Civil Procedure — Master Study Guide

About This Guide

Based on Civil Procedure: A Practical Guide (3rd Ed., 2016) by Peté et al., Oxford University Press South Africa.

All content is South African law only. Rule references are to the Uniform Rules (High Court) and Magistrates' Courts Rules unless stated otherwise.

- #General Introduction
- Stage One — Before Litigation
- - Stage One — Part 1 Preliminary Questions
- - Stage One — Part 2 Pre-Litigation Issues
- Stage Two — Litigation
- - Stage Two — Part 1 Applications
- - Stage Two — Part 2 Actions
- Stage Three — After Litigation
- - Stage Three — Part 1 Appeals and Reviews
- - Stage Three — Part 2 Debt Collection
- Stage Four — Additional Procedures
- Annexures and Special Topics
- Key Cases Index
- Statutory References Quick-Ref
- Time Limits Quick-Reference

General Introduction

Civil Procedure vs Substantive Law

Concept	Description
Substantive law	The ends — rights and obligations (e.g. delict, contract)
Civil procedure / adjectival law	The means — machinery by which those ends are achieved

Exam flag

The line between substantive and adjectival law is not always clear-cut — courts have acknowledged this. Do not treat it as absolute.

The Court Hierarchy

Constitutional Court  <- apex for constitutional matters; also non-constitutional matters of public importance
        ^
Supreme Court of Appeal (SCA)  <- Bloemfontein; final court of appeal for non-constitutional matters
        ^
High Court of South Africa  <- Provincial and local divisions; inherent jurisdiction
        ^
Magistrates' Courts  <- District (R200 000) | Regional (R400 000)

Key statutes:

- Magistrates' Courts Act 32 of 1944
- Superior Courts Act 10 of 2013
- Constitution of the Republic of South Africa, 1996

Impact of the Constitution

Section	Effect
s 34	Right of access to courts + fair hearing
s 38	Extended locus standi for Bill of Rights enforcement (class actions, public interest)
s 9	Equality — e.g. requiring marital status in summons held unconstitutional (Nedcor Bank v Hennop)
s 26	Right to housing — reshaped execution against immovable property (Jaftha v Schoeman; Gundwana v Steko)

Constitutional changes to watch

- Arrest tanquam suspectus de fuga — abolished following constitutional scrutiny (Malachi v Cape Dance Academy)

- Arrest of foreign peregrini to found jurisdiction — abolished in Bid Industrial Holdings v Strang (SCA)

- Provisional sentence procedure — subject to limitations (Twee Jonge Gezellen v Land Bank CC)

The Four-Stage Mind Map

STAGE ONE -> STAGE TWO -> STAGE THREE -> STAGE FOUR
Before       Litigation   After          Additional
Litigation               Litigation     Procedures

Stage One — Before Litigation

Overview

Before issuing a summons or notice of motion, three preliminary questions and four pre-litigation issues must be resolved.

Stage One — Part 1 Preliminary Questions

A: Cause of Action

Definition

A cause of action is the set of facts which, in law, entitles the plaintiff to claim relief from the defendant. It is a substantive law question answered before choosing a court or procedure.

Cause of Action	Key Elements
Delict	Conduct + unlawfulness + fault + causation + damage
Contract	Valid agreement + breach + damages (or specific performance)
Divorce	Valid marriage + irretrievable breakdown
Liquid Document	Written acknowledgement of fixed, certain debt (cheque, mortgage bond, AOD)

Exam trap

Always identify the cause of action before deciding on the court, procedure, and form of pleadings. Getting this wrong invalidates subsequent steps.

B: Locus Standi

Two requirements:

01Direct and substantial interest in the matter
02Capacity to litigate

Constitutional extension — s 38 (Bill of Rights matters only)

The following may approach a court:

- (a) Anyone acting in their own interest
- (b) Anyone acting on behalf of another who cannot act in their own name
- (c) Anyone acting as a member of or in the interest of a group or class
- (d) Anyone acting in the public interest
- (e) An association acting in the interest of its members

Capacity to Litigate

Category	Rule
Minors under 7	Cannot litigate — parent/guardian acts
Minors 7–17	Litigate with assistance of parent/guardian
Married women	Marital power abolished; community of property spouses need consent (s 17 Matrimonial Property Act) — failure does not void proceedings but may affect costs
Mentally ill persons	No locus standi; Curator Ad Litem needed (HC rule 57)
Prodigals	Curator Bonis or curator ad litem needed for affected areas
Insolvents	Limited locus standi (s 23 Insolvency Act); trustee usually acts
Fugitives from justice	Generally cannot sue; may defend + apply for rescission of default judgment
Alien enemies	Cannot sue if voluntarily residing in enemy territory; nationality irrelevant
Diplomats	Protected by Diplomatic Immunities and Privileges Act
Judges	Cannot be sued without consent of relevant head of court (s 47 Superior Courts Act)

Curator distinction

- Curator Ad Litem — appointed for the purpose of the litigation only

- Curator Bonis — appointed to manage the person's entire estate

Curator ad litem is appointed first -> reports -> curator bonis appointed thereafter.

C: Jurisdiction

Two core questions:

01Which type of court — Magistrates' Court or High Court?
02Which particular division or court within that type?

Timing

Jurisdiction is determined at the time the action is instituted (when summons is issued).

Magistrates' Court Jurisdiction — Magistrates' Courts Act 32 of 1944

Monetary limits (s 29):

Court	Limit
District Magistrates' Court	Up to R200 000
Regional Magistrates' Court	Up to R400 000

Calculation rules:

Rule	Section
Splitting single claim to stay under limits — NOT allowed	s 40
Combining separate claims — allowed	s 43(1)
Only amount in issue counts	ss 37(1) and 37(2)
Interest and costs excluded	s 37(3)

Exceptions to monetary limits:

Exception	Section
Consent	s 45 (two limitations apply)
Abandonment of excess	s 38
Deduction of admitted debt	s 39

Nature of claim — excluded from Magistrates' Courts (s 46):

- Status claims (wills, mental capacity, perpetual silence)
- Specific performance valued over R200 000 (with narrow exceptions)

Territorial jurisdiction (s 28) — court has jurisdiction if:

- Defendant resides, carries on business, or is employed in its area — s 28(1)(a)
- Cause of action arose wholly within its area — s 28(1)(d)
- Consent was given — s 28(1)(f)
- Immovable property is situated there — s 28(1)(g)

High Court Jurisdiction

Key doctrine: Doctrine of effectiveness — the court must be able to make its judgment effective.

Ground	Meaning
Ratione domicilii	Defendant domiciled in court's area
Ratione rei gestae	Cause of action arose in court's area
Ratione rei sitae	Property forming subject matter is situated in court's area

Claims against foreign peregrini:

- Arrest to found/confirm jurisdiction abolished — Bid Industrial Holdings v Strang (SCA)
- Consent to jurisdiction remains valid
- Attachment to found jurisdiction (for money claims) — still available in limited form

Inherent jurisdiction: High Court has inherent jurisdiction to regulate proceedings and prevent abuse.

Stage One — Part 2 Pre-Litigation Issues

A: Demand

When is demand required?

01
Statute requires it:
- - Institution of Legal Proceedings against Organs of State Act 40 of 2002 — 30-day notice before suing the state
- - National Credit Act 34 of 2005 — before cancelling a credit agreement
- - Small Claims Court Act 61 of 1984
02To complete the cause of action — debts payable "on demand", placing debtor in mora, notice to cancel
03For interest — marks start of interest running on unliquidated debts
04For costs — demand may affect cost liability if action is premature

B: Calculation of Time Limits

Golden rule

- Court days -> time period appears in the Rules of Court (excludes weekends, public holidays, court recesses)

- Calendar days -> time period appears in an Act of Parliament (all days including weekends and holidays)

FOLI Rule (calculating within a period)

First Out, Last In

- Exclude the first day (the trigger event / dies a quo)
- Include the last day (the deadline / dies ad quem)

Calculating time after a period expires

- Begin counting from the day after the period expires.
- Service by post = add 10 days (HC rule 4(1)(aA); MC rule 9(14)).

C: Service of Legal Documents

Sheriff's role:

- The sheriff is the sole officer responsible for serving legal process.
- Service is a prerequisite for jurisdiction to be exercised over the defendant in most cases.

Methods of service — High Court (rule 4):

Method	Description
Personal service	Delivered to defendant personally
Domicilium service	Delivered to chosen address
Registered post	To defendant's last known address
Substituted service	By court order — when usual methods not possible
Edictal citation	Service outside South Africa (court order required)
Publication	In Gazette/newspaper (extreme circumstances)

Substituted service: Application to court under HC rule 4(2) / MC rule 9(12) — must show ordinary service impractical.

Edictal citation: Required for service outside the Republic. Applicant must show prima facie case and reason why service outside RSA is necessary.

Service vs jurisdiction

Service and jurisdiction are distinct concepts. Service can be effected outside the court's area without it conferring jurisdiction on that court.

D: Action or Application?

Feature	Action	Application
Starts with	Summons	Notice of motion
Factual disputes	Resolved by oral evidence at trial	Resolved on affidavits (or referred to oral evidence)
Court	Trial court	Motion court
Time	Generally slower	Generally faster
Best for	Genuine disputes of fact	Questions of law; undisputed facts

Real dispute of fact rule

If a real (genuine, bona fide) dispute of fact exists that cannot be resolved on the papers, the court should refer the matter to trial — or dismiss the application. See Plascon-Evans Paints v Van Riebeeck Paints (Appellate Division).

Plascon-Evans rule: Where there is a conflict of fact in application proceedings, the court will generally accept the facts stated by the respondent, unless they are palpably false or clearly untenable.

Stage Two — Litigation

Stage Two — Part 1 Applications

Introduction

An application (motion proceedings) is the procedure used when facts are largely common cause and the dispute is one of law, or when the matter is urgent or ex parte.

Three types:

01On notice applications — respondent is notified and may oppose
02Ex parte applications — brought without notice to any other party
03Urgent applications — brought on shortened time periods (HC rule 6(12))

A: General Principles

Affidavits — form and content:

- Must be sworn/affirmed before a commissioner of oaths
- Must be in the first person
- Deponent must have personal knowledge (hearsay generally inadmissible)
- Must not contain: hearsay, scandalous/vexatious/irrelevant matter, or new inadmissible matter in replying affidavit

Notice of motion — HC rule 6(1):

- States prayers (relief sought) on front page
- Supporting affidavits attached
- Served on each respondent

B: On Notice Applications

10-step procedure (High Court)

Step	Action
1	Applicant files notice of motion and founding affidavits
2	Service on respondent
3	Respondent files notice of intention to oppose (HC: 5 court days after service)
4	Respondent files answering affidavits
5	Applicant files replying affidavits
6	Further affidavits (by leave of court only)
7	Set down for hearing
8	Heads of argument filed
9	Hearing
10	Optional: counter-application or joinder

Court's options when real dispute of fact arises on papers:

01Decide on affidavits alone (if dispute not genuine)
02Refer to oral evidence (limited issues)
03Refer to trial
04Dismiss the application with costs

C: Ex Parte Applications

Characteristics:

- No respondent or respondent not notified
- Applicant has duty of utmost good faith (uberrima fides) — must disclose all material facts, even if adverse
- Failure to disclose -> court may set aside order

Court's options:

- Grant final order
- Grant rule nisi (provisional order returnable on a specified date, calling on any affected party to show cause why it should not be confirmed)

Stage Two — Part 2 Actions

Introduction — The Four Stages of an Action

1. PLEADINGS -> 2. PRE-TRIAL -> 3. TRIAL -> 4. JUDGMENT

A: Pleadings

The Five Basic Steps

Step	Document	Served by
1	Summons + Particulars of Claim	Plaintiff
2	Notice of Intention to Defend	Defendant
3	Plea (+ possible counterclaim)	Defendant
4	Replication (if needed)	Plaintiff
5	Close of pleadings (litis contestatio)	—

Types of Summons

Type	When Used
Combined summons	Particulars of claim combined in summons; used for complex/disputed claims
Simple summons	Brief endorsement; particulars filed separately; used for liquid/straightforward claims
Provisional sentence summons	Liquid document claims — special procedure

Particulars of Claim — Must Include

01Citation of parties (name, capacity, address)
02Locus standi of each party
03Jurisdiction of the court
04Cause of action (material facts)
05Prayer (relief claimed)

Time Periods — Pleadings

Action	High Court	Magistrates' Courts
Notice of intention to defend	10 court days after service of summons (rule 19)	10 court days (rule 12)
Plea	20 court days after notice to defend (rule 22)	20 court days (rule 13)
Replication	15 court days after plea (rule 25)	10 court days (rule 18)
Declaration (if required)	15 court days after delivery of notice (rule 19(3))	15 court days

Automatic Bar

Important

If a party fails to deliver a pleading within the prescribed time, the other party may bar that party. The barred party must apply for removal of the bar before proceeding.

- HC rule 26 — automatic bar after time expires (without need for notice)
- MC rule 13(3) — similar automatic bar provisions

Close of Pleadings — Litis Contestatio

Pleadings close when:

- No further pleading required/permitted, OR
- Last required pleading has been delivered

Tip

After close of pleadings, the issues are crystallised. The plaintiff cannot change the basis of the claim without an amendment.

Responses to Defective Pleadings

Response	When Used
Exception	Pleading discloses no cause of action/defence; is vague and embarrassing
Application to strike out	Scandalous, vexatious, irrelevant matter
Application to set aside irregular step	Procedural irregularity (HC rule 30 / MC rule 60)
Enforcement/condonation	HC rule 30A (noncompliance); HC rule 27 (extension/condonation)
Amendment	HC rule 28 / MC rule 55A

Shortcut Judgments

Type	Requirements	Rule
Default Judgment	Defendant fails to appear / plead	HC rule 31; MC rule 12
Summary Judgment	Liquid document; liquidated amount; specific movables; ejectment	HC rule 32; MC rule 14
Consent / Confession to judgment	By agreement	HC rule 31(3); MC ss 57/58

Summary judgment — defendant's options to resist

1. Satisfy the court that they have a bona fide defence

2. Disclose fully the nature and grounds of the defence

3. Deny specifically the facts in the supporting affidavit

B: Pre-Trial Procedures

Step	Procedure	Rule
1	Set down	HC rules 38–40; MC rule 22
2	Discovery — notice to discover, inspect, specify, produce, admit	HC rule 35; MC rule 23
3	Medical/technical examinations	HC rule 36; MC rule 24
4	Further particulars for trial	HC rule 35(14); MC rule 23(15)
5	Subpoena of witnesses	HC rule 38; MC rule 25
6	Special evidence (expert, photographs, commission, interrogatories, affidavit)	HC rule 36
7	Pre-trial conference (mandatory in HC)	HC rule 37; MC rule 37
8	Final preparation — trial bundles, index/paginate court file	—

Discovery obligations

- Must discover ALL documents relevant to any issue in the action in the party's possession, custody or control

- Discovery affidavit: list documents you have + privilege claims

- Failure to discover -> document cannot be used at trial (HC rule 35(4))

C: Trial

High Court trial:

01Plaintiff opens (may call witnesses, lead evidence)
02Defendant's case (may call witnesses)
03Plaintiff may apply for absolution from the instance at end of plaintiff's case
04Closing arguments
05Judgment

Absolution from the instance:

- At the end of the plaintiff's evidence, defendant may apply if plaintiff has failed to establish a prima facie case
- Test: "Is there evidence upon which a reasonable court might find for the plaintiff?" (Gordon Lloyd Page v Rivera)

D: Judgment, Interest, and Costs

Judgment

Rescission of judgment (HC rule 42 / MC rule 49):

- Erroneously sought/granted in absence of party -> rescission as of right
- Good cause shown -> rescission in court's discretion
- Common law: fraud, justus error, etc.

Default judgment rescission

Two requirements: (1) sufficient cause for the default; (2) bona fide defence on the merits.

Interest

Type	Rate/Rule
Mora interest	Prescribed Rate of Interest Act 55 of 1975 (currently 10.25% per annum — verify current rate)
Tempore morae	Running from date of demand / summons / court order
Interest on judgment debt	From date of judgment

Costs

General rule: costs follow the result — the loser pays the winner's costs.

Scales of costs:

Scale	When
Party and party	Standard scale — all necessary and reasonable costs
Attorney and client	Punitive scale — gross misconduct or by agreement
Attorney and own client	Even more punitive — contractual; not payable by opponent

Stage Three — After Litigation

Stage Three — Part 1 Appeals and Reviews

A: Appeals

What Can Be Appealed

- Judgments, orders, and rulings that have a final and definitive effect on the parties' rights
- Not every ruling is appealable — only those that finally dispose of the issue

Appeal vs Fact vs Law

Type	Standard
Appeal on facts	The appeal court must be persuaded the trial court was clearly wrong
Appeal on law	Appeal court substitutes its own judgment
Discretionary matters	Must show the court misdirected itself or the result is so unreasonable no court could have reached it

Appeal Routes

Magistrates' Court decision
  -> High Court (usual route — full bench / single judge)
  -> OR direct to Constitutional Court (leapfrog in constitutional matters)

High Court decision
  -> Full court of High Court (leave required for some matters)
  -> Supreme Court of Appeal (SCA) — leave required
  -> Constitutional Court (on constitutional matters)

Leave to appeal

- Application for leave to appeal: to the court that made the order (within 15 court days of judgment — HC rule 49(1)(b))

- Test: reasonable prospect of success on appeal

- If refused: petition to SCA for special leave

Further Evidence on Appeal

From Colman v Dunbar 1933 AD 141:

01Evidence must be credible
02Must have been reasonably unavailable at trial
03Must be material to the outcome
04The court has a discretion whether to admit it

Rule: appeal court is **bound by the record** — cannot consider facts not before the court below.

B: Reviews

Feature	Reviews	Appeals
Purpose	Correct procedural irregularities	Correct wrong decisions
Ground	Irregularity in proceedings; excess of jurisdiction; gross irregularity	Error of law or fact
Court	High Court reviews Magistrates' Courts; SCA/CC review High Court	Up the hierarchy
Timing	Must bring promptly (within reasonable time)	Within prescribed time limits

Grounds for review:

- Absence of jurisdiction
- Interest in the cause
- Malice or corruption
- Gross irregularity
- Admission of inadmissible evidence / refusal to admit admissible evidence

Stage Three — Part 2 Debt Collection

A: Writs and Warrants of Execution

Court	Document	Purpose
High Court	Writ of execution	Attachment and sale of assets
Magistrates' Courts	Warrant of execution	Attachment and sale of assets

Order of attachment (Magistrates' Courts):

01Movables first
02Immovables only if movables insufficient

Property that CANNOT be attached (Magistrates' Courts):

- Necessary bedding, clothing, food
- Tools of the trade (up to R2 000 in value)
- Pension and certain welfare payments

Constitutional dimension

Execution against immovable property (a home) must consider s 26 (housing right). Court must consider proportionality before granting warrant — Jaftha v Schoeman; Gundwana v Steko (Constitutional Court).

Incorporeal attachments:

- High Court: attachment of debts owed to judgment debtor by third party
- Magistrates' Courts:
- - Emoluments attachment order (EAO) — deduction from salary/wages at source
- - Garnishee order — attach debt owed to judgment debtor by third party

B: Section 65 Procedure

Purpose

Where judgment debtor is unable to pay, court examines their financial means and can order payment by instalments.

Section 65A procedure:

01Creditor applies for s 65A notice
02Judgment debtor served and required to appear before court
03Debtor discloses financial position under oath
04Court may order: instalment payments; emoluments attachment; administration order; or find debtor unable to pay

Section 65M: Debtor who fails to appear or comply can be dealt with as if in contempt.

C: Administration Orders

Note

Aimed at over-indebted debtors — distributes payments proportionally among creditors.

Procedure:

01Debtor applies (must list all debts)
02Court holds hearing
03Administration order granted — administrator appointed
04Administrator collects instalments from debtor, distributes pro rata to creditors
05Fees paid to administrator before creditors

Stage Four — Additional Procedures

A: Settlement

Types of offers:

Type	Effect
Unconditional offer	Cannot be used against offeror if refused; no cost consequence
Offer of compromise (HC rule 34 / MC rule 19)	If plaintiff refuses and then obtains less at trial -> defendant may be entitled to costs from date of offer

Recording settlements:

- General settlement agreement
- Made order of court
- Confession to judgment (HC rule 31(3))
- Admission of liability (MC s 57) / Consent to judgment (MC s 58)

B: Provisional Sentence

Definition

Summary procedure to obtain payment on a liquid document, subject to the defendant's right to bring a principal case later.

Requisites:

01Liquid document — written, signed, acknowledges a fixed/determinable sum
02Defendant has no defence visible from the document

Effect:

- Plaintiff entitled to receive payment provisionally
- Defendant may still bring a principal case (action in conventional form)
- If defendant wins principal case -> entitled to repayment + costs

C: Interim Relief Pending Judgment

Two types (HC rules 34A and 43):

Type	Rule	When
Interim relief for bodily injury claims	HC rule 34A / MC rule 18A	Where defendant appears able to pay; plaintiff in need
Interim relief for divorce	HC rule 43 / MC rule 58	Maintenance, interim care of children, use of motor vehicle/home

D: Arrest Tanquam Suspectus de Fuga

Warning

Abolished as unconstitutional — Malachi v Cape Dance Academy International (Constitutional Court).

Do not advise clients to use this procedure.

E: Multiple Parties and Actions

Joinder of parties:

- HC rule 10 — joinder of several causes of action / multiple plaintiffs or defendants
- MC rule 28 — joinder in Magistrates' Courts

Test for mandatory joinder: A party must be joined if they have a direct and substantial interest in the subject matter of the litigation (Gordon v Department of Health, KZN).

Consolidation of actions:

- HC rule 11 — where multiple actions arise from the same cause or involve common questions
- MC rule 29 — similar provision

Third party procedure:

- HC rule 13 / MC rule 28A
- Defendant may join a third party who may be liable to contribute

F: Interdicts

Two types:

Type	Purpose
Prohibitory interdict	Orders a party to refrain from doing something
Mandatory interdict	Orders a party to do something

Final interdict — requirements (Setlogelo test):

01A clear right
02An injury actually committed or reasonably apprehended
03Absence of any other satisfactory remedy

Interim interdict — requirements:

01A prima facie right (even if open to some doubt)
02Well-grounded apprehension of irreparable harm if interim relief not granted
03Balance of convenience favours granting relief
04Absence of any other satisfactory remedy

Exam distinction

Final interdict = clear right. Interim interdict = prima facie right. The latter is lower threshold but comes with an undertaking as to damages.

Remedies for breach of interdict:

- Contempt of court proceedings
- Committal to prison
- Fine

G: Drastic Procedures

Anton Piller Orders

Definition

An ex parte order authorising the applicant to enter the respondent's premises to search for, inspect, and remove evidence before the respondent can destroy it.

Requirements:

01Prima facie case against the respondent
02Respondent has in their possession vital evidence/documents/goods
03Real possibility that evidence will be destroyed if the respondent is forewarned

Procedural safeguards:

- Supervising attorney must be present
- Respondent's legal representative must be notified and may be present
- Inventory of items taken
- Order must specify time limits

Knox D'Arcy Interdicts (Mareva Injunctions)

Definition

Freezes the respondent's assets pending judgment to prevent dissipation.

What applicant must show:

01Good arguable case on the merits
02Respondent has assets within the jurisdiction
03Real risk of asset dissipation
04Balance of convenience favours the order

Spoliation Orders (Mandament van Spolie)

Purpose: Restore peaceful possession of property to the dispossessed party.

Requirements:

01Applicant was in peaceful and undisturbed possession
02Applicant was unlawfully deprived of possession

Note

The mandament van spolie restores possession — it does not determine rights to the property. The reivindicatio (ownership action) is separate.

H: Declarations of Rights and Stated Cases

Declaratory order: Court declares the existing, future, or contingent rights/obligations of parties. Requires:

- An existing dispute or difficulty
- Not merely academic or hypothetical

Special cases — HC rule 33:

- Rule 33(1)–(3): Parties may state a special case (agreed facts) for the court to decide
- Rule 33(4): Court may order separation of issues
- Rule 33(6): Court may decide the case on a stated point of law

I: Small Claims Court Procedures

Jurisdiction:

Feature	Rule
Monetary limit	R20 000 (Small Claims Court Act 61 of 1984)
Area of jurisdiction	Local area as per the Act
Excluded persons	Juristic persons may NOT bring claims (but can be cited as defendants)
Excluded claims	Liquid documents (unless for goods bought + services rendered); status; lease of land; malicious prosecution; defamation; liberty

Procedure:

01Letter of demand (30 days before summons)
02Summons issued by clerk of court
03Defendant files statement of defence
04Hearing before commissioner (not a professional judge)
05No legal representation (attorneys excluded from appearing)
06Informal, inquisitorial procedure

J: Other Civil Courts

Court	Governing legislation	Jurisdiction
Admiralty Courts	Admiralty Jurisdiction Regulation Act 105 of 1983	Maritime matters
Tax Courts	Tax Administration Act 28 of 2011	Tax disputes
Competition Appeal Court	Competition Act 89 of 1998	Competition matters
Labour Courts	Labour Relations Act 66 of 1995	Labour disputes
Land Claims Court	Restitution of Land Rights Act 22 of 1994	Land claims
Equality Courts	Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000	Discrimination

Annexures and Special Topics

A: Alternative Dispute Resolution (ADR)

Key forms:

Form	Description
Negotiation	Parties resolve dispute directly
Mediation	Neutral facilitates resolution; non-binding
Arbitration	Arbitrator makes binding award; governed by Arbitration Act 42 of 1965
Conciliation	Conciliator proposes solution

Note

ADR clauses in contracts are not always enforceable as a bar to litigation, but courts increasingly encourage ADR.

B: Impact of NCA and CPA

National Credit Act 34 of 2005:

- Regulates credit agreements — reckless credit, debt counselling, s 129 notice (required before enforcement)
- Debt review mechanism: once under debt review, creditor cannot proceed with legal action

Consumer Protection Act 68 of 2008:

- Applies to most goods and services transactions
- Affects limitation of liability clauses, warranties on goods

Key Cases Index

Case	Principle	Stage
Bid Industrial Holdings v Strang (SCA)	Arrest of foreign peregrinus to found jurisdiction abolished	Stage 1C
Nedcor Bank v Hennop	Requiring marital status in summons unconstitutional	Stage 1A
Jaftha v Schoeman; Gundwana v Steko (CC)	s 26 housing right limits execution against homes	Stage 3
Twee Jonge Gezellen v Land Bank (CC)	Provisional sentence subject to constitutional limitations	Stage 4B
Malachi v Cape Dance Academy International (CC)	Arrest tanquam suspectus de fuga unconstitutional	Stage 4D
Plascon-Evans Paints v Van Riebeeck Paints	Dispute of fact in application proceedings — respondent's facts accepted	Stage 1D
Colman v Dunbar 1933 AD 141	Test for admitting further evidence on appeal	Stage 3A
Gordon Lloyd Page v Rivera	Test for absolution from the instance	Stage 2A
Gordon v Department of Health, KZN	Test for mandatory joinder	Stage 4E

Statutory References Quick-Ref

Statute	Short Reference	Key Provisions in This Subject
Magistrates' Courts Act 32 of 1944	MCA	ss 28, 29, 37–40, 43, 45, 46, 57, 58, 65, 65A, 65M
Superior Courts Act 10 of 2013	SCA Act	Court structure; judges; appeals
Constitution, 1996	Constitution	ss 9, 26, 34, 38
Institution of Legal Proceedings against Organs of State Act 40 of 2002	Organs of State Act	30-day notice requirement
National Credit Act 34 of 2005	NCA	s 129 notice; debt review
Consumer Protection Act 68 of 2008	CPA	Consumer rights in litigation
Small Claims Court Act 61 of 1984	SCCA	R20 000 jurisdiction; procedure
Arbitration Act 42 of 1965	Arbitration Act	Arbitration agreements and awards
Insolvency Act 24 of 1936	Insolvency Act	s 23; trustee's locus standi
Matrimonial Property Act 88 of 1984	MPA	s 17; consent to litigate
Prevention of Organised Crime Act 121 of 1988	POCA	Civil recovery; preservation orders
Domestic Violence Act 116 of 1998	DVA	Protection orders

Time Limits Quick-Reference

Action	Court	Period	Type
Notice of intention to defend	HC + MC	10 court days after service of summons	Court days
Plea	HC + MC	20 court days after notice to defend	Court days
Replication	HC	15 court days after plea	Court days
Replication	MC	10 court days after plea	Court days
Notice of intention to oppose (application)	HC	5 court days after service	Court days
Leave to appeal application	HC	15 court days after judgment	Court days
Review application	MC->HC	Within reasonable time; MC rule 53(1)	Court days
Notice of bar	HC	After relevant time expires (rule 26)	—
S 65A appearance	MC	Per notice — usually 10–14 days	Calendar days
Organs of State notice	Any	30 days before summons	Calendar days
Service by post — add	HC + MC	10 days to time periods	Calendar days

Exam Technique Tips

How to answer a civil procedure problem

1. Identify the cause of action (substantive law)

2. Check locus standi of each party

3. Determine jurisdiction — type + territorial

4. Pre-litigation — demand? Time limits? Service requirements?

5. Choose procedure — action or application?

6. Work through the procedural steps in sequence

7. Apply rule numbers — Uniform Rules (HC) or Magistrates' Courts Rules (MC)

8. Note constitutional implications if the matter involves a state organ, a home, or fundamental rights

[!NOTE] Citing rules

- High Court: "HC rule X" = Uniform Rule of Court X

- Magistrates' Courts: "MC rule X" = Magistrates' Courts Rule X

- Do not confuse the two systems

Last updated: 2026-06-18 | Based on: Civil Procedure: A Practical Guide, 3rd Ed., 2016

Civil Procedure — Master Study Guide

About This Guide

Based on Civil Procedure: A Practical Guide (3rd Ed., 2016) by Peté et al., Oxford University Press South Africa.

All content is South African law only. Rule references are to the Uniform Rules (High Court) and Magistrates' Courts Rules unless stated otherwise.

- #General Introduction
- Stage One — Before Litigation
- - Stage One — Part 1 Preliminary Questions
- - Stage One — Part 2 Pre-Litigation Issues
- Stage Two — Litigation
- - Stage Two — Part 1 Applications
- - Stage Two — Part 2 Actions
- Stage Three — After Litigation
- - Stage Three — Part 1 Appeals and Reviews
- - Stage Three — Part 2 Debt Collection
- Stage Four — Additional Procedures
- Annexures and Special Topics
- Key Cases Index
- Statutory References Quick-Ref
- Time Limits Quick-Reference

General Introduction

Civil Procedure vs Substantive Law

Concept	Description
Substantive law	The ends — rights and obligations (e.g. delict, contract)
Civil procedure / adjectival law	The means — machinery by which those ends are achieved

Exam flag

The line between substantive and adjectival law is not always clear-cut — courts have acknowledged this. Do not treat it as absolute.

The Court Hierarchy

Constitutional Court  <- apex for constitutional matters; also non-constitutional matters of public importance
        ^
Supreme Court of Appeal (SCA)  <- Bloemfontein; final court of appeal for non-constitutional matters
        ^
High Court of South Africa  <- Provincial and local divisions; inherent jurisdiction
        ^
Magistrates' Courts  <- District (R200 000) | Regional (R400 000)

Key statutes:

- Magistrates' Courts Act 32 of 1944
- Superior Courts Act 10 of 2013
- Constitution of the Republic of South Africa, 1996

Impact of the Constitution

Section	Effect
s 34	Right of access to courts + fair hearing
s 38	Extended locus standi for Bill of Rights enforcement (class actions, public interest)
s 9	Equality — e.g. requiring marital status in summons held unconstitutional (Nedcor Bank v Hennop)
s 26	Right to housing — reshaped execution against immovable property (Jaftha v Schoeman; Gundwana v Steko)

Constitutional changes to watch

- Arrest tanquam suspectus de fuga — abolished following constitutional scrutiny (Malachi v Cape Dance Academy)

- Arrest of foreign peregrini to found jurisdiction — abolished in Bid Industrial Holdings v Strang (SCA)

- Provisional sentence procedure — subject to limitations (Twee Jonge Gezellen v Land Bank CC)

The Four-Stage Mind Map

STAGE ONE -> STAGE TWO -> STAGE THREE -> STAGE FOUR
Before       Litigation   After          Additional
Litigation               Litigation     Procedures

Stage One — Before Litigation

Overview

Before issuing a summons or notice of motion, three preliminary questions and four pre-litigation issues must be resolved.

Stage One — Part 1 Preliminary Questions

A: Cause of Action

Definition

Cause of Action	Key Elements
Delict	Conduct + unlawfulness + fault + causation + damage
Contract	Valid agreement + breach + damages (or specific performance)
Divorce	Valid marriage + irretrievable breakdown
Liquid Document	Written acknowledgement of fixed, certain debt (cheque, mortgage bond, AOD)

Exam trap

Always identify the cause of action before deciding on the court, procedure, and form of pleadings. Getting this wrong invalidates subsequent steps.

B: Locus Standi

Two requirements:

01Direct and substantial interest in the matter
02Capacity to litigate

Constitutional extension — s 38 (Bill of Rights matters only)

The following may approach a court:

- (a) Anyone acting in their own interest
- (b) Anyone acting on behalf of another who cannot act in their own name
- (c) Anyone acting as a member of or in the interest of a group or class
- (d) Anyone acting in the public interest
- (e) An association acting in the interest of its members

Capacity to Litigate

Category	Rule
Minors under 7	Cannot litigate — parent/guardian acts
Minors 7–17	Litigate with assistance of parent/guardian
Married women	Marital power abolished; community of property spouses need consent (s 17 Matrimonial Property Act) — failure does not void proceedings but may affect costs
Mentally ill persons	No locus standi; Curator Ad Litem needed (HC rule 57)
Prodigals	Curator Bonis or curator ad litem needed for affected areas
Insolvents	Limited locus standi (s 23 Insolvency Act); trustee usually acts
Fugitives from justice	Generally cannot sue; may defend + apply for rescission of default judgment
Alien enemies	Cannot sue if voluntarily residing in enemy territory; nationality irrelevant
Diplomats	Protected by Diplomatic Immunities and Privileges Act
Judges	Cannot be sued without consent of relevant head of court (s 47 Superior Courts Act)

Curator distinction

- Curator Ad Litem — appointed for the purpose of the litigation only

- Curator Bonis — appointed to manage the person's entire estate

Curator ad litem is appointed first -> reports -> curator bonis appointed thereafter.

C: Jurisdiction

Two core questions:

01Which type of court — Magistrates' Court or High Court?
02Which particular division or court within that type?

Timing

Jurisdiction is determined at the time the action is instituted (when summons is issued).

Magistrates' Court Jurisdiction — Magistrates' Courts Act 32 of 1944

Monetary limits (s 29):

Court	Limit
District Magistrates' Court	Up to R200 000
Regional Magistrates' Court	Up to R400 000

Calculation rules:

Rule	Section
Splitting single claim to stay under limits — NOT allowed	s 40
Combining separate claims — allowed	s 43(1)
Only amount in issue counts	ss 37(1) and 37(2)
Interest and costs excluded	s 37(3)

Exceptions to monetary limits:

Exception	Section
Consent	s 45 (two limitations apply)
Abandonment of excess	s 38
Deduction of admitted debt	s 39

Nature of claim — excluded from Magistrates' Courts (s 46):

- Status claims (wills, mental capacity, perpetual silence)
- Specific performance valued over R200 000 (with narrow exceptions)

Territorial jurisdiction (s 28) — court has jurisdiction if:

- Defendant resides, carries on business, or is employed in its area — s 28(1)(a)
- Cause of action arose wholly within its area — s 28(1)(d)
- Consent was given — s 28(1)(f)
- Immovable property is situated there — s 28(1)(g)

High Court Jurisdiction

Key doctrine: Doctrine of effectiveness — the court must be able to make its judgment effective.

Ground	Meaning
Ratione domicilii	Defendant domiciled in court's area
Ratione rei gestae	Cause of action arose in court's area
Ratione rei sitae	Property forming subject matter is situated in court's area

Claims against foreign peregrini:

- Arrest to found/confirm jurisdiction abolished — Bid Industrial Holdings v Strang (SCA)
- Consent to jurisdiction remains valid
- Attachment to found jurisdiction (for money claims) — still available in limited form

Inherent jurisdiction: High Court has inherent jurisdiction to regulate proceedings and prevent abuse.

Stage One — Part 2 Pre-Litigation Issues

A: Demand

When is demand required?

01
Statute requires it:
- - Institution of Legal Proceedings against Organs of State Act 40 of 2002 — 30-day notice before suing the state
- - National Credit Act 34 of 2005 — before cancelling a credit agreement
- - Small Claims Court Act 61 of 1984
02To complete the cause of action — debts payable "on demand", placing debtor in mora, notice to cancel
03For interest — marks start of interest running on unliquidated debts
04For costs — demand may affect cost liability if action is premature

B: Calculation of Time Limits

Golden rule

- Court days -> time period appears in the Rules of Court (excludes weekends, public holidays, court recesses)

- Calendar days -> time period appears in an Act of Parliament (all days including weekends and holidays)

FOLI Rule (calculating within a period)

First Out, Last In

- Exclude the first day (the trigger event / dies a quo)
- Include the last day (the deadline / dies ad quem)

Calculating time after a period expires

- Begin counting from the day after the period expires.
- Service by post = add 10 days (HC rule 4(1)(aA); MC rule 9(14)).

C: Service of Legal Documents

Sheriff's role:

- The sheriff is the sole officer responsible for serving legal process.
- Service is a prerequisite for jurisdiction to be exercised over the defendant in most cases.

Methods of service — High Court (rule 4):

Method	Description
Personal service	Delivered to defendant personally
Domicilium service	Delivered to chosen address
Registered post	To defendant's last known address
Substituted service	By court order — when usual methods not possible
Edictal citation	Service outside South Africa (court order required)
Publication	In Gazette/newspaper (extreme circumstances)

Substituted service: Application to court under HC rule 4(2) / MC rule 9(12) — must show ordinary service impractical.

Edictal citation: Required for service outside the Republic. Applicant must show prima facie case and reason why service outside RSA is necessary.

Service vs jurisdiction

Service and jurisdiction are distinct concepts. Service can be effected outside the court's area without it conferring jurisdiction on that court.

D: Action or Application?

Feature	Action	Application
Starts with	Summons	Notice of motion
Factual disputes	Resolved by oral evidence at trial	Resolved on affidavits (or referred to oral evidence)
Court	Trial court	Motion court
Time	Generally slower	Generally faster
Best for	Genuine disputes of fact	Questions of law; undisputed facts

Real dispute of fact rule

Stage Two — Litigation

Stage Two — Part 1 Applications

Introduction

An application (motion proceedings) is the procedure used when facts are largely common cause and the dispute is one of law, or when the matter is urgent or ex parte.

Three types:

01On notice applications — respondent is notified and may oppose
02Ex parte applications — brought without notice to any other party
03Urgent applications — brought on shortened time periods (HC rule 6(12))

A: General Principles

Affidavits — form and content:

- Must be sworn/affirmed before a commissioner of oaths
- Must be in the first person
- Deponent must have personal knowledge (hearsay generally inadmissible)
- Must not contain: hearsay, scandalous/vexatious/irrelevant matter, or new inadmissible matter in replying affidavit

Notice of motion — HC rule 6(1):

- States prayers (relief sought) on front page
- Supporting affidavits attached
- Served on each respondent

B: On Notice Applications

10-step procedure (High Court)

Step	Action
1	Applicant files notice of motion and founding affidavits
2	Service on respondent
3	Respondent files notice of intention to oppose (HC: 5 court days after service)
4	Respondent files answering affidavits
5	Applicant files replying affidavits
6	Further affidavits (by leave of court only)
7	Set down for hearing
8	Heads of argument filed
9	Hearing
10	Optional: counter-application or joinder

Court's options when real dispute of fact arises on papers:

01Decide on affidavits alone (if dispute not genuine)
02Refer to oral evidence (limited issues)
03Refer to trial
04Dismiss the application with costs

C: Ex Parte Applications

Characteristics:

- No respondent or respondent not notified
- Applicant has duty of utmost good faith (uberrima fides) — must disclose all material facts, even if adverse
- Failure to disclose -> court may set aside order

Court's options:

- Grant final order
- Grant rule nisi (provisional order returnable on a specified date, calling on any affected party to show cause why it should not be confirmed)

Stage Two — Part 2 Actions

Introduction — The Four Stages of an Action

1. PLEADINGS -> 2. PRE-TRIAL -> 3. TRIAL -> 4. JUDGMENT

A: Pleadings

The Five Basic Steps

Step	Document	Served by
1	Summons + Particulars of Claim	Plaintiff
2	Notice of Intention to Defend	Defendant
3	Plea (+ possible counterclaim)	Defendant
4	Replication (if needed)	Plaintiff
5	Close of pleadings (litis contestatio)	—

Types of Summons

Type	When Used
Combined summons	Particulars of claim combined in summons; used for complex/disputed claims
Simple summons	Brief endorsement; particulars filed separately; used for liquid/straightforward claims
Provisional sentence summons	Liquid document claims — special procedure

Particulars of Claim — Must Include

01Citation of parties (name, capacity, address)
02Locus standi of each party
03Jurisdiction of the court
04Cause of action (material facts)
05Prayer (relief claimed)

Time Periods — Pleadings

Action	High Court	Magistrates' Courts
Notice of intention to defend	10 court days after service of summons (rule 19)	10 court days (rule 12)
Plea	20 court days after notice to defend (rule 22)	20 court days (rule 13)
Replication	15 court days after plea (rule 25)	10 court days (rule 18)
Declaration (if required)	15 court days after delivery of notice (rule 19(3))	15 court days

Automatic Bar

Important

If a party fails to deliver a pleading within the prescribed time, the other party may bar that party. The barred party must apply for removal of the bar before proceeding.

- HC rule 26 — automatic bar after time expires (without need for notice)
- MC rule 13(3) — similar automatic bar provisions

Close of Pleadings — Litis Contestatio

Pleadings close when:

- No further pleading required/permitted, OR
- Last required pleading has been delivered

Tip

After close of pleadings, the issues are crystallised. The plaintiff cannot change the basis of the claim without an amendment.

Responses to Defective Pleadings

Response	When Used
Exception	Pleading discloses no cause of action/defence; is vague and embarrassing
Application to strike out	Scandalous, vexatious, irrelevant matter
Application to set aside irregular step	Procedural irregularity (HC rule 30 / MC rule 60)
Enforcement/condonation	HC rule 30A (noncompliance); HC rule 27 (extension/condonation)
Amendment	HC rule 28 / MC rule 55A

Shortcut Judgments

Type	Requirements	Rule
Default Judgment	Defendant fails to appear / plead	HC rule 31; MC rule 12
Summary Judgment	Liquid document; liquidated amount; specific movables; ejectment	HC rule 32; MC rule 14
Consent / Confession to judgment	By agreement	HC rule 31(3); MC ss 57/58

Summary judgment — defendant's options to resist

1. Satisfy the court that they have a bona fide defence

2. Disclose fully the nature and grounds of the defence

3. Deny specifically the facts in the supporting affidavit

B: Pre-Trial Procedures

Step	Procedure	Rule
1	Set down	HC rules 38–40; MC rule 22
2	Discovery — notice to discover, inspect, specify, produce, admit	HC rule 35; MC rule 23
3	Medical/technical examinations	HC rule 36; MC rule 24
4	Further particulars for trial	HC rule 35(14); MC rule 23(15)
5	Subpoena of witnesses	HC rule 38; MC rule 25
6	Special evidence (expert, photographs, commission, interrogatories, affidavit)	HC rule 36
7	Pre-trial conference (mandatory in HC)	HC rule 37; MC rule 37
8	Final preparation — trial bundles, index/paginate court file	—

Discovery obligations

- Must discover ALL documents relevant to any issue in the action in the party's possession, custody or control

- Discovery affidavit: list documents you have + privilege claims

- Failure to discover -> document cannot be used at trial (HC rule 35(4))

C: Trial

High Court trial:

01Plaintiff opens (may call witnesses, lead evidence)
02Defendant's case (may call witnesses)
03Plaintiff may apply for absolution from the instance at end of plaintiff's case
04Closing arguments
05Judgment

Absolution from the instance:

- At the end of the plaintiff's evidence, defendant may apply if plaintiff has failed to establish a prima facie case
- Test: "Is there evidence upon which a reasonable court might find for the plaintiff?" (Gordon Lloyd Page v Rivera)

D: Judgment, Interest, and Costs

Judgment

Rescission of judgment (HC rule 42 / MC rule 49):

- Erroneously sought/granted in absence of party -> rescission as of right
- Good cause shown -> rescission in court's discretion
- Common law: fraud, justus error, etc.

Default judgment rescission

Two requirements: (1) sufficient cause for the default; (2) bona fide defence on the merits.

Interest

Type	Rate/Rule
Mora interest	Prescribed Rate of Interest Act 55 of 1975 (currently 10.25% per annum — verify current rate)
Tempore morae	Running from date of demand / summons / court order
Interest on judgment debt	From date of judgment

Costs

General rule: costs follow the result — the loser pays the winner's costs.

Scales of costs:

Scale	When
Party and party	Standard scale — all necessary and reasonable costs
Attorney and client	Punitive scale — gross misconduct or by agreement
Attorney and own client	Even more punitive — contractual; not payable by opponent

Stage Three — After Litigation

Stage Three — Part 1 Appeals and Reviews

A: Appeals

What Can Be Appealed

- Judgments, orders, and rulings that have a final and definitive effect on the parties' rights
- Not every ruling is appealable — only those that finally dispose of the issue

Appeal vs Fact vs Law

Type	Standard
Appeal on facts	The appeal court must be persuaded the trial court was clearly wrong
Appeal on law	Appeal court substitutes its own judgment
Discretionary matters	Must show the court misdirected itself or the result is so unreasonable no court could have reached it

Appeal Routes

Magistrates' Court decision
  -> High Court (usual route — full bench / single judge)
  -> OR direct to Constitutional Court (leapfrog in constitutional matters)

High Court decision
  -> Full court of High Court (leave required for some matters)
  -> Supreme Court of Appeal (SCA) — leave required
  -> Constitutional Court (on constitutional matters)

Leave to appeal

- Application for leave to appeal: to the court that made the order (within 15 court days of judgment — HC rule 49(1)(b))

- Test: reasonable prospect of success on appeal

- If refused: petition to SCA for special leave

Further Evidence on Appeal

From Colman v Dunbar 1933 AD 141:

01Evidence must be credible
02Must have been reasonably unavailable at trial
03Must be material to the outcome
04The court has a discretion whether to admit it

Rule: appeal court is **bound by the record** — cannot consider facts not before the court below.

B: Reviews

Feature	Reviews	Appeals
Purpose	Correct procedural irregularities	Correct wrong decisions
Ground	Irregularity in proceedings; excess of jurisdiction; gross irregularity	Error of law or fact
Court	High Court reviews Magistrates' Courts; SCA/CC review High Court	Up the hierarchy
Timing	Must bring promptly (within reasonable time)	Within prescribed time limits

Grounds for review:

- Absence of jurisdiction
- Interest in the cause
- Malice or corruption
- Gross irregularity
- Admission of inadmissible evidence / refusal to admit admissible evidence

Stage Three — Part 2 Debt Collection

A: Writs and Warrants of Execution

Court	Document	Purpose
High Court	Writ of execution	Attachment and sale of assets
Magistrates' Courts	Warrant of execution	Attachment and sale of assets

Order of attachment (Magistrates' Courts):

01Movables first
02Immovables only if movables insufficient

Property that CANNOT be attached (Magistrates' Courts):

- Necessary bedding, clothing, food
- Tools of the trade (up to R2 000 in value)
- Pension and certain welfare payments

Constitutional dimension

Incorporeal attachments:

- High Court: attachment of debts owed to judgment debtor by third party
- Magistrates' Courts:
- - Emoluments attachment order (EAO) — deduction from salary/wages at source
- - Garnishee order — attach debt owed to judgment debtor by third party

B: Section 65 Procedure

Purpose

Where judgment debtor is unable to pay, court examines their financial means and can order payment by instalments.

Section 65A procedure:

01Creditor applies for s 65A notice
02Judgment debtor served and required to appear before court
03Debtor discloses financial position under oath
04Court may order: instalment payments; emoluments attachment; administration order; or find debtor unable to pay

Section 65M: Debtor who fails to appear or comply can be dealt with as if in contempt.

C: Administration Orders

Note

Aimed at over-indebted debtors — distributes payments proportionally among creditors.

Procedure:

01Debtor applies (must list all debts)
02Court holds hearing
03Administration order granted — administrator appointed
04Administrator collects instalments from debtor, distributes pro rata to creditors
05Fees paid to administrator before creditors

Stage Four — Additional Procedures

A: Settlement

Types of offers:

Type	Effect
Unconditional offer	Cannot be used against offeror if refused; no cost consequence
Offer of compromise (HC rule 34 / MC rule 19)	If plaintiff refuses and then obtains less at trial -> defendant may be entitled to costs from date of offer

Recording settlements:

- General settlement agreement
- Made order of court
- Confession to judgment (HC rule 31(3))
- Admission of liability (MC s 57) / Consent to judgment (MC s 58)

B: Provisional Sentence

Definition

Summary procedure to obtain payment on a liquid document, subject to the defendant's right to bring a principal case later.

Requisites:

01Liquid document — written, signed, acknowledges a fixed/determinable sum
02Defendant has no defence visible from the document

Effect:

- Plaintiff entitled to receive payment provisionally
- Defendant may still bring a principal case (action in conventional form)
- If defendant wins principal case -> entitled to repayment + costs

C: Interim Relief Pending Judgment

Two types (HC rules 34A and 43):

Type	Rule	When
Interim relief for bodily injury claims	HC rule 34A / MC rule 18A	Where defendant appears able to pay; plaintiff in need
Interim relief for divorce	HC rule 43 / MC rule 58	Maintenance, interim care of children, use of motor vehicle/home

D: Arrest Tanquam Suspectus de Fuga

Warning

Abolished as unconstitutional — Malachi v Cape Dance Academy International (Constitutional Court).

Do not advise clients to use this procedure.

E: Multiple Parties and Actions

Joinder of parties:

- HC rule 10 — joinder of several causes of action / multiple plaintiffs or defendants
- MC rule 28 — joinder in Magistrates' Courts

Test for mandatory joinder: A party must be joined if they have a direct and substantial interest in the subject matter of the litigation (Gordon v Department of Health, KZN).

Consolidation of actions:

- HC rule 11 — where multiple actions arise from the same cause or involve common questions
- MC rule 29 — similar provision

Third party procedure:

- HC rule 13 / MC rule 28A
- Defendant may join a third party who may be liable to contribute

F: Interdicts

Two types:

Type	Purpose
Prohibitory interdict	Orders a party to refrain from doing something
Mandatory interdict	Orders a party to do something

Final interdict — requirements (Setlogelo test):

01A clear right
02An injury actually committed or reasonably apprehended
03Absence of any other satisfactory remedy

Interim interdict — requirements:

01A prima facie right (even if open to some doubt)
02Well-grounded apprehension of irreparable harm if interim relief not granted
03Balance of convenience favours granting relief
04Absence of any other satisfactory remedy

Exam distinction

Final interdict = clear right. Interim interdict = prima facie right. The latter is lower threshold but comes with an undertaking as to damages.

Remedies for breach of interdict:

- Contempt of court proceedings
- Committal to prison
- Fine

G: Drastic Procedures

Anton Piller Orders

Definition

An ex parte order authorising the applicant to enter the respondent's premises to search for, inspect, and remove evidence before the respondent can destroy it.

Requirements:

01Prima facie case against the respondent
02Respondent has in their possession vital evidence/documents/goods
03Real possibility that evidence will be destroyed if the respondent is forewarned

Procedural safeguards:

- Supervising attorney must be present
- Respondent's legal representative must be notified and may be present
- Inventory of items taken
- Order must specify time limits

Knox D'Arcy Interdicts (Mareva Injunctions)

Definition

Freezes the respondent's assets pending judgment to prevent dissipation.

What applicant must show:

01Good arguable case on the merits
02Respondent has assets within the jurisdiction
03Real risk of asset dissipation
04Balance of convenience favours the order

Spoliation Orders (Mandament van Spolie)

Purpose: Restore peaceful possession of property to the dispossessed party.

Requirements:

01Applicant was in peaceful and undisturbed possession
02Applicant was unlawfully deprived of possession

Note

The mandament van spolie restores possession — it does not determine rights to the property. The reivindicatio (ownership action) is separate.

H: Declarations of Rights and Stated Cases

Declaratory order: Court declares the existing, future, or contingent rights/obligations of parties. Requires:

- An existing dispute or difficulty
- Not merely academic or hypothetical

Special cases — HC rule 33:

- Rule 33(1)–(3): Parties may state a special case (agreed facts) for the court to decide
- Rule 33(4): Court may order separation of issues
- Rule 33(6): Court may decide the case on a stated point of law

I: Small Claims Court Procedures

Jurisdiction:

Feature	Rule
Monetary limit	R20 000 (Small Claims Court Act 61 of 1984)
Area of jurisdiction	Local area as per the Act
Excluded persons	Juristic persons may NOT bring claims (but can be cited as defendants)
Excluded claims	Liquid documents (unless for goods bought + services rendered); status; lease of land; malicious prosecution; defamation; liberty

Procedure:

01Letter of demand (30 days before summons)
02Summons issued by clerk of court
03Defendant files statement of defence
04Hearing before commissioner (not a professional judge)
05No legal representation (attorneys excluded from appearing)
06Informal, inquisitorial procedure

J: Other Civil Courts

Court	Governing legislation	Jurisdiction
Admiralty Courts	Admiralty Jurisdiction Regulation Act 105 of 1983	Maritime matters
Tax Courts	Tax Administration Act 28 of 2011	Tax disputes
Competition Appeal Court	Competition Act 89 of 1998	Competition matters
Labour Courts	Labour Relations Act 66 of 1995	Labour disputes
Land Claims Court	Restitution of Land Rights Act 22 of 1994	Land claims
Equality Courts	Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000	Discrimination

Annexures and Special Topics

A: Alternative Dispute Resolution (ADR)

Key forms:

Form	Description
Negotiation	Parties resolve dispute directly
Mediation	Neutral facilitates resolution; non-binding
Arbitration	Arbitrator makes binding award; governed by Arbitration Act 42 of 1965
Conciliation	Conciliator proposes solution

Note

ADR clauses in contracts are not always enforceable as a bar to litigation, but courts increasingly encourage ADR.

B: Impact of NCA and CPA

National Credit Act 34 of 2005:

- Regulates credit agreements — reckless credit, debt counselling, s 129 notice (required before enforcement)
- Debt review mechanism: once under debt review, creditor cannot proceed with legal action

Consumer Protection Act 68 of 2008:

- Applies to most goods and services transactions
- Affects limitation of liability clauses, warranties on goods

Key Cases Index

Case	Principle	Stage
Bid Industrial Holdings v Strang (SCA)	Arrest of foreign peregrinus to found jurisdiction abolished	Stage 1C
Nedcor Bank v Hennop	Requiring marital status in summons unconstitutional	Stage 1A
Jaftha v Schoeman; Gundwana v Steko (CC)	s 26 housing right limits execution against homes	Stage 3
Twee Jonge Gezellen v Land Bank (CC)	Provisional sentence subject to constitutional limitations	Stage 4B
Malachi v Cape Dance Academy International (CC)	Arrest tanquam suspectus de fuga unconstitutional	Stage 4D
Plascon-Evans Paints v Van Riebeeck Paints	Dispute of fact in application proceedings — respondent's facts accepted	Stage 1D
Colman v Dunbar 1933 AD 141	Test for admitting further evidence on appeal	Stage 3A
Gordon Lloyd Page v Rivera	Test for absolution from the instance	Stage 2A
Gordon v Department of Health, KZN	Test for mandatory joinder	Stage 4E

Statutory References Quick-Ref

Statute	Short Reference	Key Provisions in This Subject
Magistrates' Courts Act 32 of 1944	MCA	ss 28, 29, 37–40, 43, 45, 46, 57, 58, 65, 65A, 65M
Superior Courts Act 10 of 2013	SCA Act	Court structure; judges; appeals
Constitution, 1996	Constitution	ss 9, 26, 34, 38
Institution of Legal Proceedings against Organs of State Act 40 of 2002	Organs of State Act	30-day notice requirement
National Credit Act 34 of 2005	NCA	s 129 notice; debt review
Consumer Protection Act 68 of 2008	CPA	Consumer rights in litigation
Small Claims Court Act 61 of 1984	SCCA	R20 000 jurisdiction; procedure
Arbitration Act 42 of 1965	Arbitration Act	Arbitration agreements and awards
Insolvency Act 24 of 1936	Insolvency Act	s 23; trustee's locus standi
Matrimonial Property Act 88 of 1984	MPA	s 17; consent to litigate
Prevention of Organised Crime Act 121 of 1988	POCA	Civil recovery; preservation orders
Domestic Violence Act 116 of 1998	DVA	Protection orders

Time Limits Quick-Reference

Action	Court	Period	Type
Notice of intention to defend	HC + MC	10 court days after service of summons	Court days
Plea	HC + MC	20 court days after notice to defend	Court days
Replication	HC	15 court days after plea	Court days
Replication	MC	10 court days after plea	Court days
Notice of intention to oppose (application)	HC	5 court days after service	Court days
Leave to appeal application	HC	15 court days after judgment	Court days
Review application	MC->HC	Within reasonable time; MC rule 53(1)	Court days
Notice of bar	HC	After relevant time expires (rule 26)	—
S 65A appearance	MC	Per notice — usually 10–14 days	Calendar days
Organs of State notice	Any	30 days before summons	Calendar days
Service by post — add	HC + MC	10 days to time periods	Calendar days

Exam Technique Tips

How to answer a civil procedure problem

1. Identify the cause of action (substantive law)

2. Check locus standi of each party

3. Determine jurisdiction — type + territorial

4. Pre-litigation — demand? Time limits? Service requirements?

5. Choose procedure — action or application?

6. Work through the procedural steps in sequence

7. Apply rule numbers — Uniform Rules (HC) or Magistrates' Courts Rules (MC)

8. Note constitutional implications if the matter involves a state organ, a home, or fundamental rights

[!NOTE] Citing rules

- High Court: "HC rule X" = Uniform Rule of Court X

- Magistrates' Courts: "MC rule X" = Magistrates' Courts Rule X

- Do not confuse the two systems

Last updated: 2026-06-18 | Based on: Civil Procedure: A Practical Guide, 3rd Ed., 2016

Civil Procedure — Master Study Guide

Navigation

General Introduction

Civil Procedure vs Substantive Law

The Court Hierarchy

Impact of the Constitution

The Four-Stage Mind Map

Stage One — Before Litigation

Stage One — Part 1 Preliminary Questions

A: Cause of Action

B: Locus Standi

Constitutional extension — s 38 (Bill of Rights matters only)

Capacity to Litigate

C: Jurisdiction

Magistrates' Court Jurisdiction — Magistrates' Courts Act 32 of 1944

High Court Jurisdiction

Stage One — Part 2 Pre-Litigation Issues

A: Demand

B: Calculation of Time Limits

FOLI Rule (calculating within a period)

Calculating time after a period expires

C: Service of Legal Documents

D: Action or Application?

Stage Two — Litigation

Stage Two — Part 1 Applications

Introduction

A: General Principles

B: On Notice Applications

C: Ex Parte Applications

Stage Two — Part 2 Actions

Introduction — The Four Stages of an Action

A: Pleadings

The Five Basic Steps

Types of Summons

Particulars of Claim — Must Include

Time Periods — Pleadings

Automatic Bar

Close of Pleadings — Litis Contestatio

Responses to Defective Pleadings

Shortcut Judgments

B: Pre-Trial Procedures

C: Trial

D: Judgment, Interest, and Costs

Judgment

Interest

Costs

Stage Three — After Litigation

Stage Three — Part 1 Appeals and Reviews

A: Appeals

What Can Be Appealed

Appeal vs Fact vs Law

Appeal Routes

Further Evidence on Appeal

B: Reviews

Stage Three — Part 2 Debt Collection

A: Writs and Warrants of Execution

B: Section 65 Procedure

C: Administration Orders

Stage Four — Additional Procedures

A: Settlement

B: Provisional Sentence

C: Interim Relief Pending Judgment

D: Arrest Tanquam Suspectus de Fuga

E: Multiple Parties and Actions

F: Interdicts

G: Drastic Procedures

Anton Piller Orders

Knox D'Arcy Interdicts (Mareva Injunctions)

Spoliation Orders (Mandament van Spolie)

H: Declarations of Rights and Stated Cases

I: Small Claims Court Procedures

J: Other Civil Courts

Annexures and Special Topics

A: Alternative Dispute Resolution (ADR)

B: Impact of NCA and CPA

Key Cases Index

Statutory References Quick-Ref

Time Limits Quick-Reference

Exam Technique Tips

Civil Procedure Study Dashboard