Fundamental Principles. Third Edition

Transcription

1 Fundamental Principles of Civil Procedure Third Edition C Theophilopoulos BSc LLB LLM (Wits) LLD (Unisa) Attorney of the High Court of South Africa Associate Professor, University of the Witwatersrand CM van Heerden B Proc LLB LLM (UP) LLD (RAU) Attorney of the High Court of South Africa Professor, University of Pretoria A Boraine B iur LLB (UP) LLM (Wits) LLD (UP) Attorney of the High Court of South Africa Dean, Faculty of Law, University of Pretoria Assisted by J Malan B Com (Law) LLB (UP) Advocate of the High Court of South Africa Pretoria Bar LexisNexis

2 Contents Preface v Chapter 1 Introduction to the Law of Civil Procedure 1.1 What is the law of civil procedure? Civil and criminal procedure Principles underlying the law of civil procedure Sources of the law of civil procedure Mechanisms for solving civil disputes 6 Chapter 2 Structure and Officers of the Courts 2.1 Introduction Hierarchy of South African courts and stare decisis The Constitutional Court The Supreme Court of Appeal The High Court Magistrates'Courts Courts of chiefs and headmen (traditional leaders' courts) Small Claims Court Introduction Jurisdiction of the Small Claims Court Procedure in the Small Claims Court Judgment and costs Review Specialised courts Labour Courts Land Claims Court Special Income Tax Court Competition Appeal Court Electoral Court Consumer Court and related matters 22 vii

3 Fundamental Principles of Civil Procedure Divorce Court Children's Court Maintenance Court Equality Court Officers of the Court Judges Magistrates Registrars of the High Court Clerks and registrars of Magistrates' Courts The sheriff The Master of the High Court Legal practitioners The Legal Practice Act Example in the electronic Precedents Pack 25 Chapter 3 Consultation, Legal Representation, Demand and Prescription 3.1 The initial consultation Representation of parties In the High Court In Magistrates' Courts Indigent persons The action and application procedure Demand or statutory notice Prescription and time-limitation statutes General Prescription Act Institution of Legal Proceedings against Organs of State Act Road Accident Fund Act Apportionment of Damages Act Superannuation Superannuation of judgments Superannuation of summonses Time periods for the delivery of pleadings National Credit Act and Consumer Protection Act National Credit Act Consumer Protection Act Examples in the electronic Precedents Pack 45 viii

4 Contents Chapter 4 General Principles of Jurisdiction 4.1 Introduction Inherent and prescribed jurisdiction Why is jurisdiction important? General principles The principle actor sequitur forum rei The principle of effectiveness The principle of convenience The principle of consent (submission or prorogation) Legal terminology Incola Peregrinus Local peregrinus Foreign peregrinus The meaning of domicile and residence Natural persons Juristic persons Principal place of business Registered office Where the corporation conducts business Foreign juristic persons Partnerships The State Specific jurisdictional provisions The formula for selecting an appropriate court The impact of the National Credit Act and Consumer Protection Act on jurisdiction National Credit Act Consumer Protection Act 59 Chapter 5 Jurisdiction of the High Court 5.1 Introduction The inherent jurisdiction of the High Court Inherent and innate jurisdiction Power to regulate its own procedure Power to adjudicate non-procedural matters Jurisdiction with regard to the value of the claim No limitation with regard to value Discretion regarding costs Removal of a matter to a Magistrates'Court 63

5 Fundamental Principles of Civil Procedure 5.3 Jurisdiction with regard to the nature of the claim Jurisdiction with regard to territory Section 21(1) of the Superior Courts Act The common-law rule In general terms The existence of a link or ratio jurisdictionis Considerations of effectiveness Jurisdiction in divorce actions The common-law position Divorce Act The definition of "divorce action" Proceedings relating to property Immovable property Movable property Incorporeal property Proceedings in which a money judgment is claimed Rules regarding attachment Miscellaneous issues relating to attachment The doctrine of consent or submission Timing of submission Concurrent jurisdiction Jurisdiction for the purposes of counterclaims The causae continentia doctrine Removal of a matter to another division Examples in the electronic Precedents Pack 82 Chapter 6 Jurisdiction of Magistrates' Courts 6.1 Introduction Constitutional jurisdiction Jurisdiction with regard to the value of the claim Jurisdiction with regard to the nature of the claim Matters excluded in terms of section Decrees of perpetual silence Claims for specific performance Claims which may be adjudicated in terms of section Other claims in terms of sections 30, 31 and Jurisdiction with regard to territory Example Extension of jurisdiction Incidental jurisdiction 96 x

6 Contents Abandonment of portion of a claim in terms of section When will a plaintiff abandon? Proviso to section Deduction (set-off) of an admitted debt in terms of section Where the plaintiff's claim is partially successful Successful counterclaim after abandonment Consent to the extension of jurisdiction in terms of section Further provisions and related matters Transfer of a matter from one court to another Splitting of claims is disallowed Cumulative jurisdiction Counterclaim exceeding the jurisdiction of the court Removal of a matter to the High Court The impact of the National Credit Act and Consumer Protection Act on jurisdiction Examples in the electronic Precedents Pack 108 Chapter 7 The Parties and Citations 7.1 Introduction Locus standi In the sense of a right and interest in the relief claimed Standing to enforce rights guaranteed in the Constitution Class actions and public-interest actions In the sense of capacity to litigate Minors (children) Married women Insane and disabled persons Prodigals Insolvents Trusts Partnerships, firms and associations Judges, diplomats and others Citation of parties in the High Court and Magistrates' Courts Joinder of parties and actions Joinder of parties in the High Court Joinder of convenience Joinder of necessity Joinder of causes of action and separation of trials Waiver, non-joinder and misjoinder Joinder in Magistrates'Courts 129 xi

7 Fundamental Principles of Civil Procedure 7.4 Intervention In the High Court In Magistrates'Courts Third-party joinder In the High Court HCR 13 and apportionment of damages Third-party-notice procedure In Magistrates'Courts Submissions by amicus curiae Consolidation of actions Parties to a suit, plurality of parties, cession and subrogation General Plurality of contractual parties Cession and delegation Subrogation Headings of Pleadings in the High Courts and Magistrates' Courts Examples in the electronic Precedents Pack 139 Chapter 8 The Application Procedure 8.1 Introduction Types of application Ex parte applications Bilateral applications Interlocutory or interim applications The form of the proceedings Notice of motion Affidavit Applications in the High Court The general rule Disputes of fact Resolving a dispute of fact Dismissal of the application Presentation of oral evidence Referral to trial General requirements of HCR Ex parte applications Notice of motion in ex parte applications Enrolment Opposing an ex parte application Bilateral applications Notice of motion in bilateral applications 151 xii

8 Contents Unopposed enrolment Opposing a bilateral application Replying affidavit Further affidavits Opposed enrolment Interlocutory applications Urgent applications General Notice of motion The need to make out a case of urgency Enrolment Hearsay evidence in urgent applications Applications in Magistrates'Courts General General requirements of MCR Application with notice Ex parte application Interlocutory applications Applications to court for authority to institute proceedings Urgent applications Various aspects Applications for which a specific form is prescribed A summary of preparation for the hearing and the hearing of the motion Examples in the electronic Precedents Pack 167 Chapter 9 Overview of the Action Procedure 9.1 Introduction The pleading stage The High Court Particulars of claim and declarations Plea Counterclaim Replication Further pleadings Time periods Magistrates'Courts Other procedural steps The purpose and function of pleadings To define the issues in dispute To define the limits of the action 174 xiii

9 Fundamental Principles of Civil Procedure To establish whether the issues are good in law To place the issues on record To establish the onus of proof The general rules and formalities of pleading The heading Division into paragraphs Pleading of material facts only The prayer Calculating interest The signature Particularity in pleadings General The types of specific particularity required in pleadings HCR 18(6); MCR 6(6) HCR 18(8) HCR 18(9); MCR 6(8) HCR 18(10); MCR 6(9) HCR 18(11); MCR 6(10) HCR 18(12); MCR 6(13) Where there is no court rule Particularity regarding the plea In Magistrates'Courts Request for further particulars Amendments and other variations to pleadings 183 Chapter 10 Summons, Particulars of Claim and Declaration 10.1 The function of a summons The different types of summons Combined summons Simple summons Formal requirements of a summons Substantive requirements of a summons Electronic addresses Particulars of claim and declarations Subsequent steps Simple summons Combined summons Provisions relevant to Magistrates' Courts only Additional forms for the benefit of the defendant Jurisdictional provisions 194 xiv

10 Contents Provisions relating to legislation Plaintiff as cessionary Declaration on executable immovable property Automatic rent interdict summons Examples in the electronic Precedents Pack 196 Chapter 11 Service of Process 11.1 Introduction Service by the sheriff Service in the High Court Types of process Time of service Manner of service in the High Court Discretion of the court Service in Magistrates'Courts Time of service Manner of service in Magistrates' Courts Service in matters relating to insolvency Application for sequestration Application for liquidation If service cannot be effected in the prescribed manner Substituted service in South Africa Contents of an application for substituted service Service by edictal citation outside South Africa Contents of an application for edictal citation In Magistrates'Courts Service of process in a foreign country Example in the electronic Precedents Pack 211 Chapter 12 Judgment at an Early Stage and Stay of Proceedings 12.1 Intention to defend Notice of intention to defend Time limits (dies induciae) Contents of notice of intention to defend Irregular or defective notice of appearance to defend in Magistrates' Courts Important aspects regarding notice of intention to defend The default-judgment procedure The meaning of "default" and "default judgment" 216 XV

11 Fundamental Principles of Civil Procedure The various types of default in the High Court and Magistrates'Courts The defendant's failure to enter a notice of intention to defend The defendant's failure to file a plea (in convention) The defendant's defective appearance to defend The plaintiff's failure to file a declaration The plaintiff's failure to file a plea against the defendant's counterclaim (claim in reconvention) A party's failure to appear at the hearing Judgment obtained at an early stage of proceedings and stay of proceedings Other judgments obtained at an early stage Stay of proceedings Examples in the electronic Precedents Pack 224 Chapter 13 Summary Judgment 13.1 Introduction Circumstances in which summary judgment is appropriate Bringing an application for summary judgment Plaintiff's notice of application The content of the plaintiff's affidavit Swearing positively to the facts Opposing an application for summary judgment Payment of security A bona fide defence Affidavit or oral evidence Time periods Deponent to the opposing affidavit The contents of the affidavit Defective summons or application Counterclaim Further evidence and affidavits The hearing and the court's discretion Costs The impact of the National Credit Act Examples in the electronic Precedents Pack 235 xvi

12 Contents Chapter 14 Defective Processes and Non-compliance with the Rules 14.1 Introduction Exception When an exception may be taken A pleading is vague and embarrassing A pleading lacks averments The procedure for taking an exception The application to strike out or "motion to expunge" The difference between an exception and a striking-out Grounds Procedure The irregular step The procedure Summary Non-compliance and deviation from the rules Barring in the High Court Effects of barring Discharge of bar or extension by agreement Discharge of bar, extension of time and condonation Non-compiiance with the High Court Rules Barring in Magistrates'Courts Non-compliance with the Magistrates' Courts Rules and condonation Extension of time limits Condonation of short service Further particulars for the purposes of pleading Request for copies Annexure Examples in the electronic Precedents Pack 260 Chapter 15 Settlement Offers or Tenders, Security for Costs and Mediation 15.1 Introduction Offers at common law Offer or tender to settle in the High Court Written offer or tender Other offers of settlement 265 xvii

13 Fundamental Principles of Civil Procedure Notice of offer or tender Settlement procedure Offer or tender to settle in Magistrates' Courts General Procedural issues Pleading a tender Settling a matter prior to trial The position in the High Court The position in Magistrates'Courts Settling a matter by consent to judgment Consent in the High Court and Magistrates'Courts Section 57 of the Magistrates' Courts Act: Admission of liability and an undertaking to pay a debt in instalments or otherwise Section 58 of the Magistrates' Courts Act: Consent to judgment or to judgment and an order for the payment of the judgment debt in instalments Recording a settlement agreement Interim settlement offers in the High Court and Magistrates' Courts Security for costs Introduction Security in the High Court Peregrini Unrehabilitated insolvents Companies Other circumstances Application for security in the High Court Security for costs in Magistrates'Courts Statutory induced court-annexed mediation Introduction Definitions Application of mediation rules Functions and duties of clerks and registrars Process regarding referral to mediation prior to commencement of litigation Referral by a party prior to trial Referral by party after commencement of litigation but prior to trial Referral by party after the commencement of trial but prior to judgment Referral to mediation by court Role and functions of mediator 282 xviii

14 Contents Suspension of time limits Settlement agreements Settlement reached Settlement not reached Multiple parties and multiple disputes Representation of Parties to Mediation, Mediators and Fees Conclusion Examples in the electronic Precedents Pack 285 Chapter 16 The Plea, Counterclaim, Replication, Counterplea and Close of Pleadings 16.1 The plea The rules and time periods Failure to comply with the time periods Contents of the plea Plea on the merits Structure of a plea on the merits Special pleas Failure to comply with the requirements regarding content The replication The rules and time periods The counterclaim The counterclaim procedure The plea to the counterclaim (counterplea) ,1 The procedure for the plea to the counterclaim Subsequent pleadings Close of pleadings Examples in the electronic Precedents Pack 303 Chapter 17 Amendments of Pleadings 17.1 Introduction General considerations when seeking an amendment Specific instances when an amendment is sought Amendment procedure Examples in the electronic Precedents Pack 311 Chapter 18 Preparation for Trial 18.1 Introduction Enrolment and set-down Set-down for trial in the High Court Set-down for trial in Magistrates' Courts 315 xix

15 Fundamental Principles of Civil Procedure 18.3 Discovery of documents The discovery procedure What must be discovered When may a party call for discovery Who may be compelled to discover How discovery must be made Further discovery How to secure production of discovered documents Other discovery rules Sanctions Practical compliance after the close of pleadings Medical examinations Inspection or examination of property and things Expert evidence Presentation of a plan, diagram, model or photograph Further particulars for the purpose of preparing for trial Scope and procedure Failure to furnish particulars The pre-trial conference In the High Court Scope and procedure Minutes of the pre-trial conference The pre-trial procedure for formulating issues in Magistrates' Courts Subpoena (witness summons) The position in the High Court The position in Magistrates' Courts Evidence on commission, interrogatories and affidavit Evidence on commission Evidence by way of interrogatories Evidence on affidavit Examples in the electronic Precedents Pack 340 Chapter 19 The Trial arid Judgment 19.1 Introduction The stages in the adversarial trial process The commencement of trial and the determination of onus The incidence of the burden of proof The duty to begin The evidentiary burden 346 xx

16 Contents 19.3 The relationship between the primary onus, the evidentiary burden and the duty to begin Examination of the witnesses Absolution from the instance The defendant's case Closing arguments Judgment Balance of probabilities Judgments and orders Rescission and variation of judgments Variation and rescission in the High Court Common-law variation and rescission HCR 42(1) HCR 31 (2)(b) Void and abandoned judgments Rescission in Magistrates'Courts Re-opening a case Separation of issues Incidental matters Example in the electronic Precedents Pack 358 Chapter 20 Provisional Sentence Summons 20.1 Introduction A liquid document A written instrument Signed by the defendant or the authorised agent Unconditional acknowledgement of debt A fixed amount in money Certain other exceptions The provisional sentence summons procedure The application and motion procedure The summons and commencement of proceedings The defendant The plaintiff The onus of proof in provisional sentence procedure The hearing The court's discretion The further procedure when provisional sentence is refused The further procedure when provisional sentence is granted The principal case Examples in the electronic Precedents Pack 371 xxi

17 Fundamental Principles of Civil Procedure Chapter 21 Appeals and Reviews in Civil Proceedings 21.1 Appeal and review contrasted Review Review of proceedings in Magistrates' Courts Grounds for review of proceedings of Magistrates' Courts Review of the decision of a High Court judge Procedure on review Appeals When does an appeal lie? Examples of decisions (judgments, orders and rulings) Instances in which no appeal lies When leave to appeal will be granted Appeals from Magistrates' Courts When does an appeal lie in a Magistrates' Court? Section 83 of the Magistrates'Courts Act Section 48 of the Magistrates' Courts Act Procedure to be followed In the Magistrates'Court In the High Court Powers of a court of appeal Further appeal Appeals from superior courts General Suspension of decision pending the appeal Procedure to be followed Appeals to a full court of a division of the High Court Appeals to the Supreme Court of Appeal Powers of a court of appeal Further appeal Appeals to the Constitutional Court Appeals from a Magistrates' Court Appeals from the High Court Accessing the Constitutional Court directly Constitutional Court Rule 18 read with section 167(6)(a) of the Constitution Constitutional Court Rule 19 read with section 167(6)(b) of the Constitution Section 172(2)(a) and (d) read with section 167(5) of the Constitution 401 xxii

18 Contents 21.7 Costs of appeal Examples in the electronic Precedents Pack 401 Chapter 22 Execution 22.1 Introduction General Developments regarding execution against immovable property Property that may be attached in execution Movable, immovable and incorporeal property Property exempt from attachment and execution The writ or warrant of execution Form of the writ in the High Court Form of the warrant in Magistrates' Courts Execution in the High Court Attachment and execution against movables Attachment and execution against immovable property Execution in Magistrates'Courts Attachment and execution against movables Attachment and execution against immovable property Garnishee orders Suspension of execution in cases on appeal Interpleader proceedings Interpleader proceedings in the High Court Interpleader proceedings in Magistrates'Courts Section 127 of the National Credit Act Cross-border enforcement of judgments Outward-bound enforcement Inward-bound enforcement Example in the electronic Precedents Pack 429 Chapter 23 Debt Collection and Administrations 23.1 Introduction 43^ The section 65A( 1) notice The section 65 hearing Failure to appear at section 65 proceedings Notice in lieu of arrest Failure to appear Summary inquiry into contempt Rights to be observed 435 xxiii

19 Fundamental Principles of Civil Procedure 23.2 Emoluments attachment orders When to apply for an emoluments attachment order Jurisdiction in respect of emoluments attachment orders Requirements for the issue of an emoluments attachment order The difference between an emoluments attachment order and a garnishee order Administration orders Application for an administration order The application The hearing of the application for administration The contents of an administration order Execution of the administration order Other requirements flowing from an administration order Amendment and lapsing of an administration order The impact of the National Credit Act on debt collection 441 Chapter 24 Legal Costs 24.1 Introduction The general rules relating to legal costs Terminology relevant to legal costs Party-and-party costs Attorney-and-client costs Attorney-and-own-client costs Costs de bonis propriis Wasted costs Costs reserved Costs in the cause Costs of the day All costs No costs order Taxation of bills of cost Costs and tariffs High Court Magistrates'Courts 451 Table of Cases 455 Table of Legislative Material 475 Index 495 xxiv