Civil Procedure — Knowledge Cards

Card 1 — Cause of Action

Definition: The set of facts which, in law, entitles the plaintiff to claim relief from the defendant.

Rule/Section: Substantive law question (not procedural) — precedes all procedural choices.

Key case: McKenzie v Farmer's Co-op Meat Industries — identified elements of pleading a cause of action.

Exam tip: Every POC (particulars of claim) must disclose a complete cause of action. Failure → defendant can except.

Mnemonic: FUBP — Facts that are Underlying the Basis for the Prayer (relief claimed).

Card 2 — Locus Standi

Definition: The right or standing to bring a claim before a court. Two requirements: (1) direct and substantial interest; (2) capacity to litigate.

Rule/Section: Constitutional extension at s 38 of the Constitution for Bill of Rights matters.

Key case: Dalrymple v Colonial Treasurer 1910 TS 372 — established the common-law "direct and substantial interest" test.

Exam tip: Distinguish between locus standi (right to bring the action) and capacity to litigate (legal ability to act). Both must be present.

Mnemonic: DIC — Direct interest, Interest must be substantial, Capacity to litigate.

Card 3 — Curator Ad Litem vs Curator Bonis

Definition:

Rule/Section: HC rule 57 (appointment of curator ad litem for mentally ill persons).

Key case: Application-based — court appoints on report of Medical Superintendent + Master of the High Court.

Exam tip: The curator ad litem is always appointed first; they investigate and report; the curator bonis may then be appointed to manage estate generally.

Mnemonic: Litem = Litigation; Bonis = Belongings (estate).

Card 4 — Jurisdiction: Magistrates' Court Monetary Limits

Definition: The maximum amount of a claim that the Magistrates' Court can hear.

Rule/Section:

Key case: Nedbank v Gcabashe — illustrated abandonment of excess to bring claim within jurisdiction.

Exam tip: Remember the exceptions — consent (s 45), abandonment (s 38), deduction of admitted debt (s 39).

Mnemonic: D200 R400 CAD — District 200k, Regional 400k, Consent / Abandonment / Deduction as exceptions.

Card 5 — Territorial Jurisdiction (Magistrates' Court)

Definition: Which particular Magistrates' Court (in which geographic area) has jurisdiction.

Rule/Section: s 28 MCA:

Key case: Consider where each element of the cause of action arose — wholly = every element.

Exam tip: "Wholly" in s 28(1)(d) is strict — if any element of the cause of action arose elsewhere, this ground fails.

Mnemonic: RACEWIG — Reside, Carry on business, Employ = s28(1)(a); Wholly in area = s28(1)(d); Immovable property = s28(1)(g).

Card 6 — High Court Grounds of Jurisdiction

Definition: The connecting factors between the dispute and the geographic area of a High Court division.

Rule/Section: Common law grounds:

Key case: Doctrine of effectiveness — court must be able to give effect to its judgment.

Exam tip: For money claims against foreign peregrini, old arrest to found jurisdiction was abolished in Bid Industrial Holdings v Strang — use consent or attachment of local assets.

Mnemonic: 3 Rs: Domicile, Gestae, Sitae (where they Live, where it Happened, where it Sits).

Card 7 — FOLI Rule

Definition: Method for calculating time periods within a fixed period.

Rule/Section: Applies to both Uniform Rules and Magistrates' Courts Rules.

Key case: HC rule 4(1)(aA) — service by post: add 10 days to any time period.

Exam tip: Court days vs calendar days: Rules of Court = court days; Acts of Parliament = calendar days.

Mnemonic: FOLI — First Out, Last In. Think: you FOLI the rules.

Card 8 — Service Methods (High Court)

Definition: Formal delivery of legal process to a party or person.

Rule/Section: HC rule 4:

Key case: Service is a prerequisite — judgment without proper service can be set aside.

Exam tip: Service ≠ jurisdiction. Service outside the court's territorial area does NOT grant jurisdiction; jurisdiction must be established independently.

Mnemonic: P-D-R-S-E — Personal, Domicilium, Registered post, Substituted, Edictal.

Card 9 — Action vs Application

Definition:

Rule/Section:

Key case: Plascon-Evans Paints v Van Riebeeck Paints — where real dispute of fact, respondent's version prevails in application proceedings (unless palpably false).

Exam tip: Real dispute of fact → refer to trial. Use application when facts are common cause or dispute is one of law.

Mnemonic: ACTION = Affidavits Converted To Real Oral Narration (at trial). APPLICATION = Affidavits.

Card 10 — Types of Summons

Definition:

Rule/Section: HC rule 17 / MC rule 5.

Key case: Choice of summons affects subsequent procedural steps (declaration requirement).

Exam tip: Simple summons → plaintiff may be required to file a declaration within 15 days of defendant's request.

Mnemonic: CSP — Combined (complex), Simple (quick), Provisional sentence (liquid docs).

Card 11 — Pleadings Time Periods

Rule/Section: HC rules 19, 22, 25; MC rules 12, 13, 18.

Mnemonic: 10-20-15 HC | 10-20-10 MC — Defend 10, Plea 20, Replicate 15 (HC) or 10 (MC).

Card 12 — Exception

Definition: An objection to a pleading on the ground that it is either (a) bad in law — does not disclose a cause of action or defence; or (b) vague and embarrassing.

Rule/Section: HC rule 23 / MC rule 14A.

Key case: Trope v South African Reserve Bank — vague and embarrassing test.

Exam tip:

Mnemonic: BOVE — Bad in law (no cause/defence), Or Vague and Embarrassing.

Card 13 — Summary Judgment

Definition: Shortcut judgment available where the defendant clearly has no bona fide defence.

Rule/Section: HC rule 32 / MC rule 14.

Permissible claims:

Key case: Joob Joob Investments v Stocks — defendant must deal fully and specifically with every fact in supporting affidavit.

Exam tip: Defendant's options: (1) satisfy court of bona fide defence; (2) show material dispute of fact. Court has discretion to grant leave to defend unconditionally or conditionally.

Mnemonic: LLDE — Liquid document, Liquidated money, Delivery of movables, Ejectment.

Card 14 — Default Judgment

Definition: Judgment obtained where defendant fails to appear or plead.

Rule/Section: HC rule 31 / MC rule 12.

Three grounds:

Key case: For rescission: Chetty v Law Society — two-stage test: (1) sufficient cause for default; (2) bona fide defence.

Exam tip: Rescission under HC rule 42(1) — erroneously granted: as of right. Discretionary under HC rule 31(2)(b) — show good cause.

Mnemonic: Default = Absent → Judge wins by walkover. Rescission = Explain absence + Show defence.

Card 15 — Discovery

Definition: Pre-trial procedure requiring each party to disclose all relevant documents in their possession, custody, or control.

Rule/Section: HC rule 35 / MC rule 23.

Process:

Key case: Swissborough Diamond Mines v Government of RSA — broad scope of discovery.

Exam tip: Undiscovered document = cannot be used at trial (HC rule 35(4)). Strategic: always demand discovery early.

Mnemonic: 5 Notices: Discover → Inspect → Specify → Produce → Admit (DISPA).

Card 16 — Pre-Trial Conference

Definition: Mandatory conference between parties before trial to identify issues, agree facts, and reduce time at trial.

Rule/Section: HC rule 37 / MC rule 37.

Purpose (HC rule 37 minute):

Key case: Failure to comply with rule 37 → cost sanctions.

Exam tip: The rule 37 minute binds the parties at trial. Non-compliance can result in an adverse costs order.

Mnemonic: Rule 37 = Ready to Try? Agree, Reduce, Prepare.

Card 17 — Absolution from the Instance

Definition: Application by defendant at close of plaintiff's evidence, arguing plaintiff has not established a prima facie case.

Rule/Section: No specific rule — common law; applied in both HC and MC.

Test: Gordon Lloyd Page v Rivera — "Is there evidence upon which a reasonable court might (not would) find for the plaintiff?"

Effect if granted: Plaintiff's case dismissed; plaintiff may re-institute action (unlike final judgment on the merits).

Exam tip: Standard is low — might, not would. Court gives plaintiff benefit of the doubt. Reserve for cases where plaintiff has clearly failed to adduce any relevant evidence.

Mnemonic: "Might find for plaintiff" = low bar. Absolution = Plaintiff's evidence goes nowhere.

Card 18 — Leave to Appeal

Definition: Permission required before an appeal may be brought in certain circumstances.

Rule/Section:

Key case: S v Smith 2012 (1) SACR 567 (SCA) — "reasonable prospect" = not merely arguable but a genuine possibility of success.

Exam tip: Since the Superior Courts Act 10 of 2013, leave to appeal is now required in a wider range of matters than before.

Mnemonic: 15 days → apply → "Reasonable prospect" test → if refused → petition SCA.

Card 19 — Further Evidence on Appeal

Definition: Additional evidence introduced for the first time at the appeal hearing.

Rule/Section: s 22 of the Superior Courts Act 10 of 2013.

Test (from Colman v Dunbar 1933 AD 141):

Exam tip: The appeal court is bound by the record — cannot consider facts not placed before the court below. Further evidence is a narrow exception.

Mnemonic: CUM — Credible, Unavailable at trial, Material to outcome.

Card 20 — Review vs Appeal

Grounds for review:

Mnemonic: A = Answer was wrong. R = Road to judgment was wrong.

Card 21 — Writ/Warrant of Execution

Definition: Court document authorising the sheriff to attach and sell the judgment debtor's assets.

Rule/Section:

Order of attachment (MC): Movables first; immovables only if movables insufficient.

Property exempt from attachment (MC):

Key case: Jaftha v Schoeman (CC) — s 26 housing right requires proportionality before execution against a home.

Mnemonic: Writ (HC) = Warrant (MC). Movables before Immovables. Constitution protects the home.

Card 22 — Section 65 Procedure

Definition: Procedure to examine a judgment debtor's financial means and order payment by instalments.

Rule/Section: s 65 Magistrates' Courts Act 32 of 1944.

Steps:

s 65M: Failure to appear → contempt of court.

Exam tip: Distinguish EAO (attaches wages directly) from garnishee order (attaches debt owed by third party to debtor).

Mnemonic: 65 = Six Five steps to get paid from a broke debtor.

Card 23 — Final vs Interim Interdict

Final interdict requirements:

Interim interdict requirements:

Rule/Section: Common law (Setlogelo v Setlogelo 1914 AD 221).

Key case: Webster v Mitchell 1948 (1) SA 1186 (W) — balance of convenience analysis.

Exam tip: Final = clear right (higher threshold). Interim = prima facie right (lower threshold). In practice, most interdict applications are for interim relief.

Mnemonic:

Card 24 — Anton Piller Order

Definition: Ex parte order authorising the applicant to enter respondent's premises and search for/seize evidence before it can be destroyed.

Rule/Section: Common law; HC rule 6 (ex parte application procedure).

Requirements:

Safeguards:

Exam tip: Because it is obtained ex parte, utmost good faith (uberrima fides) is required — non-disclosure = order set aside.

Mnemonic: APEX — Anton Piller = Ex parte + Prima facie + Evidence destruction risk + Xecute with supervision.

Card 25 — Provisional Sentence

Definition: Summary procedure to obtain payment on a liquid document, with defendant retaining right to bring a principal case.

Rule/Section: HC rules 8, 9; MC rules 11, 12 (provisional sentence rules).

Requisites:

Effect:

Key case: Twee Jonge Gezellen v Land Bank — constitutional limitations on provisional sentence.

Exam tip: Distinguish provisional sentence summons from combined/simple summons. The procedure is self-contained and faster for liquid document claims.

Mnemonic: PS = Pay now, fight later (defendant can bring a principal case).

Card 26 — Spoliation Order (Mandament van Spolie)

Definition: Urgent order restoring peaceful possession of property to the dispossessed party.

Rule/Section: Common law; brought as urgent application under HC rule 6(12).

Requirements:

Effect: Restores possession only — does NOT determine rights of ownership.

Key case: Bon Quelle v Munisipaliteit van Otavi — mandament van spolie is possessory, not petitory.

Exam tip: The mandament van spolie is available regardless of who has the better right to possession — pure possession action. The reivindicatio (ownership action) is separate.

Mnemonic: SPOIL = Somebody took my Possession — Order restores It Lawfully.

Card 27 — Small Claims Court

Definition: Informal court for small civil disputes; no legal representation; inquisitorial procedure.

Rule/Section: Small Claims Court Act 61 of 1984.

Jurisdiction:

Procedure:

Exam tip: The 30-day letter of demand is a jurisdictional prerequisite — failure to send it = court has no jurisdiction.

Mnemonic: SCC = Small, Cheap, Commissioner (not a judge), no Counsel.

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