BASIC GUIDE TO
CIVIL HIGH COURT
L I T I G AT I O N
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Overview
The Bowman Gilfillan Africa Group
Bowman Gilfillan Africa Group
is one of Africa’s premier corporate
law firms, employing over 400
specialised lawyers. The Group
provides domestic and cross-border
legal services to the highest
international standards across
Africa, through its offices in
South Africa, Botswana, Kenya,
Madagascar, Tanzania and Uganda.
Differences in law, regulation and business culture
can significantly increase the risk and complexity
of doing business in Africa. Our aim is to assist our
clients in achieving their objectives as smoothly
and efficiently as possible while minimising the legal
and regulatory risks.
While reliable technical legal advice is always very
important, the ability to deliver that advice in a
coherent, relevant way combined with transaction
management, structuring, negotiating and
drafting skills is essential to the supply of high
quality legal services.
The Group has offices in Antananarivo, Cape Town,
Dar es Salaam, Gaborone, Johannesburg, Kampala and
Nairobi. Our office in Madagascar, has francophone
African coverage in Benin, Burkina Faso, Burundi,
Cameroon, Central African Republic, Chad, Congo
Republic, Gabon, Guinea, Ivory Coast, Mali, Niger,
Rwanda, Senegal and Togo.
We have a best friends relationship with leading
law firm Udo Udoma & Bela-Osagie, in Nigeria,
which has offices in Lagos, Abuja and Port
Harcourt. We also have strong relationships and
work closely with law firms across the rest of Africa
which enables us to provide or source the advice
clients require in any African country, whether on
a single country or multi-jurisdictional basis.
We act for corporations, financial institutions, state
owned enterprises and governments providing
clear, relevant and timely legal advice to assist clients
achieve their objectives and manage their legal risks.
Geographical and sector specific teams are utilized to
provide clients with the highest standards of service.
In the cross-border arena the Group has extensive
experience in the resources, energy, infrastructure,
financial institutions and consumer goods sectors.
This booklet describes, in basic terms, the procedures
for pursuing matters in the High Court. It is neither
intended to be a detailed or authoritative exposition
of those procedures, nor to deal with practice in the
Magistrates Courts. Any questions that readers may
have arising out of the contents of this guide may be
raised with any of the members of Bowman Gilfillan’s
dispute resolution department. A list of directors and
senior associates is located at www.bowman.co.za.
Contents
Attorneys and Advocates
02
The Letter of Demand
02
Jurisdiction
03
Action or Motion Proceedings
03
The Action Procedure (Trial Procedure)
04
Trial Preparation
10
Execution of Judgments
17
Execution
18
Garnishee Orders
19
Enforcement Of Foreign Judgments
20
The Application Procedure
21
Recovery Of Costs
22
Bowman Gilfillan Africa Group’s South African, Kenyan
and Ugandan offices are representatives of Lex Mundi,
a global association with more than 160 independent
law firms in all the major centres across the globe.
This association gives access to firms which have been
identified as the best in each jurisdiction represented.
01
Attorneys and Advocates
The Letter of Demand
Jurisdiction
Like England, South Africa has a split bar system,
consisting of attorneys and advocates.
A letter of demand is generally the first step in the legal
process. While a letter of demand is required in some
instances, it does not need to be sent in all circumstances.
It is, however, usual practice that a letter of demand will
be sent before instituting legal proceedings.
Jurisdiction refers to the authority or competence of a
particular court to hear a matter and to grant relief in
respect of that matter.
The advocates’ profession is a referral profession,
which means that advocates cannot accept briefs
directly from clients. The attorney is approached by
the client and it is the attorney who takes instructions
from the client and briefs the advocate. An advocate
(also called counsel) will generally provide strategic
advice, settle pleadings and represent the client in
court or in arbitration proceedings.
Advocates are either senior or junior counsel. Senior
counsel, or silks, are advocates who have many years
of experience and who have had the status of Senior
Counsel conferred on them by the President. They will
be briefed generally for complex matters where they
have specialised skills and expertise. Junior counsel are
less experienced advocates and will charge substantially
less than senior counsel. Where appropriate, junior
counsel will be briefed alone but, where the matter is
complex or the claim is substantial, it is often necessary
to brief both a senior counsel and a junior counsel.
Attorneys who have obtained right of appearance
may appear in the High Court but in complex and
substantial matters the tradition of utilising counsel
remains prevalent.
When counsel is briefed, the role of the attorney is
to instruct the advocate on behalf of the client, and
advocates may not consult with clients unless the
instructing attorney is present.
A letter of demand is, as its title suggests, a letter
addressed to the other party demanding, for example,
fulfilment of an outstanding obligation or payment of a
sum of money.
Generally a letter of demand will set out the cause of
action on which the demand is based, and will give the
other party time to comply with the demand. If the
demand is met then no further steps will be taken.
It is first necessary to determine whether the High Court
or a lower court (i.e. Magistrate’s Court or Small Claims
Court) has jurisdiction to hear the matter. Determining
whether to proceed in a lower court or in the High
Court will depend on the type of claim and the value
of the claim. The Small Claims Court is competent to
hear matters where the value claimed is below R12 000,
and only individuals may bring claims in this court.
The Magistrate’s Court is constrained to matters where
the value claimed is R300 000 or less. The parties can,
however, agree to the jurisdiction of the Magistrates
Court in claims exceeding R300 000. There are certain
matters which may only be heard by the High Court,
regardless of the quantum of the claim.
Once it has been established that the High Court has
jurisdiction, it must be decided which seat of the High
Court is competent to hear the case. As a general rule,
a court will exercise jurisdiction on the basis that the
defendant is resident or domiciled in the area of the
court or if the cause of action arose in that area.
Action or Motion
Proceedings
Once a decision has been made to embark on litigation
in the High Court it is necessary to determine
whether to proceed by way of trial (action) or motion
(application) proceedings.
In action proceedings, the person bringing the action
is called the plaintiff, and the person defending the
action is called the defendant.
In application proceedings, the person bringing the
application is called the applicant, and the person
defending the application is called the respondent.
In determining whether to proceed by way of action
or application, the question to be asked is whether a
material dispute of fact is anticipated. If a dispute of
fact is anticipated then generally it is best to proceed
by way of action where witnesses may be called to give
oral evidence at a trial. If no such dispute of fact is
anticipated then application proceedings are probably
appropriate. In an application, the matter will be
determined with reference only to the papers and, as a
general rule, no oral evidence is permitted.
The disadvantage with motion proceedings is that the
evidence is set out in affidavits and cannot be tested
by cross-examination. Consequently, it is difficult for
a court to decide between conflicting versions. The
advantage of motion proceedings is that they are
generally speedier and less expensive than actions.
If the court is faced with an application in which it is
evident that there is a material dispute of facts between
the parties then the court will refer the matter to trial.
The different procedures are set out more fully below.
02
03
The Action Procedure
(Trial Procedure)
The Summons
The issue and service of a summons commences the
trial action. The purpose of a summons is to bring the
plaintiff’s claim to the attention of the defendant by
informing the defendant of the nature of the plaintiff’s
cause of action and the claim made. The summons
generally informs the defendant that it has 10 business
days within which to deliver a notice of intention to
defend the action and that failure to give notice within
the prescribed time will allow the plaintiff to apply for
default judgment against it.
There are two types of High Court summonses; a simple
(ordinary) summons and a combined summons. The
nature and complexity of the plaintiff’s claim will
determine what type of summons is used.
A simple summons is used when the cause of action
is based on a debt or liquidated demand. A combined
summons is used when the plaintiff’s claim is not
founded on a debt or liquidated demand. In addition, in
a simple summons, there will be no detailed particulars
of the claim attached, as is the case in a combined
summons. Rather, a brief description of the plaintiff’s
cause of action will be given (such as money lent and
advanced), as well as the relief claimed by the plaintiff.
Once the defendant delivers a notice of intention to
defend after receipt of a simple summons, the plaintiff
will deliver a declaration, which sets out the cause of
action in more detail. This is similar to particulars of
claim attached to a combined summons.
The particulars of claim, which is attached to a
combined summons, outlines the nature of a plaintiff’s
claim and the relief sought against a defendant. The
particulars of claim will set out a description of the
parties to the action, the background to the dispute,
and will ensure that the claim and all the facts upon
which the claim is based are fully outlined. The
particulars of claim must contain sufficient detail to
enable to the defendant to defend the allegations made
against him and must include a copy of any written
agreement that is relied upon.
04
A simple summons may be signed by the plaintiff or
the plaintiff’s attorney. A combined summons must
be signed by the plaintiff or by its attorney and an
advocate or an attorney with right of appearance in the
High Court. Once signed, the summons is then issued
by the registrar of the High Court concerned. Once the
summons has been issued by the Court, the summons is
sent to the appropriate sheriff with instructions to serve
the summons on the defendant at his residence or place
of business. Once the sheriff has served the summons,
he will complete a return of service to indicate that
service was successful. A defendant is only deemed to
have received the summons when the summons has been
properly served by the sheriff.
Provisional Sentence Summons
A provisional sentence summons is an extraordinary
procedure in terms of which a plaintiff in possession of a
document showing an indebtedness for a liquidated sum
of money, for example, a cheque, may obtain provisional
judgment for the amount payable on the face the
document prior to the trial date. The rationale behind
this is that the court will grant a provisional judgment
in favour of the plaintiff on the basis that in issuing the
document in question the defendant has acknowledged
its indebtedness to the plaintiff for the amount stated in
the document. The court must be provisionally satisfied
that the plaintiff will succeed in the principal case.
The advantage of this procedure is that it allows a
plaintiff to promptly recover a money debt from the
defendant. The purpose is to bring proceedings to a
speedy end especially when the defendant does not have
a defence to the plaintiff’s liquid claim. If the defendant
disputes the allegations, the onus is on the plaintiff to
prove that they are true.
The judgment obtained by the plaintiff at the early stage
is provisional and cannot prevent the defendant from
proceeding to the principal case.
In a recent Constitutional Court judgment the
constitutionality of the provisional sentence procedure
was considered.
The Constitutional Court held that the courts should
have a discretion to refuse provisional sentence in
certain limited circumstances; namely, where there
defendant is unable to pay the judgment debt, there
is an even balance of success between the parties on
the papers, and there is a reasonable prospect that
oral evidence will enable the defendant to successfully
prove his case.
Notice of Intention to Defend
After service of summons by sheriff, the defendant is
generally given 10 business days in which to deliver a
notice indicating his intention to defend the action.
The notice must set out an address for the service of
documents on the defendant. This will generally be the
address of the defendant’s attorney, which must be
within 15 kms of the High Court concerned. Where the
plaintiff’s attorney is further than 15 km from the Court,
the attorney will need to appoint a correspondent firm
of attorneys within 15 kms of the Court, who will act as
a post box for the receipt of court documents.
An application for summary judgment must be served
within 15 days of the delivery of a notice of intention to
defend. In most instances the plaintiff will be granted
summary judgment where the defendant has no bona
fide defence and has entered an appearance to defend
solely for the purposes of delaying the action.
Summary judgment can only be sought where the
defendant has delivered a notice of intention to defend,
the plaintiff’s case is based on a liquid document or a
liquidated amount of money, the delivery of specified
movable property, or ejectment from property, and the
plaintiff believes that the defendant does not have a bona
fide defence and is merely trying to delay judgment.
There are two ways in which a defendant may defeat an
application for summary judgment. He may give security
to the value of the claim to the plaintiff or satisfy the
court that he has a bona fide defence to the claim.
Default Judgment
A plaintiff may apply for default judgment where a
defendant has failed to serve a notice of intention
to defend within the prescribed time or where the
defendant has failed to deliver its plea after receiving a
notice of bar from the plaintiff. Where the prescribed
time lapses, the plaintiff is entitled, without further
notice to the defendant, to apply for final judgment
against the defendant.
Where default judgment is granted, the plaintiff is able
to demand compliance with the judgment.
Where the defendant was not aware of the service
of the summons, it is possible for the defendant, on
learning of the judgment against him, to apply for a
rescission of judgment. This application is supported
by an affidavit which must provide a satisfactory
explanation for the defendant’s failure to give notice
of intention to defend and explaining the nature of the
defence that will be raised.
Summary Judgment
Summary judgment can be sought in certain
circumstances when an action is defended. It is a remedy
which is pursued by a plaintiff seeking speedy judgment
at an early stage without the delay and expense of a trial.
Where security is provided, the court has no discretion and
must grant leave to defend. Where the defendant maintains
that he has a bona fide defence, the defence must be
explained in an affidavit.
As summary judgment is final courts are often reluctant
to shut the doors to the defendant. Accordingly a court
has a discretion whether or not to allow the defendant
leave to defend the action if it has served an affidavit
that appears to set out a defence.
Exceptions
Before the defendant delivers his plea (statement of
defence) he may raise defences that do not go into the
merits of the case, but rather to technical legal issues.
This may be done by special plea or exception.
An exception is an objection to a material defect in the
opposing party’s pleadings. Where a defendant wishes to
take exception to a declaration or particulars of claim,
then he must do so within 20 days after the service of
a declaration or 20 days from the date on which the
defendant files a notice of intention to defend. Where
the plaintiff wishes to take exception to the defendant’s
plea, then it must do so within 15 days after the service
of the defendant’s plea.
05
An exception may be raised where, for example; the
pleading is vague and embarrassing (unintelligible,
contradictory or lacking in particularity), or it lacks the
statements necessary to sustain a cause of action or a
defence (it does not contain the material allegations
required for the cause of action or defence to be relied
upon, or the claim relied on is bad in law).
Special Plea
A special plea is a separate, special defence which
either destroys the cause of action or postpones its
operation. A few examples of defences which may be
raised as special pleas are as follows: that a party with
an interest in the matter has not been cited as a plaintiff
or defendant, that the matter has been bought in the
incorrect court, that the plaintiff is not competent to
bring the matter to court, that the time period within
which to bring the action has prescribed, that the
same matter is already before a competent court, or,
where there is a contractual dispute, that there is an
arbitration clause in the contract and the matter must
be referred to arbitration and decided by an arbitrator.
Plea
A plea (statement of defence) is the defendant’s response
to the plaintiff’s summons and must be delivered within
20 days after the defendant has delivered its notice of
intention to defend.
Failure to file a plea in the prescribed time period entitles
the plaintiff to deliver a notice of bar calling on the
defendant to deliver the plea within 5 days. Should the
defendant fail to do so then the defendant is barred
from delivering his plea and the plaintiff may then apply
for default judgment as the defendant has failed to
defend the claim. In practice however, before barring
the defendant, the plaintiff’s attorneys will as a courtesy
send a letter to the opposing attorneys demanding
that the outstanding plea be delivered within a certain
period of days.
The plea must set out the defence upon which the
defendant relies and must contain a paragraph-byparagraph reply to each of the allegations made by the
plaintiff in its particulars of claim. The defendant will
06
admit, deny or confess and avoid each of these specific
allegations. Where a defendant fails to deal with a
specific allegation, then the allegation is deemed to be
admitted.
The Counterclaim and the Plea to the
Counterclaim
A counterclaim or claim in reconvention is the
defendant’s separate cause of action against the
plaintiff. If a defendant wishes to bring a counterclaim,
he is obliged to do so when filing his plea.
The plaintiff does not need to deliver a notice of
intention to defend the counterclaim, but the plaintiff
must then deliver a plea to the counterclaim, in which
the plaintiff must set out its defence to the counterclaim.
The plea to the counterclaim must be delivered at the
same time as a replication, if one is to be delivered.
The Replication
A replication is the plaintiff’s response to the
defendant’s plea and is necessary only when the plaintiff
wishes to place new facts before the court or clarify
issues raised in the counterclaim.
Interlocutory Procedures
Interlocutory procedures are concerned with resolving
side-line issues prior to the trial taking place. They
are always brought by application and are dealt with
separately from the main trial.
Trial Preparation
What happens after pleadings are closed?
Once all the pleadings have been filed, pleadings are
then deemed to be closed. Between this stage and the
trial a number of important procedures take place. The
most important of these procedures is discovery.
Applying for a Court Date
Once pleadings have closed the next step is to apply for
a court date from the registrar of the appropriate court.
The plaintiff usually requests the trial date but it may
also be requested by the defendant if the plaintiff fails to
do so within six weeks after the close of pleadings.
Discovery
Discovery is one of the most important steps in pretrial preparation and is based on the principle that a
party is entitled to be notified prior to the hearing of
the matter of all the documentary evidence, including
tape recordings and e-mails, which the opposing party
possesses which are relevant to the matter.
Discovery is the procedure in terms of which the parties
disclose to each other all relevant documents and
tape recordings that they or their agents have in their
possession or under their control. Discovery is made
by way of affidavit to which a list is annexed listing all
the documents in the discovering party’s possession.
Generally, a party will not be allowed to use any
documents that he has failed to disclose in response to a
request for discovery.
There are however, certain exceptions to need to
disclose relevant documents. These include witness
statements taken for the purposes of the trial,
communications between attorney and client,
communications between attorney and advocate and
pleadings, notices and affidavits in the action.
There are certain other documents which are
considered to be privileged, and which likewise need
not be discovered. These include, amongst others,
communication made in a bona fide attempt to
negotiate settlement and documents which fall within
professional legal privilege.
Each party may call on the other party to make
discovery. This is done in the form of a notice requesting
the delivery of the discovery affidavit within 20 days of
receipt of the notice.
Pre-trial Conference
Within a perscribed period before the trial date the
attorneys and counsel representing the parties must
attend a pre-trial conference. The primary purpose of
this conference is to facilitate a discussion between the
parties to find ways of expediting the process by limiting
the issues between the parties for the purpose of trial.
It also provides the parties with an opportunity to settle
the matter before going to trial. A formal minute of the
pre-trial conference is prepared and is required to be
handed to the presiding judge prior to the trial.
Security for Costs
Where there is a reasonable apprehension that the
plaintiff or applicant will be unable to pay the costs of
the matter if an award is granted against them, then the
defendant may call for security for costs. Although the
court has a discretion, it will probably order security for
costs when:
the plaintiff is neither resident nor domiciled within and
does not own immovable property in South Africa;
the plaintiff institutes proceedings which the court
considers vexatious; or
the plaintiff who instituted the proceedings is litigating
in a nominal capacity and is found by the court to be a
‘man of straw’ behind whom the plaintiff is sheltering.
In terms of section 13 of the Companies Act 61 of
1973, courts had a discretion to order a company that
instituted legal proceedings to furnish security for costs
if there was a belief that the company would not be able
07
to pay the costs of the other party. Section 13 has now
been repealed by the Companies Act 71 of 2008 and
there is no equivalent provision. Recent case law has
held that, despite the repeal of section 13, the courts still
have an inherent power to regulate their own process.
Accordingly, each case will be decided on its own set
of facts. If there appears to be a necessity for security
for costs then the courts may grant security for costs
against a company.
A notice calling for security for costs needs to be
delivered as soon as possible after proceedings
commence. This notice must set out the grounds for
requesting security for costs. On receipt of this notice,
the plaintiff may either provide the requested security,
dispute the amount of security requested, or dispute
liability to give such security. In the latter case the
party who requests security can apply to the court for
an order that security be furnished. If only the amount
of security is in issue, the registrar will fix the amount.
The main proceedings can, by order of the court, be
suspended until any order granted is complied with.
The amount to be provided as security is generally
determined by an official in the office of the registrar
known as a taxing master. A plaintiff or applicant may
oppose the amount requested before the registrar. A
plaintiff’s failure to comply with an order for security for
costs may lead to a dismissal of the application or action.
Settlement
A dispute between parties may be settled at any
time prior to judgment. In practice, one party (often
the defendant) will approach the other party with a
settlement proposal setting out the terms on which that
party is prepared to settle the matter. The other party
can then accept the proposal, reject the proposal or
make a counter-proposal. If the claim is settled then the
parties will generally record the terms of the settlement
in a written settlement agreement.
08
A settlement proposal can either be made on the record
or off the record.
Where a settlement proposal is made off the record
and the proposal is not accepted, then the proposal
may not be used or referred to in court or arbitration
proceedings. This is because the proposal has been
made with a bona fide intention to settle the matter
and the party making the proposal should not be
prejudiced during the trial or arbitration if the
proposal is not accepted.
Sometimes a party may wish to make an on the
record settlement proposal. In these circumstances,
if the proposal is not accepted, then either party
may refer to the proposal during the proceedings.
The advantage of making an on the record settlement
proposal is that it illustrates to the judge that the
party making the offer is bona fide and has made
every attempt to settle its dispute with the other
party outside of the court or arbitration.
A further settlement option available to a defendant is
an offer to settle in terms of Rule 34 of the rules of the
High Court. The rule provides that, in an action where a
sum of money is claimed, the defendant may at any time,
unconditionally or without prejudice, make a written
offer to settle the plaintiff’s claim, which must be signed
by the defendant himself or his attorney, who must be
authorised in writing to do so. The offer will only be
brought to the attention of the court after judgment is
granted and if it becomes relevant regarding costs.
Appeals and Review
and Procedure
Once judgment is delivered, a litigant that is
dissatisfied with the judgment granted may, in certain
circumstances, apply to have the judgment set aside by
instituting either appeal or review proceedings.
Appeals
Review
A decision of a court may be taken on review where
the procedural correctness or fairness is questioned.
It is the process in terms of which the proceedings of
a lower court are bought before a higher court as a
result of certain irregularities. As it is unlikely that the
irregularity will be apparent from the record, in review
proceedings external evidence will be required to prove
the irregularity.
Where a dissatisfied litigant is of the view that the
judgment ought to be set aside because the court
reached the wrong conclusion on the facts or law,
the appropriate remedy is an appeal. Since an appeal
involves a re-evaluation of the court’s decision, it will be
based solely on the record of the proceedings.
The proceedings of a lower court may be bought under
review on the basis of:
Appeal proceedings are instituted by lodging an
application for leave to appeal. Leave to appeal is
not granted automatically and the party bringing the
application must first apply for leave to appeal to the
court that handed down the decision. Leave to appeal
must be sought within 15 court days after the date
of delivery of the judgment or order in question. The
application for leave to appeal will then be set down
and heard by the same judge who presided over the
proceedings in question.
gross irregularity in the proceedings; and / or
absence of jurisdiction on the part of the court; or
interest in the cause, bias, malice or corruption on the
part of the judicial officer; or
the admission of inadmissible or incompetent evidence
or the rejection of admissible or competent evidence.
Review proceedings are brought by way of an
application. A notice of motion and founding affidavit
must be delivered which sets out the grounds, facts and
circumstances upon which the review is alleged.
Where leave to appeal is granted it will either be to
the Supreme Court of Appeal (“SCA”) or to a full bench
(usually three judges) of the High Court concerned. A
further appeal may lie from a full bench to the SCA and
from the SCA to the Constitutional Court, where there
are constitutional issues which arise from the case.
As a general rule, leave to appeal will be granted where
there is a reasonable prospect of another court coming
to a different decision.
09
The Trial
Expert Witness
Execution of Judgments
Execution
The focus of any action is the trial itself. The trial is the
hearing by the court of evidence relevant to the dispute.
A single judge will be allocated to hear the matter.
Generally, the party making the claim bears the onus
of proving its claim. As such, the plaintiff usually starts
with its evidence first. Any claim must be proved on a
balance of probabilities.
An expert witness is a person who, either by way
of qualification or experience or both, has specific
knowledge in a particular area which is outside the
knowledge or experience of the court. An expert
witness will be called to express an opinion on the issues
falling within his field of expertise.
Once judgment is obtained in favour of a party (the
judgment creditor), the party against whom judgment
is granted (the judgment debtor) will either willingly
comply with the judgment or be unwilling or unable to
do so, for whatever reason.
Where a party has been ordered to pay a sum of money,
and he fails to do so, then the other party will be
entitled to execute against his property.
Counsel for the plaintiff will usually give an opening
address to the judge. This is intended to provide the
judge with an overview of the case.
Oral evidence is presented by witnesses for each of the
parties. These witnesses may be cross-examined by the
opposing side and thereafter re-examined by the counsel
who led the witness.
Unless there has been agreement at a pre-trial
conference to the contrary, a document must be proved
by a witness who can testify to its origin and content.
Judgment is generally reserved and handed down once
the judge has had an opportunity to consider the matter.
In less complex matters judgment may be handed down
immediately after completion of oral argument.
Prior notification must be given to the other party that
expert evidence will be relied upon in order to allow the
other side time to study the evidence and to properly
challenge the substance of the expert’s report through
an informed cross-examination.
Prior notification is given to the opposing party in the
form of a written notice which must be delivered at
least 15 days before trial. This notice must give the name
and occupation of the expert. At least 10 days before
the trial, a summary of the expert’s opinion must be
delivered to the other side. This must set out the opinion
of the expert and the facts on which the opinion is based.
Subpoenas
Generally witnesses will attend trial to give evidence
voluntarily. However, there may be times when a witness
will be unwilling to co-operate and appear in court. In
this instance, a subpoena may be issued by the registrar
of the court, at the request of a party, and served on
the witness by the sheriff. A subpoena is a document
which compels the witness to appear at court. It is a
criminal offence to disobey a subpoena.
The subpoena informs the witness when and where to
appear and may also require the witness to bring to
court certain documents relevant to the matter.
There are two forms of judgment, namely where the
court orders the judgment debtor to perform some act,
or where the court orders the judgment debtor to pay a
sum of money. The remedies to enforce compliance with
the court order differ in these two situations.
Where a judgment debtor has been ordered to perform
some act, and he fails to do so, the judgment creditor
can apply to the court for an order declaring the
judgment debtor in contempt of court and the judgment
debtor may in those circumstances be committed to jail.
In some cases, the court may order a third party, such as
the sheriff, to perform the act required of the judgment
debtor on its behalf, such as to sign documents to
transfer property.
Execution is the process in terms of which the judgment
debtor’s property is attached by the sheriff and sold
by public auction in order to raise funds to satisfy
the judgment. Property which may be attached can
be movable, immovable or incorporeal (i.e., share
certificates or rights of action). However, execution
will take place first against the movables and thereafter
against any immovable property.
Where an appeal is pending this suspends the execution
of the judgment until finalisation of the matter.
If the judgment debtor does not have sufficient
executable property, then another means of collecting
the money owed will need to be relied on. Since in this
instance the judgment debtor is technically insolvent,
the judgment creditor may wish to apply for the
sequestration of the judgment debtor’s estate (where the
debtor is an individual), or apply for the winding-up of
the judgment debtor (where the debtor is a company).
In execution of a judgment, the following occurs:
A writ of execution is issued by the registrar of the
court. This is a document ordering the sheriff to attach
the necessary property of the judgment debtor.
The sheriff will then serve the writ on the judgment
debtor at his home or place of business. The sheriff will
then request satisfaction of the debt. Sometimes the
judgment debtor will at this point pay the amount owed
as well as the costs incurred in obtaining the writ. If
this happens then the attachment of his property is no
longer necessary.
If the writ is not satisfied, the sheriff will ask the
judgment debtor to point out movable property to be
attached. The sheriff should attach sufficient property
to satisfy the judgment and costs.
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11
The sheriff will then prepare an inventory listing the
items which have been attached. This will then be given
to the attorney who may, at that stage or thereafter,
instruct the sheriff to take the items listed in the
inventory into his custody and sell them.
The sheriff will then sell the judgment debtor’s property
by public auction until an amount has been raised that
will satisfy the judgment and costs. This is done after
due advertisement in suitable newspapers.
Garnishee Orders
A garnishee order is another means by which the
judgment creditor may enforce a judgment. A garnishee
order allows a judgment creditor to recover a judgment
debt by attaching a money debt owed to the judgment
debtor by a third party (the garnishee).
Enforcement of Foreign
Judgments
As a general rule, the judgment granted by a court in a
foreign country will have no direct operation outside
that country. However, there are circumstances under
which a foreign judgment may be recognised by a court
in South Africa and where a judgment given by a South
African court may be enforced in another jurisdiction.
These circumstances will exist on the basis of either a
treaty between the countries concerned, a piece of
legislation, or on the basis of the common law of the
state in which enforcement of the judgment is sought.
In determining whether a South African judgment can be
enforced in a foreign country, the laws of that country
will need to be examined. Generally a judgment creditor
will have to apply to the relevant court in the country to
apply for an order recognising the judgment. A foreign
country will be approached generally on the basis that
some sort of comity exists between the two countries.
Once a judgment is granted by a South African court
to enforce a foreign judgment it has the same force
and effect as any other judgment and is enforced in the
same way.
The Enforcement of Foreign Arbitral Awards Act provides
that a foreign arbitral award may be made an order of
court in South Africa and thereafter enforced in the same
manner as a local judgment. South Africa is a signatory
to the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, otherwise known as the New
York Convention, which is widely considered to be the
foundational instrument for international arbitration.
It requires the domestic courts of state parties (i) to
give effect to private agreements to arbitrate; and (ii) to
recognize and enforce arbitration awards made in other
state parties to the New York Convention.
In determining whether a foreign judgment can be
enforced in South Africa, the general rule is that in
terms of comity, a foreign judgment can be relied upon
as a cause of action. The foreign judgment creditor
would issue a provisional sentence summons in South
Africa, and the court may then grant provisional
sentence in order to bring about its recognition. This will
only be done if the court is satisfied of the existence of
certain factors, including whether the recognition of
the judgment would infringe on public policy.
According to the Protection of Businesses Act, certain
foreign orders, judgments, interrogatories or arbitration
awards will not be enforceable unless the Minister of
Trade and Industry has consented. These orders are
widely defined as those which have been handed down
in connection with any mining activity, any type of
production, possession of any tangible property and
almost any other act or transaction in, outside, into or
from South Africa. The Minister’s consent, in practice, is
rarely withheld.
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13
The Application Procedure Calculation of
Time Periods
Also known as motion proceedings, the application
procedure is based on the exchange of affidavits. Unlike
the trial action, the usual rule is that no witnesses
appear before the court to give evidence. The party
bringing the application is known as the applicant, and
the party opposing the application is the respondent.
To commence proceedings, the applicant will issue a
notice of motion, which sets out the applicant’s claim
and the relief sought. An affidavit which supports
the notice of motion is attached and is known as the
founding affidavit. Supporting documents are attached
to the affidavit. The notice of motion advises the
respondent that if it wishes to oppose the application, it
must give notice of its intention to do so within 5 days
after it receives the applicant’s notice of motion and
founding affidavit.
After the respondent’s notice of intention to oppose
has been delivered, the respondent then has 15 days to
deliver an answering affidavit in which the allegations
made by the applicant in its founding affidavit will be
answered. The applicant may then, within 10 days,
deliver a replying affidavit if it wishes to respond to any
allegations made by the respondent in its answering
affidavit. The applicant may then apply to the registrar
for a date for the hearing.
All facts should be included in the affidavits as it is not
possible to place further evidence before the court at
the hearing without leave of the court. In addition, all
documents relevant to prove or disprove a party’s case
must be attached to the affidavits.
Since all evidence is placed before the court in
affidavits a number of procedures that take place in
action proceedings are not applicable in application
proceedings. The hearing before the court is generally
limited to oral argument by the counsel for the parties.
However, the court may in certain circumstances refer
certain issues or, in special circumstances, the entire
matter, to oral evidence.
As in trial proceedings, judgment is likely to be reserved
and handed down at a later date after the judge has had
an opportunity to consider the case. In less complicated
matters judgment may be handed down immediately
after oral argument.
14
Time periods for the delivery of documents are
calculated by using “court days”, which exclude
weekends and public holidays.
The period 15 December to 15 January in every year
is regarded as of period of dies non, literally meaning
“no days” and these days are not included in the time
period allowed for delivering an appearance to defend
or a plea.
Recovery Of Costs
At the end of the trial or application, the court will
hand down judgment and will make an order as to who
must pay the costs of the trial or application. This is at
the court’s discretion. Costs will generally be awarded
in favour of the successful party. Although the purpose
of such an order is to indemnify the successful party for
the expenses it has been made to pay in order to initiate
or defend the litigation, in practice only a portion of
the costs are recoverable.
There are two basic costs orders which can be awarded
by a court:
Party and party costs, which are the necessary and
proper costs which have been incurred by the successful
party. This is the most common award given; and
Attorney and client costs, which allows for the recovery
of more costs than party and party costs and is usually
a punitive award.
A notice of intention to tax must then be delivered to the
other party. This notice will inform the opposing party
that it has 10 days to inspect the documents or notes
pertaining to each item on the bill and 20 days to file a
notice of intention to oppose the bill. If no such notice is
given within the prescribed time period then the matter
may be set down for taxation before a Taxing Master
without further notice to the opposing party. If the bill
is opposed then a notice of taxation must be sent to the
opposing party to inform them of the date and time on
which the bill will be taxed before the Taxing Master.
At the taxation of the bill of costs, the Taxing Master
will go through each item, with reference to the tariff,
and decide whether it should be allowed, disallowed or
reduced. What is allowed by a Taxing Master is usually
very significantly lower than the actual costs incurred.
This is due to the tariff being outdated and bears little
relation to the rates charged by most attorneys and
because certain costs are not recoverable under the tariff.
In order to determine the costs due to the successful
litigant, a bill of costs must be drawn up. This can be
done by an attorney or by a costs consultant. Generally
it is more cost effective for a cost consultant to draw
up the bill. A cost consultant will usually charge a
percentage of the total of the drawn up bill.
The bill of costs will, depending on the order granted,
set out all of the costs incurred by the litigant from
the inception of the matter to its finality. This includes
attorney’s fees and disbursements such as counsel’s fees.
The bill is drawn in accordance with a High Court tariff
which provides for a set amount which can be claimed
in respect of each item included in the bill of costs (e.g.
there is a maximum amount allowed for drafting a letter
or making a telephone call, and a fixed hourly rate at
which attorneys fees can be recovered).
Once the bill of costs has been drawn it is sent to
the opposing party. The opposing party can then
decide whether it wants the bill to be taxed before
the Taxing Master of the High Court or whether it is
wants to settle the claim for costs, either in full or
by negotiation. This will sometimes happen when the
opposing side does not wish to incur the additional
costs associated with taxation.
15
Judgment granted
Defended Action
Proceedings
LEAVE TO APPEAL REFUSED
Summons
Notice of intention to defend
(10 days)
End of case
summary of judgment
(15 Days)
Warrant OF
EXECUTION
LEAve to
defend
APPLICATION
to sca/CC
further pleadings
(10 days)
discovery and other
pre-trial procedures
Trial
LEAVE TO APPEAL GRANTED
APPLICATION
REFUSED
APPEAL
DISMISSED
APPEAL
UPHELD
End of case
Warrant OF
EXECUTION
End of case
plea and counterclaim
(20 days)
replication and plea to
counterclaim (15 days)
16
APPLICATION FOR
LEAVE TO APPEAL (15 days)
WARRANT OF
EXECUTION
Claim dismissed
APPLICATION FOR
LEAVE TO APPEAL (15 days)
End of case
LEAVE TO APPEAL REFUSED
End of case
APPLICATION
to sca/CC
LEAVE TO APPEAL GRANTED
APPLICATION
REFUSED
APPEAL
DISMISSED
APPEAL
UPHELD
End of case
End of case
Warrant OF
EXECUTION
17
Basic overview of Litigation
in the High Court – Opposed
Motion Proceedings
Judgment granted
APPLICATION FOR
LEAVE TO APPEAL (15 days)
WARRANT OF
EXECUTION
LEAVE TO APPEAL REFUSED
APPLICATION
to sca/CC
LEAVE TO APPEAL GRANTED
NOTICE OF INTENTION TO
OPPOSE (5 days)
APPLICATION
REFUSED
APPEAL
UPHELD
APPEAL
DISMISSED
ANSWERING AFFIDAVIT
(15 days)
End of case
End of case
Warrant OF
EXECUTION
NOTICE OF MOTION AND
FOUNDING OF AFFIDAVIT
End of case
REPLYING AFFIDAVIT
Claim dismissed
NOTICE OF SET DOWN
APPLICATION FOR
LEAVE TO APPEAL (15 days)
End of case
Hearing
LEAVE TO APPEAL REFUSED
End of case
18
APPLICATION
to sca/CC
LEAVE TO APPEAL GRANTED
APPLICATION
REFUSED
APPEAL
UPHELD
APPEAL
DISMISSED
End of case
Warrant OF
EXECUTION
End of case
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