a date for the hearing of the application within 5 days
of the delivery of her/his replying affidavit or, if no replying affidavit is
delivered, 5 days after the expiry of the period of 10 days in which the
Applicant could have filed her/his replying affidavit.
If the Applicant failed so to apply within the appropriate period aforesaid, the
Respondent may do so immediately upon the expiry thereof. Notice in writing
of the date allocated by the Registrar shall forthwith be given by the Applicant
or Respondent, as the case may be, to the opposite party.
7.8
PAGINATION AND INDEXING
As soon as the matter is set down, the complete application papers must be
indexed and paginated. See Rule 62(4).
In some divisions the filing of heads or argument is required in the case of
all opposed applications. In other divisions the Judge may call for them.
7.9
THE HEARING
Ordinarily no oral evidence is tendered at the hearing. The legal
representatives (Advocate or Attorney with right of appearance) of each side
will present their argument.
The Applicant’s representative will present his/her argument first, followed
by the Respondent’s legal representative and finally, the Applicant may
respond to any argument raised by the Respondent which has not been dealt
with already.
The Judge may interject and debate certain points with either side and may
call upon either side to respond to any points highlighted by the Judge in this
way. Judgment may be handed down immediately after the close of
argument or the Judge may reserve judgment, which will then be handed
down in due course.
7.10 DISPUTES OF FACT
What is the position where a factual dispute arises in an opposed application?
Rule 6 (5)(g) provides that the Court may:
•
dismiss the application, or
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•
direct that oral evidence be heard on specified issues, or
•
refer the matter to trial with appropriate direction as to pleadings or
definition of issues.
In every case the Court must examine an alleged dispute of fact and see
whether in truth there is a real dispute of fact which cannot be satisfactorily
determined without the aid of oral evidence. If this is not done, a Respondent
may raise fictitious issues of fact and thus delay the hearing of the matter to
the prejudice of the Applicant.
A real, genuine, and bona fide dispute of fact can only exist where the Court
is satisfied that the party who purports to raise the dispute has in his/her
affidavit seriously and unambiguously addressed the facts said to be
disputed. There will of course be instances where a bare denial meets the
requirement because there is no other way open to a disputing party and
nothing more can, therefore, be expected of him/her. But even that may not
be sufficient if the fact averred lies purely within the knowledge of the
averring party and no basis is laid for disputing the veracity or accuracy of
the averment. When the facts averred are such that the disputing party must
necessarily possess knowledge of them and be able to provide an answer but
instead rests his/her case on a bare or ambiguous denial, the Court will
generally have difficulty in finding that the test is satisfied. – see
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another
2008 (3) SA 371 SCA.
There is, in law, no dispute of fact:
•
Where Respondent’s denial does not raise a bona fide or genuine
dispute of fact; or
•
Where the Respondent’s denial is far-fetched or untenable.
7.11 THE SO-CALLED PLASCON-EVANS RULE
Where a factual dispute arises in an opposed application, the Court may in
some instances nonetheless grant the application. The Plascon Evans rule
is that if on the facts stated by Respondent together with admitted facts in
the Applicant’s affidavit, the Applicant is entitled to relief, a Court will make
an order giving effect to such a finding.
Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd 1984 (3)
SA 623A at 634E-635C.
Disputes of fact in motion proceedings was revisited in National Scrap
Metal (Cape Town) Pty Ltd & Another v Murray & Roberts Limited &
Others 2012 (5) SA 300 (SCA) where it was inter alia held that the Court
would accept the Respondent’s version unless it was clearly untenable.
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7.12 REFERRAL TO TRIAL
A Court will refer a matter to trial if the dispute of fact is too wide-ranging
for resolution by way of referral to oral evidence.
The affidavits do not stand as the witness's evidence-in-chief or supplement
it.
In case of referral to trial the Court usually orders that the notice of motion
shall stand as a simple summons, the answering affidavit as a notice of
intention to defend, that a declaration shall be delivered within a fixed time
and that the Uniform Rules dealing with further pleadings, discovery and the
conduct of trials shall thereafter apply.
7.13 REFERRAL FOR ORAL EVIDENCE
A Court will order the hearing of oral evidence on a specific point where the
factual dispute is within a narrow compass and can be expeditiously disposed
of.
At the hearing of oral evidence, the affidavits stand as evidence, save to the
extent that they deal with disputes of fact. Once the disputes have been
resolved by oral evidence, the case is decided on the basis of that finding
together with the affidavit evidence that is not in dispute.
The Court in its order referring the matter for the hearing of oral evidence
must set out who may or must be called as witnesses and the parties are not
entitled at will to subpoena witnesses they wish to call. If a party is desirous
of calling a witness who has not made an affidavit, special leave has to be
obtained from the Judge and the name of the witness must be included in
the order.
It used to be a rule of practice that when a factual dispute appeared in motion
proceedings an application to refer the matter for oral evidence had to be
made at the commencement of argument. Counsel in effect had to elect at
that stage and could not save a reference of oral evidence as an alternative.
The judgment Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943
(A) at 981 F-G ushered in a new approach which permitted Counsel for an
Applicant to present her/his case on the basis that the Applicant was entitled
to relief on the papers but to apply in the alternative for the matter to be
referred to evidence if the main argument should fail.
However, it should not be taken for granted that a Court will hear argument
notwithstanding disputes of facts and failing success on such argument will
refer such disputes or some of them for oral evidence. The general rule of
practice remains that such an application should be made prior to argument
on the merits. The exceptions to this general rule have been widened, but
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they remain exceptions. Accordingly, where in casu the Applicant ought to
have applied ab initio to the Court of first instance for a referral of certain
factual disputes for oral evidence, but failed to do so and afterwards, on
appeal, made no more than a conditional application for referral, the Court
of appeal, upon finding itself unable to decide disputes on the affidavits,
dismissed the appeal without further ado.
De Reszke v Marais and Others 2006 (1) SA 401 CPD at 402 D – G.
LAWSA Vol. 11 par. 309 et seq.
Erasmus: Superior Court Practice Rules 57 and 58 and Examples 18, 23 & 24
NOTE that specific applications in insolvency, matrimonial and commercial proceedings
are dealt with in the course notes relating to those proceedings
8.
A NUMBER OF SPECIFIC APPLICATIONS
A number of other specific applications which often appear in practice are briefly
discussed:
8.1
INTERDICTS
This is the judicial process used when you want to prevent someone from
doing something or to compel someone to do something. An interdict is an
order of Court directing the Respondent to refrain from doing something (a
prohibitory interdict) or to do something (a mandatory interdict). The
distinction is of little practical importance except in so far as it is sometimes
difficult to enforce a mandatory interdict and it may consequently be less
readily granted.
Interdicts can be interlocutory or final. This distinction is important because
the requisites differ for each type of interdict. An interdict may not be given
against unspecified persons.
It is a remedy of a summary and extraordinary nature, allowed in cases
where a person requires protection against an unlawful interference, or
threatened interference, with his or her rights.
It is concerned with the preservation of the Applicant’s rights going forward
and is not concerned with righting an abuse of past rights.
See City of Cape Town v Yawa and Others 2004 (2) All SA 281 C.
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A spoliation order (mandament van spolie) is sometimes classified as a
possessory interdict, but since a different set of requirements must be met
for the latter, it is preferable to treat it as a distinct remedy.
A temporary (or interim) interdict is sought by way of application in order to
protect the rights of the parties pending the finalisation of an action or
application between them in which their rights will be finally determined. A
final interdict determines the rights of the parties finally and there will be no
further adjudication by another Court.
Four requirements must be met before an interim interdict can be granted:
i.
A prima facie right which may be open to some. Since the application
is merely interlocutory and the effect of the granting thereof is only
temporary and not finally decisive of either party's rights, the Court
will grant an interdict upon a degree of proof less exacting than that
required for the grant of a final interdict (on a balance of probabilities).
ii.
Irreparable harm. There must be a well-grounded apprehension that
if the interdict is refused and the Applicant was to succeed ultimately,
s/he will suffer irreparable harm in the meantime. There is an objective
one. This requirement is closely related to the next one.
iii.
The balance of convenience must favour the Applicant. The prejudice
to the Applicant if the application should be refused must be weighed
against the prejudice to the Respondent if it were to be granted. The
stronger the Applicant’s prospect of ultimate success, the less
important the balance of convenience becomes.
iv.
No alternative remedy. There must be no ordinary, reasonable
alternative remedy available which will offer sufficient protection, e.g.,
a claim for damages.
These requirements were confirmed in Fedsure Life Assurance Co Ltd v
Worldwide Investment Holdings (Pty) Ltd and Others 2003 (3) SA
268 W, but referred to two exceptions in applications for interim relief for
pending vindicatory or quasi vindicatory actions:
•
The Applicant need not allege irreparable loss inasmuch as there was
a rebuttable presumption that the injury was irreparable. There is no
need for the Applicant to show that there is no other satisfactory
remedy.
•
These requirements are discussed in Ladychin Investments (Pty)
Ltd v South African National Roads Agency Ltd and Others
2001(3) SA 344 NPD.
The requirements for a final interdict are the following:
•
A clear right. The Applicant must prove on a balance of probabilities
facts that will entitle her/him to the relief. An actual injury or at least
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a threatened violation of the Applicant’s rights. The word “injury” in
this context means an act of interference with, or an invasion of, the
Applicant's rights and resultant prejudice. The injury must be a
continuing one: the Court will not grant an interdict restraining an act
already committed.
•
A reasonable apprehension of injury is one which a reasonable man
might entertain on being faced with certain facts. The test for
apprehension is an objective one.
•
No alternative remedy.
See V & A Waterfront Properties (Pty) Ltd and Another v Helicopter
and Marine Services (Pty) Ltd and Others (2004) 2 All SA 664C.
The different requirements for an interim interdict interact amongst such
requirements and where the Applicant for such an interdict has established
a strong prima facie right, the Court in the exercise of its discretion may
place less emphasis on the other requirements.
Erasmus and Others v Senwes Ltd and Others 2006 (3) SA 529 TPD at 540 E.
A client’s need for a final interdict may be too urgent for the more timeconsuming action procedure and you may be tempted to approach the Court
on motion, particularly if the client’s allegations seem indisputable. The wise
Legal Practitioner will in such a case include an alternative prayer for interim
relief to prevent the application being dismissed because of an unexpected
dispute of fact.
In the event of a factual dispute in an application for a final interdict, the
Court determines the matter based on the Respondent’s version, amplified
by the Applicant’s admission.
Transcend Productions (Pty) Ltd v Leach and Others 2001 (4) SA 33
(C).
A Respondent who ignores an order granted in an application for an interdict
is guilty of contempt of Court.
8.2
URGENT APPLICATIONS
8.2.1
Under what circumstances may an application be brought
urgently?
Urgent applications are dealt with in Rule 6(12). A Court may
dispense with the forms and service. Urgent applications are usually
brought on the basis that the relief needed is so urgent that the
ordinary provisions of the Court Rules in relation to time and notice
cannot be complied with.
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Urgency does not relate only to some threat to life or liberty; the
urgency of commercial interests may justify the invocation of the
sub-rule no less than any other interests. An example would be where
the transfer of a property is to be registered in a few days and the
Applicant wishes to interdict such registration, where the imminent
registration has only recently come to the Applicant’s knowledge.
Another example arises in the context of an application to attach to
found jurisdiction – where the asset which is sought to be attached
is mobile such as a vehicle and there is evidence that it will soon
leave Court’s jurisdiction.
In Prinsloo v RCP Media Ltd t/a Rapport 2003 (4) SA 456 (T)
it was held that the ongoing violation of rights to dignity and privacy
as enshrined in the Constitution was a ground for urgency.
The degree to which the Court will countenance the relaxation of the
rules and of the ordinary practice of the Court depends upon the
degree of urgency of a matter. In matters of extreme urgency, the
matter may be proceeded with at once, even if that be at night or
during a weekend. Some cases are so urgent that no time is available
to prepare any documents, in which case viva voce evidence may
be heard.
If the Respondent needs time for filing an answering affidavit the
Judge can direct a shortened timetable.
8.2.2
Format of application
The affidavit used in support of the urgent application must allege
explicitly the basis, facts, and circumstances on which the application
is brought on an urgent basis and why the ordinary Court procedure
would be inappropriate to provide substantial redress.
8.2.3
Considerations
The Applicant cannot create its own urgency by waiting until the
Court Rules can no longer apply.
In Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA) it was held
that where a litigant had endeavoured to settle the matter and had
brought an urgent application after the attempts to settle the matter
because of the delay occasioned by the attempt to settle had failed,
the Applicant should not be deprived of his costs and that it could not
be argued that a litigant had been the author of his own urgency.
The Respondent whose rights are affected by an order granted
urgently may set the matter down for another date for re-hearing.
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The Court may uphold or set aside the order – (Rule 6(12)(c)).
•
An order should be sought without notice only in those cases
where notice to the Respondent will probably defeat the object
of the application, e.g., where there is reason to believe that if
the Respondent were to be given notice of the application, s/he
will disappear with a minor child or withdraw the stolen cash
from a banking account before a restraining order can be
obtained. The terms of the order should be carefully
considered in such a case: the rights of the Applicant must be
adequately protected with the least possible violation of the
rights of the Respondent. There is, for example, ordinarily no
reason why a spoliation order to restore a lessee to the leased
premises should be made without allowing the landlord the
opportunity to be heard.
Under appropriate circumstances an urgent application can be served
on the Respondent before it is issued. Unlike a summons, an
application which is served before it has been issued is not a nullity
– see paragraph 3.6.2 in Chapter C3 above. Service can be effected
in any manner that is appropriate under the circumstances, even by
facsimile or e-mail or by informing the Respondent by telephone, and
the Court should, if possible, be informed by affidavit as to how
service was affected. If necessary, the person who effected service
(often a Candidate Attorney or a messenger) can be called to testify
under oath.
After service, the application is issued in the Registrar’s office, placed
in a Court file and handed to a Judge.
NOTE:
The Registrar, and through her/him the Judge, must be informed as
soon as possible of the pending urgent application.
There are different grades of urgency.
See:
Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers) 1977 (4) SA 135 (W);
IL& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another;
Aroma Inn (Pty) Ltd v Hypermarket (Pty) Ltd and Another 1981 (4) SA 108(K);
20th Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd
[1982] 3 All SA 679 (W).
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In an urgent application it is permissible to refer to hearsay evidence. The
Applicant must, however, give reasons why the best evidence is not available
and why s/he believes that the hearsay evidence is indeed true and correct.
(Gemeenskapsontwikkelingsraad
1972(2) SA 693 (W)).
v
Williams
and
Another
(1)
De Rebus August 2003 page 32-33 contains a synopsis of the rules pertaining
to urgent applications. A judgment in South African Airways v BDFM
Publishers Pty Ltd and others 2016 (2) SA 561 contains a strong
warning to Legal Practitioners acting on behalf of the Applicant in an urgent
matter that all reasonable steps should be taken to mitigate the truncation
of the time limits. This is not only collegial courtesy but a mandatory
professional responsibility.
8.3
INTERPLEADERS
Rule 58(1) provides as follows:
Where any person (called “the Applicant”), alleges that s/he is under any
liability in respect of which s/he is or expects to be sued by two or more
parties making adverse claims, (in the Rule referred to as “the claimants”)
in respect thereto, the Applicant may deliver a notice (called an “interpleader
notice”) to the claimants. With regard to conflicting claims with respect to
property attached in execution, the Sheriff shall have the rights of an
Applicant and an execution creditor shall have the rights of a claimant.
Where the claims relate to money the Applicant shall be required, on delivery
of the notice, to pay the money to the Registrar who shall hold it until the
conflicting claims have been decided.
Where the claims relate to a thing capable of delivery, the Applicant shall
tender the subject matter to the Registrar when delivering the interpleader
notice or take such steps to secure the availability of the thing in question as
the Registrar may direct.
Where the conflicting claims relate to immovable property, the Applicant shall
place the title deed thereof, if available to her/him, in the possession of the
Registrar when delivering the interpleader notice and shall at the same time
hand to the Registrar an undertaking to sign all documents necessary to
effect transfer of such immovable property in accordance with any order
which the Court may make or any agreement of the claimants.
The interpleader notice shall:
•
state the nature of the liability, property or claim which is the subject
matter of the dispute;
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•
call upon the claimants within the time stated within the notice, not
being less than 15 days from the date of service thereof, to deliver
particulars of their claims; and
•
state that upon a further date, not being less than 15 days from the
date specified in the notice for the delivery of claims, the Applicant will
apply to Court for its decision as to his/her liability or the validity of
the respective claims.
There shall be delivered together with the interpleader notice an affidavit by
the Applicant stating that:
8.4
•
S/he claims no interest in the subject-matter in dispute other than for
charges and for costs;
•
S/he does not collude with any of the claimants;
•
S/he is willing to deal with or act in regard to the subject-matter of
the dispute as the Court may direct.
APPOINTMENT OF CURATORS
Rule 57 makes provision for applications to the Court for orders declaring
patients to be of unsound mind and as such incapable of managing their
affairs or, by reason of some disability, mental or physical, incapable of
managing their affairs, and appointing a curator to the persons or property
of such patients to represent them in the proceedings.
In the first instance, an application must be made to the Court for the
appointment of a curator ad litem to such patient to represent him/her in
the proceedings and to assist the Court.
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Such application is brought ex parte and the prayers may read as follows:
That a curator ad litem be appointed for Jan Swart, a businessman presently residing
at 99 Burg Street, Stellenbosch, to report to the Honourable Court in terms of Rule 57
with regard to the application in which the application requests the following relief:
1.1
An order that Jan Swart is incapable of managing his own affairs; and
1.2
An order in terms of which … be appointed as curator bonis for the estate of
the said Jan Swart with the powers as set out in Annexure A, attached hereto,
provided that such powers are exercised subject to the approval of the Master of
the High Court.
1.3
That the costs of the application including the costs of the said curator ad litem
be paid out of the estate of the said Jan Swart on the basis as between Attorney
and own client.
1.4
That leave is granted to the Applicant to approach the Honourable Court on the
same papers, duly supplemented, for relief in terms of prayers 1.1, 1.2 and 1.3
above.
Rule 57 lays down a number of requirements for the application.
Take note that at least three affidavits must be annexed to the application.
The position of a curator ad litem is one of considerable responsibility and
the Court is greatly dependent upon the proper exercise of a curator's duties
in arriving at a just decision in any particular case. The curator ad litem
should preferably be a person who is directly answerable to the Court, hence
either an Advocate or an Attorney and even a Magistrate are usually
appointed as curators ad litem. When the curator ad litem has delivered
his report and the Master’s report has been obtained, the application is again
enrolled for an order as set out in paragraphs 1.1 to 1.3 above.
The curator ad litem ordinarily appears at the hearing.
The appointment of a curator to the person involves serious encroachments
upon the liberty of the patient and should be made only when a real need for
it has been shown. If the appointment of a curator to the property of the
patient is sufficient, a curator to the person will not be appointed as well.
8.5
APPLICATIONS FOR AN ANTON PILLER ORDER
8.5.1
This is an application to preserve evidence to enable the Applicant to
obtain substantive relief later and is made ex parte.
Retail Apparel (Pty) Ltd v Ensemble Trading 2243 CC and
Others 2001 (4) SA 228 TPD sets out the degree of diligence and
meticulousness with which an Anton Piller order has to be served or
executed, and the consequences of a failure to meet that standard.
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8.5.2
A step-by-step guideline for applications for this type of order
appears in De Rebus September 2003 at pages 26-28.
8.5.3
In Frangos v Corpcapital Ltd and Others 2004 (2) SA 643 T,
the general principle of an Anton Piller order was stated as follows:
•
Rule nisi issued ex parte.
•
The Applicant has a cause of action he wishes to pursue against
the Respondent.
•
The Respondent has in his/her possession specific (and
specified) documents or things that constitute vital evidence in
substantiation of Applicant’s course of action.
•
There is a real and well-founded fear that this evidence may
be hidden or destroyed or lost by the time the matter comes
before Court or at the stage of discovery.
•
That the remedy is the only reasonable and practicable means
of protecting the Applicant's rights.
8.5.4
An Anton Piller order couched in the form a rule nisi would be
discharged on return day where the Applicant had failed to make full
and fair disclosure to the Court of all material facts of the granting of
the rule nisi. See Audio Vehicle Systems v Whitfield and
Another 2007 (1) SA 434 at 443 A – B.
8.5.5
The granting of an Anton Piller order is akin to the grant of an interim
interdict and as such is not appealable.
Van Niekerk and Another v Van Niekerk and Another 2008 (1)
SA 76 SCA.
The terms of an Anton Piller order should not be too wide – the order should
relate only to those documents which the Applicant has shown, on a balance
of probabilities, he/she is entitled to have preserved. The order will normally
provide for service of the order by the Sheriff accompanied by an
independent supervising Attorney, who is not connected to the Applicant or
his/her Attorneys. The supervising Attorney together with the Sheriff are
ordinarily required to make an inventory of all items removed by the Sheriff
in terms of the Anton Piller order (so that there can be no dispute about what
documents have been removed) and he or she may be required to also file a
report describing the manner in which the order was complied with. The order
will normally provide for retention by the Sheriff of all items removed in terms
of the order and may preclude or allow inspection of those items or the
making of copies thereof under whatever conditions the Court deems
appropriate.
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The order will require that the Applicant commence proceedings within a
limited timeframe, failing which the Respondent will be entitled to the return
of the items which have been removed and costs.
8.6
PIE APPLICATIONS
8.6.1
Each division has its own requirements in regard to PIE applications.
8.6.2
In Resnick v Government of RSA and Another 2014(2) SA 377
WCC Davis J and Fortuin J balanced the rights of the landowner and
the occupier and applied the concept “ubuntu” which promotes the
notion of humanity, of human beings to recognise the “other”, of
values of solidarity, compassion, and respect for human dignity.
8.6.3
Based on these principles the Court granted the eviction order but
gave the occupier an extended period of grace to vacate the
premises.
Erasmus et al D9 – 1.
8.6.4
There has recently been turmoil and confusion on how to proceed
with eviction applications in respect of residential properties.
The judgment of McNeil and Another v Aspeling and Others
A85/18, [2018] ZAWCHC 185 (28 June 2018)(Davis AJ) handed
down by the Western Cape Division of the High Court on 28 June
2018, the eviction procedure to be followed by the Magistrate’s Court
in terms of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act No. 19 of 1998 (PIE) was confirmed.
Following the amendment of Rule 55 of the Magistrates’ Courts Rules,
the application procedure in the Magistrate’s Court is in all material
respects identical to that in the High Court. Rule 55(1) now provides
that every application shall be brought by notice of motion supported
by an affidavit and addressed to the party or parties against whom
relief is claimed and to the Registrar or Clerk of the Court. The notice
of motion must be in a form similar to Form 1A, which is equivalent
of the long form notice of motion used in the High Court. The notice
of motion must set a day not less than five days after service on the
Respondent by which notice of opposition is required to be given and
must stipulate a day on which the application will be heard in the
absence of any notice of opposition.
Except in the case of urgent applications – where a different
procedure may be adopted on proper motivation – service of the
(long form) notice of motion and founding affidavit in terms of
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Section 4(3) of PIE should ordinarily precede the ex parte application
to Court for authorisation and directions in regard to service of a
Section 4(2) notice, which will then be served subsequently at a stage
when the hearing date has been determined. Thus, service will be
effected twice, initially when the notice of motion and affidavit is
served in accordance with the rules, and subsequently when the
Section 4(2) notice is served, which contains the hearing date.
The grounds for the proposed eviction must also be set out in the
Section 4(2) notice. The mere stating that the grounds are set out in
the affidavit attached does not constitute proper compliance with
Section 4(5)(c) of PIE. The grounds of the proposed eviction need to
be expressly stated in the Section 4(2) notice for the notice to be
effective. ‘The recipient should not be left to trawl through an affidavit
in order to try and ascertain what grounds are relied on for eviction.’
Section 4(1) to (5) of PIE lays down peremptory requirements for
obtaining of an eviction order. In terms of the Section 4(1),
proceedings may only be instituted by the owner of the property. In
terms of Section 4(2) at least 14 days before the date of the hearing,
effective notice must be given in writing to the unlawful occupier and
municipality having jurisdiction. In terms of Section 4(3), the
procedure for serving and filing papers is as prescribed by the Rules
of Court.
In terms of Section 4(4), the Court has to be satisfied that service
cannot be conveniently or expeditiously effected to grant service in
another manner. In terms of Section 4(5), the notice of proceedings
as contemplated in sub-section (2) must:
‘(a)
state that proceedings are being instituted in terms of subsection 4(1) for an order for the eviction of the unlawful
occupier;
(b)
indicate on what date and at what time the Court will hear the
proceedings;
(c)
set out the grounds for the proposed eviction; and
(d)
state that the unlawful occupier is entitled to appear before the
Court and defend the case and where necessary, has the right
to apply for legal aid.’
In the case of Cape Killarney Property Investments (Pty) Ltd v
Mahamba and Others 2001 (4) SA 1222 (SCA) the Court
interpreted Section 4 of PIE and set out the correct procedure to be
followed in eviction applications.
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First, it was held that the notice of eviction proceedings contemplated
in Section 4(2) of PIE must be authorised by an order of Court in
addition to the notice of proceedings in terms of the Rules of Court
as contemplated in Section 4(3) of PIE, namely the notice of motion.
Secondly, it was held that since the date of hearing of an application
in the High Court is usually only determined after all the papers have
been served, and seeing that the Section 4(2) notice must indicate
the date on which the application will be heard, that has the
consequence that an application for authorisation to serve a Section
4(2) notice can only be made after all the papers have been filed,
that is after the notice of motion and affidavits have been served in
accordance with the Rules of Court as contemplated in Section 4(3).
The fundamental principle laid down in the Cape Killarney case was
that the notice in terms of Section 4(2) of PIE must inform the
recipient of the date on which the eviction proceedings will be heard.
The step-by-step procedure is as follows:

It is brought on notice of motion supported by an affidavit as
to the facts on which the Applicant relies on relief. In terms of
the notice, the Respondent is given five days to oppose the
application. The Respondent is also requested – if they wish to
oppose the matter – to appoint an address where there are
three or more Attorneys practising independently of one
another within 15 km of the Clerk of the Court/Registrar.

Once the application papers are signed, the Clerk of the Court
is approached to issue a case number and supply a date for
when the main application ill be heard. When requesting the
date, the Applicant must take into account how long it will take
the Sheriff to serve this document, as well as the procedural
rule of Section 4(2) of PIE, which requires at least 14 days
before the date of the hearing.

The application papers are then taken to the Sheriff for service.

On receipt of the return of service, the Applicant drafts the
application in terms of Section 4(2). The grounds for the
proposed eviction must be set out briefly in the Section 4(2)
notice. As stated earlier, the mere stating that they are fully
set out in the supporting affidavit does not constitute proper
compliance with Section 4(5) of PIE. The grounds need to be
effectively stated in the Section 4(2) notice.

Once the application has been signed, the Applicant
approaches the magistrate at Court with the ex parte papers,
including proof of service by the Sheriff. The Court will then be
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requested to consider the contents of the notice and suggested
manner of service and to endorse its approval or disapproval
thereof of the application.

Once the ex parte application is granted, the Section 4(2)
notice may be served on the Respondent/s and the
municipality having jurisdiction.

The service must take place in accordance with the directions
of the Court and at least 14 days before the hearing takes
place. The 14-day period refers to ordinary days and not Court
days.

On the return date the Court will hear evidence as to the equity
provisions as set out in Section 4(6) with regard to elderly
persons, and households headed by women and/or children.

The Court must then, in the light of all the facts placed before
it, make an order as to what is just and equitable to grant an
order for eviction considering the provisions of sub-sections
4(6), 4(7), 4(8) and 4(9) of PIE.

Frequently, Applicants are faced with the difficulty of effecting
service. In that case the Applicant will have to bring an
application in terms of Rule 10(1)(b) read with Rule 55(4)(b).
Rule 10(1)(b) provides that:
‘If service of process or document whereby proceedings are
instituted cannot be effected in any manner prescribed in Rule
9 … the person desiring to obtain leave to effect service may
apply for such leave to a Presiding Officer, who may consider
such application in chambers.’
The person desiring to obtain leave in the circumstances
contemplated in Rule 10(1)(b) shall make an application to Court,
setting forth concisely the nature and extent of their claim, the
grounds on which it is based, on which the Court has jurisdiction to
entertain the claim, and also the manner of service which the Court
is asked to authorise. If the Applicant is requesting for service other
than personal service, the Applicant should also set forth the last
known whereabouts of the person and the inquiries made to ascertain
their whereabouts. The Court may make an order as to the manner
of service it deems fit and shall further order time within which the
notice of intention to defend is given or any other step is to be taken
by the person to be served.
Rule 55(4)(b) makes provision for ‘applications to the Court for
authority to institute proceedings or directions as to procedure or
service of documents [which] may be made ex parte where the
giving of a notice of such application is not appropriate or not
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necessary.’ (M Moola Clearing up the confusion on evictions
2019 (May) DR 11).
8.6.5
On a practical and informal note the following:
Draft a letter to the tenant/s wherein you put them to terms,
informing them that should they not vacate by a specific date in the
reasonable near future, they will thereafter be in unlawful occupation
of the premises and eviction proceedings will begin.
Send this letter via registered post and keep your proof.
Cancel the lease agreement should there be one.
Once the tenant is in unlawful occupation:
i.
Draft an original Section 4(1) Notice of Motion and Founding
Affidavit (and a copy per Respondent).
ii.
Clerk/Registrar provides you with the case number.
iii.
Choose a Court date sufficiently far into the future and write it
into your Section 4(1) Notice of Motion. The Clerk/Registrar
will stamp your Notice of Motion.
(This date should allow for the full procedure to unfurl, so I
would suggest two months into the future as an absolute
minimum.)
iv.
Take Originals and Copies to the Sheriff to have them
personally served on each Respondent.
v.
Wait until all Respondents have been served and the dies have
expired for them to lodge a Notice of Intention to Oppose.
Now there are two ways forward, these are based on whether they
did not oppose, or whether they did oppose.
They did not oppose:
Once the return of service has been received and the dies has
expired and no notice to oppose has been served on you, go to the
Clerk of the Court:

Request File Cover from Clerk.
(This being the brown Court folder whereupon the case number
is written)

Take this File Cover and insert your:
o
HIGH COURT PRACTICE
Drafted Section 4(2) Order;
Original Section 4(2) Notice of Motion (together with the
attached Section 4(1) Notice of Motion and Founding
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Affidavit as already served and returned by Sheriff) to
the Magistrate, in Chambers.
(Have a copy of the Sheriff’s return with you.)

Magistrate, if satisfied, grants your Section 4(2) Order
directing the Clerk to issue your notice in terms of Section 4(2)
and directing the manner of service on the Respondents, as
being service on their persons. i.e., personal service.

NOTE: There must be at least 14 days between service of this
Section 4(2) Notice of Motion and the Court date selected in
the beginning.

File a copy of the Section 4(2) Notice of Motion and Section
4(2) order immediately with the Clerk/Registrar. They will
stamp them and keep a copy of each in the file.

Take the original and copies of:
o
The Section 4(2) order;
o
The original Section 4(2) Notice of Motion, which
includes the Section 4(1) Notice of Motion and Founding
Affidavit as served earlier to the Sheriff(s) to be served
on the Respondents.

Thereafter, index and paginate your Court file and prepare for
the Court appearance where you will seek the relief.

Attend Court on the date you selected from the Clerk/
Registrar in the beginning.
They opposed:

A Notice to Oppose and Answering Affidavit has been received
from Respondents.

Submit your replying affidavit, if required.

Apply to the Clerk for a Court date, the originally selected date
is now no longer applicable, being replaced by the newly
provided date from the Clerk.

Request file cover from Clerk.
(This being the brown Court folder whereupon the case number
is written).

HIGH COURT PRACTICE
Take this file cover and insert your:
o
Drafted Section 4(2) order;
o
Original Section 4(2) Notice of Motion (together with the
attached Section 4(1) Notice of Motion and Founding
Affidavit as already served and returned by Sheriff) to
the Magistrate, in chambers.
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201
(Have a copy of the Sheriff’s return with you.)

Magistrate, if satisfied, grants your Section 4(2) Order
directing the Clerk to issue your Notice in terms of Section 4(2)
and directing the manner of service on the Respondents as
being service on their Persons. i.e., personal service.

NOTE: There must be at least 14 days between service of this
Section 4(2) Notice of Motion and the Court date selected in
the beginning.

File a copy of the Section 4(2) Notice of Motion and Section
4(2) order immediately with the Clerk. They will stamp them
and keep a copy of each in the file.

Take the original and copies of:
o
The Section 4(2) order;
o
The original Section 4(2) Notice of Motion, which
includes the Section 4(1) Notice of Motion and Founding
Affidavit as served earlier to the Sheriff(s) to be served
on the Respondents.

Thereafter, index and paginate your Court file and prepare for
argument in Court on the new date provided by the Clerk.

Note that in some cases the City of Cape Town must provide
an affidavit wherein the city demonstrates they have engaged
the tenants regarding alternative accommodation. This is
necessary when there are old folk and minors on the premises.
Argument will seldom be heard without this affidavit. Always
confirm the locus standi of the Applicant in the matter and
beware the pitfalls of evictions in deceased estates; especially
where the owner dies intestate; the Executor must also
provide an affidavit confirming the eviction is in line with the
matters of the estate.
This is by no means a comprehensive procedure outlined above, but merely
a simple skeletal guide from which to grow your own procedure around. Good
luck and know your case law.
A quick basic content checklist for the Section 4(1) and 4(2) Notice
of Motion:
1.
Section 4(1) Notice of Motion basic content:
1.1.
Order for eviction of all Respondents at address of premises.
1.2.
Order specifying the date they must vacate.
1.3.
Order specifying the date on which the order may be carried out
if Respondents fail to obey the above order.
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2.
1.4.
Order as to costs.
1.5.
Supporting Affidavit of landlord referenced.
1.6.
Inform Respondents they are in unlawful occupation; entitled to
legal representation; informed of their right to housing in terms
of Section 26 of the Constitution; municipality will be joined in
this application; service of this process must be personal.
1.7.
Appoint Applicant’s Attorneys and address for notices.
1.8.
Usual opposition 5 days; Opposing Affidavits 10
Respondents to provide address within 15km of Court.
1.9.
In event opposed, inform Respondents that Applicant will
request a date for hearing from Clerk, to be duly served on the
Respondents.
days;
Section 4(2) Notice of Motion basic content:
2.1.
Order allowing Applicant to give written notice of the
Proceedings instituted in terms of Section 4(1) to the
Respondents and the Municipality.
2.2.
Allowing the Sheriff to serve this on the Respondents in terms
of the Rules of the Court.
2.3.
Allowing the Sheriff to serve this on any and all occupants other
than the Respondents he finds on the premises.
2.4.
Ordering that the service by the Sheriff shall be done in person.
2.5.
Informing the Respondents of which legislation, the proceedings
are taking place under.
2.6.
Informing the Respondents that they are entitled to appear in
Court personally, by representation or legal aid.
2.7.
Inform the Respondents they are occupying the premises
without the consent of the Applicant.
2.8.
Inform the Respondents of the Court date.
See Annexure at the back of the guide for an example of all the relevant
eviction documents for such an application.
(Candidates are cautioned against templating examples as legislation and
rules keep on changing).
9.
REVIEW APPLICATION
Erasmus et al: Superior Court Practice Rule 53.
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Examples 24.
9.1
AGAINST WHICH PROCEEDINGS?
Against which proceedings may review applications be brought?
Proceedings of any inferior Courts, both civil and criminal and decisions and
proceedings of any tribunal, board or officer performing judicial, quasijudicial or administrative functions.
9.2
THE GROUNDS FOR REVIEW
In terms of Section 21 of the Superior Courts Act No. 10 of 2013 the grounds
upon which the proceedings of an inferior Court may be brought under review
are the following:
•
The absence of jurisdiction on the part of the Court;
•
interest in the cause;
•
bias;
•
malice or corruption;
•
gross irregularity in the proceedings;
•
and the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
There are many grounds upon which a review application may be brought
against the decision and proceedings of tribunals, boards, and administrative
officers, including the grounds set out in the paragraph above, e.g., bias. –
see Chairman Board on Tariffs and Trade and Others v Brenco Inc and
Others 2001 (4) SA 511; good faith – see Reuters Group PLC and Others
v Viljoen and Others NNO 2001 (1) BCLR 1265 (C).
An example of a review on other grounds as set out above, is to be found in
Scenematic Fourteen (Pty) Ltd v Minister of Environmental Affairs
and Tourism and Another 2004 (4) BCLR 430 (C).
A certain body had the authority to make a decision but delegated this task
to someone else. The functionary was required to consider the matter merely
accepting the evaluation done of an advisory committee and amounting to a
failure to bring his own independent discretion to bear on the decision he
was required to make.
The Promotion of Administrative Justice Act No. 3 of 2000 (PAJA) determines
the content or grounds for the application and the procedure is governed by
Uniform Rule 53.
In terms of the common law anything that infringes society’s perception of
fairness and non-prejudice could found a review.
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In Pepkor Retirement Fund v Financial Services Board 2003 (6) SA
38 the Supreme Court of Appeal laid down crucial new principles to bring our
law into harmony with international developments in administrative law and
with the dictates of our Constitution. In so doing, the Court significantly
expanded the grounds for judicial review.
9.3
IN WHICH WAY MUST A REVIEW BE BROUGHT?
A review is brought by way of application (notice of motion) and specifically
in terms of the provisions of Uniform Rule 53. It may also be brought on an
urgent basis and a rule nisi procedure can be used.
In contrast with appeals, a review application does not have to be served
within a specific time but must be brought within a reasonable time. A review
under the PAJA must be launched within 180 days.
The notice of motion is directed to the Magistrate or to the Presiding Officer
of the tribunal or board or the officer concerned and with notice to all other
parties that may be affected. The notice of motion shall be supported by
affidavit setting out the grounds for the application.
In the notice the Presiding Officer or other person is called upon to show
cause why such decision should not be reviewed and corrected or set aside.
The Presiding Officer or other person is called upon to dispatch, within 15
days after receipt of the notice of motion, to the Registrar the record of the
proceedings sought to be corrected or set aside together with such reasons
as s/he is by law required to give or which s/he desires to give or make to
notify the Applicant that s/he has done so.
The record is then dispatched to the Registrar by the Presiding Officer or
other person and the Registrar shall make it available to the Applicant.
The Applicant shall thereupon cause copies to be made and furnish the
Registrar with two copies and the opposite party with one.
The Applicant shall prepare copies for himself/herself and one for his/her
Advocate. The costs hereof shall be borne by the Applicant and shall be costs
in cause.
The Applicant may within 10 days after the Registrar has made the record
available to him/her, by notice and accompanying affidavit amend, add to or
vary the terms of his/her notice of motion.
Should the Presiding Officer or other person affected by the decision desire
to oppose the application, s/he shall within 15 days of the receipt by her/him
of the notice of motion or any amendment thereof, notify the Attorney of the
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Applicant and s/he may within 30 days of the time period allowed for the
filing of the record, deliver her/his answering affidavit.
The Applicant may file a replying affidavit whereafter, as in other types of
application, the matter is enrolled for hearing.
Reviews are, therefore, approached as ordinary applications and may be
heard by a single Judge on any motion day.
As an example of review proceedings see Bulk Deals Six CC and Another
v Chairperson, Western Cape Liquor Board and Others 2002 (2) SA
99 (C). See also Pennington v Friedgood and Others 2002 (1) SA 251
(C).
The Applicant is not necessarily limited to the record of the proceedings and
can, if necessary, go beyond the record, e.g., to show bias.
9.4
MUST AN APPLICANT FIRST EXHAUST ITS INTERNAL REMEDIES
BEFORE IT CAN TAKE A MATTER ON REVIEW?
The Applicant must exhaust its internal remedies before launching a review,
but Section 7(2)(c) of the Promotion of Administrative Justice Act No. 3 of
2000 grants the Court a discretion to waive this requirement if the Applicant
proves exceptional circumstances.
Earthlife Africa (CT) v D G Dept of Emiron Affairs & Tourism 2005 (3)
SA 156 CPD.
9.5
COURT’S COMMON LAW JURISDICTION TO REVIEW DOMESTIC
TRIBUNAL
In Klein v Dainfern College and Another 2006 (3) SA 73 TPD at 74 it
was held:
i.
As to the Applicant’s reliance on Rule 53, that the Court had common
law jurisdiction to review the decision of domestic tribunals established
by contract provided the contract incorporated the principles of natural
justice either expressly or by implication;
ii.
That the Court’s common law jurisdiction to review even domestic
tribunals which did not exercise public powers was not abhorrent to
the spirit and purport of the Constitution;
iii.
That the principles of natural justice had, therefore, not been excluded
by the Constitution in so far as they applied to domestic tribunals
established by contract, provided these principles were expressly or
impliedly incorporated into the contract;
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iv.
That the Applicant was accordingly entitled to have the decision of the
second Respondent reviewed in accordance with the common law
principles of administrative justice;
v.
In respect of the Applicant’s reliance on Sections 6 and 7 of The
Promotion of Administrative Justice No. 3 of 2000, that the decisions
of domestic tribunals established by contract did not fall within the
definition of “administrative action as contained in Section 1 of PAJA
and was, therefore, not reviewable under the Act”;
vi.
For a general overview of the procedural aspects of judicial reviews
see Van Loggerenberg et al (De Rebus August 2008: 32).
SELF-ASSESSMENT QUESTIONS
(a)
Your client is Mr F Brown, a farmer who used a road through his neighbour’s farm,
Mr S Chicks, for the past 5 years to get access to town. On the Monday morning
your client discovers that Mr S Chicks has put a gate on the road and locked it. Mr
F Brown urgently needs to deliver stock to town and if he cannot, he will lose a big
contract. You advise your client that he can bring an urgent application. Draft the
notice of motion and supporting affidavit. Include all headings and make up your
own facts where necessary. (10)
(b)
The Anton Piller order is obtained by way of a rule nisi issued on an ex parte
application and aims to preserve evidence. Which are the necessary averments an
Applicant wishing to obtain such an order must make in his affidavit? (5)
(c)
Your client, Mr Adams, a well-known businessman, approaches you. He has
information that the Moon Daily Newspaper will publish an article containing certain
information about him. Mr Adams informs you that this information is defamatory
and not true. You call the editor at the Moon Daily Newspaper, and he confirms that
they are indeed publishing the article the following day. Your client instructs you to
get a Court order to stop them.
(d)
(i)
Draft the appropriate notice of motion which should accompany the
application for relief to the High Court. You may omit the drafting of the
heading, preamble and ending of the notice of motion by restricting your
answer to only the relief you would seek from the Court. (3)
(ii)
List in point form the information and allegations which should be included
in the Applicant’s founding affidavit accompanying the notice of motion you
drafted in 4.1. (9)
You are consulted by a lady whose wealthy husband has lost his mind after many
years of abusing alcohol and drugs. The obvious solution is the appointment of a
curator bonis.
(i)
Which initial step must be taken and what procedure would you use to
approach the Court? (2)
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(e)
(f)
(ii)
What are the essential aspects and allegations that the founding and/or
supporting affidavit(s) must at least deal with to have a curator bonis
appointed? (9)
(iii)
From which witnesses must supporting affidavits be obtained? (3)
You appear on behalf of the Applicant in an unopposed urgent application which
has been served on the Respondent. The relevant facts are the following: The
Applicant applies for an order to have his electricity which was cut off by the
municipality switched on. The Court has accepted your argument that the matter
is urgent, and no further attention needs to be devoted to this aspect. The Judge
is prepared to grant the relief that you are asking for and asks you to write out a
draft which s/he can make an order of Court.
(i)
Draft only the terms of the order, without an introduction or ending. (5)
(ii)
Assuming the Respondent opposed the matter, draft the opposing affidavit
which may have been lodged by the municipality. (10)
Discuss the element of “ubuntu” in eviction cases. (5)
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IV.
APPEALS AND REVIEWS
RANGE STATEMENT:
Explain, draft, and perform all actions related to appeals and review proceedings.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Tabulate the difference between appeal and review.
•
Draft a Power of Attorney to appeal in a given set of facts.
•
Explain the rules to procure an appeal.
•
Explain the concept ‘leave to appeal’.
•
Draft a notice of appeal in a given set of facts.
•
Draft an index to record the Court a quo’s proceedings.
•
Draft heads of argument.
•
Explain the procedure for appeal from the Magistrate’s Court to the High Court;
from the High Court to the Full Bench and from the High Court to the Supreme
Court of Appeal.
1.
THE DISTINCTION BETWEEN APPEAL AND REVIEW
1.1
WHAT IS AN APPEAL
In the context of civil appeals, an appeal is normally subject to any further
Court orders, a rehearing on the merits, but limited to the evidence or
information on which the decision was given. New evidence may only be
adduced with the leave of the Court.
1.2
WHAT IS A REVIEW
These are decisions of lower Courts or tribunals that are brought into
question in higher Courts where grave irregularities are found to be occurring
or have occurred in theses lower Courts or tribunals.
Durbsinvest (Pty) Ltd v Town and Regional Planning Commission,
KwaZulu-Natal and Others 2001 (4) SA 103 N.
1.3
WHEN REVIEW IS TO BE BROUGHT
It is important for the efficient functioning of public bodies that the challenge
to the validity of the decisions by proceedings for judicial review should be
initiated without undue delay. The rationale for that long-standing Rule is
two-fold:
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First, the failure to bring a review within a reasonable time may cause
prejudice to the Respondent. Secondly, there is a public interest element in
the finality of administrative decisions and the exercise of administrative
functions.
See Gqwetha v Transkei Development Corporation Limited and
Others 2006 (2) SA 603 SCA at 612 D-F.
1.4
WHAT IS THE MAIN DISTINCTION BETWEEN APPEAL AND REVIEW?
APPEAL
REVIEW
Appeals must be noted within a particular
period, in accordance with statutory
provisions or the provisions of the rules.
Reviews need not be brought within a fixed
period. It must be brought within a
reasonable time – seven years not
reasonable.
Lebowa Mineral Trust v Lebowa
Granite (Pty) Ltd 2002 (3) SA 30 (T).
In the case of an appeal the Appellant is
bound by the record.
In the case of a review, the Applicant is not
bound by the record. Often an Applicant’s
objection concerns an action or omission
on the side of the decision-maker which
does not appear from the record.
When conducting an appeal, the Court is
obliged to consider the merits of the
matter before it and conclude whether the
decision of the Court a quo was right or
wrong.
When hearing a review, however, the
Court may not entertain the merits of the
decision but is instead required to
determine whether the manner in which
the decision was reached (and particularly
whether the procedures which were
followed by the Court or tribunal of first
instance) was appropriate.
An application for leave to appeal / the
filing of a Notice of Appeal automatically
suspends the operation of that decision
until such time as the appeal has been
finalised.
The institution of review proceedings does
not necessarily suspend the decision under
review.
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A Court tasked with determining an appeal
may overturn the decision of the Court or
tribunal of first instance and declare its
own decision to be the decision of that
Court or tribunal; it accordingly hears the
matter afresh (although evidence is not
usually led afresh) and appeals (in that
sense) constitute hearings de novo.
1.5
On review, the Court's powers are
somewhat
more
limited.
Whilst
a
reviewing Court may undoubtedly set
aside the decision of the Court or tribunal
of first instance (where there are valid
grounds for review), it will generally not
substitute its own decision for that of the
Court or tribunal a quo. Instead,
reviewing Courts are obliged (in the
absence of exceptional circumstances
warranting the substitution of the original
decision with that of its own) to refer the
matter back to the Court or tribunal of first
instance, for a hearing de novo, upon
such directions as it deems fit.
SPECIALIST COURTS – APPEAL
Which Court does a party appeal to if dissatisfied with the ruling of the
following Courts?
1.6
•
Labour Court – the Labour Appeal Court has jurisdiction.
•
Matrimonial Court – the High Court.
•
Land Claims Court – the High Court.
CONSTITUTIONAL STANDARD OF REVIEW
The constitutional standard of review of administrative actions set out in
Section 31(1) of the Constitution and Section 6(2) of PAJA is one of objective
rationality and not substantive reasonableness.
Radio Pretoria (geregistreer ooreenkomstig Artikel 21 van die
Maatskappywet van SA van 1973 soos gewysig) v Voorsitter van die
Onafhanklike Kommunikasie-Owerheid van SA en ’n Ander 2006 (3)
BCLR 444 (T).
1.7
SECTION 21 OF THE SUPERIOR COURTS ACT NO. 10 OF 2013
In terms of Section 21(1)(b) and Section 22 of the Superior Courts Act No.
10 of 2013, the grounds of review of the proceedings of inferior Courts are:
1.7.1 Absence of jurisdiction on the part of the Court;
1.7.2 Interest in the cause, bias, malice or the commission of an offence
referred to in Part 1 to 4, or Section 17, 20 or 21 (in so far as it relates
to the abovementioned offences) of Chapter 2 of the Prevention and
Combating of Corrupt Activities Act No.12 of 2004, on the part of the
presiding judicial officer;
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1.7.3 Gross irregularity in the proceedings; and
1.7.4 The admission of inadmissible or incompetent evidence or the rejection
of admissible or competent evidence.
Nothing in Section 21 or 22 shall affect the provision of any other law relating
to the review of proceedings in inferior Courts. An inferior Court is defined
as any Court (other than the Court of a division) which is required to keep a
record of its proceedings and includes a Magistrate or other officer holding a
preparatory examination into an alleged offence.
1.8
GENERAL
1.8.1 Generally, where the complaint is against the result of the
proceedings, an appeal would be appropriate. Where the method or
the proceedings is attacked, the remedy would be to bring a review.
1.8.2 Section 33 of the Constitution reads as follows:
“33
A JUST ADMINISTRATIVE ACTION
1.
Everyone has a right to administrative action that is lawful, reasonable and
procedurally fair.
2.
Everyone whose rights have been adversely affected by administrative
action has a right to be given written reasons.
3.
National legislation must be enacted to give effect to these rights and
must:
1.9
a)
Provide for the review of administrative action by a Court or, where
appropriate, an independent and impartial tribunal;
b)
Impose a duty on the State to give effect to the rights in subsections (1) and (2); and
c)
Promote an efficient administration.”
CURRIE AND KLAAREN (489) “JUST ADMINISTRATIVE ACTION” IN
DE WAAL J, CURRIE I AND ERASMUS G THE BILL OF RIGHTS
HANDBOOK 2001 JUTA CAPE TOWN COMMENT ON SECTION 33 AS
FOLLOWS
“The entrenchment of fundamental principles of administrative law in the
Constitution and the Bill of Rights should be seen against the background of
a long history of abuse of government power in South Africa. .... The
Constitution seeks to prevent this history from being repeated by protecting
the institution of judicial review of administrative power from legislative
interference, while providing individuals with justiciable rights to claim relief
from the effects of unlawful administrative action. The Constitution requires
the administration to act in accordance with fundamental principles of justice
and rationality.”
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1.10 PAJA
1.10.1 The Promotion of Administrative Justice Act (“PAJA”) No. 3 of 2000
was assented to on 3 February 2000 and commenced on 30
November 2000.
1.10.2 This Act was enacted pursuant to Section 33 read with item 23 of
Schedule 6 to the Constitution, providing everyone with the right to
lawful, reasonable, and procedurally fair administrative action.
1.10.3 The effect of the provisions of the Constitution and PAJA is that the
grounds for review under the Constitution are broader and that preconstitutional standards are no longer applicable, irrespective as to
whether the decision being reviewed is brought in terms of the Act
or in terms of the common law.
1.10.4 In Hamata and Another v Chairperson Peninsula Technikon
Internal Disciplinary Committee and Others 2000 (4) SA 621
(C) it was held that:
“It is no longer necessary for an Applicant on review to satisfy the
pre-constitutional standard formulated in Johannesburg Stock
Exchange and Another v Witwatersrand Nigel Limited and
Another 1988 (3) SA 132 (A) at 152 A – E, namely that the
decision in question was so grossly unreasonable as to justify an
inference that the decision maker had failed to apply his/her mind to
the matter.”
1.10.5 In Commissioner of Customs and Excise v Container Logistics
(Pty) Ltd; Commissioner of Customs and Excise v Rennies
Group Limited t/a Renfreight 1999 (3) SA 771 (SCA) at 785,
786, the Supreme Court of Appeal noted that:
“Judicial review under the Constitution .... of 1993 (the interim
Constitution) and under the common law are different concepts. In
the field of administrative law Constitutional review is concerned with
the Constitutional legality of administrative action, the question in
each case being whether or not it is consistent with the Constitution
and the only criterion being a constitution itself.”
1.10.6 Section 6(2)(g), read with Section 6(3)(a) of the Promotion of
Administrative Justice Act No. 3 of 2000 provides that the failure to
take a decision within a reasonable time is a ground of review and
hence an infringement of the fundamental right to just administrative
action.
Intertrade Two (Pty) Ltd v MEC for Roads and Public Works
EC 2007 (6) SA 442 (CkHC)
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1.11 CASE
In Transnet Ltd and Others v Chirwa 2007 (2) SA 198 SCA at 207
Mitiane J A again referred to the statement of Chaskalson CJ in Minister of
Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici Curiae)
2006 (2) SA 311 (CC).
“(95) PAJA is the national legislation that was passed to give effect to the
rights contained in Section 33. It was clearly intended to be, and in substance
is, a codification of these rights. It was required to cover the field and
purports to do so. (96) A litigant cannot avoid the provisions of PAJA by going
behind it and seeking to rely on Section 33(1) of the Constitution or the
common law. That would defeat the purpose of the Constitution in requiring
the rights contained in Section 33 to be given effect by means of national
legislation.”
1.12 COURT’S DISCRETION
Given the effluxion of time and as a matter of public interest in the finality
of administrative decisions and the exercise of administrative functions,
considerations of pragmatism and practicality can in appropriate cases
compel the Court to exercise its discretion not to set aside invalid
administrative acts.
Chairperson, STC v JFE Sapela Electronics 2008 (2) SA 638 SCA.
2.
CIVIL APPEALS FROM THE MAGISTRATE’S COURT
Candidates are further referred to the guide in respect of Magistrate’s Court
Practice.
2.1
APPEAL FOR MAGISTRATE’S COURT DESIGNATED AS AN EQUALITY
COURT TO HIGH COURT
When a matter proceeds to the High Court on appeal from the Magistrate’s
Court designated as an Equality Court, it enters the ordinary civil litigation
appeal structure and there is no specialised appeal structure for such appeals
or restricted to Judges trained in terms of Section 31 of the Promotion of
Equality and Prevention of Unfair Discrimination Act No. 4 of 2000.
3.
APPEALS FROM THE HIGH COURT
Rule 49, Section 16 and 17 of the Superior Courts Act No. 10 of 2013;
Erasmus, Superior Court Practice.
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3.1
THIS SECTION DEALS WITH APPEALS IN TERMS OF RULE 49
Section 16 of the Superior Courts Act No. 10 of 2013 specifies that an
Appellant may only appeal against a judgment of the High Court if leave has
been granted to appeal against the judgment.
Leave to appeal can be applied for immediately after the judgment of a single
Judge. In an appeal from the Magistrate’s Court to two Judges of the High
Court, no leave to appeal is required. In terms of Section 16(1)(b) of the
Superior Courts Act No. 10 of 2013, an appeal against any of a Division on
appeal to it lies to the Supreme Court of Appeal upon special leave to appeal
by the Supreme Court of Appeal.
When leave to appeal has not been applied for at the time of judgment,
application must be made by way of notice to the Registrar and the other
party within 15 days after the date of the order appealed against. If full
written reasons for the judgment were not provided at the time that
judgment was handed down, either party may apply for full written reasons
and in that event the deadline for the application for leave to appeal is
extended to 15 days from the date upon which the full written reasons are
furnished. Litigants are ordinarily entitled to reasons for a judicial decision
following upon a hearing and, when a judgment is appealed, written reasons
are indispensable. Upon good cause shown, the Court may extend the aforementioned periods. The notice must state the grounds of appeal.
The application for leave to appeal is normally heard by the Judge who
presided at the trial and who gave judgment. The application shall be set
down by the Registrar on a date that suits that Judge, and the Registrar shall
give written notice thereof to the parties. If the Judge that presided at the
trial is not available, the application may be heard by another Judge of the
same Division.
The test in an application for leave to appeal is whether there are reasonable
prospects of another Court coming to a different conclusion.
The Judge hearing the application has the discretion to refer the appeal to a
full Court or to the Supreme Court of Appeal. The procedure regulating
applications for leave to appeal directly to the Constitutional Court is
provided for in Constitutional Court Rule 19. In such event the Court which
gave the decision is required to certify that it is in the interests of justice for
the matter to be brought directly to the Constitutional Court and that there
is reason to believe that the latter may give leave to the Appellant to note
an appeal against the decision on such matter.
If the Judge refuses the application for leave to appeal, the Appellant can
submit an application (previously a petition) to the Supreme Court of Appeal.
See paragraph below.
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If leave to appeal to the full Court is granted, the Appellant must deliver a
notice to appeal to all parties within 20 days or within such longer period as
may upon good cause shown be permitted, after the date upon which leave
to appeal was granted.
The notice of appeal shall state whether the whole or part of the judgment
is appealed against and if only against part, which part. The notice shall
further specify the findings of fact and/or rulings of law appealed against and
the grounds on which the appeal is founded.
Before an appeal can be considered, there must be a “judgment or order”
(Rule 49(1)(a)). The attributes of a ‘judgment or order” was discussed in
Zweni v Minister of Law and Order 1993 (1) SA 523 A where it was
held that a judgment or order must be:
•
Final in effect;
•
Definitive of the rights of the parties; and
•
Must have the effect of disposing of at least a substantial portion of
the relief claimed in the main action or application.
As to whether an order dismissing an exception is appealable, see Minister
of Safety and Security and Another v Hamilton 2001 (3) SA 50 SCA.
A Court can dismiss an appeal if the judgment or order sought would have
no practical effect. Universal Storage Systems (Pty) Ltd v Crafford and
Others 2001 (4) SA 249 W.
However, in Land en Landbouontwikkelingsbank van Suid Afrika v
Conradie 2005 (4) SA 5065 CA the Court held that where the matter at
hand was a question of law and likely to arise frequently, the Court may hear
the merits of the appeal and pronounce on it. No appeal can be lodged
against the dismissal of a special plea.
Robbertze en ‘n Ander v Garden Route Resort Services BK 2004 (4)
SA 406C.
Appeals are subject to strict time limits and non-compliance with the rules
will require an application for condonation.
The relevant principles which a Court will take into account were restated in
Byron v Duke Inc. 2002 (3) All SA 235 (A) as:
1.
The degree of non-compliance. In Rustenburg Gearbox Centre v
Geldmaak Motors CC t/a MEJ Motors 2003 (5) SA 468 the Court
dismissed an application for condonation and late filing of documents,
because of gross non-compliance;
2.
the explanation thereof;
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3.
the importance of the case;
4.
the prospects of success;
5.
the Respondent’s interest in the finality of the judgment;
6.
the convenience of the Court;
7.
the avoidance of unnecessary delay in the determination of justice.
Rule 7(2) provides that the Registrar shall not set down an appeal unless the
Attorney has filed a Power of Attorney together with the application for a
date of hearing. Unless the Power of Attorney is filed together with the
application for a date of hearing, the appeal shall be deemed to have lapsed.
3.2
SUSPENSION OF JUDGMENT PENDING APPEAL
Section 18(1) of the Superior Courts Act No. 10 of 2013 states that unless
the Court under exceptional circumstances orders otherwise, the operation
and execution of the decision which is the subject an application for leave to
appeal or of an appeal is suspended pending the decision of the application
or appeal.
A Court may order that the decision is not suspended if it is shown on a
balance of probabilities that the Applicant who seeks immediate
implementation of the decision will suffer irreparable harm if the Court does
not order immediate implementation and that the other party will not suffer
irreparable harm if the Court grants the application.
Erasmus et al A2 – 63.
3.3
NO APPEAL REGARDING SETTLEMENT
There is no appeal against an out-of-Court settlement which is made an order
of Court by agreement between the parties.
Fourie NO v Merchant Investors (Pty) Ltd and Another 2004 (3) SA
422 (C).
3.4
DELAY BY LOWER COURT IN GRANTING LEAVE TO APPEAL
A Court of appeal was entitled in appropriate circumstances to treat as
unreasonable a delay on the part of the lower Court (i.e., the High Court
which heard the matter in the first instance) in deciding whether or not to
grant leave to appeal as a constructive refusal of the application. The delay
need not be deliberate. The fact that there has been an unreasonable delay
was sufficient in itself to entitle an appeal Court to make such finding.
Minister of Health v New Clicks SA (Pty) Ltd and Others 2006 (2) SA
311 (CC) at 317 C.
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3.5
RULE 6(5)
Supreme Court of Appeal Rule 6(5) requires that every application, answer,
and reply should be “clear and succinct and to the point” and that such
applications “shall not be accompanied by the record”. The provisions of this
Rule, therefore, require of Legal Practitioners to condense the relevant facts
and principles in order to be “succinct and to the point”. Lengthy records or
portions of records should not be annexed to an application for leave to
appeal. The non-compliance with the prescripts of the sub-rule has recently
resulted in “no orders” and adverse costs orders.
3.6
PROCEDURE FOR AN APPEAL TO BE HEARD BY THE HIGH COURT
The procedure is set out in Rule 49 of the Uniform Rules. See below (4.1)
concerning the procedure in an appeal to be heard by the Supreme Court of
Appeal, which is governed by the Supreme Court of Appeal Rules and not the
Uniform Rules.
If leave to appeal to the full Court is granted, the Appellant must deliver a
notice to appeal to all parties within 20 days after the date upon which leave
to appeal was granted. The opposing party may cross-appeal in which event
it must deliver a notice of cross-appeal within ten days of delivery of the
notice of appeal. It is accordingly conceivable to have an appeal in which
both opposing sides seek to persuade the Court hearing the appeal to grant
a different order from that granted by the Court a quo.
The notice of appeal (and where relevant, the notice of cross-appeal) shall
state whether the whole or part of the judgment is appealed against and if
only against part, which part. The notice shall further specify the findings of
fact and/or rulings of law appealed against and the grounds on which the
appeal is founded. The notice of appeal/cross-appeal should state the
particular aspect in which the variation of the judgment or order is sought.
In other words, the notice should make it clear whether the appeal is on a
point of law or points of law, or on fact, or both. In this regard, the notice
should specify the findings of fact or rulings of law appealed against, and in
what particular respect variation thereof is sought.
Within 60 days after delivery of the notice of appeal, the Appellant must:
•
Apply to the Registrar for a date of hearing of the appeal; and
•
Furnish the Registrar with the names and addresses of all parties to
the appeal; and
•
File three copies of the record on appeal with the Registrar and an
additional two copies with the Respondent; and
•
File with the Registrar a complete index and copies of all papers,
documents and exhibits in the case; and
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•
Furnish security for the Respondent’s costs of appeal, unless security
has been waived by the Respondent or the Court has ordered that
security is not required.
The requirements for applications for condonation for the late serving and
filing of the appeal record were revisited and re-stated in Unitrans Fuel and
Chemical (Pty) Ltd v Dove–Co Carriers CC 2010 (5) SA 340 (GSJ),
where it was stated that where the Applicant sought an indulgence by the
Court, it had to show that it bore no fault for the delay and had the duty to
fully explain the entire period of the delay.
Heads of argument must be filed by the Appellant 15 days before the hearing
of the appeal and the Respondent shall do the same at least 10 days before
the hearing.
The Registrar will then allocate a date, giving the parties at least 20 days’
notice.
The requirements for the presentation of the record are set out in Rule 49(8)
and are very strictly applied.
4.
APPEALS TO THE SUPREME COURT OF APPEAL
Erasmus, Superior Court Practice.
Section 17 of the Superior Courts Act No. 10 of 2013.
4.1
PROCEDURE TO BE FOLLOWED ON APPLICATION FOR LEAVE TO
APPEAL TO SUPREME COURT OF APPEAL
If leave to appeal to the Supreme Court of Appeal was not granted by the
Court a quo, leave must be obtained by way of application addressed to the
President of the Supreme Court of Appeal. The application is heard by two
appeal Judges. Three copies of the application and the verifying affidavit
must be lodged with the Registrar of the Court. The appeal Judges may grant
or refuse the application or refer the application to the Court for
consideration. If the application for leave to appeal is referred to the Court,
the Applicant must lodge with the Registrar within the time fixed by the
Judges, three additional typed copies of the application and if so, also
directed six typed copies of the record, one of which shall be certified by the
Registrar of the Court a quo.
The Applicant must also serve notice on the Respondent that the application
has so been referred. Every application for leave to appeal shall furnish
succinctly and fairly all information as may be necessary to enable the Court
to decide whether leave ought to be granted and the application must be
accompanied by a copy of the judgment of the Court a quo and if leave to
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appeal has been refused by that Court, by a copy of the judgment refusing
the leave.
A handy checklist in regard to applications for leave to appeal appears in De
Rebus August 2012 at page 20. Whenever leave to appeal is granted, the
case shall not be set down for hearing until proof has been furnished to the
Registrar that security which the Court may have ordered the Appellant to
furnish, has in fact been furnished.
The time for the lodging of the record may be extended by the Registrar for
a period of not more than two months or by written agreement of all the
parties (Rule 8 of the Supreme Court of Appeal Rules).
In terms of Rule 10 of the Supreme Court of Appeal Rules, the Respondent
shall thereafter lodge six copies of his/her heads of argument with the
Registrar and the Appellant. This should be done within one month of receipt
of the Appellant’s heads of argument.
In practice, the President of the Supreme Court of Appeal makes an order in
terms of the Rules that the Appellant’s heads of argument shall be served on
the Respondent’s Attorney and lodged with the Registrar by not later than a
specified date and that the Respondent’s heads be served on the Appellant’s
Attorney and lodged with the Registrar by no later than another (later) date.
This occurs in practice even before a date is allocated for the hearing of appeal.
In terms of the President’s practice directive dated 26 May 1997, the heads
of argument of each party must be accompanied by a brief typed notice
indicating inter alia the nature of the appeal, a succinct statement of the
issues on appeal, an estimation of the duration of the argument, a summary
of the argument and an indication of those authorities to which particular
reference will be made during the course of the argument.
4.2
POWERS OF THE SUPREME COURT OF APPEAL OR THE DIVISION OF
THE HIGH COURT EXERCISING APPEAL JURISDICTION (SECTION 19
OF THE SUPERIOR COURTS ACT NO. 10 OF 2013)
The Court hearing the appeal may grant the following orders and/or rulings:
•
confirm, vary and/or alter or set aside the rulings of the Court against
which there has been an appeal;
•
remit the matter to the lower Court with instructions for further
hearing;
•
instruct the parties or one of the parties to produce additional evidence
required;
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•
4.3
The Court hearing the appeal may take any appropriate course that
will result in a speedy disposal and/or settlement of the case and may
order costs as dictated by the needs of justice.
DISCRETION
A Court hearing an appeal has a discretion to dismiss an appeal where the
judgment or order sought would have no practical effect or result. The test
is whether the judgment or order would have a practical effect or result, not
whether it might be of importance in a hypothetical future case. – see
Jeebhai v Minister of Home Affairs and Another 2008 (3) BCLR 316
(T).
4.4
GENERAL
Normally it is not necessary for a Power of Attorney to be filed, but the
authority of a Legal Practitioner to act on behalf of a party may, within ten
days after it has come to the notice of the other party that the Legal
Practitioner is so acting or, with leave of the Court on good cause shown at
any time before judgment, be disputed by notice, whereafter upon expiry of
ten days after service of the notice, the Legal Practitioner shall no longer so
act unless a Power of Attorney is lodged with the Registrar within that period.
This does not apply to the National Prosecuting Authority, a Legal Practitioner
acting pro deo or amicus curiae or the State Attorney (Rule 5 of the
Supreme Court of Appeal Rules).
The tariff of fees allowed to Attorneys conducting appeals before the SCA on
a party and party basis are contained in Rule 18 of the Supreme Court of
Appeal Rules.
4.5
RULE 16 OF SCA
Rule 16 of the Supreme Court of Appeal Rules provides for the possibility of
submissions by amicus curiae (a friend of the Court) and the requirement
of the Rule must be complied with. An amicus curiae is limited to written
submissions which do not repeat any matter set forth in the arguments of
the main litigating parties (Rule 16(7)).
4.5.1
Footnote 26 of the minority judgment of Froneman J in National
Union of the Public Service and Allied Workers obo Mani and
Others v National Lotteries Board 2014 (3) SA 544 (CC) refers
to Section 168(3) of the Constitution, as amended by the Constitution
17th Amendment Act No. 72 of 2012, which now reads:
“The SCA may decide appeals in any matter arising from the High
Court of South Africa or a Court of a status similar to the High Court
of South Africa, except in respect of labour and competition matters
to such extent as may be determined by an Act of Parliament.”
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4.5.2
The majority of the Court in the above matter did not adjudicate this
aspect and the remark by Froneman J must be deemed to be obiter.
4.5.3
In an article by Vuyo Mkwibiso in De Rebus August 2014, the writer
does not agree with the above obiter remark by Froneman J, and he
is of the opinion that the SCA still has jurisdiction in labour matters.
4.5.4
This matter was settled in light of Baloyi v Public Protector and
others 2021 (2) BCKR 101 (CC).
SELF-ASSESSMENT QUESTIONS
(a)
The trial of the action referred to in the Assignment after paragraph 7.3 above has
taken place. The action was dismissed with costs. On behalf of your client, you have
made application for leave to appeal against the judgment and order of the trial
Judge and leave has been granted to appeal to the Supreme Court of Appeal. The
trial Judge was the Honourable Mr Justice X and his judgment was delivered on 3
December 20… in the Gauteng Division. You have been granted leave to appeal
against the whole of the judgment and order.
(i)
Draft the Power of Attorney to lodge an appeal on behalf of your client. (5)
(ii)
Draft the Notice of Appeal to the Supreme Court of Appeal. (10)
(b)
List 3 (three) grounds on which the proceedings of any inferior Court may be
brought under review before the High Court. (3)
(c)
The Judge who found against your client in a High Court trial refuses leave to
appeal. What remedy, if any, does your client now have? (2)
(d)
Distinguish between appeal and review proceedings. (10)
(e)
Using an imaginary set of facts, draft an application for review. (15)
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V.
EXECUTION
RANGE STATEMENT:
Explain, draft, and perform all actions related to executing a judgment.
SECTION OUTCOMES:
After completing this Section, you should be able to:
•
Explain warrants of execution.
•
Complete a warrant of execution in a given set of facts.
•
Explain when a warrant of execution may be issued against movable and
immovable property.
•
Explain when a party may recover costs by means of a warrant of execution.
•
Explain the procedure for attachment by means of a warrant of execution and
subsequent sale procedure for movable and immovable property.
•
Explain the meaning of attachment to found or confirm jurisdiction.
1.
FORMS OF WARRANTS
Erasmus, Superior Court Practice, pp A1 – 79 to A1 – 80 and A1 -92 to A1 -95; B1 –
319 to B1 – 330.
Section 42 to 46 of the Superior Courts Act No. 10 of 2013 and Rule 45.
1.1
WARRANTS FOR EXECUTION
Once a judgment is obtained the judgment creditor is entitled to attach and
to sell in execution the judgment debtor’s property, whether movable,
immovable, and incorporeal. He does so by obtaining a warrant of execution
(also called a writ of execution).
If no, or insufficient satisfaction of a judgment sounding in money is
obtained, the judgment creditor may in certain circumstances apply for the
sequestration of the judgment debtor’s estate.
The writ of execution must be as near as may be in accordance with Form
18 of the first Schedule to the Rules.
1.2
EXECUTION IN RESPECT OF COSTS
No party is entitled to obtain a writ of execution for the recovery of any costs
awarded to her/him until those costs have been taxed by the Taxing Master
or agreed to in writing by the party concerned in a fixed sum.
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Where the costs have been awarded, but not yet taxed or agreed upon a
party may include a claim for such costs in a writ of execution, subject to
due taxation thereof. However, if such costs have not been taxed and the
original bill of costs, duly allocated, have not been lodged with the Sheriff
before the date of the sale, such costs shall be excluded from his account
and plan of distribution.
1.3
2.
EXECUTION AGAINST THE STATE
1.3.1
Section 3 of the State Liability Act No. 20 of 1957 did not allow for
execution or attachment against the State. In Nyathi v Member of
the Executive Council for the Department of Health, Gauteng
& Others 2008 (9) BCLR 865 (CC) Section 3 was declared
inconsistent with the Constitution to the extent that it did not allow
for execution or attachment against the State. Declaration of
invalidity was suspended for a period of 12 months from 2 June 2008
to allow Parliament to pass legislation providing for the effective
enforcement of Court orders against the State. During 2009 this
period was again extended subject to certain terms and conditions.
1.3.2
The legislature addressed the matter accordingly in Act No. 14 of
2011 being the State Liability Amendment Act, which came into
operation on 30 August 2011.
1.3.3
The Act contains the procedure and a sequence of steps to be taken
by various parties to enforce the judgment against the executive
authority and reference can be had to the article by M E Ramonyai
(De Rebus September 2013, page 20) which contains a step-by-step
procedure for execution of a final order sounding in money.
SALES IN EXECUTION
Erasmus, Superior Court Practice and Rules 45 and 46.
2.1
MOVABLE PROPERTY
This procedure is regulated by High Court Rule 45 and the salient points are
set out hereunder.
The Sheriff proceeds to the dwelling or place of employment or business of
the person against whom a writ of execution was issued. There the Sheriff
demands satisfaction of the writ, failing which, s/he demands that such
movable disposable property be pointed out, as s/he may deem sufficient to
satisfy the writ. Failing such pointing out, s/he may search for such property.
The Sheriff inventories the property and removes it unless the execution
creditor otherwise directs or the person whose property has been attached
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and his/her surety undertake in writing that such property shall be produced
on the day appointed for the sale thereof.
The Sheriff files his/her return of service with the Registrar and delivers a
copy to the Attorney. In the return, the Sheriff indicates what s/he has done
about the writ.
The sale in execution of the attached property is then advertised in two
suitable newspapers (whenever possible one in an Afrikaans and one in an
English newspaper) circulating in the district in which the property has been
attached.
After the expiration of not less than 15 days from the time of the attachment
thereof the property is sold by the Sheriff by public auction to the highest
bidder.
The Sheriff deducts from the proceeds of the sale the costs of the execution
and the balance is distributed in the order of preference laid down by Rule
46(14)(c).
The Sheriff shall pay any surplus that may remain to the judgment debtor.
2.2
IMMOVABLE PROPERTY
Rule 46A for the purpose of this judgment provides:
“Execution against residential immovable property
(1)
This rule applies whenever an execution creditor seeks to execute against the
residential immovable property of a judgment debtor.
(2)(a) A Court considering an application under this rule must —
(i)
establish whether the immovable property which the execution creditor
intends to execute against is the primary residence of the judgment
debtor; and
(ii)
consider alternative means by the judgment debtor of satisfying the
judgment debt, other than execution against the judgment debtor’s
primary residence.
(b)
A Court shall not authorise execution against immovable property which is the
primary residence of a judgment debtor unless the Court, having considered all
relevant factors, considers that execution against such property is warranted.
(c)
The Registrar shall not issue a writ of execution against the residential
immovable property of any judgment debtor unless a Court has ordered
execution against such property.
(5)
Every application shall be supported by the following documents, where
applicable, evidencing:
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(a)
the market value of the immovable property;
(b)
the Local authority valuation of the immovable property;
(c)
the amounts owing on mortgage bonds registered over the immovable
property;
(d)
the amount owing to the Local authority as rates and other dues;
(e)
the amounts owing to a body corporate as levies; and
(f)
any other factor which may be necessary to enable the Court to give effect to
sub-rule (8): Provided that the Court may call for any other document which it
considers necessary.
A Court considering an application under this Rule may:
(a)
of its own accord or on the application of any affected party, order the
inclusion in the conditions of sale, of any condition which it may
consider appropriate;
(b)
order the furnishing by:
(c)
(i)
a municipality of rates due to it by the judgment debtor; or
(ii)
a body corporate of levies due to it by the judgment debtor;
on good cause shown, condone —
(i)
failure to provide any document referred to in sub-rule (5); or
(ii)
delivery of an affidavit outside the period prescribed in sub-rule
(6)(d);
(d)
order execution against the primary residence of a judgment debtor if
there is no other satisfactory means of satisfying the judgment debt;
(e)
set a reserve price;
(f)
postpone the application on such terms as it may consider appropriate;
(g)
refuse the application if it has no merit;
(h)
make an appropriate order as to costs, including a punitive order
against a party who delays the finalisation of an application under this
rule; or
(i)
make any other appropriate order.
In deciding whether to set a reserve price and the amount at which the
reserve is to be set, the Court shall take into account the market value of
the immovable property, the amounts owing as rates or levies, the amounts
owing on registered mortgage bonds, any equity which may be realised
between the reserve price and the market value of the property, reduction
of the judgment debtor's indebtedness on the judgment debt, whether or not
equity may be found in the immovable property, whether the immovable
property is occupied, the persons occupying the property and the
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circumstances of such occupation, the likelihood of the reserve price not
being realised and the likelihood of the immovable property not being sold,
any prejudice which any party may suffer if the reserve price is not achieved
and any other factor which in the opinion of the Court is necessary for the
protection of the interests of the execution creditor and the judgment debtor.
Plastomark (Pty) Ltd v Small and Others (1381/2018) [2018]
ZAECGHC 113 (6 November 2018).
If the reserve price is not achieved at a sale in execution, the Court must, on
a reconsideration of the factors order how execution is to proceed. Where
the reserve price is not achieved at a sale in execution, the Sheriff must
submit a report to the Court within 5 days of the date of the auction, which
report shall contain the date, time and place at which the auction sale was
conducted, the names, identity numbers and contact details of the persons
who participated in the auction, the highest bid or offer made and any other
relevant factors which may assist the Court in performing its functions. The
Court may order that the property be sold to the person who made the
highest offer or bid.
Once the Court has granted an application for the sale of the immovable
property, a writ of execution can be issued. The writ, corresponding
substantially with Form 20A, shall contain the full description of the nature,
magisterial district, and physical address. It must be served on the owner,
Registrar of Deeds, and the occupier. The service must be done in terms Rule
4. If the sale is done by a third party that is not the bondholder, then the
writ must be sent to the preferent creditor and Local Authority or Body
Corporate as well. The preferent creditor must consent to the sale or provide
a reserve price. The writ can be served on the preferent creditor by registered
post.
The date of the sale may not be less than 45 days after the warrant was
served. 35 days before sale the conditions of sale must be delivered to the
Sheriff. Interested parties may amend conditions 25 days before sale, 20
days before sale, the Sheriff must set conditions for the sale. The conditions
must lay for 15 days for inspection at the office of the Sheriff. The Sheriff
must serve conditions on debtor 15 days before sale. An interested party can
apply on 24 hours’ notice to change the conditions of sale at the High Court,
10 days before the sale. The execution creditor must draft a notice of sale
which contains a short description of property, situation, street address,
time, and place of sale and that the conditions of sale may be inspected at
the Sheriff. The Sheriff must serve the notice of sale 10 days before sale on
other judgment creditors who attached property, every mortgagee, all other
Sheriffs appointed in the same district. The Sheriff shall affix the notice to
the notice board of the High Court and place of sale. The execution creditor
must publish the notice of sale in the Government Gazette and a newspaper
in the district not less than 5 days but not more than 15 days before the sale.
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Please note that the provisions of the Consumer Protection Act No. 68 of
2008 are also applicable to sales in execution.
SELF-ASSESSMENT QUESTIONS
(a)
Judgment was entered against your client by default. The client was unaware that
a summons was issued and never saw the summons but only found out about the
judgment when a writ of execution was served on him.
(i)
What remedy does your client have if the client has a good defence against
the Plaintiff’s claim? (1)
(ii)
What documents would you require from the Court file to give effect to your
client’s instructions? (2)
(b)
Briefly explain Rule 46 of the Uniform Rules of Court. (10)
(c)
True or false: Costs awarded in a matter can be recovered without it being taxed.
Explain. (4)
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VI. MISCELLANEOUS ASPECTS
1.
VALIDATION OF DOCUMENTS
Erasmus: Superior Court Practice and Rule 63.
“Authentication” of a document means the verification of any signature on it.
There is no substantive enactment requiring that a document executed in a foreign
country must be authenticated before it can be used in the Republic. It is, however,
a long-established practice that such documents must be authenticated.
A document executed in a foreign country is deemed to be sufficiently authenticated
if it has been duly authenticated in such foreign country by the signature and seal
of office of certain consular officials of South Africa or the United Kingdom, certain
officials of that country, a Notary Public in certain countries or a commissioned
officer in the South African Defence Force in respect of a document signed by a
person on active service. See Rule 63(2) for more details.
The rules dealing with authentication of foreign documents are not exhaustive but
merely directory; not taking away from power of Courts to consider other evidence
directed at proof of documents signed in foreign places and to accept such
document as being duly authenticated.
See Blanchard, Krasner and French v Evans 2004 (4) SA 427 WLD.
2.
EVIDENCE ON COMMISSION
Erasmus: Superior Court Practice pp D1 - 505 and Rule 38.
A Court may, on application on notice, in any matter where it appears convenient
or necessary, for the purpose of justice, make an order for taking the evidence of
a witness before or during the trial before a Commissioner of the Court.
The Court may permit any party to any such matter to use such deposition in
evidence on such terms, if any, as to it seems meet, and in particular may order
that such evidence shall be taken only after the close of pleadings or after the
making of discovery or the furnishing of any particulars in the action.
Where the evidence of any person is to be taken on commission before any
Commissioner within the Republic, such person may be subpoenaed to appear
before such Commissioner to give evidence as if at the trial.
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At the completion of the evidence taken down before the Commissioner of the
Court, the record of the evidence shall be returned by the Commissioner to the
Registrar with her/his certificate to the effect that it is the record of the evidence
given before her/him and shall thereupon become part of the record of the case.
When an application is made to the Court to order that the evidence of a witness
be taken down before a Commissioner of the Court, the Court has discretion
whether or not to grant such order.
In the exercise of such discretion the following factors will be taken into
consideration:
•
The inability of or inconvenience for a witness to give evidence at the trial,
e.g., where the person concerned is a patient in hospital or is abroad.
•
What degree of injustice will be done to the opposite party if evidence is
obtained in this way?
•
The nature of the evidence to be given and its bearing on the issues in
dispute.
The affidavit supporting such an application must contain at least the following
allegations:
3.
•
The name of the witness;
•
The name of the Commissioner who the Applicant suggests be appointed;
•
The nature of the proposed evidence and its bearing on the issues in the
action;
•
The reason why evidence must be taken on commission.
WANT OF PROSECUTION
A Defendant/Respondent has a right to approach the relevant High Court for an
order to dismiss the Action/Application for want of prosecution. In Cassimjee v
Minister of Finance 2014 (3) SA 198 (SCA) (judgment delivered on 1 June
2012) the SCA confirmed the dismissal of an Action where there had been an
inordinate delay of approximately twenty years.
4.
SUPERANNUATION (RULE 66)
After expiration of three years from the date of judgment, no writ of execution can
be issued unless a judgment debtor consents, or the Court revives the judgment
on notice to the debtor.
Writs of Execution once issued remain in force and may, subject to the provisions
of Section 11(a)(ii) of the Prescription Act No. 68 of 1969, be executed at any time
without being renewed until the judgment has been settled in full.
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D.
FORMS AND PRECEDENTS
EXAMPLE 1:
SIMPLE SUMMONS (FORM 9)
In the High Court of South Africa
(…..Division)
Case No.: .............................
In the matter between
Plaintiff
and
Defendant
SUMMONS
To the Sheriff
INFORM
A.B., of …......... (state gender and occupation) ….... (Hereinafter called the Defendant, that
C.D., of …......... (state gender and occupation). …................ (Hereinafter called the
Plaintiff), hereby institutes action against him in which action the Plaintiff claims:
(Here set out in concise terms Plaintiff’s cause of action)
INFORM the Defendant further that if he disputes the claim and wishes to defend the action,
he shall within …............. days of the service upon him of this summons file with the
Registrar of this Court at …....................... (here set out the address of the Registrar’s
Office) notice of his intention to defend and serve a copy thereof on the Plaintiff’s Attorney,
which notice shall give an address (not being a post office box or poste restante) referred
to in Rule 19(3)(b) for the service upon the Defendant of all notices and documents in the
action and which Notice of Intention to Defend shall contain the Defendant’s full residential
or business address, postal address and where available, fax address and electronic mail
address within fifteen kilometres of the office of the Registrar of this Court for the service
upon the Defendant thereat of all documents in this action.
INFORM the Defendant that the Plaintiff is/is not prepared to accept service of all
subsequent documents and notices in this action to any manner other than the physical
address or postal address. The preferred method of service is as follows (to be indicated).
INFORM the Defendant further that if he fails to file and serve notice as aforesaid, Judgment
as claimed may be given against him without further notice to him.
AND immediately thereafter serve on the Defendant a copy of this summons and return the
same to the Registrar with whatsoever you have done thereupon.
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DATED at ….................... this ….................... day of ….................. 20….
__________________________
REGISTRAR OF THE HIGH COURT
ATTORNEYS OF PLAINTIFF(S)
EXAMPLE 2:
_____________________
PLAINTIFF’S ATTORNEY
PLAINTIFF’S ATTORNEY’S
ADDRESS (physical, postal,
telephone, fax, e-mail address
and reference)
COMBINED SUMMONS
In the High Court of South Africa
(……Division)
Case No.: .............................
In the matter between:
Plaintiff
And
Defendant
_______________________________________________________________________________
COMBINED SUMMONS
________________________________________________________________
INFORM
A.B., of ........................ (state gender and occupation) ........ (Hereinafter called the
Defendant, that C.D., of .................... (state gender and occupation) ....................
(Hereinafter called the Plaintiff), hereby institutes action against him in which action the
Plaintiff claims the relief and, on the grounds, set out in the Particulars of Claim annexed
hereto.
INFORM the Defendant further that if he disputes the claim and wishes to defend the action,
he shall:
within ....... days of the service upon him of this summons file with the Registrar of this Court
at .......... (here set out the address of the Registrar’s Office) notice of his intention to defend
and serve a copy thereof on the Plaintiff’s Attorney, which notice shall give an address (not
being a post office box or poste restante) referred to in Rule 19(3)(b) for the service upon
the Defendant of all notices and documents in the action and which Notice of Intention to
Defend shall contain the Defendant’s full residential or business address, postal address and
where available, fax address and electronic mail address within twenty fivekilometres of the
office of the Registrar of this Court for the service upon the Defendant thereat of all documents
in this action.
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INFORM the Defendant that the Plaintiff is/is not prepared to accept service of all
subsequent documents and notices in this action to any manner other than the physical
address or postal address. The preferred method of service is as follows (to be indicated).
Thereafter and within 20 days after filing and serving notice of intention to defend as
aforesaid, file with the Registrar and serve upon the Plaintiff a plea, exception, notice to
strike out, with or without a counterclaim.
INFORM the Defendant further that if he fails to file and serve notice as aforesaid, Judgment
as claimed may be given against him without further notice to him, or if, having filed and
served such notice, he fails to plead, except, make application to strike out or counterclaim
Judgment may be given against him. And immediately thereafter serve on the Defendant a
copy of this summons and return the same to the Registrar with whatsoever you have done
thereupon.
DATED at ....................... this ................. day of .............................. 20........
__________________________
REGISTRAR OF THE HIGH COURT
ATTORNEYS OF PLAINTIFF(S)
(ADDRESS)
EXAMPLE 3:
PARTICULARS OF CLAIM 1
1.
The Plaintiff is Peter Johnson, an adult male accountant residing at 43 Church
Street, Pretoria.
2.
The Defendant is Allan Malow, an adult male medical Practitioner practising as
such at 10 Church Street, Pretoria.
3.
The Plaintiff is the owner of the premises situated at 60 Church Street, Pretoria.
4.
The Defendant is in possession of the aforesaid premises.
Wherefore the Plaintiff prays for Judgment in his favour against the Defendant for:
a)
an order that possession of the premises situated at 60 Church Street, Pretoria,
be restored to the Plaintiff;
b)
Costs of suit;
c)
Further and/or alternative relief.
Signed at Pretoria this .....................day of .........................................20...
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_____________________
COUNSEL FOR PLAINTIFF
_____________________
ATTORNEY FOR PLAINTIFF
EXAMPLE 4:
PARTICULARS OF CLAIM 2
1.
The Plaintiff is Peter Johnson, an adult male accountant residing at 43 Church
Street, Pretoria.
2.
The Defendant is Allan Malow, an adult male medical Practitioner practising as
such at 10 Church Street, Pretoria.
3.
This Honourable Court has Jurisdiction to hear this matter in that (here state the
grounds for the Court jurisdiction).
4.
On 1 November 20... and at Pretoria the Plaintiff and the Defendant, both acting
personally, entered into an oral agreement in terms of which the Plaintiff sold to
the Defendant a 2010 Land Rover Diesel motor vehicle with registration number
MSJ196GP for a purchase price of R170 000.00.
5.
It was a material term of the agreement that the purchase price was to be paid
on 15 November 20... and, should the Defendant fail to do so, the Plaintiff would
be entitled to cancel the agreement without any prior demand or notice to the
Defendant.
6.
The Defendant failed to pay the purchase price on due date and has not paid it
since.
7.
In the premises, the Defendant is in breach of the agreement and the Plaintiff is
entitled to cancel the agreement.
8.
On 20 November 20... the Plaintiff cancelled the agreement and at the
Defendant’s aforesaid premises, the Plaintiff informed the Defendant that he had
cancelled the agreement and demanded return of the Land Rover. The Defendant
refused to comply with the demand.
9.
The value of the Land Rover is R170 000.00.
WHEREFORE the Plaintiff prays for Judgment in his favour against the Defendant for:
1.
An order for the return to the Plaintiff of a 20... Land Rover with registration
number MSJ196 GP;
2.
In the alternative to paragraph 1 above, an order for the payment of R170 000.00
together with interest thereon at the rate of 18.5% calculated from 16 November
20... to date of payment;
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3.
Costs of suit;
4.
Further and/or alternative relief.
Signed at Pretoria this .....................day of .........................................20...
_____________________
COUNSEL FOR PLAINTIFF
______________________
ATTORNEY FOR PLAINTIFF
ADDRESS
EXAMPLE 5:
PARTICULARS OF CLAIM 3
1.
The Plaintiff is Peter Johnson, an adult male accountant residing at 43 Church
Street, Pretoria.
2.
The Defendant is Allan Malow, an adult male medical Practitioner practising as
such at 10 Church Street, Pretoria.
3.
This Honourable Court has Jurisdiction to hear this matter in that (here state the
grounds for the Court jurisdiction).
4.
The parties conducted, in partnership, a medical practice at 60 Church Street,
Pretoria.
5.
It was an express, alternatively tacit, term of the partnership agreement that the
Defendant would regularly, and not less than 3 months, render to the Plaintiff a
full account of all the affairs of the aforesaid partnership supported, where
necessary, by documentary proof.
6.
Despite demand, the Defendant has failed to render any account at all for the
period 1 January 20... to 30 September 20....
Wherefore the Plaintiff prays for Judgment in his favour against the Defendant for:
1.
an order that the Defendant render a full account of the medical practice being
conducted by the Plaintiff and Defendant at 60 Church Street, Pretoria, for the
period 1 January 20... to 30 September 20... supported by documentary proof;
2.
Debatement of the said account;
3.
Payment by the Defendant to the Plaintiff of such amount as appears to be due
to him upon debatement of the account;
4.
Costs of suit;
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5.
Further and/or alternative relief.
Signed at Pretoria this .....................day of .........................................20........
_____________________
COUNSEL FOR PLAINTIFF
_____________________
ATTORNEY FOR PLAINTIFF
ADDRESS
EXAMPLE 6:
SUMMONS: PROVISIONAL SENTENCE SUMMONS (FORM 3 OF THE
RULES)
(Division)
Case No.: .............................
In the matter between:
Plaintiff
and
Defendant
To the Sheriff
INFORM
A ......... (gender) B.............. (occupation), of .......... (Residence or place of business)
and hereinafter called the Defendant:
1.
that he is hereby called upon immediately to pay to C................. (gender) D
.................... (occupation) of.............. (Residence or place of business) ..........
(Hereinafter called the Plaintiff) an amount of .............. together with interest
thereon at the rate of ............% per annum as from ......... claimed by the
Plaintiff ........... (Here set out the cause of action) ........., and a copy of which
document is annexed hereto;
2.
that failing such payment, he or s/he is hereby called upon to appear before this
Court personally or represented by an Advocate or by an Attorney who, under
Section 4(2) of the Right of Appearance in Courts Act, 1995 (Act No. 62 of 1995),
has the right of appearance in the Supreme Court, at .............. on ..............
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the day of .......... 20... at ...........(time) in the forenoon (or as soon thereafter
as the matter can be heard) to admit or deny his liability for the said claim, and
to state why the mortgaged property should not be declared executable.
3.
that if he denies liability for the same, he shall not later than noon on ...........
the day of ....... 20... file an affidavit with the Registrar of this Court, and serve
a copy thereof on Plaintiff’s Attorney, which affidavit shall set forth the grounds
of his defence to the said claim, and in particular states whether he admits or
denies his signature of the said ............. or whether he admits or denies the
signature or authority of his agent.
AND INFORM the said Defendant further that in the event of his not paying the amount
and interest abovementioned to the Plaintiff immediately and if he (the said Defendant)
further fails to file an affidavit as aforesaid, and to appear before this Court at the time
above stated, provisional sentence may forthwith be granted against him with costs,
and the mortgaged property may be declared executable, but that against payment of
the said amount, interest and costs, he will be entitled to demand security for the
restitution thereof if the said sentence should thereafter be reversed.
AND serve a copy of this summons and of the said ..........on the said Defendant and
then return this summons to the Registrar with your return of what you have done
thereon.
DATED at .......................this ......................day of ............................20......
___________________________
REGISTRAR OF THE HIGH COURT
___________________________
PLAINTIFF’S ATTORNEY
State preferred method of service
ADDRESS FOR SERVICE
HIGH COURT PRACTICE
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EXAMPLE 7:
APPLICATION FOR LEAVE TO SERVE BY SUBSTITUTED SERVICE
(RULE 4(2))
NOTICE OF MOTION
TAKE NOTE THAT application will be made on behalf of the above-named Applicant on
Friday 4 August 20… at 10:00 or as soon thereafter as Counsel may be heard for an
order:
1.
Authorising substituted service of process, which the Applicant intends to issue
against the Respondent for:
1.1
A decree of divorce;
1.2
Implementation of the donations in favour of Applicant contained in the
Antenuptial Contract entered into between the parties;
1.3
An order directing Respondent to pay Applicant maintenance in the sum of
R200.00 per month until her death or remarriage;
1.4
An order awarding the Applicant sole custody and sole guardianship of the
minor children born of the marriage;
1.5
An order that Respondent pay maintenance to Applicant in respect of the
aforesaid minor children in the sum of R500.00 per month per child;
1.6
Alternative relief;
1.7
Costs of suit.
2.
Directing that service be effected upon Respondent by means of publication of
the citation in one edition of the Cape Argus;
3.
Calling upon Respondent to give notice of his intention to oppose the proceedings
within 21 days after such publication if he intends to oppose the relief set out
above;
4.
Granting the Applicant such further, other or alternative relief as this Court deems
appropriate.
KINDLY PLACE THE MATTER on the roll for hearing accordingly.
DATED at CAPE TOWN etc.
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NOTE the time at which Motion Court begins may vary between the various Divisions.
The supporting affidavit could read as follows:
AFFIDAVIT
I, the undersigned,
SUSAN BROWN (born GREEN)
do hereby make oath and say:
1.
I am an adult housewife presently residing at 15 St James Street, Somerset West
and I am the Applicant in this application. The facts set out herein fall within my
personal knowledge save where otherwise stated.
2.
The Respondent is JOSEPH BROWN whose present address is unknown to me.
3.
I married the Respondent at Somerset-West on the 9 December ……… and the
marriage still subsists.
Prior to the marriage the Respondent and I executed a duly registered Antenuptial
Contract excluding community of property and the Respondent’s marital power
and containing also certain donations in my favour which have not been
implemented.
4.
Two children were born of the marriage, namely a son named James, presently
16 years of age and a daughter Margaret aged 14.
5.
The Respondent was born in England but immigrated to South Africa some time
before our marriage and at the time of our marriage was and still is domiciled
in South Africa.
6.
The marriage was reasonably happy until 20...... when the Respondent deserted
me at Paarl where we were then living and only returned after a period of three
months. Upon his return the Respondent indicated that he had gone to Cape
Town to look for new employment but on reconsideration had decided to return
to Paarl. He asked me to accept him back.
7.
We continued living together at Paarl for a further eight months whereafter the
Respondent again suddenly without prior notice to me left the children and me.
HIGH COURT PRACTICE
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8.
The only subsequent contact which I have had with the Respondent since he thus
deserted me consisted of a letter which he addressed to me a month after he left
me and a copy whereof, I attached hereto marked Annexure “A”. It will be
noticed that he gave no indication therein as to his future intentions. The letter
was posted from Cape Town where he was presumably at the time. Since then,
nothing further has been heard from him.
9.
At the time of his disappearance, the Respondent worked for the Apex Building
Company as a building inspector at Paarl. I attach hereto a copy of a letter
marked Annexure “B” which I addressed to his employers requesting their
assistance in tracing him. As will be observed from their reply marked Annexure
“C”, the Respondent left their employ without prior notice on the day that he
deserted me and their attempts to trace him have proved fruitless.
10.
Particulars of the Respondent’s family connections are the following:
10.1 His father is deceased.
10.2 His mother is Mrs Dorothy Brown who lives at 19 Church Street,
Wellington. Respondent apparently visited his mother for three days
immediately after he deserted me but according to a letter which I
subsequently received from her (a copy whereof I attach hereto marked
Annexure “D”) he later left her home without telling her anything about
his movements. Like me, she has had no further contact with him.
10.3 Respondent has a brother, one Captain Frederick Brown, who is with the
South African Defence Force and my Attorneys addressed a letter to him
requesting his assistance in tracing the Respondent. A copy is attached
marked Annexure “E”. From his response (Annexure “F”) it will be
noticed that he likewise has had no news of the Respondent’s movements.
10.4 The Respondent has a sister, one Mrs Jean L Black, whose address is 11
Oakdale Road, Durban. My Attorneys wrote a similar letter to her and in
response received a letter (copy whereof is attached marked Annexure
“G”) in the ultimate paragraph whereof she says, “I am very sorry to say
that neither I nor my husband have any idea as to his whereabouts nor
have we heard by word or letter anything since he deserted my sister-inlaw”.
10.5 The Respondent has no other brothers or sisters or indeed any other near
relatives or friends who one could approach in order to obtain particulars
of his movements and whereabouts. I suspect that the Respondent is at or
near Cape Town and my Attorneys accordingly addressed a letter to the
Station Commander of the South African Police at Cape Town enquiring as
to his whereabouts. From the Station Commander’s reply (Annexure
“H”), it will be observed that the South African Police cannot be of any
assistance in tracing him.
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11.
While we lived together the Respondent regularly used to read the Cape Argus
and I consider that publication of the summons in that newspaper will come to
his notice.
12.
Since our marriage has clearly broken down irretrievably, I am anxious to
institute proceedings out of the above Honourable Court against Respondent for:
13.
i.
A decree of divorce;
ii.
Implementation of the donations in my favour contained in the Antenuptial
Contract entered into between us;
iii.
An order awarding primary residence and care of the children born of the
marriage to me. I would point out in regard to this prayer that it is essential
that I should obtain primary residence and care as this will preclude
difficulties which I might otherwise have in future in regard to their affairs.
I add that the Respondent has taken no interest in the children and has in
particular defaulted in paying any maintenance since he left us;
iv.
An order compelling Respondent to pay maintenance to me in the amount
of R200.00 per month. In regard to this prayer I do realise that an amount
for maintenance may well be academic but the possibility exists that
Respondent may be found in later years and I consider he should then be
compelled to effect payment of such maintenance;
v.
An order compelling Respondent to pay maintenance to me in respect of
the two minor children at the rate of R500.00 per child;
vi.
Alternative relief;
vii.
Costs of suit.
I accordingly pray for an order in terms of the relief set out in my Notice of Motion
herewith.
_____________
(SGD) S BROWN
I certify that the deponent has acknowledged that he/she knows and
understands the contents of this affidavit which was signed and sworn to
before me on the … day of………. 20... at …, the Regulations contained in
Government Notice R1258 dated 21 July 1972 having been complied with.
BEFORE ME
_____________________
COMMISSIONER OF OATHS
FULL NAMES
DESIGNATION
ADDRESS
HIGH COURT PRACTICE
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EXAMPLE 8:
APPLICATION FOR LEAVE TO SUE BY EDICTAL CITATION (RULE 5)
(Division)
Case No.: .............................
In the matter between:
Applicant
and
Respondent
NOTICE OF MOTION
TAKE NOTICE THAT application will be made on behalf of the above-named Applicant
on ………......the ………........day of ...........20... at (time) or so soon thereafter as
Counsel can be heard, for an order in the following terms:
1.
Applicant is given leave to proceed against Respondent by edictal citation for:
i.
A decree of divorce;
ii.
An order that Respondent forfeits the benefits of the marriage in
community of property;
iii.
An order compelling Respondent to pay Applicant maintenance in the
amount of R200.00 per month until her death or remarriage;
iv.
Alternative relief;
v.
Costs of the application be costs in the cause.
2.
That service of the citation be effected upon Respondent personally.
3.
An order calling upon Respondent to give notice to Applicant’s Attorneys of his
intention to oppose the proceedings within 21 days after service upon him if he
intends to oppose the relief set out above.
4.
And take notice further that the affidavit of Susan Brown will be used in support
thereof.
PLEASE set the matter down for hearing accordingly.
DATED at CAPE TOWN this ...........day of ................ 20…
HIGH COURT PRACTICE
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___________________
SMITH BRAND & COMPANY
Per: APPLICANT’S ATTORNEYS’ ADDRESS
TO: The Registrar
High Court
CAPE TOWN
NOTE the time at which Motion Court begins may vary between the various divisions.
The supporting affidavit could read as follows:
AFFIDAVIT
I, the undersigned,
SUSAN BROWN
do hereby make oath and say:
1.
I am an adult housewife and presently residing at 10 Oak Avenue, Milnerton,
Cape Town. The facts set out herein fall within my personal knowledge, save
where otherwise stated.
2.
The Respondent is JOSEPH BROWN, a businessman who presently resides at
20 Norfolk Avenue, Kensington, London, SW 7, England, and is employed at
the London Office of the Apex Building Company.
3.
Respondent and I were married in community of property at the Baptist Church,
High Level Road, Three Anchor Bay, Cape Province, on the 2nd of June 20...
and the marriage still subsists.
4.
Three children were born of the marriage but all three have attained majority
and are self-supporting.
5.
Although Respondent was at all times very restless and unsettled, the marriage
between us was reasonably happy until 20... when the Respondent obtained a
work permit authorising his employment in Great Britain.
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6.
Apart from occasional visits to this country since then, the Respondent has lived
in London ever since. I joined him there after he had obtained suitable premises
in 20... but the marriage deteriorated, more particularly since 20... when the
Respondent’s attitude towards me changed. In June of that year, he suggested
that I return to South Africa and that we live separate lives for a trial period.
Accordingly, at his instance I returned to this country the following month.
7.
Since then, I have lived in this country and have been staying with my children
who are all resident here.
8.
I wrote to the Respondent from time to time to suggest that we resume our
married life by his either returning to me or me re-joining him in England. His
replies were non-committal until 1 June 20... when he wrote me a letter, a copy
of which I attach hereto marked “A”, in which he said, “there is no intention on
my part to return to South Africa now, neither do I wish you to return to
England”.
9.
In none of his subsequent letters was there any indication of a change in
attitude and it has now become clear that the Respondent in fact wishes to
bring matters to a head in regard to the termination or our marriage as last
month he gave instruction to Building Society handling his affairs in this country
to stop payment of maintenance which I had until then been receiving ex his
Savings Account with that institution.
10.
I am totally dependent upon the support which I have thus far received from
the Respondent, and he is well able to continue therewith. Apart from the
aforesaid Savings Account the Respondent has substantial assets in his country.
11.
By virtue of the foregoing the marriage has reached such a state of
disintegration that there is no reasonable prospect of the restoration of a
normal marriage relationship between us. Appropriate action should be taken
to safeguard my property and interests, more particularly in regard to the
payment of further maintenance and the securing of my half share in the
community assets. Accordingly, I am anxious to institute proceedings out of
the above honourable Court against the Respondent for the relief set out in my
Notice of Motion herewith.
12.
I am domiciled within the area of jurisdiction of the above Honourable Court.
13.
For a period of more than one year prior to the institution of this action I was
ordinarily resident in the Republic of South Africa, and I am ordinarily resident
within the jurisdiction of the above Honourable Court.
14.
I do not anticipate any difficulty in regard to the service upon the Respondent
and accordingly in my Notice of Motion suggest that he be served personally
and that he be given 21 days in which to give notice of any intention to oppose
the proceedings.
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___________________
DEPONENT
I certify that the deponent has acknowledged that he/she knows and
understands the contents of this affidavit which was signed and sworn to
before me on the………. day of………. 20... at ………, the Regulations contained
in Government Notice R1258 dated 21 July 1972 having been complied with.
BEFORE ME
COMMISSIONER OF OATHS
FULL NAMES
DESIGNATION
ADDRESS
EXAMPLE 9:
CONTENTS NOTICE OF BAR
PLEASE TAKE NOTICE that the Defendant is required to deliver his plea within 5 days
after the day upon which this notice is delivered, failing which the Defendant shall be in
default and ipso facto barred from filing a plea.
EXAMPLE 10: CONTENTS NOTICE OF INTENTION TO DEFEND
PLEASE TAKE NOTICE that the Defendant hereby gives notice of his intention to
defend this action.
AND TAKE FURTHER NOTICE that, in accordance with Rule 19(3) of the rules of this
Honourable Court, the Defendant:
a)
b)
c)
records his residential/business address as being;
appoints the office of his Attorney set out below as the address at which he will
accept service of all notices, process and documents in this action;
Indicates the following preference as the address/method of service of all
subsequent notices and pleadings herein (to be indicated).
HIGH COURT PRACTICE
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EXAMPLE 11: DECLARATION
In the High Court of South Africa
(….Division)
Case No.: .............................
In the matter between:
Plaintiff
And
Defendant
DECLARATION
1.
The Plaintiff is XYZ Bank Limited, a company duly registered and incorporated in
terms of the statutes of the Republic of South Africa, trading as a Bank at Hatfield,
Pretoria, and elsewhere in the Republic of South Africa, with registered head
office at 115 Church Street, Pretoria.
2.
The Defendant is ALLAN MALOW, an adult medical Practitioner practising as such
at 10 Church Street, Pretoria.
3.
This Honourable Court has Jurisdiction to hear this matter in that (here state the
grounds for the Court jurisdiction).
4.
Plaintiff is a credit provider registered with the national Credit Regulator in terms
of the National Credit Act No. 34 of 2005, with registration number NCRCP1234
5.
On __________[date] at __________ [place], Plaintiff and Defendant concluded
a written agreement of lease in terms of which Plaintiff let Defendant a certain
motor vehicle. A copy of the agreement is annexed hereto and market Annexure
“A”.
6.
The agreement complies with the Act.
7.
The material terms of the agreement of lease are the following:
[detail].
8.
Plaintiff has performed its obligations in terms of the agreement of lease.
9.
In breach of the agreement of lease, Defendant has [state nature of breach].
HIGH COURT PRACTICE
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10.
Plaintiff has cancelled [not cancelled] the agreement.
11.
Defendant is in default and has been in default for at least 20 days.
12.
Plaintiff has complied in terms of the provisions of Section 130 of the Act and a
copy of the Section 129 notice is attached and marked as Annexure “B”.
13.
Defendant has not responded to the said notice.
14.
There is no matter arising out of the credit agreement pending before the National
Consumer Tribunal.
15.
Plaintiff is entitled to payment of the full balance outstanding, being the sue of
[Rx].
16.
Defendant is entitled to a reduction of finance charges of [Ry].
17.
In the premises, Defendant is indebted to Plaintiff in the sum of [Rx – Ry].
18.
Payment of the aforesaid amount of [Rx – Ry] will not place Plaintiff in a better
financial position than that in which Plaintiff would have been had Defendant
carried out his obligations in terms of the agreement of lease.
19.
Despite demand, the Defendant refuses and/or neglects to pay the aforesaid
amount and interest to the Plaintiff. Wherefore the Plaintiff claims from the
Defendant:
i.
Payment of the amount of R180 000.
ii.
Interest on the amount of R180 000 at the rate of 18.5% per annum
calculated from 16 November 20... to date of payment, such interest to be
compounded monthly.
iii.
Costs of suit.
iv.
Further and/or alternative relief.
Thus, signed at Pretoria this .......................day of ............................ 20…
_____________________
COUNSEL FOR PLAINTIFF
_____________________
ATTORNEY FOR PLAINTIFF
HIGH COURT PRACTICE
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EXAMPLE 12: PLEA
In the High Court of South Africa
(…Division)
Case No.: …..........................
In the matter between:
Plaintiff
And
Defendant
SPECIAL PLEA
The Defendant pleads as follows to the Plaintiff’s declaration:
A.
SPECIAL PLEA
1.
The Defendant pleads that the Plaintiff does not have locus standi in iudicio
due to the fact that the Plaintiff has on a date prior to the issue of summons been
deregistered after its assets and liabilities, including its right and obligation in
respect of the present action, had been taken over by ABC Bank Limited.
Wherefore the Defendant prays that the Plaintiff’s claim be dismissed with costs.
B.
PLEA ON THE MERITS
2.
3.
AD PARAGRAPH 1 THEREOF
AD PARAGRAPH 2 THEREOF
Wherefore the Defendant prays that the Plaintiff’s claim be dismissed with costs.
COUNTERCLAIM
Thus, signed at Pretoria this ………….... day of ............................... 20...
_____________________
COUNSEL FOR DEFENDANT
_____________________
DEFENDANT’S ATTORNEY
HIGH COURT PRACTICE
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EXAMPLE 13: NOTICE TO THIRD-PARTY
In the High Court of South Africa
(…Division)
Case No.: .......................
In the matter between:
Plaintiff
And
Defendant
And
Third Party
TO THE ABOVE-NAMED THIRD PARTY:
TAKE NOTICE that the above-named Plaintiff has commenced proceedings against the
above-named Defendant for the relief set forth in the summons, a copy of which is
herewith served upon you.
The above-named Defendant claims a contribution or indemnification (or such other
grounds as may be sufficient to justify a third-party notice) on the grounds set forth in
the annexure hereto.
If you dispute those grounds or if you dispute the claim of the Plaintiff against the
Defendant you must give notice of your intention to defend, within .... days. Such notice
must be in writing and filed with the Registrar and a copy thereof served on the abovenamed Defendant at the address set out at the foot of this notice. It must give an
address (not being a post box or poste restante) referred to in Rule 6(5)(b) for the
service upon you of notices and documents in the action. Within 20 days of your giving
such notice, you must file a plea to the Plaintiff’s claim against the Defendant or a plea
to the Defendant’s claim against you, or both such pleas.
Thus, signed at Pretoria this .................... day of ........................ 20...
_________________________
DEFENDANT’S ATTORNEY
ADDRESS
AND TO:
___________________________
PLAINTIFF’S ATTORNEY
ADDRESS
HIGH COURT PRACTICE
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EXAMPLE 14: DISCOVERY AFFIDAVIT AND SCHEDULES (FORM 13)
(Division)
Case No.: .......................
In the matter between:
Plaintiff
And
Defendant
DISCOVERY AFFIDAVIT
I, the undersigned,
Susan Brown
make oath and say:
1.
I am the General Manager of ........................., the above Plaintiff, and am duly
authorised to make this affidavit on the Plaintiff’s behalf and have personal
knowledge of the content hereof.
2.
Plaintiff has in its possession or under its control the documents relevant to the
issues in this action which are set out in the first and second parts of the first
schedule hereto.
3.
The Plaintiff objects to produce the said documents set forth in the second part
of the first schedule hereto.
4.
The Plaintiff objects to discovery of such documents because they:
5.
4.1
Were drawn up or written or obtained after litigation had been
contemplated and with the intention to place them before Plaintiff’s legal
advisers to enable Plaintiff’s legal advisers either to give legal advice or to
conduct Plaintiff’s case; or
4.2
Concern Plaintiff’s case alone and do not support Defendant’s case; or
4.3
Comprise reports or enquiries which led to the privileged documents as
mentioned herein.
The Plaintiff has had but has not now in its possession or power the documents
relating to the matters in question in this action as set forth in the second
schedule hereto.
HIGH COURT PRACTICE
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6.
The last-mentioned documents were last in my possession or power (state when).
7.
The ................ (Here state what has become of the last-mentioned documents
and in whose possession, they are now).
8.
According to the best of my knowledge and belief, the Plaintiff had not now and
never had in its possession, custody, or power, or in the possession, custody or
power of its Attorney or agent or any other person on its behalf, any document
or copy of or extract from any documents relating to any matters in question in
this action, other than the documents set forth in the first and second schedules
hereto.
I certify that the deponent has acknowledged that he/she knows and
understands the contents of this affidavit which was signed and sworn to
before me on the… day of……………. 20… at ………, the Regulations contained
in Government Notice R1258 dated 21 July 1972 having been complied with.
BEFORE ME
_____________________
COMMISSIONER OF OATHS
FULL NAMES
DESIGNATION
ADDRESS
(Next page)
SCHEDULE 1
PART 1
ITEM DATE PARTICULARS:
11.10
Copy invoice CBS for R2 454.65
05.10
Road traffic accident report MR5/10/84
Document entitled “odometer readings”
12.11
Report VDO instruments addressed to Plaintiff
Evaluation Number 84/083 evaluated by Kessel and Knoll including
evaluation 84/083-B
13.11
Minutes of meeting held between Plaintiff and Defendant
Handwritten notes regarding meeting
HIGH COURT PRACTICE
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11.12
Note telephone discussion between BD Attorney of Plaintiff and Taylor,
Loss Adjuster
07.05
Statements driver J Jooste to SA Railway Police
05.07
Letter Jan S de Villiers & Son to Station Commander, Elliot
23.07
Letter Station Commander Elliot to Jan S de Villiers & Son enclosing
Police report
02.12
Letter Jan S de Villiers & Son to Defendant’s Attorneys
Special Power of Attorney to institute proceedings on behalf of Plaintiff
including Minutes of Meeting of Board of Directors of Plaintiff
15.07
Letter Defendant’s Attorney of record to Plaintiffs’ Attorney
CLAIM
SA TRANSPORT SERVICES:
21.01
Letter SA Transport Services to Plaintiff.
12.02
Letter Federated Insurance Company Limited to SA Transport Services
15.02
Letter SA Transport Services to Plaintiff
17.02
Letter Jan S de Villiers & Son to SA Transport Services
08.04
Letter SA Transport Services to Jan S de Villiers & Son
18.02
Letter Jan S de Villiers & Sons to Stat Attorney, P E
24.06
Letter State Attorney P E to Jan S de Villiers & Son
29.09
Letter Jan S de Villiers & Son to State Attorney, P E
CLAIM OF DEPARTMENT OF ROADS:
21.05
Letter Department of Roads to Plaintiff
14.02
Letter Jan S de Villiers & Son to Department of Roads
05.01
Letter Department of Roads to Plaintiff
19.01
Letter Plaintiff to Federated Insurance
30.06
Cession Provincial Administration in favour of Plaintiff
HIGH COURT PRACTICE
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DAMAGES:
12.11
Internal memo to Attorney of Plaintiff with repairs to vehicle (in addition
to annexures to the further particulars) the following quotations and
documentation:
05.11
Quotation 2904 Truck & Trailer Repairs
03.11
Quotation 4209 Orbit Coach Works
03.11
Quotation 4212 Orbit Coach Works
03.11
Quotation 4215 Orbit Coach Works
03.11
Quotation 1981 McCarthy Motors to Plaintiff Parts interpretation from
McCarthy Motors Handwritten note relating to damage to vehicle
18.02
Quotation Transcold (Pty) Ltd addressed to Plaintiff
28.02
Letter Plaintiff’s Attorney to Defendant’s Attorney
CORRESPONDENCE BETWEEN PLAINTIFF AND DEFENDANT’S ATTORNEYS OF
RECORD:
22.04
Letter Defendant’s Attorney to Plaintiff’s Attorney
07.05
Letter Plaintiff’s Attorney to Defendant’s Attorney
02.06
Letter Plaintiff’s Attorney to Defendant’s Attorney
15.07
Letter Defendant’s Attorney to Plaintiff’s Attorney
15.09
Letter Plaintiff’s Attorney to Deputy Sheriff
07.11
Letter Plaintiff’s Attorney to Defendant’s Attorney
05.12
Letter Plaintiff’s Attorney to Defendant’s Attorney
PART II
•
Correspondence between Attorney and client.
•
Letters written between J S de Villiers & Son and Correspondents Pagdens.
•
Letters written between Jan S de Villiers & Son and Correspondents Olckers &
Son, Grahamstown.

Correspondence and documents forming part of and reflecting settlement
negotiations between the parties.
HIGH COURT PRACTICE
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•
Correspondence between Jan S de Villiers & Son and witnesses. Statements of
witnesses.
•
Reports and statements of employees of Plaintiff drawn up after litigation had
been contemplated with the intention to place them before Plaintiff’s legal
advisors for legal advice.
•
Instructions to Counsel.
•
Memoranda and opinions of Counsel.
EXAMPLE 15: MINUTES OF PRE-TRIAL CONFERENCE (RULE 37)
(Division)
Case No.: .......................
In the matter between:
Plaintiff
and
Defendant
MINUTES OF PRE-TRAIL CONFERENCE
MINUTES OF THE PRE-TRIAL CONFERENCE HELD AT ADVOCATES’ CHAMBERS,
ROOM 1417 MOMENTUM CENTRE, ON TUESDAY 2 DECEMBER 20... AT 16:00 –
17:00
PRESENT: ON BEHALF OF THE PLAINTIFF: ADV D DE BRUIN MR G VAN DYK ON
BEHALF OF THE DEFENDANT: ADV Z TOERIEN MISS S VAN JAARSVELD
1.
FACTS AGREED UPON:
1.1
That the marriage has broken down irretrievably.
1.2
That the custody of the children born of the marriage are awarded to the
Plaintiff subject to the Defendant’s right of reasonable access, which right
of access is defined as follows:
1.2.1
Holidays: The Defendant may take the children with him for
alternate school holidays commencing with the school holidays
starting on the ... day of .............20.…
HIGH COURT PRACTICE
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2.
1.2.2
Weekends: The Defendant may take the children with him for
alternate weekend of the month, without considering whether it is
a long weekend or not, from 18:00 Friday to 18:00 Sunday.
1.2.3
Public Holidays: The above arrangements must be adjusted in such
manner that the children, if possible, spend their Christmas and
birthdays with the Defendant every second year.
1.2.4
The Defendant’s access to the children is however subject to the
requirement that in exercising such access it is not prejudicial to
the children’s school, church, social and religious activities.
1.2.5
General concerning access to children: The Defendant may visit the
children at all reasonable times. The Defendant must however
make arrangements in good time and formally with the Plaintiff
before every such visit to determine whether such planned visit will
be convenient.
1.3
That the Defendant will pay maintenance in respect of the children in the
amount of R200.00 per month per child.
1.4
That besides any maintenance paid by him, the Defendant will pay all
medical and dental costs and also medicine or any kind of treatment
prescribed by a doctor with regard to the children until they are selfsupporting. The Defendant must retain his membership of his medical aid
scheme and arrange for such membership to be extended in order to
include the children born of the marriage.
FACTS IN DISPUTE:
2.1
The reason for the breakdown of the marriage:
2.2
whether the stipulations of the antenuptial contract must be complied with,
alternatively whether there must be forfeiture of benefits of the marriage
between the parties.
2.3
liability for the costs of the case.
3.
It is recorded that no party is prejudiced because the other party has not complied
with the Rules of Court.
4.
Notwithstanding the fact that the parties requested one another to make
proposals with the view to settling all the disputes between the parties, the
parties could only reach agreement in the respect of those issues referred to in
paragraph 1.
5.
It is recorded that no issue has been referred for mediation, arbitration, or
decision by a third party.
HIGH COURT PRACTICE
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6.
It is recorded that the case should not be transferred to another Court.
7.
No issues should be decided separately in terms of Rule 33(4).
8.
No admissions other than those set out herein were made by either party.
9.
The Plaintiff bears the onus of proof and has the duty to begin.
10.
No agreement regarding the production of proof by way of an affidavit has
been entered into.
11.
Each party will be responsible for the copying and other preparation of such
party’s own documents.
12.
Once the bundle of documents has been finalised and agreed, the parties will
endeavour to reach an agreement in respect of which document or copies of
documents will, without further proof, serve as evidence of what they purport to
be.
13.
The parties agree that the costs of the Advocates for the attendance of the pretrial may be taxed as between party and party.
SIGNED AT PRETORIA ON THIS …. DAY OF ................. 20...…
___________________
PLAINTIFF’S ATTORNEY
_____________________
DEFENDANT’S ATTORNEY
EXAMPLE 16: NOTICE OF SET DOWN – RULE 8 OR 31(2)(a) OR 32
Note: Used for Applications for Summary Judgment, Judgment by Default and
Provisional Sentence
PLEASE PLACE this matter on the roll for ..............................20... at ...:00 a.m. or
as soon thereafter as Counsel may be heard when application will be made for an order
under the following circumstances:
HIGH COURT PRACTICE
LSSA©
256
1.
2.
3.
The summons was served on ..............................20......
The dies induciae expired on .....................20......
The Defendant has not given notice of his intention to defend.
OR
3.1
3.2
3.3
The Defendant gave notice of his intention to defend the matter on .............20….
his plea has to be delivered on ........................20....
notice of bar was delivered on .....................20.... and the Defendant has not
yet delivered his plea.
4.
Summary, default, or provisional sentence judgment will be requested against
the ................. Defendant/s for:
a)
b)
c)
d)
Payment of the sum of ........................
Interest on .....................at a rate of .....................per annum from
...................until date of payment.
Costs of suit
Alternative relief
Dated at ...............etc.
(In the case of applications for summary judgment the documents which have to be
annexed in terms of Rule 32(2), should be indicated in a separate paragraph 4.)
HIGH COURT PRACTICE
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257
EXAMPLE 17: NOTICE OF MOTION (EX PARTE)
(Division)
Case No.: .......................
In the matter between:
Applicant
TAKE NOTICE that application will be made on behalf of the above-named on the .......
day of ......... at (time)or as soon thereafter as Counsel may be heard for an order in
the following terms:
1.
2.
3.
And that the affidavit of .....................................annexed hereto will be used in
support thereof. Kindly place the matter on the roll for hearing accordingly.
Dated at ........................................
____________________
APPLICANT’S ATTORNEY
TO: THE REGISTRAR OF THE ABOVE-NAMED COURT
NOTE the time at which Motion Courts begin may vary between divisions.
HIGH COURT PRACTICE
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258
EXAMPLE 18: NOTICE OF MOTION (URGENT APPLICATION)
PLEASE TAKE NOTICE that Applicant intends to make application on ...... day of
......... at (time) or as soon thereafter as Counsel may be heard for an order in the
following terms:
1.
That this application is treated as an urgent application and that the above
Honourable Court in accordance with the provisions of Rule 6(12) dispense with
the normal forms and service.
2.
That the Respondent is prohibited from ............... etc.
NOTE: This time may vary depending on precisely when the application is due to be
heard as a matter of urgency. If it is merely set down for hearing on the unopposed
motion roll, then the time at which Motion Court begins may vary between divisions.
EXAMPLE 19: “THE LONG FORM” – FORM 2(A)
(Division)
Case No.: .......................
In the matter between:
Applicant
and
Respondent
NOTICE OF MOTION
PLEASE TAKE NOTICE that …. (“the Applicant”) intends to make application to this
Honourable Court for an order in the following terms:
1.
2.
3.
HIGH COURT PRACTICE
LSSA©
259
TAKE NOTICE FURTHER that the Applicant has appointed the Applicant’s Attorneys
address as set out hereunder as the address at which will accept notice and service of
all process in these proceedings.
TAKE FURTHER NOTICE that if you had intended opposing this application you are
required:
•
to notify the Applicant’s Attorneys in writing on or before (insert date determined
in terms of Rule or Act);
•
and within 15 (FIFTEEN) days of the service of the notice of your intention to
oppose, to file your answering affidavit, if any, and further that you are required
to appoint in such notification an address referred to in Rule 6(5)(d)(i) of the
Rules of this Honourable Court at which you will accept notice and service of all
documents in these proceedings, such address (not being a post office box or
poste restante) to be within 25 (FIFTEEN) kilometres of the office of the
Registrar.
If no such notice of intention to oppose be given, the application will be made to this
Honourable Court on the ….… day of ……………………………… 20… at 09:30 am, or soon
thereafter as Counsel may be heard.
AND TAKE NOTICE THAT the affidavit of ......................., annexed hereto, will be
used in support of this application.
Dated at ________________
____________________
APPLICANT’S ATTORNEY
ACUTT & SCOTSWOOD APPLICANT’S ATTORNEY
15 Smith Street
(ref.: …)
TO: THE REGISTRAR OF THE HIGH COURT
AND TO: RESPONDENT
HIGH COURT PRACTICE
LSSA©
260
EXAMPLE 20: AFFIDAVIT – COMMISSIONER OF OATHS
In terms of the Regulations governing the administration of an oath or affirmation an oath
is administered by causing the deponent to utter the following words: “I swear that the
contents of this declaration are true, so help me God.” And affirmation is administered by
causing the deponent to utter the following words: “I truly affirm that the contents of this
declaration are true”.
The certification reads as follows:
“Signed and sworn to before me at .... on this day of ...........20...… after the deponent
had acknowledged to me that he knows and understands the contents of the above
affidavit.”
OR
“Signed before me at .... on this day of .......... 20.... after the deponent acknowledged
to me that he knows and understands the contents of the above declaration and
affirmed that the contents of the declaration are true.”
_______________________________
COMMISSIONER OF OATHS
FULL NAME
BUSINESS ADDRESS
CAPACITY
AREA
(The Commissioner must state his full names and business address, indicate the capacity
in which he acts as Commissioner and indicate the area for which he was appointed. An
Attorney acting on behalf of the Applicant cannot take the oath of the Applicant or the
Respondent or any person who makes a supporting affidavit because he has an interest
in the matter.)
EXAMPLE 21: NOTICE OF INTENTION TO OPPOSE APPLICATION
PLEASE TAKE NOTICE that the Respondent hereby gives notice of his intention to
oppose the above application.
PLEASE TAKE NOTICE FURTHER that the Respondent appoints the address of his
Attorney as set out below, where he will accept service of all further documents in the
matter.
HIGH COURT PRACTICE
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261
EXAMPLE 22: INTERPLEADER
(Division)
Case No.: …....................
In the matter between:
Applicant
and
First Claimant
and
Second Claimant
INTERPLEADER NOTICE
PLEASE TAKE NOTICE that Jan Swart (“Applicant”) has today paid into Court in terms
of Rule 58 an amount of R145 000.00 (one hundred and forty-five thousand rand) to
which the first and second claimants are making adverse claims.
The Applicant hereby, in terms of Rule 58(3)(b), calls upon the first and second
claimants to deliver particulars of their claims within a period of fifteen days calculated
from the date of service of these papers upon them.
Applicant, furthermore, hereby notifies the first and second claimants that he will apply
to Court for its decision as to his liability or the validity of the respective claims at a
date to be fixed by the Registrar, not being less than fifteen days from the date as
specified as above for the delivery of claims.
TAKE NOTICE FURTHER that the Applicant’s attached affidavit will be used in support
thereof.
DATED at ....... on this …. day of ...........20...…
_____________________
APPLICANT’S ATTORNEY
HIGH COURT PRACTICE
LSSA©
262
The application is addressed to the Registrar and to each of the two claimants.
The founding affidavit could read as follows:
AFFIDAVIT
I, the undersigned,
JAN SWART
do hereby make oath and say:
1.
I am a retired farmer residing at 2 Beach Road, Somerset West and am the
Applicant herein. The facts set out herein fall within my personal knowledge save
where otherwise stated.
2.
The first claimant is Jones Bros, a firm of estate agents practicing as such at 2
Dorp Street, Stellenbosch.
3.
The second claimant is Apex Estate (Pty) Ltd, a company with limited liability duly
registered as such, doing business as estate agents at its registered office and
principal place of business situated at 9 Main Road, Somerset West.
4.
Until two months ago I was a farmer on the farm “Drie Pieke” in the Stellenbosch
district. I had lived on the farm for many years.
5.
A year ago, I decided because of ill-health to dispose of the farm, and I dispatched
a circular letter to estate agents operating in the Stellenbosch district advising
them of my intention and inviting them to canvas for respective purchasers.
6.
As a result of the said circular a number of estate agents called to inspect the
farm property and to obtain further particulars. One such estate agent was Mr S
Wendler who introduced himself to me as being in the employ of the first
claimant.
7.
During or about January 20…. the said Wendler again attended the farm, this
time accompanied by one Mr White who appeared to be interested in acquiring
the property. After negotiating with him for some weeks, I eventually agreed to
sell him the farm at a price of Nine Hundred Thousand Rand (R900 000.00).
8.
On 8 June 20…I attended with Mr White and Mr S Wendler aforesaid at the offices
of my Attorney for the purpose of concluding a formal deed of sale and during
discussions which immediately preceded the signing thereof Mr Wendler let slip
that he had left the employ of Jones Bros and was presently employed by the
second claimant.
HIGH COURT PRACTICE
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263
9.
In order to protect my interests insofar as possible adverse claims were
concerned, it was therefore simply recorded in the Deed of Sale that I would be
liable for the estate agent’s commission at the standard applicable tariff. A copy
of the Deed of Sale which was signed by myself and Mr White, is attached marked
Annexure “A”.
10.
The agency commission calculated at the standard tariff amounts to R145 000.00.
11.
Immediately after the sale was concluded my Attorney on my instructions wrote
to each of the two claimants recording that I had sold the farm and inviting them
to say whether they had any interest in the agent’s commission. Both responded
by saying (Annexure’s “B” and “C”) that they claim that R145 000.00 in
question since Mr Wendler at all relevant times had been in their employ. The
second claimant went further and indicated that unless payment was effected by
me within a matter of ten days, a summons would be issued against me.
12.
I have no means of knowing which of the two claimants is in fact entitled to
commission, but it seems clear that only one of them is. I have accordingly
arranged to pay the amount of R145 000.00 into Court in terms of the provisions
of Rule 58.
13.
I record that:
13.1 I have no interest in the subject matter in dispute other than that for
charges and costs;
13.2 I do not collude with any of the claimants; and
13.3 I am willing to deal with or act in regard to the subject matter of the dispute
as the Court may direct.
______________
DEPONENT
I certify that the deponent has acknowledged that he/she knows and
understands the contents of this affidavit which was signed and sworn to
before me on the …. day of ………………… 20.... at … the Regulations contained
in Government Notice R1258 dated 21 July 1972 having been complied with.
BEFORE ME
_____________________
COMMISSIONER OF OATHS
FULL NAMES
DESIGNATION AND ADDRESS
HIGH COURT PRACTICE
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264
EXAMPLE 23: APPLICATION FOR THE APPOINTMENT OF A CURATOR AD LITEM
AND A CURATOR BONIS
(Division)
Case No.: .............................
In the matter between:
Applicant
for the appointment of a curator bonis for (insert the name of the patient)
NOTICE OF MOTION
PLEASE TAKE NOTICE that an application will be made on behalf of the above
Applicant on the ... day of ........ 20… at .... am or as soon thereafter as Counsel may
be heard for the following order:
1.
That Advocate ........, an Advocate of the above Honourable Court be appointed
as a curator ad litem with the purpose of assisting the Applicant..............in
an application before his Honourable Court for an order in terms of which the
patient is declared incapable of managing his/her own affairs and whereby a
curator bonis is appointed for him/her.
2.
That leave be granted to the Applicant to apply on the same papers,
supplemented, if necessary, for an order that:
2.1
the patient is declared incapable of managing his/her own affairs;
2.2
the appointment of ......... an Attorney of this Honourable Court and a
partner in the firm of … of ....... is appointed as curator bonis to the
estate of ....... with such powers and duties as the Master of this
Honourable Court may prescribe;
2.3
the said curator bonis in his capacity as such be exempted from
furnishing security;
3.
That the costs of this application, including the costs of the application for the
appointment of the curator ad litem be paid out of the estate of ........ and
that it be paid on the Attorney and client scale.
4.
That the fees of the curator ad litem be paid out of the estate of ............
5.
For such further and/or alternative relief that the Honourable Court deem fit.
HIGH COURT PRACTICE
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265
6.
AND THAT the affidavits of the Applicant annexed hereto, together with the
supporting affidavits annexed thereto and the attached affidavit by Dr
............... and Dr ................ marked Annexures “X” and “Y” will be used in
support of this application.
PLEASE place the matter on the roll for hearing accordingly.
DATED at ........... on this ............ day of....................20...…
per:
Applicant’s Attorney
(address)
TO: The Registrar of the High Court
AFFIDAVIT
I, the undersigned,
hereby declare under oath as follows:
SUSAN BROWN
1.
I am the above-named Applicant and the facts set out hereunder are within my
personal knowledge, unless otherwise indicated.
2.
I was born on ................... and .......................(“the patient”) my sister, was
born on ........... The patient and I are both staying on the farm known as
................... in the district of ..............
3.
I humbly submit that I have the necessary locus standi to bring this application
because of the fact that the patient is my sister.
4.
The above Honourable Court has jurisdiction in this matter because of the fact
that the patient is permanently residing within the jurisdiction of the above
Honourable Court and because all her assets are situated within the jurisdiction
of the above Honourable Court.
HIGH COURT PRACTICE
LSSA©
266
5.
The abovementioned farm is our family farm. The patient and I and our
deceased sister inherited the farm in equal shares and our deceased sister’s
share is already partly divided from our share. We are co-owners of the said
farm, and we are primarily engaged in wine farming with a private wine cellar
as equal partners. With the exception of the above, the patient only possesses
a private motor vehicle, certain personal assets and an amount of cash money.
6.
(Supply particulars of the family of the patient and the fact that they support
the application. Refer to their attached affidavits.)
7.
The patient is in good physical health to the best of my knowledge. She earlier
on communicated fairly well but since approximately .......... she started to
withdraw from the community and from the outside world.
8.
The patient’s condition has deteriorated to such an extent that she has since
been certified in terms of the provisions of Section 9 of the Mental Health Act
No. 18 of 1973.
9.
The patient has since then also been treated on a permanent basis. Her social
interaction improved with medication but in my respectful submission she is not
yet able to show the necessary insight and to look after her interests as a partner
in the farming venture and to conduct normal business transactions.
10.
The patient does not display any interest in our farming venture and although
she in the beginning took part to a certain extent in the farming operations, she
has now withdrawn therefrom to a large extent. She is definitely not involved
with either the management or the financial aspects thereof anymore. I find it
difficult to conduct our partnership’s business without assistance.
11.
Therefore, I am of the opinion that it is necessary that a curator bonis be
appointed for her. Such appointment is recommended by Drs .............. and
..............., who are a registered psychiatrist and a registered doctor and clinical
assistant in psychiatry. Copies of their Sworn Affidavits in this regard are
annexed hereto and marked Annexures respectively.
12.
Mr ...., the proposed curator bonis is the senior partner in the partnership
........ at ....... He is a very senior Attorney and has a sound knowledge of the
business or our partnership. The patient submits that Mr ...... is the best person
to be appointed as a curator bonis. I have already discussed the situation with
Mr ....... and he indicated to me that he would be willing and able to act as a
curator bonis if he should be appointed as such. His consent to do so is
annexed hereto as annexure .......
13.
The proposed curator ad litem, Advocate ...... indicated that he is willing to
act as curator ad litem. In this regard I refer to a consent to do so signed by
him which is attached as annexure ....
HIGH COURT PRACTICE
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267
14.
Therefore, I humbly request the above Honourable Court to grant the relief set
out in the Notice of Motion.
__________
I certify etc.
Before me
_____________________
COMMISSIONER OF OATHS
EXAMPLE 24: NOTICE OF MOTION
(Division)
Case No.: .............................
In the matter between:
Applicant
and
THE MINISTER OF HOME AFFAIRS
First Respondent
THE DIRECTOR GENERAL: DEPARTMENT HOME AFFAIRS
Second Respondent
THE CHAIRPERSON: IMMIGRANTS SELECTION BOARD
Third Respondent
NOTICE OF MOTION
PLEASE TAKE NOTICE that the above-named Applicant intends to make application
to this Honourable Court on .... day of ....................20... at 10:00 am or soon
thereafter as Counsel may be heard for an order:
1.
Reviewing and setting aside the decision of the Director-General Department of
Home Affairs taken on or about .................20...… that the Applicant’s permit for
permanent residence has lapsed and that all documents granting him permanent
residence are withdrawn;
2.
Directing the Respondents to disclose to the Applicant the reasons for the decision
referred to in prayer 1 supra;
HIGH COURT PRACTICE
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268
3.
Directing the Respondents to disclose to the Applicant all the information
available to the Respondents as referred to in the letter of ......... 20...…
addressed to Messrs.... by the Department of Home Affairs concerning the
permanent residence: “Mr XXX”;
4.
Directing the Respondents to take all necessary steps to ensure that the
Immigrants Selection Board and/or the Director-General, Department of Home
Affairs, reconsider their decision that the permit for permanent residence of
Applicant lapsed and that this reconsideration be done in a lawful and
procedurally fair manner;
5.
Directing those of the Respondents who may oppose this application to pay the
costs hereof, jointly and severally;
6.
Granting the Applicant further or alternative relief.
BE PLEASED TO TAKE FURTHER NOTICE that the Respondents are, in terms of Rule
53 of the Uniform Rules of this Honourable Court, hereby called upon to show cause
why the decision referred to in prayer 1 above should not be reviewed and set aside.
BE PLEASED TO TAKE FURTHER NOTICE that the first, second and third Respondents
are hereby called upon to despatch by 16:00 on the ... day of .... 20…, after receipt of
this Notice of Motion, to the Registrar of the above Honourable Court the record of all
and any proceedings, correspondence, reports, memoranda and/or other documents on
the basis of which are relevant to the decision referred to in prayer 1 supra, together
with such reasons as they are by law required or desire to give or make and to notify
the Applicant’s Attorneys that they have done so.
BE PLEASED TO TAKE FURTHER NOTICE that the accompanying affidavit of the
Applicant and the annexures thereto will be used in support of this application.
BE PLEASED TO TAKE FURTHER NOTICE that the Applicant has appointed ……. at
……., Pretoria, at which he will accept notice and service of all processes in these
proceedings.
BE PLEASED TO TAKE FURTHER NOTICE that if you intend opposing this application,
you are required:
a)
to notify Applicant’s Attorneys in writing on or before …......; and
b)
within 15 (FIFTEEN) days after you have so given notice of your intention to
oppose the application, to file your answering affidavits, if any; and
Further that you are required to appoint in such notification an address referred to in
Rule 6(5)(b) at which you will accept notice and service of all documents in these
proceedings.
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If no such notice of intention to oppose be given, the application will be made on the …
day of ...........20... at ………………....
DATED AT PRETORIA THIS …. DAY OF .............. 20...…
________________________
ATTORNEYS FOR APPLICANT
REF.:______
TO: THE REGISTRAR OF THE HIGH COURT PRETORIA
AND TO: THE MINISTER OF HOME AFFAIRS
FIRST RESPONDENT
C/O STATE ATTORNEY
FEDSURE FORUM
PRETORIUS STREET
PRETORIA
________________________
Copy hereof received on the ........day of ...................20......
AND TO: THE DIRECTOR-GENERAL: DEPARTMENT OF HOME AFFAIRS
SECOND RESPONDENT
C/O STATE ATTORNEY
FEDSURE FORUM
PRETORIUS ST
PRETORIA
__________________________
Copy hereof received on the ........day of ......20...…
AND TO: THE CHAIRPERSON: IMMIGRATION
SELECTION BOARD
THIRD RESPONDENT
C/O STATE ATTORNEY
FEDSURE FORUM
PRETORIUS STREET
PRETORIA
__________________________
Copy hereof received on the ........day of ......20...…
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EXAMPLE 25: EXAMPLE OF AN INDEX OF AN APPEAL MATTER
(Division)
Case No.: .............................
In the matter between:
Applicant
and
Respondent
INDEX IN TERMS OF RULE 50(8)(a)
NO. DOCUMENT
PAGE
1.
Summons
1-7
2.
Defendant’s Plea
8-15
3.
Pre-trial Minutes
16-30
4.
Plaintiff’s request for further particulars for trial
31-35
5.
Defendant’s Reply to Plaintiff
Request for further particulars for trial
36-40
6.
Defendant’s request for further particulars for trial
41-45
7.
Plaintiff’s Reply to Defendant’s request for further particulars
for trial
46-50
8.
Record of Proceedings at Trial
51-251
9.
Judgment by his Lordship Judge X on
252-260
10. Plaintiff’s application for leave to appeal
261-262
11. Plaintiff’s Power of Attorney
263-264
12. Proof of Security
265-266
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EXAMPLE 26: APPLICATION FOR JUDGMENT BY DEFAULT
(Division)
Case No.: .......................
In the matter between:
Plaintiff
and
Defendant
APPLICATION FOR JUDGMENT BY DEFAULT RULE 31(5)
TO:
THE REGISTRAR HIGH COURT
DURBAN
Dear Sir
The Plaintiff hereby applies that:
a)
the Defendant having been duly served on .....................;
b)
the time for entering appearance to defend having expired on ...........;
c)
the Defendant not having entered an appearance to defend,
Judgment by default be given in the Plaintiff’s favour against the Defendant as claimed
in the summons, and in accordance with the attached draft, as follows:
1.
Payment of R….................;
2.
Interest thereon at the rate of .......% per annum with effect from ......... to date
of payment;
3.
Costs of suit.
4.
Alternative relief.
THE ORIGINAL SUMMONS AND SHERIFF’S RETURN ARE ATTACHED DATED AT
DURBAN this .... day of .....................20...
___________________
PLAINTIFF’S ATTORNEY
ACUTT & SCOTSWOOD
Plaintiff’s Attorneys
15 Smith Street
DURBAN
(Ref.: …)
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EXAMPLE 27: JUDGMENT BY DEFAULT
(Division)
Case No.: .......................
In the matter between:
Plaintiff
and
Defendant
APPLICATION FOR JUDGMENT BY DEFAULT RULE 31(5)
Having read the summons and other documents filed of record, Judgment by default is
granted in favour of the Plaintiff against the Defendant for:
1.
Payment of R....................;
2.
Interest thereon at the rate of .......% per annum with effect from ......... to date
of payment;
3.
Costs of suit.
DATED AT DURBAN this ...... day of ...........20...…
REGISTRAR HIGH COURT DURBAN
EXAMPLE 28: APPLICATION FOR LEAVE TO APPEAL
APPLICATION FOR LEAVE TO APPEAL
TAKE NOTE that the Respondent intends to apply for leave to appeal against the whole
judgment handed down on 9 November 20… in the above Honourable Court, including
the Order for costs (per XYZ J) on a date to be arranged with the Registrar.
The grounds for the appeal are set out hereunder.
The learned Judge erred in (tabulate the matters where you believe the learned Judge
was incorrect) Kindly enrol the matter accordingly.
(NORMAL ENDING)
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EXAMPLE 29: NOTICE OF APPEAL
(This form is to be used if Leave to Appeal has been granted and will contain the heading
of the Court to which the appeal will be directed and will make provision for the appeal
case number and the case number of the Court a quo)
NOTICE OF APPEAL
BE PLEASE TO TAKE NOTICE that the Appellant (the Respondent a quo) hereby notes
an appeal to this Honourable Court against the whole of the judgment and Order handed
down by the Honourable Mr XYZ J on 9 November 20... in the (cite Court a quo) under
case number XXX.
PLEASE TAKE NOTICE FURTHER that the Appellant notes an appeal to the (for
example) the Supreme Court of Appeal with the leave of the Court a quo, such leave
having been granted on 11 February 20…. A certified copy of the Order granting leave
to appeal is filed herewith.
PLEASE TAKE NOTICE FURTHER that the Appellant seeks an Order setting aside the
whole of the judgment an Order of the Court a quo and substituting therefore the
following Order:
1.
The Respondent’s (Applicant a quo) claim is dismissed;
2.
The Respondent (Applicant a quo) is ordered to pay the costs of the Appellant
(Respondent a quo) such costs to include the costs of two Counsel;
(NORMAL ENDING)
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E.
REFERENCE SOURCES TEXTBOOKS
TITLE
AUTHORS
Technique in Litigation
Morris E
Amlers Precedents of Pleadings
Harms L T C
S A Law of Evidence
Hoffmann L H en Zeffertt D
Beck’s Theory and Principles of Pleadings in Civil Isaacs I
Actions
Herbstein & Van Winsen the Civil Practice of the
Supreme Court of SA (4th Edition)
Van Winsen et al
Law of Attorney’s Costs and the Taxation Thereof
Jacobs M en Ehlers N E J
Civil Procedure in the Supreme Court
Harms D
Bewysreg
Schmidt C W H
Erasmus Superior Court Practice
Loggerenberg D E
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GLOSSARY OF TERMS
Chief Justice
the Chief Justice of South Africa
civil summons
any summons whereby civil proceedings are commenced, and includes any rule nisi,
notice of motion or petition the object of which is to require the appearance before the
Court out of which it is issued of any person against whom relief is sought in such
proceedings or of any person who is interested in resisting the grant of such relief
Defendant includes any Respondent or other party against whom relief is sought in civil
proceedings
Dies non
the days between 16 December and 15 January (both inclusive) shall not be counted in
the time allowed for the delivery of any pleading.
division
a division of High Court.
full Court
except for the purposes of Section 13(1), means a Court of a Provincial or Local division
consisting of three Judges.
inferior Court
any Court (other than the Court of a division) which is required to keep a record of its
proceedings and includes a Magistrate or other officer holding a preparatory examination
into an alleged offence.
Minister
the Minister of Justice
Plaintiff
includes any petitioner or other party who seeks relief in civil proceedings
Registrar
includes an assistant Registrar
Supreme Court
the Supreme Court of South Africa
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_
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ANSWER TO ASSIGNMENT QUESTION AFTER PARAGRAPH 7.3.
(DIVISION)
Case No.: 2000/43501
In the matter between:
FINANCIAL BANK LIMITED
PLAINTIFF
and
BOTHA MARIA
FIRST DEFENDANT
BOTHA ALBERT
SECOND DEFENDANT
DECLARATION
1.
The Plaintiff is Finance Bank Limited, a bank as such registered in terms of the
Statutes of the Republic of South Africa with registered office at 1 Church Street,
Pretoria.
2.
The first Defendant is Maria Botha, an adult female residing at 43 Bergsig Flats, 11
Groot Street, Pretoria, whose full and further particulars are to the Plaintiff
unknown.
3.
The second Defendant is Albert Botha, an adult male residing at 43 Bergsig Flats,
11 Groot Street, Pretoria, whose full and further particulars are to the Plaintiff
unknown.
4.
This Honourable Court has Jurisdiction to hear this matter in that (here state the
grounds for the Court jurisdiction).
5.
Plaintiff is a credit provider registered with the National Credit Regulator in terms
of the National Credit Act No. 34 of 2005, with registration number 6789.
6.
During or about January 20… and at Pretoria the Plaintiff duly represented by an
authorised official of the Plaintiff and the first Defendant acting in person, concluded
a written agreement in terms whereof the Plaintiff granted an overdraft facility to
the first Defendant on the first Defendant’s current bank account at the Church
Street Branch of the Plaintiff. Said agreement is attached hereto as per Annexure
“A”.
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7.
The agreement complies with the National Credit Act No. 34 of 2005.
8.
It was an express, alternatively implied term of the agreement, alternatively it is
the known and vested practice of banks that:
8.1
the Plaintiff would lend and advance monies to the first Defendant from time
to time of the overdraft facility;
8.2
the extent, nature and duration of the overdraft facility would be in the
discretion of the Plaintiff;
8.3
the first Defendant would pay bank charges to the Plaintiff;
8.4
the bank would charge interest at the rate of 22% per annum, calculated and
capitalized monthly, on the outstanding debit balance from time to time;
8.5
any capital amount and interest due by the first Defendant would be paid by
the first Defendant to the Plaintiff on demand.
9.
The Plaintiff has performed its obligations in terms of the aforementioned
agreement.
10.
On 25 June 20… the amount of R1 126 000.00 with interest thereon at the rate of
a tempore morae calculated from 25 June 20… to date of payment, such interest
to be calculated and capitalised monthly, was due by the first Defendant to the
Plaintiff.
11.
Despite request and demand the first Defendant refuses and/or neglects to pay the
said amount and interest to the Plaintiff, as such being in breach of the said
agreement.
12.
Due to the aforementioned breach Plaintiff has cancelled the agreement.
13.
First Defendant is in default and has been in default for at least 20 days.
14.
Plaintiff has complied with the provisions of Section 130 of the National Credit Act
No. 34 of 2005 and copy of the Section 129 notice is attached hereto as per
Annexure “B”., copy of proof of sending by registered mail Annexure “C’’ and
track and trace report Annexure “D”.
15.
First Defendant has not responded to the said notice and a period of ten days have
elapsed.
16.
There is no matter arising out of the credit agreement pending before the National
Consumer Tribunal.
17.
Plaintiff is entitled to payment of the full balance outstanding being the sum of
R1 126 000.00.
18.
The Defendant is entitled to a deduction of finance charges of R________.
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19.
In the premises, first Defendant is indebted to the Plaintiff in the sum of
R1 126 000.00 together with interest as set out above to the Plaintiff.
20.
On 31 January 20… and at Pretoria the second Defendant bound himself towards
the Plaintiff as surety and co-principal debtor for the payment of any amount due
by the first Defendant to the Plaintiff. A true copy of the suretyship to which the
Plaintiff refers and requests that the terms thereof be incorporated herein as if set
out specifically, is annexed to the Plaintiff’s summons marked Annexure “E”.
21.
Despite demand the second Defendant refuses and/or neglects to pay the amount
of R1 126 000.00 together with interest as set out above to the Plaintiff. The said
demand attached hereto marked Annexure “F”.
WHEREFORE the Plaintiff prays for Judgment against the Defendants jointly and
severally, the one paying the other to be absolved, for:
a)
Payment of the amount of R1 126 000.00;
b)
Payment of interest on the amount of R1 126 000.00 a tempore morae calculated
from 25 June 20… to date of payment, such interest to be calculated and capitalised
monthly;
c)
Cost of suit;
d)
Further and/or alternative relief.
SIGNED AT PRETORIA THIS … DAY OF ………….20...
__________
W A MALAN
COUNSEL FOR THE PLAINTIFF
______________________
ATTORNEY FOR PLAINTIFF
SMIT & PARTNERS
PLAINTIFF’S ATTORNEY
2 CHURCH STREET PRETORIA
(REF: MR SMIT)
TO:
THE REGISTRAR OF THE HIGH COURT VERMEULEN STREET
PRETORIA
AND TO: BOTHA & BOTHA DEFENDANT’S ATTORNEYS
4 SCHOEMAN STREET PRETORIA
(REF: MR SA BOTHA)
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Received a copy hereof this ___ day of _____________________ 20___
_________________
FOR AND ON BEHALF
OF DEFENDANTS’ ATTORNEYS
____________________________________
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ANSWER TO ASSIGNMENT QUESTION AFTER PARAGRAPH 21.3.2.
(DIVISION)
Case No. 20…/43501
In the matter between:
FINANCIAL BANK LIMITED
PLAINTIFF
and
BOTHA MARIA
FIRST DEFENDANT
BOTHA ALBERT
SECOND DEFENDANT
NOTICE OF INTENTION TO AMEND IN TERMS OF RULE 28
KINDLY TAKE NOTICE that the Plaintiff intends to amend his summons and declaration
by deleting the words and digits “during or about January 20…” in paragraph 1.1 of the
summons and paragraph 4 of the declaration and by inserting the words and digits “on 6
May 20…” in the said paragraph.
KINDLY TAKE FURTHER NOTICE that unless objection in writing to the proposed
amendment is made within 10 days the Plaintiff will amend his summons and declaration
accordingly.
SIGNED AT PRETORIA THIS ___ DAY OF ____________20__.
_____________
W A MALAN
COUNSEL FOR THE PLAINTIFF
________________
SMIT & PARTNERS
PLAINTIFF’S ATTORNEYS
2 CHURCH STREET
PRETORIA
(REF: MR SMIT)
TO:
THE REGISTRAR OF THE HIGH COURT
VERMEULEN STREET, PRETORIA
AND TO: BOTHA & BOTHA
DEFENDANTS' ATTORNEYS
4 SCHOEMAN STREET
PRETORIA
(REF: MR S A BOTHA)
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Received a copy of this on this ______ day of _____________ 20_____.
__________________________________
ON BEHALF OF DEFENDANTS’ ATTORNEYS
____________________________________
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ANSWER TO ASSIGNMENT QUESTION under page 221 Question (a)(ii)
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
(DIVISION)
CASE NO.: _______________
in the matter between:
FINANCIAL BANK LIMITED
(Plaintiff a quo)
APPELLANT
and
BOTHA MARIA
(First Defendant a quo)
FIRST RESPONDENT
BOTHA ALBERT
(Second Defendant a quo)
SECOND RESPONDENT
NOTICE OF APPEAL
KINDLY TAKE NOTICE that the Appellant herewith notes an appeal to the Supreme
Court of Appeal of South Africa against the whole of the Judgment and order granted by
His Lordship Mr Justice X on 3 December 20… after leave to appeal had been granted by
the Court a quo to the Appellant on 15 December 20….
A copy of the order granting leave to appeal is annexed hereto marked Annexure “A”.
SIGNED AT PRETORIA ON THIS … DAY OF … 20…
________________
SMIT & PARTNERS
APPELLANT’S ATTORNEYS
2 CHURCH STREET
PRETORIA
(REF: MR SMIT)
ADDRESS IN BLOEMFONTEIN WHERE APPELLANT WILL ACCEPT SERVICE:
______________________________________
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TO: THE REGISTRAR OF THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
AND TO: THE REGISTRAR OF THE GAUTENG HIGH COURT
AND TO: BOTHA & BOTHA RESPONDENTS’ ATTORNEYS
4 SCHOEMAN STREET
PRETORIA
(REF: MR SA BOTHA)
Received a copy of this on this …. day of …… 20…
___________________________________
ON BEHALF OF RESPONDENT’S ATTORNEYS
____________________________________
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JUDGE PRESIDENT’S DIRECTIVE
JUDGE PRESIDENT’S DIRECTIVE TO REGULATE THE CASE MANAGEMENT, TRIAL
ALLOCATION AND ENROLMENT OF TRIAL MATTERS WITH EFFECT FROM 1 JULY
2019 IN THE GAUTENG DIVISION, PRETORIA AND THE GAUTENG LOCAL
DIVISION, JOHANNESBURG.
The scope of application of this directive
1.
This directive is to be read with Uniform Rule of Court 37A, which is in force from
1 July 2019.
2.
The scope of the directive is as follows:
2.1.
This directive applies to both the Pretoria Court and to the Johannesburg
Court.
2.2.
The provisions of this directive prevail over any provision in the practice
manuals of either Court.
2.3.
Different parts of this directive apply to different categories of cases.
2.4.
All trial matters in which the Defendant is the Road Accident Fund or the
MEC Health Gauteng, or PRASA constitutes the category in respect of
which paragraphs 6 -14 of this directive shall apply. (Category “Y”)
2.5.
All other trial matters constitute the categories Commercial, “C”, Family “F”,
Delictual “D,” and Public Law “P” in respect of which paragraphs 15-18 shall
apply.
2.6.
All trial matters in all categories are subject to the provisions of paragraphs
4-5, and 9-26.
3.
To provide for the transition from the old regulatory regime to the new regulatory
regime:
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3.1.
All trial matters, which prior to 1 July 2019, had been allocated a trial date
and that trial date falls into the period up to 31 March 2020, shall retain
those trial date allocations and shall require certification in terms of the
practice and directives in force as of 30 June 2019. (Chapter 6 of the Practice
Manual of both Courts)
3.2.
All trial matters which, prior to 1 July 2019, have been allocated trial dates
which trial dates fall after 31 March 2020, shall hereby forfeit those trial
dates, and shall require certification as provided in paragraphs 6 -14 of this
directive.
3.3.
As from 1 July 2019, the Registrar shall not allocate a trial date unless a
certificate of trial readiness is issued in accordance with the provisions of
this directive:
3.3.1. Category “Y” matters shall require a certificate of trial readiness to
be issued by a Judge and must comply with paragraphs 6-14 of this
directive
3.3.2. All other Categories shall require a certificate to be issued by the
Registrar and shall comply with paragraphs 15-18 of this directive
Interpretation of this Directive
4.
This directive shall be construed and applied in accordance with the principle that
notwithstanding the provisions herein providing for judicial case management, the
primary responsibility remains with the parties and their legal representatives to
prepare properly, to comply with all Rules of Court, the practice manual, and this
directive and to act professionally in expediting the matter towards trial and
adjudication.
The
objectives
of
case
management
through
judicial
case
management in the interests of justice are to alleviate congested trial rolls and to
address the problems which cause delays in the finalisation of cases. Any failure by
a party to adhere to these principles may be penalised by way of an adverse costs
order on a punitive scale, de bonis propriis, and may further include an order
disallowing fees to be charged to a litigant by that litigants’ own Legal Practitioners.
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Procedure at commencement of an action applicable to all trial matters with effect from
1 July 2019
5.
At the time a summons is issued:
5.1.
The Plaintiff shall, together with the summons, present to the Registrar, in
the prescribed form:
5.1.1. a statement that the matter is one in which the Defendant is the RAF,
or the MEC Health, Gauteng or PRASA whereupon the Registrar
shall add to the case number the letter “Y”,
5.1.2. or a statement that the matter does not involve any of the abovenamed Defendants, and further, shall classify the matter as (1) a
Commercial matter “C”, or (2) a Family law matter “F”, or (3) a
Delictual matter “D”, or (4) a Public law matter “P”.
5.1.3. The Registrar shall maintain a Record and schedule of the different
categories, and routinely report such statistical information as the
Judge President directs.
5.1.4. the details of an email address and contact person to whom all
communications in terms of this paragraph shall be sent.
5.2.
The Plaintiff shall, upon filing the return of service of the summons, in the
prescribed form, state:
5.2.1. The date, in terms of the Rules of Court, upon which the notice of
intention to defend is due.
5.2.2. The date, in terms of the Rules of Court, upon which a plea is due.
5.3.
The Registrar shall diarise these dates, and in the event that the parties fail
to adhere to these time periods, a message shall be sent by the Registrar
thereafter by email to the designated address, directing compliance within
10 days of the message, failing which, the matter shall be referred to the
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Deputy Judge President (DJP) who may designate a Judge to case manage
the matter in terms of this paragraph.
5.4.
Upon reference of a matter to the DJP in terms of paragraph 8.3, the DJP (or
a Judge delegated by the DJP for such purpose) shall address the matter
thus:
5.4.1. If the parties request case management to be deferred in order to
complete the process, the DJP may so direct, either unconditionally or
conditionally.
5.4.2. Designate a Judge who has been rostered to deal with case
management matters or designate a Judge ad hoc to case manage
the matter.
5.4.3. Direct the Registrar to inform the parties accordingly.
5.5.
A Defendant shall, upon delivering a notice of intention to defend, in the
prescribed form, furnish details of an email address and contact person to
whom all communications in terms of this paragraph shall be sent.
Procedure to prepare for a Case Management Conference for matters in which the
Defendant is the RAF or the MEC Health, Gauteng or PRASA, category “Y”. (For other
categories see paragraphs 15-18 of this directive)
6.
A party who contends that any matter in which the Defendant is the RAF, or the
MEC Health, Gauteng or PRASA, is ripe to be allocated a trial date shall:
6.1.
apply, in the prescribed form to the designated Registrar for a case
management conference, and
6.2.
together with such application, deliver to the Registrar a detailed statement
of issues as follows:
6.2.1. The issues in the case that are not in dispute, and in respect of which
by reason thereof no evidence shall be allowed at the trial.
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6.2.2. The issues in the case that are in dispute, describing:
6.2.2.1. The exact nature of the disputes of fact and disputes of law,
6.2.2.2. The exact contentions of each party in respect of that issue.
6.3.
The descriptions required in paragraphs 6.2.2 shall not be vague generalities
but shall be concrete and facilitate a clear grasp of the decisions a Court shall
be required to decide.
7.
Upon such application being lodged in terms of paragraph 6, the Registrar shall
notify all parties, by email:
7.1.
of the date time and place of a case management conference,
7.2.
the identity of the designated Judge, if known at that time,
7.3.
that the parties must, if not already having done so, hold a pre-trial
conference before the date fixed for the conference, which conference shall
address all the questions identified in paragraph 10-11 of this directive,
7.4.
that the Plaintiff shall not later than the Thursday before the date fixed for
the conference, present to the Registrar:
7.4.1. The Court file, suitably ordered, secured, paginated, and indexed,
containing legible copies of every document; more particularly:
7.4.1.1. A full set of the pleadings.
7.4.1.2. The discovery affidavits of all the parties in a single bundle,
with a statement that discovery is complete; alternatively, if
not complete, a full explanation why not, and what steps are
necessary to achieve completion.
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7.4.1.3. A single indexed legible bundle of documents to be used, in a
logical order, which contains no duplications, and each
document being properly described.
7.4.1.4. A set of the expert reports which reports conform as follows:
7.4.1.4.1. Expert reports must be drafted in a format
designed for lucidity, brevity, and convenient
cross referencing, and to this end, must be in
numbered paragraphs, and when referring to
other expert reports, refer to the numbered
paragraphs therein.
7.4.1.4.2. Joint minutes of experts must identify exactly what
is agreed and what is not agreed, with reasons
stated why disagreement cannot be achieved,
especially as to whether the disagreement relates
to a fact clinically observed or an interpretation of
the facts.
7.4.1.4.3. The Attorney responsible for the procurement of
the reports shall be responsible for compliance in
this regard, and failure to adhere hereto may
imperil certification.
7.4.2. A signed, agreed, minute of the pre-trial conference which has
addressed all the questions identified in paragraph 8; alternatively,
in the event that the parties have not reached agreement on the
contents of the minute, a minute signed by the party filing the
document together with an explanation why agreement on its content
was not obtained. (In this regard attention is drawn to paragraph 1926 dealing with the utilisation of the trials interlocutory Court to
procure compliance and cooperation from an adversary)
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8.
The minute referred to in paragraph 7.4.2 shall:
8.1.
particularise the parties’ agreement or respective positions on each of the
following questions:
8.1.1. The matters mentioned in Rule of Court 37(6);
8.1.2. The soliciting of admissions and the making of enquiries from and by
the parties with a view to narrowing the issues or curtailing the need
for oral evidence;
8.1.3. The instructions given to expert witnesses and the feasibility and
reasonableness, in the circumstances of the case, that a single joint
expert be appointed by the parties in respect of any issue;
8.1.4. The identity of the witnesses the parties intend to call and in broad
terms the nature of such evidence to be given by each witness;
8.1.5. Any other matter germane to expediting the trial readiness of the case.
8.2.
In the event that further steps are necessary to render the matter trial ready,
explicitly:
8.2.1. identify those steps, and
8.2.2. set out a proposed timetable according to which the parties commit to
achieving readiness.
Procedure at a Case Management Conference in matters in which the Defendant is the
RAF or the MEC, Health Gauteng or PRASA. (Category “Y”)
9.
The Judge who presides over a case management conference shall not preside over
the trial; however, such Judge may make a final order in a settled matter if such
order is by consent of all parties.
10.
At a conference, without limiting the scope of judicial engagement, the Judge shall:
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10.1. Explore settlement, on all or some of the issues, including, if appropriate,
enquiring whether the parties have considered voluntary mediation, and may
in this regard, if deemed appropriate, elicit information from the parties on
matters such as the existence and content of settlement offers that would
ordinarily be without prejudice and not disclosable to a trial Judge.
10.2. Endeavour to promote agreement on limiting the number of witnesses that
will be called at the trial eliminating pointless repetition or evidence covering
facts already admitted.
10.3. Identify and record the issues as adequately defined to be tried in the action
and be satisfied that all issues amenable to be resolved without a trial have
been dealt with.
10.4. Address any potential causes of delay in the commencement of the trial and
be satisfied that such potential causes have been pre-empted to the extent
practically possible.
10.5. Address the sufficiency of expert witness reports and joint minutes and be
satisfied that in form and substance there has been compliance with the
provisions of this directive.
11.
At a conference, without limiting the scope of judicial engagement and the powers
of the Judge, the Judge may:
11.1. Order, in terms of Rule 33(4), a separation of issues in appropriate cases
notwithstanding the absence of agreement by the parties thereto.
11.2. In exceptional circumstances, and on good cause shown, put the parties on
such terms as are appropriate to achieve trial readiness, and direct them to
report to that Judge at a further conference to be convened on a fixed date.
11.3. Give directions for the hearing of opposed interlocutory applications by a
Motion Court on an expedited basis.
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11.4. Strike the matter from the case management roll and direct that it be reenrolled only after any non-compliance with the Rules of Court or the Practice
Manual or this directive, have been purged.
11.5. Refuse certification in which case the parties must again apply ab initio for
certification.
11.6. Certify a matter trial ready, in which case an order in the prescribed form
shall be issued for presentation to the Registrar who shall allocate a trial
date.
11.7. In an exceptional case, where the interests of justice would otherwise be
thwarted, where a Plaintiff is trial ready, but the Defendant is not, and
notwithstanding the utilisation by the Plaintiff of the Trials Interlocutory Court
procedure, the Defendant remains in default, the Judge may, on such
conditions that are appropriate to the specific circumstances, certify a matter
trial ready.
11.8. Make any order as to costs against the parties’ legal representatives or any
other person whose conduct unreasonably frustrated the objectives of the
judicial case management process, which order may include costs on the
Attorney and client scale, de bonis propriis and the disallowance of a fee
to be charged by a Legal Practitioner to the client.
11.9. At the conclusion of the conference, summarise the decisions made and may,
if deemed convenient, direct the Plaintiff to file a minute thereof.
12.
The record of the case management conference, including:
12.1. the minutes submitted by the parties to the Judge, and
12.2. any directives issued by the Judge and the Judge’s record of the issues to be
tried in the action,
12.3. but excluding any settlement discussions and offers,
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shall be included in the Court file placed before the trial Judge, who shall be
entitled to have regard thereto in regard to the conduct of the trial including:
13.
(i)
the determination of any applications for postponement, and
(ii)
issues of costs.
Parties who have been allocated a Court date shall not later than 6 weeks before
that Court date:
13.1. File a statement, signed by one or both Attorneys, verifying that the matter
remains ready to proceed to trial, or,
13.2. File a statement that the matter has become unready, setting out full
particulars, including the parties’ proposals for the future, and request the
assignment of a Judge to case manage the case, or
13.3. File a statement that the matter has become settled and request a referral to
a Judge to consider the consent order agreed upon.
14.
Upon receipt thereof, the DJP shall direct the further course of the matter.
Procedure to apply for a trial date in a matter in which the Defendant is not the RAF, the
MEC Health Gauteng or PRASA; i.e., is a matter in categories C, F, D or P.
15.
A party who contends that a matter that categorised C, F, D or P, is ripe to be
allocated a trial date shall apply in the prescribed form, to the Registrar for a
certificate of trial readiness and together with such application, shall further provide
the following:
15.1. A statement, signed by the Attorney for the party applying for the certificate
that he or she has personally verified that there has been full compliance
with the prescripts of this directive:
15.2. A statement, signed by that Attorney:
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15.2.1. that the pleadings have closed,
15.2.2. that a compliant indexed and paginated set of the pleadings has been
filed,
15.2.3. that all discovery is complete,
15.2.4. that a single, indexed, and paginated legible bundle of the
documents, in which each document is described in the index, has
been prepared,
15.2.5. that any experts’ witnesses’ reports have been filed,
15.2.6. that joint minutes of contending experts have been filed,
15.2.7. that the reports and the joint minutes comply in all respects with the
provisions of this directive,
15.2.8. and that no interlocutory applications are outstanding or anticipated;
15.3. A copy of a pre-trial minute signed by all parties, which was held not earlier
than 30 calendar days before the date the application is made, which is
compliant with the provisions of this directive.
15.4. A practice note by the Attorneys or Counsel in which is stated:
15.4.1. which of the issues in the case that are not in dispute, and in respect
of which by reason thereof, no evidence shall be allowed at the trial,
15.4.2. which of the issues in the case that are in dispute, describing:
15.4.2.1. the exact nature of the disputes of fact and disputes of law,
15.4.2.2. and the exact contentions of each party in respect of that
issue.
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16.
Upon receipt of an application that is fully compliant with these prescripts the
Registrar shall issue a certificate in the prescribed form.
17.
The application form and accompanying documents shall be made available to the
trial Judge in due course, and the Attorney applying for the certificate must ensure
that a copy of the application and the accompanying documents is retained in his
or her safekeeping, and that the documents are available at trial.
18.
In the event that any misrepresentation is made in such application, whether
intentional or negligently, the certificate shall automatically be invalid, and the
Attorney and/or Counsel responsible for the application shall be referred to the DJP
for an investigation into the misrepresentation and may be referred to the Legal
Practice Council, for a further investigation into whether or not professional
misconduct has been committed.
The trials Interlocutory Court: role and functions, applicable to all categories of matters
19.
A Motion Court, the trials Interlocutory Court, dedicated to interlocutory matters in
trial matters will sit Mondays to Thursdays every week, except during the period of
dies non, between 15 December and 15 January.
20.
Matters shall be set down on notice filed before noon on the Thursday before the
next week’s session, be succinct and rarely more than five pages of affidavit, and,
where appropriate, brief heads of argument shall be submitted at the hearing.
21.
Ordinary unopposed interlocutory matters not involving non-compliance in a trial
matter must not be enrolled in this Court.
22.
Draft orders in duplicate bearing the name of Counsel, Attorney, and the email
addresses of the parties’ Attorneys, shall be presented to the Court and the
Registrar shall prepare orders on the same day as they are granted which shall be
emailed to the parties from not later than 9h00 the next day.
23.
Any party who, having reason to be aggrieved by the other party’s neglect,
dilatoriness, failure, or refusal to comply with any Rule of Court, provision of the
practice manual or provision of this directive, must utilise the trials interlocutory
Court to compel compliance and cooperation from the delinquent party.
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24.
In particular, Plaintiffs in category “Y” matters who allege that the Defendant is
culpable in any way for an unnecessary delay, must not hesitate to utilise this Court
25.
Among the matters which this Court will deal with will be the failure to deliver
timeously any practice note or heads due, a failure to comply with Rule 36, a failure
to sign a Rule 37 minute promptly, a failure to comply timeously with any
undertaking given in a Rule 37 conference, a failure to secure an expert timeously
for an interview with a patient, or a meeting of experts for the purpose of preparing
joint minutes, and non-compliance with any provision of this directive; the list is
not closed and any other act of non-cooperation which may imperil expeditious
progress of a matter may be the subject matter of an application to compel.
26.
In a proper case, punitive costs (including an order disallowing Legal Practitioners
from charging a fee to their clients) may be awarded where recalcitrance or
obfuscation is apparent and is the cause of inappropriately delaying the progress
of any matter.
________________________
D MLAMBO
JUDGE PRESIDENT,
GAUTENG DIVISION,
HIGH COURT OF SOUTH AFRICA
11 JUNE 2019
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EXAMPLE OF EVICTION APPLICATION UNDER THE PIE ACT: HIGH COURT
EVICTION: PIE ACT: HIGH COURT: EXAMPLE
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. ..............................
In the matter between:
LERN NOEL DAVID AAAAAAAN
FIRST APPLICANT
HALIMA HASNA AAAAAAN
SECOND APPLICANT
and
OCCUPANTS ON ERF 000, MHLUZI X 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
NOTICE OF MOTION
_____________________________________________________________
BE PLEASED TO TAKE NOTICE THAT the above Applicants intends making application
to the above Honourable Court for an order in the following terms:
1.
That the First Respondent, together with any other persons who occupy or holding
possession through the First Respondent of Erf 000 measuring 260 square
meters, which includes residential development on the property, transferred in
the MPUMALANGA deeds division, situated at MHLUZI EXT 1 (hereinafter
referred to as “the property”), under or through the First Respondent, and/or by
virtue of the First Respondent’s occupation thereof:
1.1 Vacate the property within a period of 20 days from the date of service of
this order at the property;
1.2 Deliver up to the Applicants all keys to the property that the First
Respondent may have in his/her/their possession or under his/her/their
control.
2.
Alternatively, in the event that the First Respondent and/or any persons
occupying through or under him/her/their, fail to vacate the property within a
period of 21 days from date of service of this order at the property, authorising
the Sheriff of this Honourable Court, including but not limited to, obtaining the
help of the South African Police Services to evict the First Respondent and/or any
persons occupying through or under him/her, from the property on a date not
being less than 21 days from the date of service of this order at the property.
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3.
Ordering the First Respondent to make payment to the Applicants in the sum of
R4 000.00 per month, for monthly rent owed from the date on which the
property was transferred into the Applicant’s name, up to the date of Judgment
being granted.
4.
Authorising the Sheriff of this Honourable Court to attach the property of the First
Respondent in security for rent if he/she/they fails to make payment as stated in
3 above.
5.
Ordering the First Respondent to make payment to the Applicants for unlawful
holding over of the property from date of judgment, being the date of cancellation
until the date the First Respondent and all persons occupying the property
through or under them vacate the property, for rental in the sum of R133.33 per
day, without prejudice to the Applicants right to recover any other damages from
the First Respondent suffered by the Applicants.
6.
Ordering the First Respondent to pay interest on each amount payable in terms
of prayer 3 and 5 above at 10.25% per annum from due date for payment of
each amount until date of actual payment.
7.
Ordering the First Respondent to pay the costs of this application on the scale as
between Attorney and client.
8.
Ordering the Second Respondent to pay the costs of this application on the scale
as between party and party, only in the event of the Second Respondent opposing
this application.
9.
Further and alternative relief.
TAKE NOTICE FURTHER THAT the accompanying affidavit of LERN NOEL DAVID
AAAAAA AND HALIMA HASNA AAAAAA together with annexures will be used in
support thereof.
TAKE NOTICE FURTHER THAT the Applicants have appointed the offices of ______
ATTORNEYS whose address appears hereunder as its Attorneys of record at which
address it will accept notices and services of all process in these proceedings.
TAKE NOTICE FURTHER THAT if you intend opposing this Application you are
required:
(a)
To notify the Applicants’ Attorneys in writing of your intention to do so within
10 days after service of this application;
(b)
And within 20 days of the service of your notice of intention to oppose to file
your answering affidavit, if any.
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AND FURTHER TAKE NOTICE THAT you are required to appoint in such notification
an address referred to in Rule 6(5)(b) at which you will accept notice and service of all
documents in these proceedings.
AND FURTHER TAKE NOTICE THAT if no such notice of intention to oppose is given,
application will be made on __________, or as soon thereafter as the matter can be
heard, being a date not less than 14 days after notice has been given to the First
Respondent in accordance with the provisions of Section 4(2) of the PREVENTION
OF ILLEGAL EVICTION FROM AN UNLAWFUL OCCUPATION OF LAND ACT NO.
19 of 1998, which notice will be served upon the First Respondent simultaneously
herewith.
DATED at ______________ on this the _____day of __________________ 20___.
__________________________
________ ATTORNEYS
Applicants’ Attorney
Ground Floor, _______ Building,
___________ Bruma, Johannesburg
P O Box _____, Highlands North, 2037
Tel: 011 ______ / 082-_______
Fax: 086-__________
Ref: JC6442 /
TO:
REGISTRAR OF THE ABOVE COURT
AND TO:
OCCUPANTS ON ERF 0000, MHLUZI X 1
AAAA AVENUE,
MHLUZI.
PER SHERIFF
AND TO:
STEVE TSHWETE LOCAL MUNICIPALITY
Corner Walter Sisulu Street & Wonderers Ave
Middelburg, Gauteng.
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PER SHERIFF
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. ..............................
In the matter between:
LERN NOEL DAVID AAAAAA
FIRST APPLICANT
HALIMA HASNA SAAAAA
SECOND APPLICANT
And
OCCUPANTS ON ERF 0000, MHLUZI X 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
_____________________________________________________________
FOUNDING AFFIDAVIT
_____________________________________________________________
I, the undersigned,
LERN NOEL DAVID AAAAAAAA
Do hereby state under Oath as follows:
1.
I am a major male, working at AAAAA as an OPERATOR with Identity Number 000000
0000 000 and my current residential address being, 000 AAAAAAAA STR, NASARETH,
MIDDELBURG 1055 and contact number being 000 000 0000.
2.
The facts herein contained are within my personal knowledge and are to the best of my
belief both true and correct unless stated otherwise.
THE PARTIES
3.
I am the First Applicant in this application. I submit that I have the necessary locus
standi in judicio to bring this application due to the fact that we are the owners of the
subject property after we purchased such as per the Sale Agreement annexed hereto
as “LND 1-4”.
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4.
The Second Applicant in this application is HALIMA HASNA AAAAAAAA with Identity
Number 000000 0000 000, my wife, and she is the co–owner of the subject property
after we purchased such as per the Sale Agreement annexed hereto as “LND 1-4”.
5.
The First Respondent is THE OCCUPANTS ON ERF 0000, whose full and further
particulars are unknown to us and who is currently residing at ERF 0000, MHLUZI EXT
1 being the said property in question.
6.
The Second Respondent is the STEVE TSHWETE LOCAL MUNICIPALITY, a Local
Municipality duly established in terms of Provincial Notice 6766 of 1 October 2000 in
terms of Section 12(1) of the Local Government: Municipal Structures Act No. 117 of
1998, carrying on business at, Legal Services, Corner Walter Sisulu Street & Wonderers
Ave, Middelburg, 1050, Gauteng.
6.1
The Second Respondent is the Municipality having jurisdiction over the
property, described more fully hereunder.
6.2
The Second Respondent is joined to these proceedings by virtue of the interest
that it might have herein. No relief is sought against the Second Respondent save
and in the event of it opposing this application, in which event, an appropriate
costs order will be sought against it.
INTRODUCTION
7.
The First Respondent has been in occupation of the subject property since before AAAA
FINANCIAL SERVICES PTY (LTD) effected that the property be auctioned and
subsequently purchased by AAAAAA PROPERTIES PTY (LTD) and later sold to us as per
the GhostConvey of the Deeds Office Property on the said property, attached hereto as
“LND ___”.
8.
Therefore, the First Respondent is an unlawful occupier of the property as defined in
Section 1 of the PREVENTION OF ILLEGAL EVICTION FROM AN UNLAWFUL
OCCUPATION OF LAND ACT NO. 19 OF 1998 (“the PIE Act”).
9.
Accordingly, this application is brought for the eviction of the First Respondent with any
other occupants that might be residing on the property, from the property in terms of
Section 4(1) and (7) of the PIE Act, specifically pertaining to sub-section (7) of
the said Act regarding ‘except where the land is sold in a sale of execution
pursuant to a mortgage’.
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THE APPLICANT’S LOCUS STANDI
10.
We are the registered owners of the immovable property described as Erf 0000,
MHLUZI, EXT 1 measuring 260 square metres, inclusive of all of its residential
development measuring square metres and is situated at MHLUZI EXT 1 (hereinafter
referred to as “the property”). We purchased the property on the 22nd of SEPTEMBER
20___, and the said property was registered in our names on the ________________,
in the Pretoria Deeds Office as per Annexure “LND __”.
JURISDICTION
11.
It is respectfully submitted that this Honourable Court has the necessary jurisdiction to
hear this application and to grant the relief sought, in that the property occupied by the
First Respondent falls within the jurisdiction of this Honourable Court.
THE AGREEMENT
12.1
12.2
12.
There has never been any kind of agreement between us, and the First
Respondent whatsoever and as a matter of fact we do not know him/her/them,
specifically regarding the aforementioned property in question and their
occupation thereof, except that he/she/they have been occupying the property
prior to the sale of execution, and since the sale of execution have been illegally
occupying the said property. Neither do we have occupancy agreements with
anybody else for that matter pertaining to the property in question.
Therefore on the _______________ we therefore requested our legal
representatives, ______Attorneys to draft the letter of demand, whereby the
First Respondent were given notice to vacate the premises.
DEFAULT
13.1
13.2
13.
On _____________ our Attorney addressed a letter of demand to the First
Respondent to be served by the Sheriff and annexed hereto as “LND____”. The
Sheriff delivered the Letter of Demand on the_____________, where the
content of the letter was explained to the Respondent, indicating that failure of
the said demands would result in us proceeding to Court for the relief available
in law.
We also attached hereto the return of service from the Sheriff indicating the
process followed to attempt an amicable resolution with the First Respondent in
vacating the property they are illegally occupying and is annexed hereto as per
“LND____”. The service was effected personally.
14.
According to our calculations, the dies in terms of annexure “LND_______” expired
on the ____________ and the First Respondent has failed to adhere to the said letter
of demand to evict the said property.
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15.
Furthermore, we will suffer damages as a result of the First Respondent unlawfully
holding over of the property from the date of granting the Orders prayed for in this
Notice of Motion until occupation of the property is restored to us.
16.
At this stage, we are unable to quantify the full extent of the damages we will suffer in
respect of, inter alia, utility charges utilised by the First Respondent subsequent to the
_______________________, as well as damages to the property itself and/or any other
damages, which will only be quantifiable upon the property being restored to us.
THE ACT
17.
Accordingly, and insofar as it may be found that we are required to comply with the
provisions of the PIE Act in respect of the First Respondent, and I respectfully submit
that we have so complied, for those reasons referred to hereafter.
18.
At no stage since we became the new lawful owners of the property have, we consented
to such occupation, with the result that the First Respondent is unlawfully in occupation
of the property. Furthermore, and as at the date that these proceedings are initiated,
the First Respondent would have been in unlawful occupation of the property for a period
of more than six months.
19.
We have no knowledge as to the personal circumstances of the First Respondent, other
than as set out herein, namely:
19.1
That the First Respondent lives on the property.
19.2
We are not aware of any handicapped or mentally unstable persons on the
property as far as we can establish.
19.3
We have no knowledge as to whether the First Respondent owns other residential
premises.
19.4
It is our humble submission that there is accommodation of a similar nature
available in the area and surrounds of the leased premises.
19.5
Alternatively, it is our humble submission that the First Respondent can approach
the Second Respondent to request the allocation of land should he/she/they find
the need to do so.
20.
On the____________, after we had waited in vain for the First Respondent to comply
positively with the letter of demand as per annexure “LND _____”, it was abundantly
clear to us that no agreement would be reached with the First Respondent which would
render their occupation of the property lawful.
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21.
Accordingly, on the ___________ we furnished instructions to our Attorney of record
to prepare these Court papers.
22.
Insofar as we are obliged to comply with the provisions of the PIE Act in respect of the
First Respondent, we respectfully submit that it would be just and equitable, should the
First Respondent be evicted from the property.
23.
The prejudice and financial loss to us by virtue of the Respondent’s conduct is selfevident. This is to my detriment, bearing in mind that we not only own the property,
but we also pay the rates and taxes in respect thereof.
24.
If we are unable to have possession and occupation restored to us, we will increasingly
become liable for these monthly expenses and charges and potentially have no realistic
way of recovering these amounts from the First Respondent.
25.
We purchased the property with the aim of utilising it as a residential abode.
26.
To the best of our knowledge, there is adequate alternate accommodation to be found
in the residential areas of MHLUZI and surrounding suburbs, which could be utilised by
the First Respondent.
27.
In light of the fact that there is adequate alternate accommodation to be found in the
residential areas of MHLUZI and the surrounding suburbs in which the First Respondent
could reside, it is respectfully submitted that the First Respondent should cease
occupying the property within a period of 20 days from the date of the Order, should
same be granted, being served at the property, bearing in mind the period of time the
First Respondent has had to procure the same from the date of mora until the date of
this matter being heard. Should the First Respondent still not vacate the property within
the said period, an Order for their eviction should be granted affording us the right to
evict the First Respondent and any other persons occupying the said property, through
the Sheriff of this Honourable Court, immediately thereafter.
28.
The First Respondent’s right to adequate housing
28.1 The First Respondent is advised that he/she/they have a right to adequate
housing and protection of eviction therefrom conferred in terms of Section 26 of
the Constitution of the Republic of South Africa which right is given effect to,
inter alia, in terms of the provisions of the PIE Act.
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28.2 The First Respondent is advised that the relief sought in this application may
infringe upon these rights and that we will in due course comply with the
provisions of the PIE Act to obtain relief sought in this application.
28.3 For this Court to consider the relief we seek in this application, and in the
proceedings contemplated in the PIE Act, the First Respondent is invited to place
before this Court any facts that they may consider relevant, or any that they may
be advised is relevant.
29.
Insofar as the PIE Act is found to be applicable to the First Respondent, due notice at
least 14 days before the hearing of this application will be served on him/her as well as
the Second Respondent.
30.
We respectfully submit, in the circumstances, that it is just and equitable having regard
to all relevant circumstances that the First Respondent as well as any other person that
might be occupying the said property be evicted from the property.
31.
We attach hereto marked annexure “LND______”, a confirmatory affidavit deposed
to by our Attorney of record, _________ of ____ ATTORNEYS in support hereof.
32.
We attach hereto marked annexure “LND_____”, a confirmatory affidavit deposed to
by my wife, HALIMA HASNA AAAAAAAA in support hereof.
33.
WHEREFORE we pray for an order in terms of the Notice of Motion, to which this
affidavit is annexed.
____________________________
LERN NOEL DAVID AAAAAAAAA
DEPONENT
I HEREBY CERTIFY THAT THE ABOVE DEPONENT ACKNOWLEDGES THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THE AFFIRMATION AND HE
HAS NO OBJECTION IN TAKING THE PRESCRIBED OATH WHICH HE CONSIDERS
TO BE BINDING ON HIS CONSCIENCE WHICH WAS SIGNED AND AFFIRMED TO
BEFORE ME AT ………………. ON THIS THE …… DAY OF ……….……. 20…. AND
THAT THE PROVISIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21ST
JULY 1972, AS AMENDED, HAVING BEEN COMPLIED WITH.
______________________
COMMISSIONER OF OATHS
HIGH COURT PRACTICE
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. …................
In the matter between:
LERN NOEL DAVID AAAAAAAAA
FIRST APPLICANT
HALIMA HASNA AAAAAAAAA
SECOND APPLICANT
And
OCCUPANT ON ERF 0000, MHLUZI EXT 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
_____________________________________________________________
CONFIRMATORY AFFIDAVIT
_____________________________________________________________
I, the undersigned,
HALIMA HASNA AAAAAAAAA
Confirm herewith under oath as follows:
1.
I am the wife of the First Applicant with ID Number 000000 0000 000 and working at
AAAAAAA as an OPERATOR and I am currently residing at 000 AAAAAAAAAA STR,
NASARETH, MIDDELBURG, 1055 with contact number being 000 000 0000.
2.
I have read the founding affidavit of the Applicant and confirm the contents thereof for
as far as it pertains to me.
________________________
HALIMA HASNA AAAAAAAA
I HEREBY CERTIFY THAT THE ABOVE DEPONENT ACKNOWLEDGES THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THE AFFIRMATION AND HE
HAS NO OBJECTION IN TAKING THE PRESCRIBED OATH WHICH HE CONSIDERS
TO BE BINDING ON HIS CONSCIENCE WHICH WAS SIGNED AND AFFIRMED TO
BEFORE ME AT ………………. ON THIS THE …… DAY OF ……….……. 20…. AND
THAT THE PROVISIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21ST
JULY 1972, AS AMENDED, HAVING BEEN COMPLIED WITH.
_________________________________
COMMISSIONER OF OATHS
HIGH COURT PRACTICE
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308
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. …................
In the matter between:
LERN NOEL DAVID AAAAAAAA
FIRST APPLICANT
HALIMA HASNA AAAAAAAA
SECOND APPLICANT
and
OCCUPANT ON ERF 0000, TEMBISA EXT 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
_____________________________________________________________
CONFIRMATORY AFFIDAVIT
_____________________________________________________________
I, the undersigned,
__________________
Confirm herewith under oath as follows:
1.
I am an Attorney of the firm _____ Attorneys, of Ground Floor, ______ Building, _____,
Bruma, Johannesburg, I am the Attorney of Record for the Applicant herein. The facts
herein fall within the ambit of my personal knowledge and are both true and correct
except where otherwise indicated or where it appears otherwise from the contexts.
2.
I have read the founding affidavit of the Applicant and confirm the contents thereof for
as far as it pertains to me.
_____________________
Deponent
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I HEREBY CERTIFY THAT THE ABOVE DEPONENT ACKNOWLEDGES THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THE AFFIRMATION AND HE
HAS NO OBJECTION IN TAKING THE PRESCRIBED OATH WHICH HE CONSIDERS
TO BE BINDING ON HIS CONSCIENCE WHICH WAS SIGNED AND AFFIRMED TO
BEFORE ME AT ………………. ON THIS THE …… DAY OF ……….……. 20… AND
THAT THE PROVISIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21ST
JULY 1972, AS AMENDED, HAVING BEEN COMPLIED WITH.
_________________________________
COMMISSIONER OF OATHS
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NUMBER: ____
In the matter between:
LERN NOEL DAVID AAAAAAA
FIRST APPLICANT
HALIMA HASNA AAAAAAA
SECOND APPLICANT
AND
OCCUPANTS ON ERF 0000, MHLUZI X 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
_____________________________________________________________
NOTICE IN TERMS OF SECTION 4(2) OF THE PREVENTION OF ILLEGAL
EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT, NO. 19 OF
1998
_____________________________________________________________
TO: THE FIRST, SECOND AND THIRD RESPONDENTS
WHEREAS the Applicant/s intend making application on ___________ at 10h00 or so
soon thereafter as Counsel may be heard, to the above Honourable Court for an order:
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1
Evicting you, the first Respondent and unlawful occupiers, and all those
holding/occupying through and under you, from the property described as ERF
0000, MHLUZI, EXT 1 (hereinafter referred to as “the property”);
2
Directing you to pay the costs of this application;
3
Granting the Applicant/s further and/or alternative relief.
TAKE NOTICE FURTHER that the grounds upon which the application for your eviction
is based, are the following: -
1.
The Applicants are the registered owners of the property, and they are therefore
entitled to possession and occupation thereof:
2.
You, the First and Second Respondents, are in unlawful occupation of the
property;
3.
You have failed and/or refused to vacate the property, despite lawful and proper
demand to do so, and you are accordingly in unlawful occupation of the property
without a legal right to occupy the property.
TAKE FURTHER NOTICE that you are entitled to appear before the above Honourable
Court, at the High Court Building, Paul Kruger & Madiba Street, Pretoria, on
_______________ 20____ at 10h00, and defend this case, and state any grounds
and/or reasons as to why you should not be evicted. In this regard, you may appear in
person or be represented by a Legal Practitioner and, if you are unable to afford legal
representation, you have the right to apply for legal aid, free of charge, at:
(1)
The Johannesburg Justice Centre, 9th Floor, SA Eagle House, 70 Fox Street,
Johannesburg; or
(2)
The Legal Aid office of the Johannesburg Magistrate’s Court, Corner West and Fox
Streets, Johannesburg, or
(3)
The Legal Aid Office at any other Magistrate’s Court nearest to where you live or
work.
Should you fail to appear as set out above, an order for your eviction may be granted
in your absence.
NOTICE TO THE RESPONDENTS BY THE ABOVE HONOURABLE COURT
You, the Respondents, are hereby afforded the opportunity to file affidavit/s, on or
before ____________________, in which, inter alia, the following aspects are to be
dealt with:
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1.
Your personal circumstances, including whether the property is occupied by
elderly persons, children or disabled persons or is a household headed by women;
2.
Your right to housing, whether you will be rendered homeless should an order for
your eviction be granted by this Court and whether alternative accommodation
is or can be made available to you.
The Above Honourable Court requires the information referred to above to assist the
Above Honourable Court in exercising its discretion whether or not to grant an eviction
order against you.
TAKE FURTHER NOTICE that, should you fail to file the affidavit/s referred to above,
the Above Honourable Court:
(1)
shall be entitled to adjudicate this application on the papers filed in the application
before the Court,
(2)
may, in the exercise of the Above Honourable Court’s discretion, grant an order
for your eviction from the property,
(3)
must, if the Above Honourable Court is satisfied that all the requirements have
been complied with and that no valid defense has been raised by you, in terms
of Section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act, No. 19 of 1998, grant an order for your eviction, and
(4)
as to the date of vacating the property, further determine and order: a)
a just and equitable date on which you must vacate the property, or in the
alternative,
b)
should you fail and/or refuse to vacate the property by that date, the date
on which the eviction order must be carried out by the Sheriff of the High
Court assisted by, if needs be, the South African Police Service.
TO THE SHERIFF OR HIS/HER DEPUTY
1.
This notice must be served on the Respondents as contemplated in Uniform Rule
4 (1)(i) and (ii).
2.
The contents of this notice must be read out and explained to the Respondents
by the Sheriff or his/her deputy, at the time of service thereof, in both English
and where necessary, any other language spoken and understood by the
Respondents.
3.
The Sheriff’s return of service in respect of this notice must specifically state that
each of the above directions was duly carried out.
Dated at JOHANNESBURG on ___of ___________20_____.
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. ......................
In the matter between:
LERN NOEL DAVID AAAAAA
FIRST APPLICANT
HALIMA HASNA AAAAAAAA
SECOND APPLICANT
and
OCCUPANT ON ERF 0000, MHLUZI, EXT 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
EX PARTE APPLICATION
PLEASE TAKE NOTICE that the APPLICANTS intend applying to this honourable
Court on __________ at 10:00 for an Order with the following terms:
1.
That the form and contents of the draft notice in terms of Section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998,
which is annexed to the founding affidavit marked “LND_____”, be hereby
authorised.
2.
That the Applicants is directed to serve the notice together with a copy of this
order on the Respondents in accordance with the provisions of Rule 4(1) of the
Uniform Rules of Court.
3.
That the costs of this application will be costs in the cause.
PLEASE TAKE FURTHER NOTICE that the attached Founding Affidavit of
LERN NOEL DAVID AAAAAAA with all its annexures as annexed hereto will be used
in support of this Application.
SIGNED at JOHANNESBURG on this ______ day of ____________ 20___.
_________________________
____ ATTORNEYS
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Applicants’ Attorney
Ground Floor, _______ Building,
_______, Bruma, Johannesburg
P O Box __, _________, 2037
Tel: 011 ________ / 082-______
Fax: 086-_______
Ref: JC64__
TO:
REGISTRAR OF THE SUPREME HIGH COURT
PRETORIA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. ..............................
In the matter between:
LERN NOEL DAVID AAAAAAA
FIRST APPLICANT
HALIMA HASNA AAAAAAA
SECOND APPLICANT
And
OCCUPANTS ON ERF 0000, MHLUZI X 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
_____________________________________________________________
EX PARTE FOUNDING AFFIDAVIT
_____________________________________________________________
I, the undersigned,
LERN NOEL DAVID AAAAAAAA
Do hereby state under Oath as follows:
1.
I am a major male, working at AAAAAA as an OPERATOR with Identity Number 000000
0000 000 and my current residential address being, 000 AAAAAAAA STR, NASARETH,
MIDDELBURG 1055 and contact number being 000 000 0000.
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2.
The facts herein contained are within my personal knowledge and are to the best of my
belief both true and correct unless stated otherwise.
THE PARTIES
3.
I am the First Applicant in this application. I submit that I have the necessary locus
standi in judicio to bring this application due to the fact that we are the owner of the
subject property after we purchased such as per the Sale Agreement annexed hereto
as “LND 1-4”.
4.
The Second Applicant in this application is HALIMA HASNA AAAAAAAA with Identity
Number 000000 0000 000, my wife, and she is the co–owner of the subject property
after we purchased such as per the Sale Agreement annexed hereto as “LND 1-4”.
5.
The First Respondent is THE OCCUPANTS ON ERF 0000, whose full and further
particulars are unknown to us and who is currently residing at ERF 0000, MHLUZI EXT
1 being the said property in question.
6.
The Second Respondent is the STEVE TSHWETE LOCAL MUNICIPALITY, a Local
Municipality duly established in terms of Provincial Notice 6766 of 1 October 2000 in
terms of Section 12(1) of the Local Government: Municipal Structures Act No. 117 of
1998, carrying on business at, Legal Services, Corner Walter Sisulu Street & Wonderers
Ave, Middelburg, 1050, Gauteng.
6.1
The Second Respondent is the Municipality having jurisdiction over the property,
described more fully hereunder.
6.2
The Second Respondent is joined to these proceedings by virtue of the interest
that it might have herein. No relief is sought against the Second Respondent save
and in the event of it opposing this application, in which event, an appropriate
costs order will be sought against it.
INTRODUCTION
7.
The First Respondent has been in occupation of the subject property since before AAAAA
FINANCIAL SERVICES PTY (LTD) effected that the property be auctioned and
subsequently purchased by AAAAAA PROPERTIES PTY (LTD) and later sold to us as per
the GhostConvey of the Deeds Office Property on the said property, attached hereto as
“LND ___”.
8.
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Therefore, the First Respondent is an unlawful occupier of the property as defined in
Section 1 of the PREVENTION OF ILLEGAL EVICTION FROM AN UNLAWFUL
OCCUPATION OF LAND ACT NO. 19 OF 1998 (“the PIE Act”).
9.
Accordingly, this application is brought for the eviction of the First Respondent with any
other occupants that might be residing on the property, from the property in terms of
Section 4(1) and (7) of the PIE Act, specifically pertaining to sub-section (7) of
the said Act regarding ‘except where the land is sold in a sale of execution
pursuant to a mortgage’. Therefore in terms of this Ex-Parte Application, this
application is specifically brought for the authorization to serve a Notice in
Terms of Section 4(2) and 4(5) of the ‘Pie’ Act No. 19 of 1998 on the
Respondents, such notice annexed hereto as “LND ________”, pertaining to
the aforementioned eviction application being brought.
THE APPLICANTS’ LOCUS STANDI
10.
We are the registered owners of the immovable property described as Erf 0000,
MHLUZI, EXT 1 measuring 260 square metres, inclusive of all of its residential
development measuring square metres and is situated at MHLUZI EXT 1 (hereinafter
referred to as “the property”). We purchased the property on the 22nd of SEPTEMBER
20___, and the said property was registered in our names on the
_____________________, in the Pretoria Deeds Office as per Annexure “LND __”.
JURISDICTION
11.
It is respectfully submitted that this Honourable Court has the necessary jurisdiction to
hear this application and to grant the relief sought, in that the property occupied by the
First Respondent falls within the jurisdiction of this Honourable Court.
THE AGREEMENT
12.1
12.2
12.
There has never been any kind of agreement between us and the First
Respondent whatsoever and as a matter of fact we do not know him/her/them,
specifically regarding the aforementioned property in question and their
occupation thereof, except that he/she/they have been occupying the property
prior to the sale of execution, and since the sale of execution have been illegally
occupying the said property. Neither do we have occupancy agreements with
anybody else for that matter pertaining to the property in question.
Therefore on the __________________________ we therefore requested our
legal representatives, _______Attorneys to draft the letter of demand, whereby
the First Respondent were given notice to vacate the premises.
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DEFAULT
13.1
13.2
13.
On _____________ our Attorney addressed a Letter of Demand to the First
Respondent to be served by the Sheriff and annexed hereto as “LND____”. The
Sheriff delivered the Letter of Demand on the_____________, where the
content of the letter was explained to the Respondent, indicating that failure of
the said demands would result in us proceeding to Court for the relief available
in law.
We also attached hereto the return of service from the Sheriff indicating the
process followed to attempt an amicable resolution with the First Respondent in
vacating the property they are illegally occupying and is annexed hereto as per
“LND____”. The service was effected personally.
14.
According to our calculations, the dies in terms of annexure “LND_______” expired
on the ____________and the First Respondent has failed to adhere to the said letter
of demand to evict the said property.
15.
Furthermore, we will suffer damages as a result of the First Respondent unlawfully
holding over of the property from the date of granting the Orders prayed for in this
Notice of Motion until occupation of the property is restored to us.
16.
At this stage, we are unable to quantify the full extent of the damages we will suffer in
respect of, inter alia, utility charges utilised by the First Respondent subsequent to the
_______________________, as well as damages to the property itself and/or any other
damages, which will only be quantifiable upon the property being restored to us.
THE ACT
17.
Accordingly, and insofar as it may be found that we are required to comply with the
provisions of the PIE Act in respect of the First Respondent, and I respectfully submit
that we have so complied, for those reasons referred to hereafter.
18.
At no stage since we became the new lawful owner of the property have, we consented
to such occupation, with the result that the First Respondent is unlawfully in occupation
of the property. Furthermore, and as at the date that these proceedings are initiated,
the First Respondent would have been in unlawful occupation of the property for a period
of more than six months.
19.
We have no knowledge as to the personal circumstances of the First Respondent, other
than as set out herein, namely:
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19.1
That the First Respondent lives on the property.
19.2
We are not aware of any handicapped or mentally unstable persons on the
property as far as we can establish.
19.3
We have no knowledge as to whether the First Respondent owns other residential
premises.
19.4
It is our humble submission that there is accommodation of a similar nature
available in the area and surrounds of the leased premises.
19.5
Alternatively, it is our humble submission that the First Respondent can approach
the Second Respondent to request the allocation of land should he/she/they find
the need to do so.
20.
On the____________, after we had waited in vain for the First Respondent to comply
positively with the letter of demand as per annexure “LND _____”, it was abundantly
clear to us that no agreement would be reached with the First Respondent which would
render their occupation of the property lawful.
21.
Accordingly, on the ___________ we furnished instructions to our Attorney of record
to prepare these Court papers.
22.
Insofar as we are obliged to comply with the provisions of the PIE Act in respect of the
First Respondent, we respectfully submit that it would be just and equitable, should the
First Respondent be evicted from the property.
23.
The prejudice and financial loss to us by virtue of the Respondent’s conduct is selfevident. This is to our detriment, bearing in mind that we not only own the property,
but we also pay the rates and taxes in respect thereof.
24.
If we are unable to have possession and occupation restored to us, we will increasingly
become liable for these monthly expenses and charges and potentially have no realistic
way of recovering these amounts from the First Respondent.
25.
We purchased the property with the aim of utilising it as a residential abode.
26.
To the best of our knowledge, there is adequate alternate accommodation to be found
in the residential areas of MHLUZI and surrounding suburbs, which could be utilised by
the First Respondent.
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27.
In light of the fact that there is adequate alternate accommodation to be found in the
residential areas of MHLUZI and the surrounding suburbs in which the First Respondent
could reside, it is respectfully submitted that the First Respondent should cease
occupying the property within a period of 20 days from the date of the Order, should
same be granted, being served at the property, bearing in mind the period of time the
First Respondent has had to procure the same from the date of mora until the date of
this matter being heard. Should the First Respondent still not vacate the property within
the said period, an Order for their eviction should be granted affording us the right to
evict the First Respondent and any other persons occupying the said property, through
the Sheriff of this Honourable Court, immediately thereafter.
28.
THE FIRST RESPONDENT’S RIGHT TO ADEQUATE HOUSING
28.1 The First Respondent is advised that he/she/they have a right to adequate
housing and protection of eviction therefrom conferred in terms of Section 26 of
the Constitution of the Republic of South Africa which right is given effect to,
inter alia, in terms of the provisions of the PIE Act.
28.2 The First Respondent is advised that the relief sought in this application may
infringe upon these rights and that we will in due course comply with the
provisions of the PIE Act to obtain relief sought in this application.
28.3 For this Court to consider the relief we seek in this application, and in the
proceedings contemplated in the PIE Act, the First Respondent is invited to place
before this Court any facts that they may consider relevant, or any that they may
be advised is relevant.
29.
Insofar as the PIE Act is found to be applicable to the First Respondent, due notice at
least 14 days before the hearing of this application will be served on him/her as well as
the Second Respondent.
30.
We respectfully submit, in the circumstances, that it is just and equitable having regard
to all relevant circumstances that the First Respondent as well as any other person that
might be occupying the said property be evicted from the property.
31.
We attach hereto marked annexure “LND______”, a confirmatory affidavit deposed
to by my Attorney of record, _____________ of _________ ATTORNEYS in support
hereof.
32.
THEREFORE, IT IS OUR SUBMISSION THAT:
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32.1
Due to the terms of PIE Act No. 19 of 1998 as well as the latest case law, the
Applicants are obliged to bring this application before the matter for the eviction
can be placed and adjudicated.
32.2
There is no jeopardy for Respondents if they do not receive notice of this
application and it is purely for procedural purposes.
32.3
The manner of service requested is only to limit costs and an attempt to speed
up the matter.
33.
We attach hereto marked annexure “LND_____”, a confirmatory affidavit deposed to
by my wife, HALIMA HASNA AAAAAAA in support hereof.
34.
WHEREFORE we pray for an order in terms of the Notice of Motion, to which this
affidavit is annexed.
____________________________________
LERN NOEL DAVID AAAAAAA
DEPONENT
I HEREBY CERTIFY THAT THE ABOVE DEPONENT ACKNOWLEDGES THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THE AFFIRMATION AND HE
HAS NO OBJECTION IN TAKING THE PRESCRIBED OATH WHICH HE CONSIDERS
TO BE BINDING ON HIS CONSCIENCE WHICH WAS SIGNED AND AFFIRMED TO
BEFORE ME AT ………………. ON THIS THE …… DAY OF ……….……. 20….. AND
THAT THE PROVISIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21ST
JULY 1972, AS AMENDED, HAVING BEEN COMPLIED WITH.
______________________
COMMISSIONER OF OATHS
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. .......................
In the matter between:
LERN NOEL DAVID AAAAAAA
FIRST APPLICANT
HALIMA HASNA AAAAAAA
SECOND APPLICANT
And
OCCUPANT ON ERF 0000, MHLUZI, EXT 1
FIRST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
SECOND RESPONDENT
DRAFT ORDER
HAVING read the documents filed of record and having considered the matter:
IT IS ORDERED:
1.
That the form and contents of the draft notice in terms of Section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998, which
is annexed to this draft order marked Annexure “A”, be hereby authorised.
2.
That the Applicants are directed to serve the notice together with a copy of this order
on the Respondent in accordance with the provisions of Rule 4(1) of the Uniform
Rules of Court.
3.
That the costs of this application will be costs in the cause.
BY THE COURT
________________
REGISTRAR
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