Civil Procedure: Study Guide
Based on: Civil Procedure: A Practical Guide (3rd Ed., 2016) Authors: Peté, Hulme, Du Plessis, Palmer, Sibanda & Palmer — Oxford University Press South Africa Jurisdiction: South African Law
How to Use This Guide
The book organises civil procedure as a four-stage story:
- - Stage One — Before litigation (preliminary questions + pre-litigation issues)
- - Stage Two — Litigation (applications and actions)
- - Stage Three — After litigation (appeals, reviews, debt collection)
- - Stage Four — Additional procedures (interdicts, settlement, provisional sentence, etc.)
This guide mirrors that structure and adds definitions, key rules, statutory references, and exam tips.
GENERAL INTRODUCTION
Civil Procedure vs Substantive Law
- - Substantive law = the ends of the legal system (rights and obligations)
- - Civil procedure / adjectival law = the means by which those ends are achieved (the machinery of litigation)
- - The line between substantive and adjectival law is not always clear-cut — courts have acknowledged this.
The Court Hierarchy (South Africa)
From lowest to highest:
- 01Magistrates' Courts — District (up to R200 000) and Regional (up to R400 000)
- 02High Court of South Africa (single court with provincial and local divisions)
- 03Supreme Court of Appeal (SCA) — based in Bloemfontein
- 04Constitutional Court — apex court for constitutional matters; can also hear non-constitutional matters of public importance
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 on Civil Procedure
The Constitution has reshaped several procedural rules:
- - Section 34 — right of access to courts and to a fair hearing
- - Section 38 — broader locus standi to enforce Bill of Rights (class actions, public interest standing)
- - Section 9 — equality; held in Nedcor Bank v Hennop that requiring a woman's marital status in summons is unconstitutional
- - Section 26 — right to housing; reshaped execution against immovable property (Jaftha v Schoeman; Gundwana v Steko)
- - Arrest tanquam suspectus de fuga — abolished following constitutional scrutiny
- - 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)
STAGE ONE: BEFORE LITIGATION
PART 1A — CAUSE OF ACTION
What Is a Cause of Action?
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.
Common Causes of Action
| Type | 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 a debt for a fixed, certain amount (e.g. cheque, mortgage bond, AOD) |
Exam tip: Always identify the cause of action before deciding on procedure, court, and pleadings.
PART 1B — LOCUS STANDI
Two Requirements
- 01Direct and substantial interest in the matter
- 02Capacity to litigate
Constitutional Extension of Standing (s 38)
In Bill of Rights matters, 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 at all; parent/guardian acts |
| Minors 7–17 | May litigate with assistance of parent or guardian |
| Married women | Marital power abolished; community of property spouses need consent of other spouse (s 17 Matrimonial Property Act) — failure to obtain consent 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; refer to s 23 Insolvency Act; trustee usually sues/defends |
| Fugitives from justice | Generally no locus standi to sue; may defend and apply for rescission of default judgment |
| Alien enemies | Cannot sue if voluntarily residing/carrying on business 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 Ad Litem vs Curator Bonis
- - Curator ad litem — appointed for the specific purpose of litigation
- - Curator bonis — appointed to manage a person's estate generally
- - The curator ad litem is typically appointed first, then reports on the patient's situation, paving the way for a curator bonis
PART 1C — JURISDICTION
Two Core Questions
- 01Which type of court — Magistrates' Court or High Court?
- 02Which particular Magistrates' Court or division of the High Court?
When Is Jurisdiction Determined?
Jurisdiction is determined at the time the action is instituted (generally when summons is issued).
Magistrates' Court Jurisdiction (Act 32 of 1944)
Monetary limits (s 29):
- - District Magistrates' Court: up to R200 000
- - Regional Magistrates' Court: up to R400 000
Nature of claim (s 46) — claims excluded from Magistrates' Courts:
- - Claims for status (wills, mental capacity, perpetual silence)
- - Claims for specific performance valued over R200 000 (with exceptions)
Territorial jurisdiction (s 28): The Magistrates' Court has jurisdiction if:
- - Defendant resides, carries on business, or is employed in its area (s 28(1)(a))
- - The cause of action arose wholly within its area (s 28(1)(d))
- - Consent was given (s 28(1)(f))
- - Property is situated there — immovable property claims (s 28(1)(g))
Monetary calculations:
- - Splitting of single claim to stay under limits is not allowed (s 40)
- - Combining separate claims IS allowed (s 43(1))
- - Only the amount in issue is considered (ss 37(1) and 37(2))
- - Interest and costs are excluded (s 37(3))
Exceptions to monetary limits:
- - Consent (s 45) — both parties can consent to exceed the limit (two limitations apply)
- - Abandonment (s 38) — plaintiff may abandon excess to bring within jurisdiction
- - Deduction of admitted debt (s 39)
High Court Jurisdiction
Key doctrine: Doctrine of effectiveness — the court must be able to make its judgment effective.
Three main grounds:
| Ground | Meaning |
|---|---|
| Ratione domicilii | Defendant is domiciled in the court's area |
| Ratione rei gestae | The cause of action arose in the court's area |
| Ratione rei sitae | The property forming the subject matter is situated in the court's area |
Claims for property:
- - Immovable — title claims follow ratione rei sitae; transfer claims follow where defendant is domiciled or the contract was concluded
- - Movable — similar principles apply
Claims against foreign peregrini:
- - Old common-law rule (arrest to found jurisdiction) abolished by Bid Industrial Holdings v Strang (SCA)
- - Consent to jurisdiction remains valid
Inherent jurisdiction: High Court has inherent jurisdiction to regulate its own proceedings and prevent abuse.
PART 2A — DEMAND
What Is a Demand?
A formal notice to the defendant requiring them to perform or to cease a particular act — typically a letter of demand from an attorney.
When Is Demand Required?
- 01Statute requires it — e.g.
- - Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (30-day notice before suing the state or state organs)
- - National Credit Act 34 of 2005 (before cancelling a credit agreement)
- - Small Claims Court Act 61 of 1984
- 02To complete the cause of action — e.g. debts "payable on demand", notice of breach clauses, placing debtor in mora, notice to cancel
- 03For interest — demand may mark the start of running of interest on unliquidated debts
- 04For costs — demand may affect liability for costs if action is unnecessary
PART 2B — CALCULATION OF TIME LIMITS
Key Distinction: Court Days vs Calendar Days
- - Court days — days when the court is open (excludes weekends, public holidays, court recesses)
- - Calendar days — all days including weekends and holidays
Rule of thumb: if a time period appears in the Rules of Court, it is in court days. If it appears in an Act of Parliament, it is in calendar days.
FOLI Rule (Calculation Within a Period)
First Out, Last In — exclude the first day (trigger event), include the last day (deadline).
Calculating Time After a Period
Include the first day; the period begins running immediately from the day after the event.
PART 2C — SERVICE OF LEGAL DOCUMENTS
Role of the Sheriff
The sheriff is the officer of the court responsible for serving process and executing judgments.
Methods of Service (High Court rule 4; Magistrates' Courts rule 9)
- - Personal service — on the person themselves (most effective)
- - At residence or place of business — on someone apparently resident/employed there
- - At chosen domicilium citandi et executandi — an address chosen in a contract
- - By registered post
- - Electronic service — in limited circumstances
Substituted Service and Edictal Citation
- - Substituted service — court authorises alternative service method when normal service is impracticable
- - Edictal citation — service of process on a person outside South Africa (requires court application)
- - Electronic service on persons outside the country may be allowed in some circumstances
Service vs Jurisdiction
Service and jurisdiction are distinct concepts. Serving process on someone in the court's area does not automatically confer jurisdiction over them.
PART 2D — ACTION OR APPLICATION?
The Fundamental Choice
| Feature | Action (Trial) | Application (Motion) |
|---|---|---|
| Initiated by | Summons | Notice of motion |
| Evidence | Oral testimony at trial | Written affidavits |
| Court | Trial court | Motion court |
| Disputes of fact | Best suited | Not suited — real disputes of fact must be referred to trial |
| Timeline | Longer | Shorter |
When to Use Application Procedure
- - No genuine dispute of fact (or dispute can be resolved on papers)
- - Urgent matters
- - Interlocutory relief
- - Statutory applications (e.g. liquidation, sequestration)
Real Dispute of Fact
If a genuine material dispute of fact appears on the papers, a motion court will either:
- - Refer the matter to oral evidence, or
- - Dismiss the application
Classic test: Plascon-Evans rule — where facts are disputed, the court decides on the respondent's version unless that version is so far-fetched or untenable it can be rejected on the papers.
STAGE TWO: LITIGATION — PART 1: APPLICATIONS
Key Steps in an Application
- 01Notice of motion — sets out the relief sought; Form 2(a) HC
- 02Founding affidavit — applicant's evidence supporting the application
- 03Service on respondent — at least 10 court days before hearing date (HC rule 6(5)(b))
- 04Notice of opposition — respondent delivers within 5 court days of service (or longer if outside jurisdiction)
- 05Answering affidavit — respondent's evidence; within 15 court days (HC) / 10 court days (MC) of notice of opposition
- 06Replying affidavit — applicant's reply; within 10 court days (HC)
- 07Set down — applicant files notice of set down with registrar
- 08Hearing — argument from the bar on the papers
Against the state/Minister: 15 court days to deliver notice of opposition (HC rule 6(13))
Ex Parte Applications
- - Brought without notice to the respondent
- - Permitted where notice would defeat the purpose (e.g. Anton Piller orders) or where no respondent has an interest
- - Court may impose conditions and respondent may apply to set aside the order
Urgent Applications
- - Applicant must show:
- Urgency exists (i.e. matter cannot wait for normal set down)
- If urgency is not given, irreparable harm will follow
- - Must explain in founding affidavit why matter is urgent and why it cannot be heard in ordinary course
STAGE TWO: LITIGATION — PART 2: ACTIONS
Types of Summons
| Type | When Used |
|---|---|
| Simple summons | Liquid claims; uncontested debt matters |
| Combined summons | All other actions; includes full particulars of claim |
Step 1: Issuing and Serving Summons
- - Issued by the registrar (HC) or clerk of the court (MC)
- - Served by the sheriff
Step 2: Notice of Intention to Defend
- - Defendant files notice within 10 court days (HC rule 19(1)) / 10 court days (MC rule 13(1)) of service
Step 3: The Pleadings
Particulars of Claim (HC rule 18) Must contain:
- - Clear and concise statement of the material facts
- - Sufficient particularity to enable the opponent to reply (rule 18(4))
- - The nature of the relief sought (the prayer)
The Plea (HC rule 22) Defendant must:
- - Admit or deny every allegation — silence = deemed admission
- - Set out the defendant's version
Special Plea — raised in addition to (or instead of) plea on merits:
- - Plea of prescription
- - Plea of res judicata
- - Plea of lack of jurisdiction
- - Plea in abatement
Counterclaim — defendant's claim against plaintiff; treated as a separate action
Replication — plaintiff's reply to the plea; only if new matter raised
Further pleadings — rejoinder, surrejoinder, rebutter, surrebutter (rare in practice)
Automatic Bar
A party who fails to deliver a pleading in time is ipso facto barred (HC rule 26; MC rule 21B). To lift the bar: apply for condonation.
Close of Pleadings — Litis Contestatio
Pleadings are closed when (HC rule 29 / MC rule 21A):
- 01A party has joined issue without adding new matter
- 02The time for filing the next pleading has expired without filing
- 03Parties agree in writing
- 04Court declares pleadings closed on application
Significance of litis contestatio:
- - Freezes plaintiff's rights at that moment
- - Claims for non-pecuniary damages (pain & suffering, etc.) that arose before litis contestatio die with the plaintiff if he dies before that point
- - Nkala v Harmony Gold developed the common law to allow transmissibility of general damages claims even where the plaintiff dies pre-litis contestatio (in the context of class actions against mining companies)
Amendments to Pleadings (HC rule 28 / MC rule 55A)
- - A party may amend pleadings at any time before judgment
- - Procedure: deliver notice of intention to amend; opponent has 10 court days to object
- - Objection must state clear grounds; if no objection, amendment is effected automatically
Pre-Trial Procedures
Discovery (HC rule 35 / MC rule 23)
- - After close of pleadings, each party must discover all relevant documents in their possession
- - Inspecting documents mentioned in pleadings may be demanded earlier (HC rule 35(12) / MC rule 23(13))
- - Rule 35(14) / 23(15) allows inspection of identified documents needed for pleading purposes — must be specific documents, no fishing expeditions
Expert Witnesses (HC rule 36 / MC rule 24)
- - Must give notice of intention to call expert
- - Must exchange summaries of expert evidence before trial
Pre-Trial Conference (HC rule 37 / MC rule 54)
- - Mandatory in HC before trial
- - Parties agree on issues, admissions, experts, and trial logistics
- - Failure to attend can result in adverse costs orders
Request for Further Particulars for Trial
- - May be requested after close of pleadings
- - Not available during pleadings phase (abolished)
Summary Judgment (HC rule 32 / MC rule 14)
Available where:
- - Action is for a liquidated amount or specific movable property or ejectment
- - Plaintiff believes defendant has no bona fide defence
- - Defendant has filed notice of intention to defend
Defendant resists summary judgment by affidavit showing bona fide defence with sufficient detail.
Default Judgment
Where defendant fails to:
- - Enter appearance to defend — plaintiff may apply for default judgment
- - Deliver a plea — plaintiff may apply for judgment by default after barring
The Trial
Sequence:
- 01Plaintiff opens case; plaintiff's counsel delivers opening address
- 02Plaintiff's witnesses called; cross-examination; re-examination
- 03Application for absolution from the instance (optional — at close of plaintiff's case)
- 04Defendant's case; witnesses; cross-examination; re-examination
- 05Closing arguments
- 06Judgment
Absolution from the Instance:
- - Granted when, at close of plaintiff's case, no reasonable court could find for the plaintiff
- - Standard: could a reasonable court (not would a reasonable court) find for plaintiff
Judgment, Interest, and Costs
Types of judgment:
- - Judgment for a sum of money
- - Judgment for specific performance
- - Absolution from the instance
- - Declaratory order
Interest:
- - In duplum rule — interest cannot accumulate beyond the capital amount
- - Mora interest runs from date of demand or litis contestatio (depending on claim type)
Costs:
- - General rule: costs follow the result (the loser pays)
- - Attorney-client costs vs party-and-party costs
- - Court has a discretion on costs
STAGE THREE: AFTER LITIGATION
PART 1A — APPEALS
Grounds of Appeal
- - Error of law
- - Error of fact
- - Irregular procedure
Courts That Hear Appeals
- - From Magistrates' Court → High Court
- - From High Court → SCA (or, in constitutional matters, Constitutional Court)
- - From SCA → Constitutional Court (only on constitutional matters or public importance)
Leave to Appeal
- - Required in most cases
- - High Court may grant leave to appeal to itself (full bench) or to SCA
Principles on Further Evidence on Appeal (Colman v Dunbar 1933 AD 141)
New evidence is only allowed if:
- 01Failure to lead it at trial was not due to negligence
- 02Evidence could not have been obtained with reasonable diligence before trial
- 03Evidence is weighty, material, and admissible — practically conclusive
- 04No undue prejudice to the other party
Bound by the Record
- - Appellant is generally bound by the record of the court below
- - Cannot raise a new point of law or fact not covered in the pleadings/record
- - Cannot present a case on appeal different from the one presented at trial
PART 1B — REVIEWS
- - Review differs from appeal: it attacks the procedure of the lower court, not the merits of the decision
- - Brought by way of application procedure
- - Grounds: irregularity in proceedings, bias, jurisdictional error, etc.
PART 2 — DEBT COLLECTION PROCEDURES
A: Writs and Warrants of Execution
| Court | Instrument | Effect |
|---|---|---|
| High Court | Writ of execution | Sheriff attaches and sells debtor's property |
| Magistrates' Court | Warrant of execution | Same effect |
- - Both movable and immovable property may be attached
- - Immovable property execution — court must consider right to housing (s 26 Constitution); Gundwana v Steko
B: Section 65 Procedure (Magistrates' Courts Act s 65)
- - Creditor brings debtor to court for an enquiry into financial affairs
- - Court may order payment by instalments
- - Non-compliance = liable to arrest and imprisonment for contempt of court
C: Administration Orders
- - Used by debtors indebted to multiple creditors
- - Court sets up a distribution scheme — pro-rata payments to all creditors
- - Sometimes called a "Magistrates' Courts sequestration"
STAGE FOUR: ADDITIONAL PROCEDURES
A: Settlement
- - Most civil claims settle before trial
- - Key concepts:
- - Without prejudice offers — inadmissible as evidence if settlement fails
- - Tender — defendant offers to pay a sum; if plaintiff rejects and later recovers no more, costs consequences follow
- - Payment into court — money paid in; plaintiff must elect to accept or proceed
B: Provisional Sentence
- - Fast-track procedure for liquid document claims (cheques, AODs, mortgage bonds)
- - Court grants provisional sentence; defendant may appeal or seek to rescind
- - Constitutional limits apply (Twee Jonge Gezellen v Land Bank CC) — court has discretion to refuse in exceptional circumstances
C: Interim Relief Pending Judgment
- - HC rule 34A / MC rule 18A — bodily injury actions
- - HC rule 43 / MC rule 58 — divorce actions (interim maintenance, custody, residence)
D: Arrest Tanquam Suspectus de Fuga
- - Historically: arrest a debtor suspected of fleeing to avoid paying debts
- - Now abolished following constitutional scrutiny (Malachi v Cape Dance Academy CC)
E: Multiple Parties and Actions
- - Joinder — joining additional parties (co-plaintiffs, co-defendants, third parties)
- - Third-party proceedings — defendant calls in another person as potentially liable
- - Consolidation — combining separate actions involving same parties/issues
F: Interdicts
| Type | Description |
|---|---|
| Prohibitory interdict | Orders someone to stop doing something |
| Mandatory interdict | Orders someone to do something |
| Temporary (interlocutory) interdict | Granted pending final relief |
| Final interdict | Permanent order |
Requirements for an interdict:
- 01A clear right
- 02An injury actually committed or reasonably apprehended
- 03No other adequate remedy
Balance of convenience is considered for interlocutory interdicts.
G: Drastic Procedures
| Procedure | Purpose |
|---|---|
| Anton Piller order | Preserves evidence in danger of being hidden or destroyed; sought ex parte and urgently |
| Knox D'Arcy / Mareva injunction | Freezes assets to prevent their disposal pending outcome of litigation |
| POCA preservation order | National Prosecuting Authority applies to preserve criminally obtained assets; may be forfeited to state |
| Domestic Violence Act remedies | Protection orders for victims of domestic violence |
| Spoliation order | Restores possession unlawfully taken from the applicant (mandament van spolie) |
H: Declarations of Rights and Stated Cases
- - Court makes a declaration of rights on a set of agreed facts
- - Used where parties want a legal question answered without full trial
I: Small Claims Court
- - Claims up to R15 000
- - No legal representation permitted
- - Decisions are not appealable (subject to review in exceptional cases)
- - Governed by Small Claims Court Act 61 of 1984
J: Other Civil Courts
- - Admiralty Courts
- - Tax Court
- - Competition Tribunal and Appeal Court
- - Labour Court and Labour Appeal Court
- - Land Claims Court
- - Special Investigating Units and Tribunals
- - Equality Courts
- - Children's Courts
- - Maintenance Courts
- - National Consumer Tribunal
- - Courts of Chiefs and Headmen
ANNEXURES — KEY TOPICS
Alternative Dispute Resolution (ADR)
- - Negotiation — informal; no third party
- - Mediation — neutral mediator facilitates settlement; non-binding
- - Arbitration — private adjudication; binding; governed by Arbitration Act 42 of 1965
- - Med-arb — hybrid process
National Credit Act 34 of 2005 & Consumer Protection Act 68 of 2009
NCA impacts on civil procedure:
- - Debt enforcement suspended if consumer sends notice of dispute (s 86)
- - Section 129 notice required before enforcing a credit agreement
- - Court has power to suspend execution orders, order debt counselling
CPA impacts on civil procedure:
- - Certain clauses in contracts are void (unfair, unreasonable, unjust terms)
- - Suppliers may face both civil and regulatory consequences
KEY DEFINITIONS (Glossary)
| Term | Definition |
|---|---|
| Absolution from the instance | Judgment at close of plaintiff's case — no case to answer; matter may be re-litigated |
| Admission | Allegation accepted as true in pleadings or at trial |
| Affidavit | Written statement sworn/affirmed before a Commissioner of Oaths; primary evidence in applications |
| Affirmation | Alternative to oath for deponents with religious objection; same legal effect |
| Allegation / averment | Unproven statement of fact in pleadings |
| Amendment of pleadings | Correction or alteration of pleadings; allowed by court rules before judgment |
| Animo contrahendi | Intention to enter a contract |
| Answering affidavit | Respondent's affidavit in reply to founding affidavit |
| Anton Piller order | Ex parte order to preserve evidence; named from Anton Piller KG v Manufacturing Processes [1976] |
| Appeal | Procedure by which higher court reviews a lower court's decision on fact or law |
| Applicant | Party who brings an application by notice of motion |
| Curator ad litem | Curator appointed specifically for purposes of litigation |
| Curator bonis | Curator appointed to manage a person's estate |
| Declarator | Court order declaring what the applicable law is on agreed facts |
| Default judgment | Judgment against a party who has failed to appear or plead |
| Discovery | Pre-trial procedure by which parties disclose relevant documents to each other |
| Domicilium citandi et executandi | Address chosen in a contract for service of legal process and execution |
| Edictal citation | Service of process on a person outside South Africa |
| Interdict | Court order prohibiting or compelling an act |
| Joinder | Adding a party to proceedings |
| Judgment debtor | Party against whom a money judgment has been granted |
| Litis contestatio | Moment at which pleadings close and issues are joined |
| Liquid document | Written instrument acknowledging a definite, ascertainable debt |
| Locus standi | Legal standing to bring or defend proceedings |
| Mandament van spolie | Order restoring possession to a party unlawfully dispossessed |
| Mora | Legal default; being in mora means being in breach of a time obligation |
| Particulars of claim | Pleading setting out the factual basis and relief sought by plaintiff |
| Peregrinus | Person not domiciled or resident within the court's jurisdiction |
| Plea | Defendant's formal response to particulars of claim |
| Pleadings | Formal written statements exchanged between parties defining issues |
| Prayer | The relief sought by a party in their pleading or notice of motion |
| Prodigal | Spendthrift declared by High Court to have limited legal capacity |
| Provisional sentence | Judgment on a liquid document pending resolution of the merits |
| Registrar | Administrative officer of the High Court |
| Replication | Plaintiff's reply to new matter raised in the defendant's plea |
| Res judicata | Matter already decided; bars re-litigation of the same issue |
| Review | Procedure to challenge the legality of the process of a lower court |
| Sheriff | Officer of the court responsible for serving documents and executing judgments |
| Simple summons | Summons with brief claim; used mainly for liquid document claims |
| Combined summons | Summons with full particulars of claim attached |
| Substituted service | Court-authorised alternative service when normal service is impracticable |
| Summary judgment | Expedited judgment where defendant has no bona fide defence |
| Without prejudice | Communications made in settlement negotiations; inadmissible as evidence |
| Writ / warrant of execution | Court order authorising sheriff to attach and sell debtor's property |
QUICK-REFERENCE: KEY TIME PERIODS
| Step | High Court | Magistrates' Court |
|---|---|---|
| Enter appearance to defend | 10 court days | 10 court days |
| Notice of opposition (application) | 5 court days | 5 court days |
| Notice of opposition (against state) | 15 court days | — |
| Answering affidavit | 15 court days after notice of opposition | 10 court days after notice of opposition |
| Replying affidavit | 10 court days | — |
| Deliver plea | 20 court days after close of pleadings | 20 court days |
| Declaration (after appearance to defend on simple summons) | 15 court days | 15 court days |
| Object to proposed amendment | 10 court days | 10 court days |
| Inspection of documents (rule 35(14) / 23(15)) | 5 days after notice | 5 days |
KEY CASES
| Case | Principle |
|---|---|
| Bid Industrial Holdings v Strang (SCA) | Abolished arrest of foreign peregrini to found/confirm jurisdiction |
| Nedcor Bank v Hennop 2003 (3) SA 622 (T) | Omitting sex/marital status in summons is not fatal; requirement unconstitutional |
| Twee Jonge Gezellen v Land Bank (CC) | Provisional sentence may be refused in certain circumstances — constitutional limitation |
| Jaftha v Schoeman; Van Rooyen v Stoltz (CC) | Execution against immovable property must consider s 26 right to housing |
| Gundwana v Steko (CC) | Reformed execution against immovable property practice |
| Coetzee v Government of RSA 1995 (4) SA 631 (CC) | Imprisonment for debt (s 65 MC Act) partially unconstitutional |
| Nkala v Harmony Gold Mining (GJ) | Developed common law: general damages transmissible even if death occurs pre-litis contestatio |
| Plascon-Evans Paints v Van Riebeeck Paints | Where facts disputed in motion proceedings, court decides on respondent's version (Plascon-Evans rule) |
| Colman v Dunbar 1933 AD 141 | Requirements for admission of further evidence on appeal |
| Road Accident Fund v Mothupi (SCA) | New points may not be raised on appeal if not covered in pleadings |
| Malachi v Cape Dance Academy (CC) | Arrest tanquam suspectus de fuga is unconstitutional |
| Anton Piller KG v Manufacturing Processes [1976] 1 All ER 779 (CA) | Origin of Anton Piller order |
EXAM TECHNIQUE TIPS
- 01Always start with Stage One — identify cause of action, locus standi, and jurisdiction before discussing procedure.
- 02Court first, procedure second — determine which court has jurisdiction before discussing which rules apply.
- 03Action or application? — the biggest procedural fork in the road. Identify real disputes of fact.
- 04Cite the rule — always reference the specific rule (e.g. HC rule 32, MC rule 14) or section of the Act.
- 05Constitution — always consider whether any constitutional right is engaged, particularly ss 34, 9, 26, and 38.
- 06Time periods — state whether days are court days or calendar days and explain why.
- 07Costs — always consider costs consequences, especially if settlement, tender, or default is involved.
Study guide prepared from: Civil Procedure: A Practical Guide (3rd Ed., 2016), Peté et al., OUP South Africa.