Civil Procedure — Concept Index

Absolution from the instance Definition: Application by defendant at end of plaintiff's evidence arguing no prima facie case has been made out. Test: "Could a reasonable court find for the plaintiff?" (Gordon Lloyd Page v Rivera) → Stage 2C: Trial | Card 17

Action procedure Definition: Litigation by summons; factual disputes resolved by oral evidence at trial. → Stage 1D | Card 9

Administration orders Definition: Order distributing debt payments among creditors via an administrator. → Stage 3, Part 2C

ADR (Alternative Dispute Resolution) Definition: Negotiation, mediation, arbitration, conciliation as alternatives to litigation. → Annexure A | Arbitration Act 42 of 1965

Affidavit Definition: Written statement sworn/affirmed before a commissioner of oaths; primary evidence in application proceedings. Rules: HC rule 6 / MC rule 55 → Stage 2, Part 1A

Amendment of pleadings Definition: Procedure to correct or alter a pleading after it has been filed. Rules: HC rule 28 / MC rule 55A Three stages: notice → objection → giving effect → Stage 2A: Pleadings

Anton Piller order Definition: Ex parte order to enter premises and seize evidence. Requirements: Prima facie case + vital evidence + real risk of destruction → Stage 4G | Card 24

Appeal Definition: Challenge to a decision on grounds of error of fact or law. Route: MC → HC → SCA / CC Leave required: s 17(1) Superior Courts Act 10 of 2013 → Stage 3A | Card 18

Application procedure Definition: Litigation by notice of motion; disputes resolved on affidavits. → Stage 2, Part 1 | Card 9

Arrest tanquam suspectus de fuga Definition: Arrest of a debtor suspected of fleeing to avoid judgment. ABOLISHED — unconstitutional. Case: Malachi v Cape Dance Academy International (CC) → Stage 4D

Attachment (execution) Definition: The sheriff's seizure of debtor's property to satisfy a judgment debt. → Stage 3, Part 2A | Card 21

Automatic bar Definition: Bar that operates automatically when a party fails to deliver a pleading within prescribed time. Rules: HC rule 26 / MC rule 13(3) → Stage 2A: Pleadings

Bar / Barring Definition: Procedural sanction preventing a party from taking further steps until compliance. → Stage 2A: Pleadings

Bill of Rights — locus standi Section 38 Constitution — extended standing for Bill of Rights enforcement. → Stage 1B | Card 2

Bona fide defence Definition: Genuine defence on the merits; required to resist summary judgment and to rescind default judgment. → Card 13 | Card 14

Calendar days Definition: All days including weekends and public holidays. Applies to Acts of Parliament. Contrast: Court days → Card 7 | Stage 1, Part 2B

Cause of action Definition: The set of facts which, in law, entitles the plaintiff to claim relief. Common types: delict, contract, divorce, liquid document → Stage 1A | Card 1

Close of pleadings (Litis Contestatio) Definition: The point at which all required pleadings have been delivered and issues are crystallised. → Stage 2A: Pleadings

Combined summons Definition: Summons with particulars of claim incorporated in the summons document; used for complex claims. Rule: HC rule 17 / MC rule 5 → Card 10

Condonation Definition: Court's discretion to excuse non-compliance with rules or time limits. Rule: HC rule 27 / MC rule 60 → Stage 2A: Responses

Consolidation of actions Definition: Combining separate actions involving common questions or parties. Rules: HC rule 11 / MC rule 29 → Stage 4E

Consumer Protection Act 68 of 2008 (CPA) Relevant provisions: warranties, limitations on liability, consumer rights in litigation. → Annexure B

Contempt of court Relevant context: s 65M MCA (failure to appear in s 65 proceedings); breach of interdict orders. → Stage 4F

Contract (cause of action) Elements: Valid agreement + breach + damages or specific performance → Stage 1A

Costs General rule: costs follow the result (loser pays). Scales: party and party (standard); attorney and client (punitive); attorney and own client. → Stage 2D

Counter-application Definition: Application brought by respondent in response to applicant's application. → Stage 2, Part 1B

Court days Definition: Days when the court is open (excludes weekends, public holidays, court recesses). Applies to: Rules of Court Contrast: Calendar days → Card 7

Curator ad litem Definition: Person appointed to litigate on behalf of an incapacitated person for the specific litigation only. Rule: HC rule 57 → Card 3 | Stage 1B

Curator bonis Definition: Person appointed to manage the entire estate of an incapacitated person. → Card 3

Declarations of rights Definition: Order declaring the existing, future, or contingent rights/obligations of parties. Rule: HC rule 33 → Stage 4H

Default judgment Definition: Judgment obtained when the defendant fails to appear, defend, or plead. Rule: HC rule 31 / MC rule 12 Grounds: (1) default of appearance; (2) default of pleadings; (3) default at trial → Stage 2A | Card 14

Delict (cause of action) Elements: Conduct + unlawfulness + fault + causation + damage → Stage 1A

Demand Definition: Formal notice to defendant to perform or cease. When required: statute; to complete cause of action; for interest/costs → Stage 1, Part 2A

Discovery Definition: Pre-trial procedure requiring disclosure of all relevant documents. Rule: HC rule 35 / MC rule 23 → Stage 2B | Card 15

Divorce (cause of action) Elements: Valid marriage + irretrievable breakdown Procedure: HC (Regional MC for divorce in Magistrates' Court system) → Stage 1A

Doctrine of effectiveness Definition: High Court principle that it must be able to enforce any judgment it grants. → Stage 1C

Edictal citation Definition: Service of process on a person outside South Africa; requires court order. Rule: HC rule 4(2) / MC rule 9(12) → Stage 1, Part 2C | Card 8

Emoluments attachment order (EAO) Definition: Order attaching wages/salary of judgment debtor at source. Rule: MC rules and s 65 MCA Distinguish: Garnishee order (attaches debt from third party) → Stage 3, Part 2A

Exception Definition: Objection to a pleading on grounds that it is (a) bad in law (no cause of action / defence) or (b) vague and embarrassing. Rule: HC rule 23 / MC rule 14A → Stage 2A | Card 12

Ex parte application Definition: Application brought without notice to any other party. Duty: Utmost good faith (uberrima fides) — full disclosure of all material facts. → Stage 2, Part 1C

FOLI Rule Definition: Method to calculate time within a period — First day Out, Last day In. → Card 7 | Stage 1, Part 2B

Further evidence on appeal Test (Colman v Dunbar 1933 AD 141): Credible + unavailable at trial + material. → Card 19 | Stage 3A

Further particulars For pleading purposes: HC rule 35(12) / MC rule 23(13) For trial purposes: HC rule 35(14) / MC rule 23(15) → Stage 2B

Garnishee order Definition: Order attaching a debt owed by a third party to the judgment debtor. Distinguish from: Emoluments attachment order (EAO) → Stage 3, Part 2A

In forma pauperis Definition: Representation of indigent persons in the High Court without payment of fees. → Stage 1B

Institution of Legal Proceedings against Organs of State Act 40 of 2002 Key provision: 30-day notice required before suing a state organ or state. → Stage 1, Part 2A

Interdict Definition: Court order prohibiting (prohibitory) or compelling (mandatory) specific conduct. Final: clear right + injury + no other remedy Interim: prima facie right + irreparable harm + balance of convenience + no other remedy → Stage 4F | Card 23

Interim interdict Requirements (Setlogelo test): Prima facie right + well-grounded apprehension of irreparable harm + balance of convenience + no other adequate remedy. → Card 23

Interim relief pending judgment Two types: Bodily injury (HC rule 34A / MC rule 18A); Divorce (HC rule 43 / MC rule 58) → Stage 4C

Interpleader proceedings Definition: Procedure where a third party claims an interest in property attached in execution. Rule: HC rule 58 / MC rule 44 → Stage 3, Part 2A

Joinder of parties Definition: Adding multiple plaintiffs or defendants to a single action. Mandatory joinder: party has direct and substantial interest (Gordon v Dept of Health, KZN) Rule: HC rule 10 / MC rule 28 → Stage 4E

Judgment Effect: Creates an obligation enforceable by execution. Rescission: HC rule 42; good cause + bona fide defence (discretionary) → Stage 2D

Jurisdiction Definition: The power of a court to hear a matter. Two questions: (1) Which type? (2) Which particular? Timing: Determined at time action is instituted. → Stage 1C | Card 4 | Card 5 | Card 6

Leave to appeal Definition: Permission required before bringing certain appeals. Test: Reasonable prospect of success (s 17 Superior Courts Act 10 of 2013) Time: 15 court days after judgment (HC rule 49(1)(b)) → Card 18 | Stage 3A

Liquid document Definition: Written, signed acknowledgement of a fixed/determinable debt. Examples: Cheque, mortgage bond, acknowledgement of debt (AOD) Uses: Summary judgment; provisional sentence → Stage 1A | Card 25

Litis contestatio → see Close of pleadings

Locus standi Definition: Right to bring a claim — requires direct/substantial interest + capacity to litigate. Extended by s 38 Constitution for Bill of Rights matters. → Stage 1B | Card 2

Magistrates' Courts Act 32 of 1944 (MCA) Key sections: 28 (territorial jurisdiction), 29 (monetary limits), 37–40 (calculations), 43 (combining claims), 45 (consent), 46 (nature exclusions), 57/58 (consent to judgment), 65 (examination of debtor) → Statutory Quick-Ref

Mandatory interdict → see Interdict

Mandament van spolie → see Spoliation order

Mareva injunction → see Knox D'Arcy interdict

Medical examination Pre-trial: HC rule 36 / MC rule 24 — claimant for bodily injuries may be required to undergo examination. → Stage 2B

Mora interest Definition: Interest payable on overdue debt; prescribed by Prescribed Rate of Interest Act 55 of 1975. → Stage 2D

National Credit Act 34 of 2005 (NCA) Key provisions: s 129 notice before enforcement; debt counselling/review; reckless credit. Effect on procedure: If under debt review, creditor cannot proceed with legal action. → Annexure B

Notice of intention to defend Definition: Formal notice that defendant intends to oppose the action. Time: 10 court days after service of summons (HC rule 19 / MC rule 12) → Stage 2A

Notice of intention to oppose (application) Definition: Respondent's notice that they intend to oppose an application. Time: 5 court days after service of application (HC rule 6(5)(b)) → Stage 2, Part 1B

Notice of motion Definition: Document initiating application proceedings; states relief sought. Rule: HC rule 6(1) / MC rule 55 → Stage 2, Part 1

Offer of compromise Definition: Formal offer of settlement that has cost consequences if refused and plaintiff does not beat it at trial. Rule: HC rule 34 / MC rule 19 → Stage 4A

Organs of State Act → see Institution of Legal Proceedings against Organs of State Act 40 of 2002

Particulars of claim Definition: Document pleading the plaintiff's cause of action in full. Must include: Citation + locus standi + jurisdiction + cause of action + prayer → Stage 2A

Peregrinus (foreign) Definition: A person who is not resident in the court's area of jurisdiction. Effect: Arrest to found jurisdiction abolished (Bid Industrial Holdings v Strang) → Stage 1C

Plea Definition: Defendant's pleading in response to the particulars of claim. Time: 20 court days after notice to defend (HC rule 22 / MC rule 13) Types: Bare denial, admission, special plea, plea on merits → Stage 2A

Plascon-Evans rule Plascon-Evans Paints v Van Riebeeck Paints: In application proceedings where facts are disputed, the court accepts the respondent's version unless palpably false or clearly untenable. → Stage 1D

Power of attorney Required for an attorney to act on behalf of a party. → Stage 1B

Prayer Definition: The relief claimed by the plaintiff/applicant in the summons or notice of motion. → Stage 2A

Pre-trial conference Definition: Mandatory conference before trial to define issues and reduce trial time. Rule: HC rule 37 / MC rule 37 → Stage 2B | Card 16

Prohibitory interdict → see Interdict

Proportionality (s 26 execution) Courts must consider proportionality before ordering execution against a home. Cases: Jaftha v Schoeman; Gundwana v Steko (Constitutional Court) → Card 21

Provisional sentence Definition: Summary procedure to enforce a liquid document, subject to defendant's right to bring a principal case. → Stage 4B | Card 25

Ratione domicilii / rei gestae / rei sitae The three main grounds of High Court jurisdiction. → Card 6 | Stage 1C

Real dispute of fact Definition: A genuine bona fide dispute about material facts that cannot be resolved on the papers. Effect in applications: Court refers matter to oral evidence or trial. Case: Plascon-Evans Paints v Van Riebeeck Paints → Stage 1D

Reivindicatio Definition: Ownership action to recover possession of property. Distinguish from: Mandament van spolie (possession only) → Stage 4G

Replication Definition: Plaintiff's pleading in response to the defendant's plea. Time: 15 court days (HC rule 25) / 10 court days (MC rule 18) → Stage 2A

Rescission of judgment Grounds: HC rule 42 — erroneously granted (as of right) OR good cause shown. Test: Sufficient cause for default + bona fide defence. → Stage 2D

Review Definition: Challenge to a decision on grounds of procedural irregularity. Distinguish from: Appeal (error in the decision itself) Grounds: No jurisdiction, bias, corruption, gross irregularity, wrong evidence. → Stage 3B | Card 20

Rule nisi Definition: Provisional court order calling on any affected party to show cause why it should not be confirmed. → Stage 2, Part 1C

Section 65 procedure → see Card 22 | Stage 3, Part 2B

Setlogelo test → see Interdict and Card 23

Service Definition: Formal delivery of legal process by the sheriff. Distinct from: Jurisdiction Rule: HC rule 4 / MC rule 9 → Card 8 | Stage 1, Part 2C

Settlement Offer of compromise (HC rule 34); Rule 41 settlements (HC); SS 57/58 MCA (consent/admission). → Stage 4A

Sheriff Definition: Officer of the court responsible for serving legal process and executing warrants. → Stage 1, Part 2C

Simple summons Definition: Summons with brief endorsement; declaration or POC filed separately. → Card 10

Small Claims Court Jurisdiction: R20 000; natural persons only as claimants; no legal representation. → Stage 4I | Card 27

Special plea Definition: Plea raising a preliminary legal objection (e.g. prescription, res judicata, lis pendens). Filed alongside plea on the merits. → Stage 2A

Spoliation order (Mandament van spolie) Definition: Urgent order restoring possession; does not determine rights. Requirements: Peaceful possession + unlawful deprivation. → Stage 4G | Card 26

Strike out (application to) Definition: Application to remove scandalous, vexatious, or irrelevant matter from a pleading. → Stage 2A

Structural interdict Definition: Interdict requiring ongoing compliance through a supervisory mechanism. → Stage 4F

Subpoena Definition: Court process requiring a person to appear as a witness. Subpoena duces tecum: Also requires witness to produce documents. Rule: HC rule 38 / MC rule 25 → Stage 2B

Substituted service Definition: Service by court-authorised alternative method when ordinary service is impractical. Rule: HC rule 4(2) / MC rule 9(12) → Card 8

Summary judgment Definition: Shortcut judgment where defendant has no bona fide defence. Claims: Liquid document / liquidated amount / delivery of movables / ejectment. Rule: HC rule 32 / MC rule 14 → Stage 2A | Card 13

Summons Definition: Document issued by the plaintiff to initiate action proceedings. Types: Combined; Simple; Provisional sentence Rule: HC rule 17 / MC rule 5 → Card 10

Superior Courts Act 10 of 2013 Key provisions: Court structure; appeals (s 17); inherent jurisdiction. → Statutory Quick-Ref

Third party procedure Definition: Defendant joins a third party who may be liable to indemnify or contribute. Rule: HC rule 13 / MC rule 28A → Stage 4E

Time limits → see Time Limits Quick-Ref and Card 7

Trial Definition: Oral hearing where parties lead evidence and argue their case. → Stage 2C

Uberrima fides (utmost good faith) Definition: Duty of full and frank disclosure required in ex parte applications. Effect: Non-disclosure → order may be set aside. → Stage 2, Part 1C

Uniform Rules of Court Definition: Rules governing practice and procedure in the High Court. Key rules cited in this subject: 4, 6, 8, 9, 10, 13, 17, 19, 22, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 42, 45, 49, 51, 57, 58 → Referenced throughout Civil_Procedure_Master_Guide

Urgent application Definition: Application brought on shortened time periods due to urgency. Rule: HC rule 6(12) / MC rule 55(2) → Stage 2, Part 1A

Vague and embarrassing One of the two grounds for an exception — pleading is so vague the defendant cannot reasonably plead to it. Rule: HC rule 23 / MC rule 14A → Card 12

Warrant of execution → see Writ of execution (MC equivalent)

Without prejudice offer Definition: Settlement offer that cannot be used as evidence against the offeror if the matter proceeds to trial. → Stage 4A

Writ of execution Definition: HC document authorising sheriff to attach and sell assets of judgment debtor. MC equivalent: Warrant of execution → Card 21 | Stage 3, Part 2A

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