LAW OF CIVIL

PROCEDURE 244
Compiled Notes

This document is a compilation of any and all prescribed material

for the module including textbook summaries, lecture notes,
tutorials, and case law.

Cole Baker
[email protected]
 Chapter 1: General Introduction
❖ Note to Reader: this section, as well as section 2, will ONLY be tested in short
questions (1 – 2-mark questions). READ my footnotes; they are not simply
references.
❖ MCR = Magistrates’ Court Rule
❖ HCR = High Court Rule
❖ UFC = Uniform Court Rule
❖ Note: the A2 will be written on chapters 1-12, 14, and 16. The paper will be 50
marks, 85% theory, 15% application.
Introduction
• Civil procedure is the part of the law regulating civil litigation, effectively the mechanism
by which substantive legal rights are enforced. Substantive law = what a person’s rights,
duties, and remedies actually are while procedural law = how they are enforced. There is
often discrepancy between law taught and law practiced. Litigation itself only forms part
of the civil procedure landscape
• Relevance of civil procedure:
1. Ensure effective representation of clients in court.
2. Enable navigation of complex legal procedures.
3. Allow for strategic case management to secure favourable outcomes.
4. Enables facilitation of efficient + equitable administration of justice.

Civil Procedural Law Criminal Procedural Law

Civil Action Plaintiff (Institutes) vs State vs Accused

Defendant (Defends)
Civil Application Applicant (Brings Action) vs N/A
Respondent (Opposes
Application)
Burden of Proof Balance of Probabilities; Beyond a reasonable doubt;
liability guilt

Outcome Damages/Specific Performance Imprisonment/Fine

Aim of Outcome Restitution, monetary Retribution, deterrence,

compensation for loss suffered, rehabilitation
to compel/prevent a party doing
something

• Parties in civil suit usually private, acting on their own behalf instituting/defending
claims, but the State can also be party to civil suits ,for e.g., when it’s party to a contract
or a constitutional right is enforced against it.
• Proceedings in civil litigation can take the form of application by way of notice of
motion + affidavits, or action by means of summons.
• Civil procedure is only effective if containing principles that make the legal process fair.
In this regard, section 34 of the Constitution is reflected in that everyone has the right to
have any dispute that can be decided by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial
tribunal/forum.
• Principles of the adversarial system of civil procedure:
1) Audi et alteram partem: can be described as the right to notice; equal opportunity for
parties to present their cases to court; to be heard. In South Africa we don’t litigate on
a trial by ambush, smoking gun etc, such as in the US. This principle dictates that:
a) Notice of proceedings given to Defendant.
b) Both parties informed of the nature of opponent’s case and grounds on which it’s
based (process of discovery).
c) Both parties given equal opportunity to present their cases to court.
2) Section 34: all persons must have equal + effective access to impartial + independent
judiciary. This includes requirement that costs + duration of litigation must be
reasonable.
3) Party control: decision to institute/defend an action, determine the scope of the dispute,
and on what evidentiary material is used as proof, rests with the parties.
4) Viva Voca: during presentation of parties’ cases, opportunity must be made for the
parties (or their representatives) direct, oral communication.
5) Main proceedings (trial or hearing of application) must, in principle, be in public. The
Plaintiff is dominus litus, deciding which evidence to lead etc.
6) Court must consider evidentiary material on rational/objective basis.
7) Court must give reasonable + legally motivated judgement, delivered timeously.
8) Higher Recourse: decision is final/binding, but appeal/review possibility is provided
for. Recission possible in certain circumstances.
• Mediation is increasingly being seen as a more affordable alternative to civil litigation,
which can take the form of private (by agreement without proceedings having been
instituted) or court-annexed mediation.
a) Magistrates’ Court: Chapter 2 (MCR 70 – 88) are very comprehensive and provide
very thoroughly for both voluntary and court-annexed mediation, even going so far as
having annexures that provide for the accreditation required for mediators. Mag. Court
mediation in a state of flux because as of 22 March 2022 the Department of Justice
suspended operation of court-annexed mediation indefinitely. Some Mag. Courts still
apply is, however, and there is a disconnect.
b) High Court: conversely, the Uniform Rules of Court are very undetailed, and in Rule
41A it purports to provide for voluntary court-annexed mediation. However, In the
memorandum that accompanied the promulgation of the rule, the registrar announced
that it didn’t envisaging court-annexed mediation. Another issue is UCR 41A subrule
9(b) provides that, when considering costs, the Court may have regard to whether
mediation was entered into. Effectively, if a party doesn’t seek mediation, and there
weren’t sufficient reasons therefor, that party may have an adverse cost order given
against them.
• Sources of the Law of Civil Procedure: all the sources must be read together. The
magistrates’ Court and Superior Courts’ Act may only be amended by Parliament, but the
 Rules may be amended by a statutory body called the Rules Board1. Rules often have
attached annexure with precedents of pleadings.
1. The Constitution.
2. Legislation: Superior Courts’ Act, Magistrates’ Court Act, Small Claims Court
Act, Constitutional Court Complementary Act, as well as any legislation relevant
to specialised Courts.
3. Rules: Rules of the Constitutional Court, Rules of the Supreme Court of Appeal,
Uniform Rules of Court applicable in the High Court (NB: each division of the
High Court may regulate its own processes, and as such each division also has
individual rules2), the Magistrates’ Court Rules.
4. Common law underlying rules of procedure/jurisdiction in the High Court.
5. Practical arrangements/practice directives of the different divisions of the High
Court.
6. Case Law.
• Digitalization of Courts: in order to make the judiciary more accessible, make cases less
time consuming, and to reduce costs, a pilot program in Gauteng called Court Online was
launched. It’s an end-to-end filing system that allows for digital case management (filing
of court documents and allowing for lay persons to access their case remotely at any
time). Although this is certainly the direction practitioners want the legal profession to
move, the system seldom works, it is very user-unfriendly, and there is corruption scandal
surrounding the system. There are also unaddressed security concerns surrounding the
system.

Chapter 2: Structure + Officers of Court

• Note to Reader: This Chapter will also only be tested in short questions.

Introduction

• Section 166 of the Constitution lays the hierarchy of Courts in SA:

a) Constitutional Court (Apex Court).
b) Supreme Court of Appeal.
c) High Court of SA, including any High Court of Appeal, which may be created by an
Act of Parliament to hear appeals from any court of similar status to the High Court.
d) Magistrates’ Court.
e) Any other court established/recognized in terms of an Act of Parliament.
• Stare Decisis: the doctrine of precedent ensures uniformity in decision making; lower
ranking courts are bound by higher courts decisions (also applies within hierarchy of
higher courts). Magistrates’ courts/other lower courts can’t set precedent.
• In terms of section 166 of the Constitution and section 6(1) of the Superior Courts Act the
previously independent High Courts which were divided along provincial jurisdictional
boundaries, have now been consolidated into one High Court of South Africa which are
1
Created by the Rules Boards for Courts of Law Act.
2
Section 173 of the Constitution grants inherent jurisdiction to the Constitutional Court, Supreme Court of
Appeal, and High Court to regulate its own processes. This inherent jurisdiction is also why each division of the
High Court has different directives/rules.
 administratively and jurisdictionally separated into a number of divisions. Western Cape
division has its seat in Cape Town and has the citation WCC (previously C). A division of
the HC is headed by a Judge President and consists of as many judges as appointed by the
President on the advice of the judicial service commission (JSC). It’s both a court a quo
and a court of appeal/review (either from the magistrates’ court or from a one judge bench
of the HC to a full three judge bench). If a question of fact is in dispute then appeal
usually goes to full bench of HC; if question of law is in dispute, the appeal usually goes
to the SCA.
• The Magistrates’ Courts, importantly, are creatures of statute3 and operate on two levels:
regional and district. There are more than 700 district courts in SA exercising
geographical jurisdiction (small in densely populated areas and large in rural areas), and
district courts can hear both civil and criminal matters. Regional Magistrates’ Courts used
to only have criminal jurisdiction but have since 2010 have civil jurisdiction as well. A
single magisterial district may include more than one municipal area.4 District
Magistrates’ Courts have a monetary jurisdiction of R0 – R200 000, with regional Courts
having monetary jurisdiction of R200 000 – R400 000. Regional magistrates’ courts play
important role in relieving the High Court of heavy case burden, as they have extensive
criminal jurisdiction.
• A special court established in terms of the Small Claims Court Act 5,the small claims
court has a jurisdiction of R0 – R20 000. In this court no legal representation is allowed
and juristic persons can only be defendants. Any claim must be preceded by a letter of
demand, else the claim be premature. Commissioners are presiding officers and are not
salaried- state-officials. It’s also not a court of record, and no account is taken of a
monetary amount in respect of interest, costs, or alternate legal relief.
a) Section 14 of the Act determines the Court’s jurisdiction.
b) Section 15 of the Act determines which causes of action the Court may adjudicate.
c) Section 26 of the Act states that the Law of Evidence doesn’t apply in the Small
Claims Court proceedings. Adversarial system doesn’t apply in Small Claims Court; it
is inquisitorial in nature.
d) Section 27 of the Act allows a party to call a witness under oath to testify. Witnesses
may not be cross-examined.
e) Section 34 deals with what orders the Court may give. Section 35 deals with
circumstances in which default/consent to judgement may be granted.
f) Although it’s not possible to appeal a Small Claims Court decision, it is possible to
take the matter on review in the High Court on grounds listed in section 46 of the Act.
• Officers of the Court:
a) Judges: judicial officers of the High Court (and all Courts of similar status), Supreme
Court of Appeal, and the Constitutional Court.
b) Magistrates: judicial officers of the regional/district Magistrates’ Courts. Used to be
part of civil service, but they are now considered independent office bearers.
c) Registrars: the chief administrative court staff in a division or local seat of a division
of a High Court. They handle processes, filing of documents, enrolment of matters,
and the taxation of Bills of Costs usually taxed by an assistant registrar known as the

3
They are created by, and operate within, the four corners of the Magistrates’ Court Act 1944.
4
Stellenbosch has a district Magistrates’ Court (we are expected to know this).
5
61 of 1984.
 taxing master. The taxing master is responsible for deciding what costs may be
recovered from a costs order. General rule = costs usually follow the litigation, and the
successful party is usually entitled to a portion of the costs they incurred during
litigation. Costs are argued before the taxing master. Costs are awarded on different
scales6:
1. Party and Party Scale: worst scale; successful party won’t be awarded full
costs. If counsel was employed a maximum of one counsel will be covered, and
not even that if an attorney could have handled the matter.
2. Attorney and own client: best scale and usually awarded for putative purposes.
This is awarded if the litigation should never have ensued if it was strategic
litigation against public participation, for example. ALL costs incurred in
instituting/defending the action regardless if they were strictly necessary.
d) Clerks/Registrars of Magistrates’ Courts: same administrative function as the Registrar
of High Courts but deal extensively with default judgements as the Magistrates’ Court
is widely used for debt collection. Registrar/Clerk = taxing master for the Magistrates’
Court.
e) Sherriff: officer of Court attending to the service of all court processes such as
summonses/subpoenas. Plays an important role in the execution of court orders.
Compiles returns of service to be given to parties/court.
f) Master of the High Court: performs functions regarding insolvent/deceased estates,
liquidation/judicial management of companies, and interests of persons incompetent to
handle their own affairs.

Chapter 3: Consultation, Legal Representation, Demand, and Prescription

• Note to Reader: Longer questions start from this chapter.

The Initial Consultation

• When presented with a potential client a practitioner will have to consider:

1) Whether they may act on behalf of the client.
a) Is there a valid cause of action.
b) Are there concerns about the client’s capacity from a locus standi perspective:
prodigal, insolvent, married in community of property, are they a minor?
c) Is there a potential conflict of interest? This could be with the practitioner
themselves or with an existing client of the practitioner. It may be necessary to
send an email to the rest of the firm to do a “conflict check”. If there’s a
conflict it may be necessary to erect a Chinese Wall7, if the existing client
consents to such, or a conflict-of-interest waiver.
2) Whether to proceed by way of application or action.
3) Whether to appoint an advocate in the matter.

6
Covered in more detail later.
7
A Chinese Wall is where two different practitioners in the same firm represent opposing parties but do so
with a total lack of communication between them.
 4) Cost implications of the proceedings. If the client is fee paying, always send a letter
of engagement after the initial consultation.
• Guideline for First Consultation:
1) Obtain the facts of a prospective client’s case before the initial consultation. There’s
no need to get all miniscule detail, but it will ensure the practitioner has researched
the area of law, whether there is a cause of action, and is already prepared before the
consultation.
2) Give a prior indication of your fees to establish whether the client can afford your
services. Ensure to send a letter of engagement after the initial consultation.
3) Do a conflict check (if necessary) and proceed from there (do you establish a Chinese
Wall or conflict of interest waiver?).
4) Request documentation from the client that may be relevant to their claim; good idea
for the practitioner to consider whether to accept the mandate because it becomes
difficult to terminate a mandate after it’s been accepted.
5) Determine the cause of action using one’s substantive legal knowledge and potential
research.
6) Determine locus standi: can the client bring the application from a capacity
standpoint?
7) Determine jurisdiction, which may also require research.
8) Terms of engagement: these will be contained in the previously mentioned letter of
engagement. These terms elaborate on the authority you’ve been granted as a firm,
sets out your obligations as a firm, the client’s obligation to the firm, the ability of the
individual to pay the firm, how the firm will engage in the client’s mandate, etc.
9) Undertakings regarding feedback: during consultation you’ll commit to various
undertakings which you will be bound to; if you undertake to continuously update
you client and you fail to do so there will e consequences as a legal professional.
Keep the client updated on happenings within the case and where they stand
financially.
10) Decide whether the case should be heard application/action, and whether it will be
necessary to appoint counsel.
• When conducting the actual consultation ensure that you take extensive notes; ensure
your instruction comes directly from your client and ask for extensive details. The legal
practitioner should be reasonably satisfied with the clients identity, his capacity to
instruct, or ensure he has the authority of a representative instructor (juristic persons).
There must be evidence to support the instructions; when the consultation is finished
ensure that you send an email confirming the instructions in writing.
• Reasons to Decline Mandate: are you able to accept the matter?
1) Sometimes the legal practitioner won’t have enough expertise for a particular case.
2) Can’t act if there’s an unavoidable conflict of interest.
3) Client gives unethical, unreasonable, conflicting, or fraudulent instructions.
4) Case load and time considerations: will you be able to commit time resources to this
case given your current workload?.
5) Does the client have the financial means to cover your fees?.
• Case Management: the attorney will open a file on behalf of the client that will state the
names of parties on the exterior and the interior segmented to store pleadings, notice,
evidence, billing, and correspondence. There needs to be a case number allocated to the
 matter8. Calls between the attorney ad client regarding the matter also recorded and stored
here. It also becomes important to have a page with all relevant dates (prescription,
deadlines for summons etc).
• Withdrawal as Attorney of Record: may become relevant if the client does not instruct
the attorney for an extended period of time or receives fraudulent/malicious instructions.
MCR 52A and HCR 16 deals with the withdrawal as attorney of record.
Representation of Parties
• The right to be heard necessarily includes the right to legal agency, entrenched in section
35 of the Constitution.
• In High and Magistrates’ Court a person can self-represent, and an attorney can also
represent (must have right of appearance in the High Court, obtained after 3 years post-
article experience, It is an ex parte application). In terms of juristic persons, an employee
may not instruct an attorney, only a resolution by the board of directors can.9
• Although attorneys may certainly appear in the High Court, it may be apt to instruct
counsel:
a) The High Court is “the terrain” of Counsel, and it’s likely Counsel will have better
knowledge and understanding of the specific court/its directives. Counsel may even
have a good relationship with the court officials.
b) Counsel often specialise in a specific area of law and will likely have greater depth
than an attorney would.
• Power of Attorney: a written authorisation to represent/act on another’s behalf,
specifically regarding legal agency. There are two types, general and special power of
attorney (POA)10. A general POA gives an agent a mandate to conduct all legal acts on
behalf of the principal. Special POA is needed for instituting/defending special legal
proceedings, and all other acts incidental thereto.11 HCR 7(1) stipulates that a power of
attorney need not be filed, subject to subrule (2) (appeals) and subrule (3) (instructing
counsel in an appeal). Up until 10 days after service, the power of attorney may be
disputed, and mandate will have to be produced.

1) Representation in the High Court:

• A party with locus standi can be represented by a legal practitioner (attorney with
right of appearance or advocate) or can self-represent but may not be represented by
a non-legal practitioner third party.
• Juristic persons can’t be represented by an employee, and board of directors must
pass a resolution to instruct legal representation.
• HCR 7 provides that no power of attorney need be filed in the High Court (save for
appeals12 and instructing of an advocate). If representation is disputed it must be

8
This is generated using a program such as SoftLog.
9
Importantly, mandate in practice is usually assumed until disputed, in which case the matter in question will
be kept in abeyance until mandate is produced and the scope thereof validated.
10
A special POA contains (i) parties’ names, (ii) description of the action/application to be instituted/defended,
(iii) nature of relief claimed, and (iv) name/s of the attorney/s appointed.
11
Importantly, a special power of attorney is always needed for an appeal. It is not needed, however, for the
institution of proceedings In the Magistrates’ and High Court.
12
Must be signed by client, comply with legal requirements, and must be filed when the practitioner applies
for an appeal date. Third party may sign on client’s behalf if they can furnish proof of entitlement to sign.
 raised as a point in limine (a technical point raised before the case is heard on its
merits) and the case will then be kept in abeyance until the attorney produces
mandate.
• HCR 16: the attorney of record must serve notice of their appointment and, where
applicable, their withdrawal for two reasons:
a) To disclose the identity of the legal representative.
b) Provide address for the service of documents.
• The attorney of record must be within 25km from the court according to HCR 16. If
they are not within that distance, they must appoint a correspondent attorney (who is
within 25km) for the service/delivery of all documents13.
• Although a client can at any stage of litigation change attorneys, it is more difficult
for a legal practitioner to withdraw and usually reasons would be a conflict of
interest, the client doesn’t pay their fees, or the client fails to further instruct the
attorney. Where the client has failed to make payment, the attorney may keep their
file as a lien (retention right) until payment is made.

2) Representation in the Magistrates’ Court:

• MCR 52(1) provides that the following people may represent in the Magistrates’
Court:
1) A party, whether personally or by means of legal practitioner.
2) Local authority, company, or other incorporated body may act through officer
nominated for that purpose.
3) Partnership/group of persons associated by common purpose may nominate a
member to act.
4) No person mentioned in a), b), or c), other than legal practitioners, may collect
costs other than necessary disbursements.
• Most often, attorneys represent in the Magistrates’ Court; Counsel may not sign any
papers and must be briefed by an attorney before appearing in court.14 Candidate
Attorneys have right of appearance in the district court, and after 1 year they have
right of appearance in the regional court.
• According to MCR 52(2) a power of attorney need not be filed but, within 10 days of
the opposing party becoming aware of the representation, dispute the mandate. They
can also do this after the 10-day period on leave of the court and with good cause
shown15.
• Indigent Persons: If a party cannot afford representation, they can apply to the High
Court in forma pauperis through HCR 40 or pro deo in the magistrates’ court through
MCR 53.
• Noncompliance with procedure on the part of the attorney could result in costs being
awarded de bonis propriis (straight from the pocket of the representative).

13
Correspondents are cited c/o at the end of documents. The client pays the correspondent for their
administrative work.
14
General Council of the Bar of South Africa v Rosemann 2002 (1) SA 235 (C).
15
Madinda v Minister of Safety and Security 2008 3 All SA 143 (SCA).
Action vs Application Procedure16
Action Application

1. Parties = Plaintiff/Defendant Parties = Applicant/Respondent

Based on factual dispute that would

2. Based on real & factual dispute be easily dealt with on papers. Also
used for disputes of law.
Commences with issuing of Commences with issuing of notice of
3. summons by Plaintiff. Defendant can motion + founding affidavit.
defend. Respondent may oppose.
Further pleadings exchanged: Further affidavits exchanged:
4. a) Defendant’s a) Opposing affidavit
Plea/Counterclaim b) Replying affidavit (if
b) Plaintiff’s Replication (to applicable)
defendant’s plea)
c) Plaintiff’s Plea (to defendant’s
counterclaim)

5. Preparation for trial follows No preparation for trial

Action concludes in trial court, where Case argued by legal representatives

6. oral evidence/witnesses are heard in motion court, and is argued on the
papers

Demand & Statutory Notice

• Cause of action = a legal fact-in-issue giving rise to an obligation and consequently a
legal liability.
• A letter of demand is a legal request for the payment of an amount or the performance of
a legal obligation. It usually precedes the institution of legal proceedings, but in certain
circumstances summons can constitute demand (usually in circumstances where demand
is not statutorily required). Usually made in writing but can be made orally by either the
plaintiff/their representative.
• A written demand is made once, usually preceding proceedings, and the implication of
noncompliance for the recipient is usually that litigation will ensue, and they will defend
a claim. There is an obligation on the sender to take reasonable steps to ensure that the
demand reaches the recipient. Legal practitioners should always be aware of the
evidentiary implications of their letter of demand; it may be produced in court one day.
• Components of a Letter of Demand:
1) In which capacity is the letter being sent. If sent by legal professional, there should
be a clear indication that the attorney is acting on behalf of the client.17

16
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
17
Usually by starting the letter with “We act for x in the abovementioned matter” and then indicating the
specific attorney in the signature section.
 2) Establishment of the cause of action. This is where substantive legal knowledge is
applied. For example, if there was an alleged breach of contract then this section
would necessarily need to include:
a) There was the conclusion of a valid contract.
b) A material term of the contract
c) Which has been breached.
3) Clear indication of what action is expected from the recipient.
4) An indication of time period within which to comply with the demand. Question of
reasonableness; you want to place the recipient in a position where they can comply
with the demand.
5) Explanation of the financial consequences of noncompliance. The underlying
rationale of a letter of demand is for the recipient to make a proper assessment of
their liability and make a cost-benefit analysis whether to settle or defend in court. It
may be useful to threaten the recipient with costs if they lose.
• In certain circumstances, demand must be issued before a cause of action can be
completed (before there are grounds to actually litigate):
1) Where a clause in a contract states that an amount is payable on demand, failure to
pay doesn’t constitute a cause of action unless a letter of demand has been issued.
2) Where cause of action is based on breach of contract and the terms of the contract
require a letter of demand, the cause of action will only be complete when the party
gives notice of intention to sue for breach.
3) Where a creditor intends to cancel an agreement, especially where the original
agreement contains no right to an automatic cancellation, it will be essential to place
the debtor on terms through demand.
4) When no date of performance has been agreed on, a letter of demand is used to place
the debtor in mora.
5) If a party wants to claim mora interest they will have to send a letter demand placing
the party in mora from date of expiration as on the letter.18
• Instances where a letter of demand is required by statute:
1) Section 29 of the Small Claims Court Act requires demand be sent 14 days before the
hearing.
2) Section 96 of the Customs and Excise Act requires written notice of intention to sue
one month before legal action is instituted.
3) Legal Proceedings Against Certain Organs of State Act requires demand be issued
within six months from the date when the debt became due.
4) The National Credit Act provides for debt enforcement in two stages, the first being
notice in terms of section 129. This is a pre-litigation step and is mandatory.
5) The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
provides that when an applicant wishes to evict they must first give 14 days’ notice to
the respondent and the local municipality.
• Urgency: if the matter is deemed urgent the time periods within which things must be
done can be shortened. It is the discretion of the legal practitioner to decide whether the
litigation is urgent, but if the court finds otherwise there may be an adverse cost order

18
The costs of a letter of demand can only be claimed if sent by registered post (section 56 of the Magistrate’s
Court Act).
 against his client. The leading case law on urgency is the Luna Meubel Vervaardigers19
case. If the court finds the case to be urgent an interim order will be granted and a rule
nisi issued with a return date for the defendant to present their full case. It may be tactical
to threaten urgency in your letter of demand, even when the circumstances aren’t20.
Prescription
• Prescription refers to the amount of time a legal claim/obligation/debt/right remains
enforceable; in terms of the principle of extinctive prescription certain types of
obligation/debts may become unenforceable, will prescribe, if not exercised within certain
time limits. These claims/debts/rights/obligations may prescribe according to statute or
may be stipulated in the Prescription Act.
• The purpose of prescription is to promote legal certainty, especially for the
respondent/defendant because the Plaintiff doesn’t have an indefinite period of time to
enforce their claim. The right to enforce prescription may be waived; an undertaking can
be given not to raise prescription.21
• Prescription follows calendar days, not court days, and it starts running at the moment
the creditor has knowledge of the debtor and the facts from which the debt arose. Legal
consultation with a practitioner is considered bona fide knowledge of the debtor.
Prescription is also deemed to have started running if the creditor should have had
knowledge or should have taken reasonable steps to obtain knowledge of the debtor (a
standard of care).22
• Examples of prescription’s relevance:
1) Prescription Act: section 11 provides for different extinctive time periods depending
on the type of debt and type of debtor.
a) 30 years in respective of a debt secured by a mortgage bond; a judgement debt
(secured by court order); any debt in respect of tax levied according to any statute;
and any debt owing to the state regarding mining or mineral resources.
b) 15 years in respective of debt owing to the state arising from a money loan, or the
sale/lease of land unless a longer period applies according to a) above.
c) 6 years in respective of a debt arising from a bill of exchange or other naegotiable
instrument such as a cheque or promissory note, or a notarial contract unless a
different time period in a) or b) above applies.
d) 3 years unless provided for elsewhere in statute.23
• Prescription must be pleaded for specially (by means of special plea), usually as a point in
limine. A claim that has already prescribed may still be granted if not raised by the
opposing party. Payment in regards of a prescribed debt may also not be reclaimed.
• Interruption of Prescription: this is dealt with by section 11 – 15 of the Prescription Act.
An admission of liability on behalf of the debtor in respect of his debt will interrupt
prescription (this should be formal/written, not verbal). The issuing of summons also

19
Luna Meubel Vervaardigers (EDMS) BPK v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4)
SA 135 (W).
20
Urgency is dealt with in greater detail later.
21
NB! A court cannot raise prescription ex mero moto (of its own accord).
22
Macleod v Kweyiya 2013 (6) SA 1 (SCA).
23
ABSA Bank Ltd v Keet 2015 (4) SA 474 (SCA): a claim under the actio rei vindicatio prescribes in three years.
 interrupts prescription, and it may be a strategic move to interrupt prescription with
summons, then amend the particulars of claim after the fact.
• Special pleas in Abatement vs Special Dilatory Plea: a special plea in abatement, such as
prescription, destroys the cause of action: once granted the case cannot be heard on its
merits. A dilatory plea stalls the litigation process as something technical has not been
complied with, for example if statute required that a letter of demand be sent before
litigating but this was not done the defendant can plea for abeyance.

Chapter 4: Principles of Jurisdiction

• Note to Reader: this section and the two to follow makes up the majority of term 3.
Use your own discretion.

Introduction
• Jurisdiction = the competence/ability of a specific court to hear a matter that has been
brought before it and to grant relief in respect of that matter. This is very important for a
practitioner to determine correctly, as the consequences of approaching the incorrect court
could result in the case being dismissed and costs even be awarded against the plaintiff.
This could have even more adverse effects if the plaintiff’s claim consequently prescribes
in the time between being dismissed and applied for in the correct court. Jurisdiction must
be determined at the time the legal action is commenced (at the time papers are served on
the defendant).24
• Broadly, jurisdiction entails a two-step process:
1) First establish whether a lower court (magistrates or small claims court) is competent
to hear the matter or whether the matter falls within the exclusive jurisdiction of the
High Court. This is done by:
a) Assessing the monetary value of the claim ( R200 000 or less = district Mag
Court, R200 000 – R400 000 = Regional Mag Court, and R400 000+ in the High
Court).
b) Assessing the nature of the claim as certain claims are statutorily excluded from
certain courts.
2) Secondly, establish which specific division/local seat of the High Court or District
Court/Court of a regional division/Small Claims Court has jurisdiction. This is done
by establishing a nexus (a link) between a claim and a geographical area or
jurisdiction of a particular court. For the High Court this is established using common
law principles called rationes jurisdictories, and statutorily prescribed grounds for
the Mag/Small Claims Courts.
• Inherent vs Prescribed Jurisdiction: Biggest distinction between High Court and civil
magistrate’s courts is that High Courts have inherent jurisdiction, a general superior court
power to regulate its own processes and control its own procedures. This means the High
Court does not derive its powers solely from statute, while the Magistrates’ Curts, being
creatures of statute, are completely governed by the Magistrates’ Court Act and

24
Boltman v Abrahams 1926 47 NLR 113; Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd
1969 (2) SA 295 (A).
 Magistrates Court Rules. The High Court may therefore hear any matter that is not
prohibited from its jurisdiction by statute.
• Relevance of Jurisdiction: as dominus litus (master of proceedings) it is vital for a
plaintiff/applicant to select the correct court to litigate in because failing to do so will
allow for the opposing party to get the case dismissed without even considering the
merits.25 In action proceedings the applicant may raise a special plea in abatement for
lack of jurisdiction. In application proceedings the court will not hear a matter if
jurisdiction has not been satisfactorily established jurisdiction in the founding affidavit. A
court must assess its jurisdiction in light of the pleadings or affidavits in the cases before
it.26Jurisdiction can also have important consequences for prescription: should the wrong
court be chosen, and the motion must be resubmitted in the correct court this may lead to
the claim prescribing. If a practitioner chooses incorrectly, an order bonis propils may be
awarded, or that practitioner may even be referred to the Legal Practice Council for
investigation.
• Principles of jurisdiction have been derived from precedent as well as statute. Although
not as relevant, the jurisdictional common law principles may still act as good
supplementary argument in disputes regarding jurisdiction:
1) Actor Sequitur Forum Rei: general principle that the default position is that the
Plaintiff follows the defendant/respondent to the defendant’s forum and institutes
legal proceedings there.27 This is application of the rule that a court should only
exercise jurisdiction only in matters in which it can give effect to its judgement. This
principle, as well as the ones to follow are not sole bases upon which a court will
exercise jurisdiction. This principle is codified in section 28 of the Mag Court Act.
2) Principle of Effectiveness: this is the basic principle underlying territorial jurisdiction
of courts. Ordinarily, a court should only assume jurisdiction In cases where its
judgement will be enforced and therefore be meaningful.28 This has becomes
somewhat a fiction in South African law due to section 62(1) of the Mag Court Act
and section 42(1) and (2) of the Superior Courts Act which provides that a courts’
order is executable anywhere in South Africa. This principle doesn’t mean that the
court must fully enforce its judgement, just that it has the potential to. However,
even if effectiveness is established jurisdiction may be refused for other reasons.
3) Principle of Convenience: in Roman times a court established jurisdiction where it
was convenient to do so. A court may be inclined, on the facts of a case, to exercise
jurisdiction because it’s convenient to do so. It is commonly accepted as convenient
when the cause of action arose in the courts’ area of jurisdiction. It will be convenient
because it is likely most of the evidence will arise from a place closely linked to that
court, and most witnesses will probably be resident there.
4) Principle of Consent (Submission or Prorogation): a court not ordinarily competent to
adjudicate the matter may, in certain circumstances, exercise jurisdiction over the
defendant if he submits to that court’s jurisdiction. This submission can be express, or
tacit through the party’s failure to act, and the onus is on the plaintiff/applicant to
25
Estate Agents Board v Lek 1979 (3) SA 1048 (A); Els v Welderman 2011 (2) SA 126 (SCA).
26
Chirwa v Transnet Ltd 2008 (4) SA 367 (CC); Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC); My
Vote Counts NFC v Speaker of the National Assembly 2016 (1) SA 132 (CC).
27
Sciacero and Co v Central SA Railways 1910 TS 119 at 121.
28
Steytler NO v Fitzgerald 1911 AD 295 at 346; Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty)
Ltd; Foize Africa (Pty) Ltd v Foize Beheer BV 2013 (3) SA 91 (SCA).
 prove submission.29 When consent by conduct is averred, the conduct must be of
such nature that actual acquiescence is present (not simply failing to oppose an
application).30
• Types of Jurisdiction:
1) Inherent Jurisdiction: powers of High Courts to regulate its own procedures on
grounds that it doesn’t derive its powers solely from statute as opposed to
magistrates’ courts which derive their powers solely from statute.
2) Original Jurisdiction: a court of the first instance (court a quo).
3) Territorial Jurisdiction: the territory covered by a court.
4) Concurrent Jurisdiction: in High Court divisions with a local seat, the local seat has
concurrent jurisdiction with the main seat; a jurisdiction exercised by two or more
courts over the same civil matter.
5) Exclusive Jurisdiction: causes of action which can only be heard in the superior
courts.
• Terminology:
1) Incola: a person domiciled/resident within the jurisdictional area of a specific court E.g., a
person resident in Pretoria is an Incola of the Gauteng division of the High Court, Pretoria.
2) Peregrinus: a person domiciled/resident outside the jurisdictional area (territorial/geographic
jurisdiction)
a) Local Peregrinus: a person resident/domiciled outside the jurisdictional area of a
court but resident/domiciled within the Republic of South Africa.
b) Foreign Peregrinus: a person domiciled/resident outside the Republic of South
Africa.
3) Lis Pendens: a situation which occurs when the same cause of action between the
same parties is being dealt with elsewhere (special dilatory plea).
4) Rei Judicata: a situation where a cause of action has already been pronounced upon
in another court; the matter has already been judged. (special plea in abatement that
destroys the cause of action).
Residence and Domicile31

Mayne v Main: respondent = South African citizen involved in corporate finance consulting where he
spent considerable time abroad at no fixed place. From 1993 however, his work required more time
be spent in South Africa and the respondent hired a vehicle and spent a lot of time cohabiting in
Inanda, Johannesburg. Despite being present in SA for majority of the time in question, the
respondent contended that he had no intention of staying permanently and making SA his home, and
that the principle of effectiveness was relevant to the question of residence.

29
Leibowitz t/a Lee Finance v Mhlana 2006 (6) SA 180 (SCA).
30
Du Preez v Phillip – King 1963 (1) SA 801 (W).
31
Mayne v Main 2001 (2) SA 1239 (SCA). Our South African courts don’t recognize a vagabundus: someone
who has no domicile/residence.
The basic principles of jurisdiction, as established in Ex Parte Minister of Native Affairs 1941 AD 53
are:
a) The question of jurisdiction links to residence, not domicile. A person can be resident and
domiciled in two different places.
b) A person could have more than one residence in which case they would need to be sued in
the court having jurisdiction where the person resided at the relevant time.
c) A person cannot be said to reside at a place they are temporarily visiting, nor can they cease
to be residing from a place based off temporary absence.
d) A precise/exhaustive definition of “resides” cannot be given by court because whether a
person resides in a specific place in time will depend on the case and its merits in relation to
general jurisdictional principles.
e) In giving a court statutory jurisdiction over a person who resides in its area the Legislature
has simply followed the common law Rule actor sequitur forum rei.

Ratio
Although a person may have more than one residence, for the purposes of section 19(1)(a) of the
Superior Courts Act they can only be residing at one place at any given moment. According to Ex
Parte Minister and Hogsett v Buys (1913 CPD 200 at 205) with regards to residence “there must be
some good reason for regarding It as one’s place of ordinary habitation on the date of service”. A
presence which is fleeting/transient would not constitute residence; some sense of permanence is
required.

A modern “realistic” approach is needed when interpreting residence for the purposes of section
19(1)(a) because of a modern tendency, especially among businesspeople, to live a more itinerant
lifestyle. The respondent bought a motor vehicle and set up an office in South Africa in 1994, where
he started spending considerably more time in SA. Respondent left his love interest in the UK and
moved in with another love interest at Inanda. However the respondent submitted that his primary
vocation was his work, and his visits to South Africa were mere temporary visits.

The SCA disagreed, saying that the acquisition of a car, the setup of an office, drastically increased
stay in South Africa, and living in Inanda all lended themselves to being more than simply
temporary visitation. The maxim Ubi uxor ibi domus (you are resident where you sleep) doesn’t
strictly apply to the respondent, but considerations underlying it certainly do apply to him. The mere
fact that one maintains a residence somewhere does not mean they reside there. The majority found
that the respondent’s prolonged presence in Johannesburg, the ongoing nature of his work, and his
romantic interest presented a prima facie case that he was resident there at the relevant time.

The Formula for Selecting an Appropriate Court

• Firstly, the appropriate (magistrate or High Court) must be selected, thereafter the specific
Magistrate’s Court or local division of the High Court must be selected. The first step
with reference to monetary jurisdiction and the nature of the claim, and the second step
regarding the geographical jurisdiction of the court.
• Step 1:
1) Monetary Value: section 29(1) states that a claim for between R200 000 and
R400 000 should proceed in a Regional Magistrate’s Court; a claim for less than
R200 000 in the District Magistrate’s Court. A claim for more than R400 000 should
proceed to High Court.
2) Nature of the Claim: certain matters must be heard in specialised courts i.e., Labour
Court, Tax Court, Land Claims Court etc. Section 46 of the Magistrate’s Court Act
 also stipulates that certain matters must be heard in the High Court e.g., any matter
regarding the status of a person.
3) Other Factors: sections 38 – 40 of the Magistrate’s Court Act allows for
abandonment, deduction of admitted liability, or (where legally possible) splitting a
claim into smaller claims to bring a monetary amount within a court’s jurisdiction.
Section 45 provides for consent: a matter usually outside the Magistrate’s Court’s
jurisdiction may in certain instances be brought with consent.
• Step 2: requires the creation of a nexus (link) between the specific court’s area of
jurisdiction and the dispute. In the Magistrate’s Court this is determined using mainly
section 28 of the Mag Court Act, and in the High Court using common law jurisdictional
factors called rationes jurisdictions:
1) First Principle: the plaintiff follows the defendant (actor sequitur forum rei) and
litigate in the specific court where the defendant is domiciled (rationale domicilii) or
resident (rationale residentii) In terms of juristic persons, litigation must occur within
the jurisdiction of a court where the juristic person’s principal place of business or
registered office is.
2) Cause of Action: a specific court might be vested with jurisdiction if the cause of
action (rei gestae) arose wholly (magistrate’s court section 28) or partially (High
Court) within that court’s area of jurisdiction either contractually (rationale
contractus) or delictually (rationale delicti commissi).
3) Property Claims: a division of the High Court in whose area of jurisdiction
immovable or movable property is situated (ratione rei sitae). Similar provision is
made in the Mag Court.
4) Foreign peregrine: attachment of property or personal service of summons on a
foreigner physically, or submission (consent) by that foreigner may vest a division of
the High Court with jurisdiction. Section 30 of the Mag Court act deals with
attachment of property to found jurisdiction.
5) Other Factors Specific to the Mag Court: a magistrate’s Court is vested with
jurisdiction over incidental proceedings, interpleader proceedings, and by consent.
6) Other Provisions Pertaining to Mag Court: provisions relating to interdicts, incidental
jurisdiction, cumulative jurisdiction, counterclaims, removal of a matter to the High
Court and that Magistrate’s Courts are not competent to pronounced on
Constitutional validity.

Chapter 6: Magistrate’s Court Jurisdiction+

• Note to Reader: this chapter precedes High Court Jurisdiction because the formula
first looks to see if a Magistrate’s Court has jurisdiction and only thereafter the
High Court.
Introduction
• Magistrate’s Courts are creatures of statute and have no jurisdiction beyond that granted
to it by the statute that creates it (magistrate’s court act). Magistrate’s Courts also don’t
have power to regulate its own processes. Statutes other than the Mag Court Act may also
confer jurisdiction, such as the Children’s Act which stipulates that every district Mag
Court is also a children’s court where there are no other children’s courts in that area.
• The jurisdiction of the magistrates court may be limited in terms of:
1) Substantive Jurisdiction.
2) Monetary Jurisdiction.
3) Territorial Jurisdiction.
• Section 170 precludes any court of lower status than High Court from enquiring into the
constitutionality of legislation or any conduct of the President. This is restated in section
110 of the Mag Court Act. If evidence is adduced by a party regarding the former the
magistrate must decide the matter on the assumption that the law or conduct is valid.
Whether the magistrate’s courts may develop the common law is still an open question.
Monetary Jurisdiction
• Note to Reader: Regardless of whether the High Court or the Magistrate’s Court
will be chosen, look at section 29 first.

• Section 29(1) and (1A) allows the Minister to set the amounts with regards to monetary
jurisdiction, which is at present may not exceed R200 000 in the District Court and may
not exceed R400 000 in the Regional Court. The purpose of section 29 is to ascertain
whether the facts of the matter can be linked to a specific subsection to found jurisdiction.
You are trying to found jurisdiction on one of the listed grounds. These provisions
deal with action proceedings and litigants relying on this section must proceed to trial.
Section 29(1) contains provisions either:
1) Dispensing with the monetary limit entirely such as section 29(1)(c) for the
determination of a right of way (someone who is afforded the right to access
another’s property to get to a public road). The onus regarding right of way is via
necessitatis; proof that it is a necessary access route (monetary value is not relevant
to jurisdiction). This section must be read with section 46.
2) Determining the momentary limits in the regional and district magistrate’s courts. No
prayer for interest, costs, or alternative relief is taken into account when determining
monetary jurisdiction (section 37).

Nature of the Claim (Substantive Jurisdiction)

• Sections 29 and 46 deal primarily with substantive jurisdiction, section 29 providing
bases to link a set of facts to a particular subsection in order to establish jurisdiction while
section 46 deals with matters excluded from Magistrate’s Court jurisdiction even if they
fall within the monetary limits.
• Claims excluded in terms of section 46:32
1) Matters concerning the interpretation/validity of a will according to section 46(2)(a).
2) Matters where the status in terms of mental capacity of a person is in question
according to section 46(2)(b). The Magistrate’s Court doesn’t have jurisdiction
because a curator bonis must be appointed.
3) Matters in which a decree of perpetual silence is sought. This is an action sought
against a person who has publicly threatened to institute proceedings against another.

32
The court must raise this mero motu even if not mentioned in defendant’s plea. Parties cannot consent to
jurisdiction in terms of section 45 if section 46 applies.
 The plaintiff can ask the court for a time period within which the person who
threatened action must institute said action, failing which they will not be able to
institute proceedings further on the matter.33
4) Claims for specific performance without a prayer for damages in the alternative.34
Section 46(2)(c) provides three exceptions:
a) Plaintiff seeks an order compelling a defendant to render an account due to the
plaintiff.
b) Plaintiff claims delivery/transfer of property not exceeding the court’s monetary
jurisdiction.
c) Plaintiff claims delivery/transfer of property exceeding the court’s monetary
jurisdiction but both parties have consented to the court’s jurisdiction in terms of
section 45.
• With regards to specific performance two questions arise from conflicting decisions on
the correct meaning of “specific performance”:35
1) Is a claim for the payment of money a claim for specific performance? In Tucker’s
Land and Development Corporation (EDMS) Bpk v Van Zyl distinction was made
between claims ad factum praestandum (performance of an act) and claims ad
pecuniam solvendam (for the payment of a monetary amount). Regardless of the
cause of action, a claim ad pecuniam solvendam is not a claim for specific
performance in terms of section 46.
2) Does “specific performance” in section 46 refer to all claims for the performance of
an act or just those arising from contract? According to Oliver v Stoop, a claim ad
factum praestandum (for the performance of an act) is excluded in terms of section
46 only if that claim has its original in contract. Therefore, a magistrate can’t order
the performance of a positive contractual obligation (such as a mandatory interdict)
or a negative contractual obligation (such as a prohibitory interdict like a restraint of
trade agreement) in the absence of an alternative claim for damages.
• Claims that can be adjudicated in terms of section 29:36
1) Section 29(1)(a) deals with the delivery/transfer of movable/immovable property.
District Mag Court action for delivery ≤ R200 000, Regional Court > R200 000 but ≤
R400 000. This would include, for example, the rei vindicatio37.
2) Section 29(1)(b) deals with ejectment actions and evictions.38 There are no monetary
limits, simply proceed to the Magistrate’s Court. The exception would be where the
defendant contends, bona fide, that they have a right to occupy the premises, in
which case the claim must be quantified. This means the first step is not to try
quantify the claim as this is only necessary if the claim is disputed. If contended, the
claim can be quantified in 2 ways:
a) Clear Value: determine the value of the occupation to the occupier by looking at
the value over and above the rent payable. E.g., if an occupier pays R10 000 p/m

33
Attempting to do so will result in them being contempt of court.
34
As a rule, specific performance must be clamed with damages in the alternative in the Magistrate’s Court.
35
This is NB in practice and is likely to be tested!.
36
“Actions”, for the purpose of section 29, refer to proceedings initiated by summons.
37
Although vindicatory action is usually initiated in the High Court, the Magistrate’s Court Act makes no
provision for rei vindicatio to be brought by way of motion.
38
Must be read in conjunction with the Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act.
 in terms of rental agreement then the clear value = value over and above the rent
due; find suitable alternative accommodation in area in which premise is situated
– take that value. E.g., if the rent for your property is R20 000, compare this
value to the price of other accommodation, for example R10 000, and multiply
the difference (R10 000) by the number of months left on the rental contract (for
example 6 months). This would then be R10 000 x 6 = R60 000 and therefore in
the district court’s jurisdiction.
b) The 2nd method is only available to commercial premises where there is no
alternative accommodation in the area. It’s not quantified using the difference in
rental amounts, but rather the profit that the commercial occupier expects to
make over the occupation period.
3) Section 29(1)(d) deals with actions arising from a liquid document/mortgage bond. A
liquid document includes cheques, mortgage bonds, admissions of liability, etc. It is a
document that bona fide:
a) Indicates indebtedness.
b) For an ascertained amount of money.
c) Payment of which is due to the creditor.
d) The creditor’s identity is clear from the document.39
4) Section 29(1)(e) deals with actions arising from any credit agreement as defined in
section 1 of the National Credit Act. Magistrate’s courts have unlimited jurisdiction
regarding credit agreements according to section 172 of the National Credit Act.40
5) Section 29(1)(f) deals with actions in terms of section 16(1) of the Matrimonial
Property Act where one spouse is unreasonably withholding the requisite consent for
an action where spousal consent Is required.
6) Section 29(1)(A) deals with the liquidation of Close Corporations, for which there is
no monetary limit.
7) Section 29(1)(g) includes all actions not mentioned in the section which is within the
monetary jurisdiction of R0 – R200 000 (district) and R200 000 – R400 000
(regional), and which is not precluded by section 46.
8) Section 20(1B)(a) gives regional courts jurisdiction regarding the nullity of a
marriage or civil union including any questions arising from such suits. This includes
customary marriages.
9) Section 29(1B)(b) gives regional courts the same powers as the high court in matters
related to section 29(1B)(a).
10) Other claims in terms of sections 30, 31, and 32:
a) Section 30 provides that a magistrate may grant an interdict subject to the
limitations of section 46. A magistrate may not, therefore, enforce a positive
contractual obligation (mandatory interdict) or a negative contractual obligation
(restraint of trade agreement) in the absence of a claim for damages in the
alternative.
b) Section 30bis deals with attachment of property of a foreign peregrinus to found
or confirm jurisdiction. A magistrate may order the attachment of foreign

39
A document is not liquid if it shows that payment is conditional. Liquid documents are dealt with in simple
summons and are difficult to dispute.
40
After the 2019 judgement in Nedbank Ltd. V Gqirana NO and Similar Matters 2019 (6) SA 19 (ECG) all such
matters must be instituted in the Magistrate’s Court.
 property to found or confirm jurisdiction where the claim amount is at least
R2500 not including costs and interest. The property cannot be valued at more
than R200 000 (district) or R400 000 (regional).
c) Automatic rent interdicts section 31: when summons is issued in a rental dispute,
the plaintiff may include a notice prohibiting any person from removing any
furniture/property from the premises that are subject to the plaintiff’s hypothec
for rent.
d) Attachment of property in security of rent section 32: on application, if the court
is satisfied that the tenant is about to remove movable property from the
premises, it can order the sheriff to attach such movable property not exceeding
the court’s monetary jurisdiction.

Ways Jurisdiction may be Extended.

• In certain situations, a plaintiff may not possess jurisdiction, but may still want to proceed
in the Magistrate’s Court. There are a few ways of further obtaining jurisdiction:
1) Section 40 dictates that splitting of a single claim into smaller claims is not allowed.
This means if the substantive claim (not interest and costs) exceeds the limits it may
not be split with the objective of recovering the full amount in more than one action.
Combing of separate claims is, however, allowed in the form of cumulative
jurisdiction. According to section 43(1) separate claims against the same defendant
may be combined in one summons where the claims each arise from a separate cause
of action. As long as each claim does not exceed the limit, the cumulative amount can
exceed the limits. Court has same jurisdiction to decide each claim as it would have
had if each claim had formed the sole subject of separate action.
2) Incidental Jurisdiction: section 37 allows the Mag court to assume jurisdiction as long
as the capital amount claimed is within the court’s jurisdiction (it doesn’t matter that
transactions giving rise to the claim is larger than the prescribed amounts). For
example, if a debtor originally owed R600 000 but the plaintiff is only claiming
R200 000 as R400 000 was already paid, the court can still enquire for evidence on
the total amount. Jurisdiction is also not lost when a court must give finding on a
matter beyond its jurisdiction If that ruling is incidental to the main relief sought.
Prayers for interest/alternative relief/costs are ignored for monetary jurisdictional
purposes.
3) Abandonment of a portion of claim in terms of section 38: abandonment can be used
to bring a plaintiff’s claim within the court’s monetary jurisdiction, and it must be
averred in the summons according to MCR 5(6)(c). The golden rule with
abandonment is that you get what you can prove up to R200 000 (district) and
R400 000(regional). A plaintiff will usually abandon when:
a) The amount by which the claim exceeds the court’s jurisdiction is not sufficient
enough to warrant incurring High Court fees which are much higher.
b) The plaintiff expects to succeed in only a partial amount of their claim and the
amount expected to be recovered is within, or exceeds only by a small margin,
the limits of the Magistrate’s Court. A plaintiff who succeeds in the High Court
for an amount within the Magistrate’s Court’s monetary jurisdiction will usually
only be granted costs on Mag Court scale.
 c) Deduction of an admitted debt: if there is a counterclaim/possible counterclaim,
you may as plaintiff deduct a counterclaim from your claim to bring the claim
into the court’s jurisdiction. As per MCR 5(6)(c) this must also be averred in
summons. Rule with deduction: you get what you can prove up to the
maximum limit, less the admitted debt.
d) Consent to jurisdiction in terms of section 45: parties may consent to an
extension of the court’s monetary jurisdiction in writing where that court already
possesses substantive jurisdiction.
I. ALL parties must consent.
II. Parties cannot extend the court’s substantive jurisdiction by overriding
section 46. Similarly, parties cannot consent to extending a district court’s
jurisdiction to that of a Regional court.
III. The parties cannot, through contractual provision, consent to jurisdiction of
a court that would not otherwise have jurisdiction over the defendant.
Territorial Jurisdiction
• Section 28 provides for territorial jurisdictions only over persons set out in the subsection.
“Person” refers to the defendant but can include natural persons, companies and other
corporate bodies, municipal and provincial bodies, and the State.41 Where these different
categories of “persons” reside become important:
1) Natural Persons: Section 28(1)(a) provides “any person who resides, carries on
business, or is employed within the district or region.” Read with the general
principle actor sequitur forum rei refers to where the defendant resides, carries on
business, or is employed. For the purposes of jurisdiction it is not possible to reside
nowhere, however one can have more than one residence (but not more than one
domicile). The general approach of the courts is based off Beedle & Co v Bowley42 :
“where an individual resides is where his home, his place of abode, the place he
generally sleeps when the work of the day is done. For residence, there needs to be a
sense of regularity; something more than fleeting visitation (Mayne v Main). Once
jurisdiction has been established after summons is served, it is fixed for the duration
of proceedings.
2) Companies/Close Corporations: Section 28(1)(b) provides “any partnership which
has business premises situated or any member whereof resides within the region or
district. A plaintiff, as dominus litus, may choose between a company/close
corporation’s central control (head office, where the business is administratively
controlled from) and the company/close corporation’s registered office. In General
Accident Insurance Co SA Ltd v Mbonambi the court held that the place where a
business carries out its business is equivalent to its “residence”. The place where a
company "carries on business" must, for the purposes of s 28 (1) (a) of the
Magistrate's Court Act 32 of 1944, be restricted to the place where its central
management is to be found.
3) Partnerships: partnerships are not legal persons, but section 2 of the Interpretation
Act43 provides that partnerships may, in circumstances such as these, constitute a
person.

41 Section 28(2).
42 1895 12 SC 401 at 403.
43
3 of 1957.
 4) The State: Pretoria (Minister of Law-and-Order v Patterson quantifying section 23
of the State Liability Act).
• The meaning of “carries on business” is where the defendant carries out their daily work
with a sense of regularity; there must be a pattern of conduct. If a defendant is employed
by someone in an area of jurisdiction, that place can be used for jurisdictional purposes.
Meaning of “employed”: some semblance of permanence is required.
• Section 28(1)(c): a court has jurisdiction over anyone in incidental proceedings because a
plaintiff instituting action cannot claim jurisdiction in the main suit and object to the same
court’s jurisdiction in matters incidental to the main action.44 For example, a counterclaim
(claim in reconvention) is incidental to the main proceedings (a claim in convention).
• Section 2891)(d): a magistrate’s court has jurisdiction over party where the cause of
action arose wholly in its area of jurisdiction (district or region). This occurs when all the
facta probanda (facts the plaintiff must prove for his claim to succeed) have occurred
within the court’s jurisdiction. Facta probanda are the facts that must be proved for the
claim to succeed, whereas as the facta probantia is the evidence adduced to prove those
facts. Only the FACTS must occur within the court’s jurisdiction, not the evidence needed
to prove those facts. MCR 5(6)(a): when this ground is relied upon, a separate averment
must be made that the cause of action arose wholly in the court’s jurisdiction. McKenzie v
Farmers’ Co-operative Meat: Cause of action = every material fact (substantive law
element) necessary for plaintiff to prove in order to secure judgement.

King's Transport v Viljoen 1954 1 SA 133 (C): a car accident occurred in Somerset West and the
basis of the claim was vicarious liability. In order to succeed with his claim, the plaintiff needed to
prove the facta probanta for vicarious liability, namely that the delict occurred within the scope of
the employees employment. Jurisdiction was disputed on grounds that the contract was signed in
Salt River (outside the court’s jurisdiction). However, that contract was simply facta probantia and
not needed to prove the plaintiff’s case. All that was necessary was to show that the driving
happened in the course and scope of the driver’s employment.

• Section 28(1)(f): should a defendant enter an appearance for intention to defend and then
fail to object to the court’s jurisdiction by means of special plea for a lack of jurisdiction
will be considered to have consented to the court’s jurisdiction. This section cannot
override section 46 matters, nor can it be used to escape the court’s monetary jurisdiction.
The difference between section 28(1)(f) and section 45 is that section 45 is active consent
while section 28(1)(f) arises from a defendant’s failure to raise a special plea.
• Section 28(1)(g): a court has jurisdiction over any person who owns property situated
within the region/district in actions in respect of such immovable property. MCR 5(6)(b)
states that a separate averment in the summons must be made in this summons when this
ground is relied upon..
• Removal of a matter to High Court: an unhappy defendant can use section 50 to
remove a matter to the High Court where the monetary amount exceeds that of the
district/region:
a) Before the date is set down for hearing, the defendant must give notice of intention to
make such application to the plaintiff.

44
Incidental claim: a claim arising from the same set of facts as the primary action.
 b) The notice must state that the defendant objects to the matter being heard in the
magistrate’s court.
c) The applicant may need to give property as security.

Chapter 5: High Court Jurisdiction

Introduction
• The High Court is possessed of inherent jurisdiction in terms of section 169 and 173 of
the Constitution and has the discretion to regulate its own processes as it’s not a creature
of statute but is constitutionally created. The High Court is thus not bound by the High
Court rules and has discretion to grant orders that further the administration of justice.
High Court may mero motu order a party to furnish particulars providing an allegation in
a pleading, it can strike out parts of proceedings, join further defendants, prevent
vexatious litigation, and order interim relief to avoid the abuse of court procedures.
• The High Court has always discouraged litigants from instituting matters that could be
heard in the magistrate’s court by awarding costs of that matter only on a magistrate’s
court scale despite litigants having incurred High Court Costs.
• The High Court’s jurisdiction has been limited by the creation of special courts such as
Tax Court and Labour Court. Matters pertaining to labour or tax must, correspondingly,
be heard here.
• Territorially, a High Court has jurisdiction throughout the entirety of the province. Local
seats possess equal jurisdiction, and the main administrative seat is usually within the
province’s capital.
• Section 21(1 of the Superior Courts Act provides that a Division as jurisdiction over all
persons residing or being in and in relation to all causes arising and all offences triable
within its area of jurisdiction. Section 21 therefore limits the High court’s jurisdiction
territorially as it only has jurisdiction over suits where:
a) A person resides or is in its area of jurisdiction.
b) The cause of action arose within its area of jurisdiction (doesn’t have to be wholly as
with the magistrate’s court).

Common Law Grounds Ratio Jursidcitiones

• In determining whether a court has jurisdiction, the following two factors must be
considered:
1) Does one or more of the ratio jurisdcitionis create a rational link (nexus) between the
set of facts and the court’s geographical area.
2) Would an order by the court be meaningful and effective. The base idea here is to not
waste the court’s time with a matter where judgement will clearly be ineffective
(won’t be enforced). For enforcement, the court needs control over judgement
debtor’s person or property.
• The nexus (link) may relate to the locality of:
1) The Defendant/Respondent: this in terms of the actor sequitur forum rei the
plaintiff/applicant must follow the defendant/respondent to his place of residence or
 domicile (ratione domicilii). Domicile is given the definition in section 1(2) of the
Domicile Act. A party’s domicile of choice is the place where they have a physical
presence (objective fact) and they have the intention to remain indefinitely
(subjective test). One can have more than 1 residence, but not domicile.
2) The Cause of Action (ratione rei gestae): a court (forum rei gestae) will have
jurisdiction where the cause of action arose within its area of jurisdiction. 2 kinds of
rei gestae:
a) Ratione Contractus: contractual cause of action can occur where the contract
was concluded (locus contractus) where the contract is to be performed wholly
or in part (locus solutionis), or where the contract was breached. If these
elements occur in different jurisdictions, the plaintiff may choose where to sue.
b) Ratione Delicti Commissi: when a delict occurs in a court’s jurisdiction that court
will have jurisdiction.45
3) Property: using the ratione rei sitae, a court acts as forum rei gestae in claims
relating to property where such immovable property is situated within the court’s
territorial jurisdiction. This can include Claims dealing with title to property, claims
for transfer/delivery of property etc.
• Claims for money judgement: a claim sounding in money is usually either a delictual or
contractual claim but in certain circumstances a money claim may be raised as an
alternative to another claim (for example, for specific performance). If a claim sounding
in money is raised against an Incola the claim can be based on any of the common law
grounds (ratione rei gestae, ratione rei domicilii, ratione rei sitae). However, where the
defendant is a foreign peregrinus, the jurisdiction depends on attachment of property to
found or confirm jurisdiction.

Claims Against Foreign Peregrine

• Section 42(2) of the Superior Courts Act stipulates that the HC civil process runs
throughout the country and the process/order/judgement is enforceable nationwide. The
Court is able to exercise control over the defendant’s property if they are an Incola of
South Africa.
• Judgement can be rendered ineffective should the defendant be a foreign peregrinus, and
so jurisdiction against a foreign peregrinus must be found or confirmed for claims
sounding in money. Attachment to found jurisdiction is used when there is no other
common law ground upon which jurisdiction may be established. When a ground already
exists, attachment is used to confirm jurisdiction.
• Reasons for the Court’s inherent jurisdiction:
1) To regulate proceedings and prevent abuse of court process.
2) Protect dignity, repute, authority, and compel observance of lawful orders.
3) Control and supervise officers of court.
4) Restrain irregularities in inferior courts.
5) Create/modify remedies.

45
Not necessary for all facta probanda to occur in court’s jurisdiction area.
• Although the actor sequitur forum rei principle usually applies to the defendant, in cases
involving a foreign peregrinus defendant, the plaintiff’s domicile, residence, or place of
business is sometimes used. This may actually provide the plaintiff with an advantage as
he may instate proceedings in his country instead of following the defendant as per the
actor sequitur forum rei. This is so because of the public policy consideration that South
African courts should assist South African citizens.
• Bid Industrial Holdings (Pty) Ltd v Strang: where the defendant is a foreign peregrinus
who is physically present in SA but has no property present, the plaintiff is entitled to
personal service of summons on the foreigner where there is adequate connection
between the court’s territorial jurisdiction and the cause of action.
• If the peregrinus is not in SA but has property here, the plaintiff is obliged to attach the
property to found or confirm jurisdiction. Note: If the defendant is not physically present
in SA and has no property here, the plaintiff is forced to follow the peregrinus to their
home forum.
• Steps to found/confirm jurisdiction:
1) The defendant must be a peregrinus of South Africa, and their property must be in SA
(unless they are physically present in which case personal service of summons must
be effected).
2) The Court within which the cause of action arose must be identified as well as which
court the plaintiff is domiciled/resident.
3) Application: jurisdiction is confirmed (ad confirmandam jurisdictionem) in any
court with territorial jurisdiction over the area where part of the cause of action arose.
Jurisdiction is found (ad fundandam jurisdictionem) in the court having territorial
jurisdiction over the area where the plaintiff is domiciled/resides.

Chapter 7: Locus Standi

Introduction
• According to common law jurisdiction, litigation is adversarial and as such there are
usually two groupings of parties. One grouping of parties requesting legal relief and one
grouping of parties opposing the granting of that relief. In trial proceedings the party
requesting relief = plaintiff, and opposing = defendant, whereas in application
proceedings party requesting = applicant and opposing = respondent.
• Locus standi can be referred to as one’s competence to appear before a court, their legal
standing. Before 1994 the only way parties could be collectively represented was through
joinder, as class action remedies were not transplanted from English civil law to SA.
Locus standi is important to consider before litigation ensues to establish:
1) Does a party have sufficient standing (legal connection to a particular legal/factual
dispute) in order to litigate.
2) Are there other parties that have sufficient interest in the outcome of the proceedings.
If so, the plaintiff must “join” that party.
• The issue with joinder is that each party seeking to be joined must bring an application for
joinder, the drafting of which is a technical and difficult procedure which incurs costs.

Locus Standi
• Locus Standi in iudicio translates directly to place to stand before a court. An analysis of a
party’s standing concerns two things:
1) Does the litigating party have sufficient interest in the right that is the subject matter
of the litigation. This is a determination of whether the correct party is before the
court. The party instituting proceedings must have a direct and substantial interest in
the right that forms the subject matter of the claim. The interest cannot be too far
removed from the right in question and cannot be abstract, academic, or hypothetical.
Section 38 of the constitution extends locus standi to persons who, in the past, did not
have a direct/substantial interest:
a) Someone acting in their own interest.
b) On behalf of another person who cannot act in their own name.
c) As a member of/having an interest in a class/group of persons.
d) In public interest.
e) An association acting in interest of members.
2) Does the litigating party have the capacity to sue or be sued.
• Class action: section 38(c) of the Constitution legal procedure which enables the claims
of a group of individuals against the same defendant(s) in relation to a common issues(s)
of law and/or fact to be determined in a single suit. The class members are bound by the
outcome of the litigation on the common issues (it is rei judicata in relation to those class
members).
• The South African Law Commission in 1995 prepared a working paper on class actions
which was followed be the final report in 1998. Key recommendation: legislation/court
rules needed to be enacted to regulate the class action mechanism. Simply having an
authorising provision in the Constitution (section 380 is insufficient; there needs to be a
regulatory framework. To date, there remains an absence of such a regulatory framework.
Besides for the Constitution, the Consumer Protection Act also provides for class action
suits in section 4(1)(c). Nowhere in SA will you find a framework on how class actions
should be instituted.
• Children’s Resource Trust Centre v Pioneer foods (Pty) Ltd 2013 judgement (SCA) set
out the procedure for the adjudication of class action suits. The court held class action
suits may be utilized even in cases where the claim is not based on a constitutional right.
The case set out the circumstances under which a class action may be instituted and the
procedural requirements that must be satisfied. The rules are Trans – substantive; they
apply to all areas of substantive law not just certain categories of claims. The court held
that the first step prior to summons is certification. There are 7 requirements that must be
complied with In order to be certified:
1) There must be a class, identifiable by certain objective criteria.
2) There must be a cause of action raising a triable issue (it must be a claim worth
pursuing).
3) There must be issues of fact/law common to all members of the class (commonality
requirement; does not need to be both fact and law).
 4) Relief sought/damages claimed must flow from the cause of action and must be
ascertainable and capable of determination (causality requirement)
5) If the claim is for damages, there must be an appropriate procedure for allocating
damages to the class members (court wants to ensure that class members actually
benefit)46.
6) The proposed representative must be suitable to be permitted to conduct the action on
the class. Does the class representative have sufficient funding to pursue the action?
7) It must be shown that a class action is the most appropriate means of adjudicating the
claims of the class members. This is done by comparing the class action to the
suitability of joinder. The more class members there are the more impractical it
would be to require joinder. In SA there is no numerosity threshold, the court
conducts a case-by-case analysis.
• Mukaddam v Pioneer Foods (Pty) Ltd: constitutional court judgement where the court
held that the requirements formulated in Children’s Resource Trust Centre were not
actually requirements but merely factors to be considered, they were watered down.
Those factors must be considered under the guiding doctrine of the interests of justice.
Even if one factor is not present the applicant can still show that the class action is in the
interests of justice.
• 2 types of class actions:
1) Opt in class actions: if a member doesn’t proactively opt-in they are not class
members and may litigate separately (rei judicata does not apply). Class members
usually have significant losses where more resources would be required in the
litigation because their stake in the litigation is higher. Individual notice is more
feasible and is usually required. The issue is res judicata in relation to those class
members forming part of the suit.
2) Opt-out class actions: they are bound to the outcome of the judgement and are
automatically class members unless they opt out. Usually used where the class is
significantly large, where the class members have very little economically viable
claims (they have small claims where they wouldn’t have been likely to institute
action by their own accord). It may be difficult to give individual notice to class
members spread geographically across SA, and our courts have accepted that where
opt-out class action is pursued, individual notice is not necessary. Significant effort
must be made to inform the class through television, hard print, advertisement, notice
boards etc.
• Bifurcation: the procedure whereby a court divides a class action into different phases
and the one phase is opt out while the other is opt in. E.g., in a personal injury class action
such as the Silicosis class action where different individuals suffered different degrees of
injury and claimed different amount of damages (there was a silicosis and a tuberculosis
class). The first phase is an opt out class action where it is determined that there is
liability. The second phase is an opt in action where the members have to opt in. In this
phase the quantification of the individual damages occurs.

46
In Permanent Secretary, Department of Welfare, Eastern Cape and Another v Ngxuza and Others the court
held that the most important feature of a class action suit is that other members of the class, though not
formally and individually joined, benefit from, and are bound by, the outcome of the litigation.
• Subclassing: it can be that the main class is split into subclasses to make quantifying the
damages easier/manage the class action. It might be useful to use age as a criteria for
quantifying damages in a personal injury class action.
Capacity to Litigate
• Every natural person possessing full legal capacity may be sued/sue. For juristic persons
lacking in full legal capacity, such as Close Corporations, a separate legal entity called a
universitas may be created in limited circumstances47.
1) Minors (Children): minors gain majority status at age 18 (section 17 Children’s
Act)48. An infans (under age 7) has no legal capacity to litigate and must always be
represented by a guardian. A minor over 7 (pupillus) may choose to institute action in
the name of their guardian or in their own name (duly assisted by the guardian). A
guardian acting in representative capacity cannot be liable for costs or damages
awarded against the minor at judgement49 It’s possible for a guardian to act on their
own behalf (eo nomine) simultaneously to acting on the minor’s behalf (nomine
officio), usually where damages are claimed from a third party in respect of the minor
while medical expenses are also claimed by the guardian. Where there is no
guardian/an unwilling guardian, the court may appoint a curator ad litem to represent
the minor50. Section 15 of the Children’s act extends locus standi to the following
persons alleging a right in the Bill of Rights has been violated:
a) A minor having a vested interest in the matter to be adjudicated.
b) Anyone having an interest in the child, or on behalf of another person that can’t
act in their own name.
c) Anyone acting as a member of, or having interest in, a group/class of persons.
d) Anyone acting in public interest.
2) Married Women: the principle of marital power was abolished by the Matrimonial
Property Act in 1993 with retrospective effect. All married women possess locus standi
except in circumstances being marriage in community of property without the required
consent (section 17 of the Matrimonial Property Act). Section 17 also doesn’t relate to
locus standi, and a spouse still has locus standi without the consent. The defendant
can’t raise a special plea for lack of consent; the plaintiff will likely have to pay costs.
This consent isn’t necessary:
a) For interspousal litigation.
b) For litigation pertaining to a spouse’s separate property.
c) Recovery of damages, barring damages for patrimonial loss, due to commission
of a delict.
d) For litigation surrounding any issue of a spouse’s trade/business/work.
3) Mentally Disabled Persons: have no locus standi as they can’t appreciate the nature
of legal proceedings. HCR 57 states application can be made to appoint a curator to

47
An entity characterized by (i) perpetual succession and 9ii) the capacity to acquire certain rights 9e.g., the
right to acquire property in its own name separate from the natural persons controlling it).
48
A minor may sometimes be regarded as a major either (i) in terms of section 2 of the Children’s Act or (ii) by
tacit emancipation.
49
Barring where the guardian acts mala fide, negligently, or unreasonably, in which case an order de bonis
propriis may be granted.
50
A minor may act unassisted where (i) they apply for a curator, (ii) court grants permission for unassisted
litigation and (iii) applying for marriage without consent.
 that person, or to that person’s property51. Where a person has already been declared
mentally unfit, a judge in chambers may, be application, directly appoint a curator
without application. Application for curator happens sequentially: a curator ad litem is
first appointed followed by a curator bonis. It is an ex parte application with
supporting affidavits of:52
a) A person(s) who is familiar with the person and can attest to their mental health or
otherwise.
b) Two medical practitioners, one of which must be an alienist/psychiatrist.
4) Prodigals (spendthrift): someone incapable of managing their financial affairs. They
must be declared as such by the High Court, following which application for a curator
bonis is usually made. Prodigal can litigate unassisted unless a curator ad litem is
appointed as it is deemed that they cannot understand the nature of legal proceedings
(the extent of limitation of the prodigal’s limitation on locus standi depends largely on
court order).
5) Insolvents: has very restricted locus standi. Once declared insolvent, the sequestrated
estate is managed by a court-appointed trustee who will, in representative capacity, sue
or be sued in matters on behalf of the sequestrated estate. If a person is declared
insolvent during litigation, that litigation is stayed (abeyance) and the trustee
substitutes the insolvent in that litigation. The insolvent does still possess locus standi
regarding:
a) Matters relating to status.
b) Any right not related to the sequestrated estate.
c) Matters relating to the insolvent’s work/profession/occupation.
d) Actions for the recovery of pension.
e) Actions related to the recovery of non-patrimonial damages.
f) Actions related to review of proceedings involving the sequestrated estate.
g) Actions against the trustee for maladministration of the estate.
6) Fugitives From Justice: are the only group with absolutely no locus standi in South
Africa. They can’t institute any proceedings but can defend proceedings. If there is
default judgement granted because they weren’t served/changed residence, they have
the right to apply for recission to defend the action. If that judgement is rescinded the
court will re-issue summons and they will once again become defendant. A judgement
in a fugitive’s favour may not be executed barring a writ of execution.
7) Diplomats, Judges, and Others: consent (by the judge president) required to
sue/subpoena a judge of a superior court. In the lower courts, consent is required from
the division that has appeal jurisdiction. The Diplomatic Immunities and Privileges Act
protects diplomats, or anyone listed by the minister of foreign affairs from litigation53.
If a litigant suspects someone may be privileged, they should investigate, determine
the extent of the privilege, and the nature of immunity.

51
Curator ad litem = appointed to protect the person’s interests/manage their affairs while curator bonis =
appointed by the court to manage and control their property.
52
HCR 57.
53
A South African litigant wilfully instituting action against these categories of people could face fine or
imprisonment.
 Chapter 11: Service of Process

Introduction
• Service, or legal delivery, is an essential part of the audi alteram partem principle. It can
be defined as a process defined by court rules in which court documents must be
delivered to an opposing party. It entails that the initiating party bring the legal
processes to the attention of the opposing party such that they are aware of action being
taken against them and what response is required. Service may be effected by the Sheriff
(preferably) of the opposing party/their legal representative. Service by the Sherrif is
usually by hand and requires the completion of a return of service.
• Before commencing in any court process, documents first must be issued by the court: the
legal practitioner will go to Room 1 in the HC/MC and the registrar/clerk will issue their
stamp/signature, a court file will be opened, and case number allocated to that file. The
original document needing to be served is given to the sheriff for service to the
defendant/copies if there are multiple defendants54. Service is only effective if it complies
with court rules.
Role of the Sheriff
• Sheriffs + Deputy Sheriffs = officers of court appointed by the Minister of Justice in
terms of the Sheriff’s Act55. Where a sheriff fails to act in accordance with the rules of
court and intentionally/negligently fails to discharge the duty of service or carry out
instructions properly, the basis of the sheriff’s liability lies in law of delict, not contract or
agency law.
• To effect service, the initiating party’s attorney provides sheriff with the original process
(summons/notice of motion) together with a true copy for the opposing party. Before
effecting, this process must be issued by the registrar/clerk, meaning the front page must
be stamped, signed, and dated. The sheriff will then display the original copy to the
opposing party alongside a copy. The Sheriff must also duly explain the nature and
contents of the document. The Sheriff will then return the original document to the court
alongside a completed “return of service”:
a) The type(s) of the documents served.
b) The manner of service.
c) Whether service was effectively carried out according to court rules.
d) Where and what time service was effected.
e) The nature and contents of the process was duly explained to the recipient.
• The role of the sheriff is very important because if, for example, the sheriff doesn’t attach
a return of service, the defendant can have the matter rescinded based on lack of service.
If the sheriff could not effect service and there is an unsuccessful return = nulla bona.

54
The significance of serving the original copy on the defendant is that it speaks to the documents’
authenticity.
55
Not to be regarded as agent of the opposing party.
Manner of Service
• Procedures for service in the High Court and Magistrate’s Courts are generally similar.
Personal delivery of service on the defendant is clearly ideal as this ensures that
proceedings come to the attention of the defendant. Considering it’s not always possible,
the rules provide for certain other methods of service (Textbook Pages 225 – 229; don’t
study, just use these notes and the slides). These methods include, inter alia, service at
the defendant’s residence or business by leaving a copy with a person in charge over the
premises. They also include a domicilium citandi, meaning a place chosen for the service
of process (usually the summons).
Substituted Service
• Note to Reader: a likely test question will be the difference between substituted
service and edictal citation.

• Used only when the litigant intends to institute proceedings against a party whose
physical whereabouts are unknown. E.g., wife wants to sue for divorce, husband left
communal home and his whereabouts in the province are unknown. The attorney for the
plaintiff will, in such case, apply on the plaintiff’s behalf for permission to institute
proceedings by serving a process of court in a manner not prescribed by the rules. The
onus of proof on the plaintiff is to show that there is reasonable evidence to suggest the
defendant is still in SA. In addition to asking the court as to the mode/method of service
as well as permission to bring the main proceedings.
• If the defendant is believed to be outside the country, a special form of substituted service
called edictal citation is required (an ex parte application). If the court grants permission
it will issue a citation (the equivalent of summons) to which an intendit (the equivalent of
a particulars of claim) is attached. For the ex parte application it is obligatory that the
court issue a temporary order in the form of a rule nisi. Where the defendant is outside the
Republic, a period of 21 days must be given for the entrance of an appearance to defend.
• Substituted service could be leaving the documents with friends/family, or by using
Facebook. It is necessary to show the court that all avenues have been exhausted before
applying for substituted service; then defendant cannot rely on lack of service.

Chapter 8: Application Procedure

Introduction
• Application (motion) proceedings are characterised by affidavits. Party bringing
application = applicant(s) and opposing party = respondent(s). Applicant commences
litigation after the registrar/clerk issues a notice of motion which advises the
respondent(s) of the applicant’s claim and relief sought 56. It is accompanied with a
founding affidavit detailing the relevant allegations. The opposing party must then file an

56
Served on the respondent or their attorney (BHP Billiton Energy Coal South Africa Ltd v Minister Resources
and Others).
 answering/opposing affidavit together with any supporting affidavits wherein he answers
the allegations made by the applicant. If necessary, the applicant may then issue a
replying affidavit responding to allegations made by the respondent in the opposing
affidavit. Barring in the case of summary judgement or applications in terms of HCR 43,
there are three sets of affidavits served in most application proceedings:
1) The initial founding affidavit.
2) The opposing/answering affidavit.
3) The replying affidavit.
• Process culminates in the hearing of the matter in motion court. The legal representatives
argue, and oral evidence is usually not heard. The submissions by legal representatives is
limited to what is in the affidavits and legal submissions. Application is faster than action
but are not suited to disputes of fact. Orality is used in applications usually only for
arguments of law based off the heads of argument. If a dispute of fact is foreseeable then
action proceedings must be instituted, failure to do so could lead to putative cost order.
• All necessary documents/evidenced must be annexed to the application (copies of the
contract, photos etc) as the case is conducted, majorly, on the papers. All affidavits needs
to be certified by a commissioner of oaths (there is a formula that needs to be complied
with to ensure the affidavit is valid57.

Suitability of Application Proceedings: HC v MC

• In the High Court the application procedure can be used across the board where no
material dispute of fact is foreseeable. In the Magistrate’s Court the action procedure is
the norm, and the application procedure can be used in instances permitted by the Mag
Court Act/Rules. Although amendments in 2010 aligned the HC and MC more closely,
the general position remains that the application procedure may only be used where
specifically authorised (because it is a creature of staute). Broadly, the nature of the
application procedure is similar in the HC and MC58. As the application procedure may be
used in the High Court wherever a material dispute of fact is unforeseeable, it is preferred
because of time efficiency.
• The first port of call is whether action or application is prescribed by state/law for certain
types of proceedings (e.g., the Divorce Act prescribed divorce actions be brought by
action). If not, the locus classicus on whether to use an action or application in the High
Court is Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, which held
that the choice depends on whether a bona fide material dispute of fact should have been
anticipated by the initiating party. When anticipated, trial action should be used, otherwise
application proceedings are used to avoid the time and expense of trial proceedings.
Application should, therefore, never be used:
1) Claims for unliquidated damages.
2) Matters in which it is anticipated that material dispute of fact will arise (unless the
application procedure is specifically authorised for that claim).
3) Divorce claims.

57
Every page must be initialled, as well as a signature and date at the end. The attorney representing the client
cannot certify the documents themselves.
58
Focus in this module is on the High Court application procedure.
• Notwithstanding the general rule against disputes of fact, certain types of claims must
always be brought by application, such as insolvency claims and claims for urgent relief59
• According to Room Hire, supra, a material dispute of fact can arise when the respondent:
1) Denies all material allegations made by the various deponents on behalf of the
applicant, furnishing positive evidence by deponents/witnesses to the contrary.
2) Admits the allegations in applicant’s founding/supporting affidavits, but raises other
facts which are, in turn, denied by the applicant.
3) Concedes that they have no knowledge of main facts alleged by applicant but denies
same and orders applicant to proof thereof. Respondent must furnish, or undertake to
furnish, evidence to show that the applicant/applicant’s deponents are prejudiced, nor
credible, or unreliable, and that certain facts relied on by the applicant are also
unreliable.
4) States that they themselves or others cannot lead any evidence to dispute the truth of
the applicant’s statements, which are peculiarly in the applicant’s knowledge, but
they put the applicant to the proof thereof by oral evidence subject to cross-
examination.
• Resolving a factual dispute: if a material dispute of facts arises on the affidavits HCR
6(5)(g) allows a motion court to dismiss the application or make such order it deems with
a view of securing a just and expeditious decision. Particularly, a court may order that
oral evidence be heard on a specific issue and may order any deponent/person be
subpoenaed to testify under cross examination or may refer the matter to trial. Only
uncomplicated disputes of facts may be referred to oral evidence, else the matter be
referred to trial. According to Plascon-Evans Paints v Van Riebeeck Paints, where a
respondent denies a fact alleged by an applicant that doesn’t raise a real, genuine, or bona
fide dispute, the court may decide in the applicant’s favour without hearing oral evidence
when convinced of the applicant’s credibility60. The Plascon-Evans rule is applied as
follows:
1) Court will assess both the applicant and respondent’s versions and compare in order
to establish common cause facts and facts that are disputed.
2) Court determines the nature of the facts in dispute: are they genuine, bona fide,
material disputes of fact? Are they disputes of non-material facts? Or are they bare
denials of material facts? This is not enough, the respondent must furnish reasonable
evidence.
3) If the denials of material facts constitute bona fide denials, the court may refer the
matter to oral evidence/send it to trial. If not, the court may decide the matters on the
papers (just the affidavits).
• Ways in which a court can deal with a material dispute of facts:
1) Dismissal of Application: if applicant should have reasonably foreseen that a
material dispute would arise at the time the application was brought, but the applicant
nevertheless proceeded by way of application, the application may be dismissed with
costs.
2) Order for oral evidence on specific issues in terms of HCR 6(5)(g): this option is
only available where the dispute is of limited scope and is not suitable for
extensive/complicated factual disputes. A party can request that evidence be heard

59
Dunlop South Africa Ltd v Allied Metal Workers Union and Another 1985 (1) SA 177 (D).
60
This is referred to as the Plascon-Evans rule.
 orally at the beginning or after presenting the case on the papers61.The procedure
remains an application, but by way of exception oral evidence is allowed.
3) Referral to Trial: if the factual dispute is extensive/complicated, the court may refer
the matter to trial. The application is converted into a trial action, and the court may
give direction as to pleadings and determination of issues. When referred to trial, a
decision regarding costs of the application must be made. This can be against the
applicant if they should’ve foreseen the material dispute of fact or may be stood over
for determination at trial.
• Different Types of Applications:
1) Ex Parte Applications: a unilateral application where applicant = only party before
the court. Thus, where there is only one party in litigation it follows that the
application procedure will always be appropriate and that notice only be given to
registrar. Requirements for ex parte applications are set out in HCR 6(4). The ex
parte can be used:
a) Applicant is only person with interest In the case e.g., admission as an
attorney/advocate or voluntary surrender of an insolvent estate. Granting of order
won’t affect the rights of others. If another party contends that the application
will affect their rights, they may intervene even without notice/edictal citation.
b) Where the application is merely a preliminary step in the matter e.g., where
application is made to sue by substituted service.
c) When urgent/immediate relief is required and service to respondent would
prejudice the applicant e.g., the applicant applies to attach a vehicle owned by
the respondent which the respondent plans to remove from the country62.
Ex Parte applications demonstrate a departure from the audi alteram partem
principle, where the applicant seeks relief against another party. Two important
principles apply so as to protect the interests of parties that may have an interest in
the case:
I. Applicant is obliged to observe utmost good faith in placing all material facts
before the court. If, after making an order, it comes to light that material facts
which could have influenced the decision of the court were not disclosed by
applicant, the court has discretion to set the order aside on grounds of
nondisclosure63
II. Secondly, if another person’s interests stand to be affected, the court will
usually grant an interim order with a rule nisi (return date). After being
granted, it is served on any potential respondent(s). The rule nisi invites the
respondent(s) to appear on the return date and furnish reasons why the interim
order should not be confirmed as final. Respondent(s0 must then furnish an
answering affidavit, unless relying solely on a point of law.

61
A party can, therefore, ask the court that, should the principal argument on the affidavits fail, the application
not be dismissed, but should be referred to viva voca evidence.
62
Another example is the Anton Piller order (Annexure 18, pg. 530 in textbook) which allows an applicant to
search and seize evidence that there is reasonable suspicion the respondent will destroy.
63
Applies irrespective of whether the nondisclosure was negligent, mala fide, or wilful.
 2) Bilateral Applications: notice must be giving, and addressed, to both the registrar and
the respondent. HCR 6(5) sets out the requirements for a notice of motion in bilateral
applications.
3) Interlocutory Applications: these are interim applications, or any other applications
incidental to pending proceedings which must be brought on notice with necessary
supporting affidavits (if applicable). The purpose of such application is to resolve a
dispute that arose during the litigation (usually a procedural issue e.g., an application
to compel discovery of documents).
• Hearing of Applications: the procedure is usually the same across the different types of
applications, except In ex parte applications where there is one party (applicant). General
rule = no oral evidence heard by court, however the parties do usually get an opportunity
to present oral arguments before the court to try convince the court to dins in their favour.
Applicant is heard first, followed by the respondent, and ended with the applicant’s reply.
Court then makes a decision and hands down judgement.

Urgent Applications
• In certain circumstances, a party may need to request urgent/immediate relief where
compliance with the form, time, and service requirements prescribed by the rules may not
be possible. HCR 6(12) provides that a court/judge may dispense with the forms/service
provided for in the rules. Importantly, urgent relief is always sought by means of
application even if a material dispute of fact is anticipated64.The deviation from the rules
needs to still align itself with the rules as far as is practicable.
• Leading case law on urgent applications = Luna Meubel Vervaardigers (Pty) Ltd v Makin
where it was highlighted that the deviation from the rules must still, as far as is
practicable, be in line with the rules. HCR 6(12) doesn’t permit practitioners to request
urgent application any day of the week at any time of day or night. Urgency primarily
allows for the abridgement of tie periods prescribed by the rules, and secondarily, the
departure from established filing and sitting times of the court. The court established the
following factors, in ascending levels of urgency:
1) Matter is too urgent to allow respondent usual 10 court day period prescribed by
HCR 6(5)(b) from the date of service of the notice of the application to the date of
the hearing. In this case, the ten-day period may be ignored, but the matter must still
be set down for a motion day and the papers must still be filed with the registrar early
enough for the motion to come on the following week’s motion roll.
2) Urgency requires deviation from the requirement to set the matter down for court’s
weekly motion day with proper notice to the registrar, the applicant may then set
down for the next motion day with shorter notice to the registrar.
3) If the urgency is such that the applicant can’t wait for court’s next motion day, the
matter can be set down for next court day (10:00) or the same day if the court has not
yet adjourned.
4) If the urgency is so dire that the applicant can’t wait for the following court day, he
may set the matter down for hearing at any reasonably convenient time, in
consultation with the registrar, be it at night or over the weekend. Even written

64
Dunlop South Africa (Pty) Ltd v Metal and Allied Workers Union and Another 1985.
 documents may be dispensed with by the judge. Motion court judges are on duty for
the whole motion week and must therefore hear such urgent motions. A convenient
place could even be the judge’s house.
• An applicant approaching the court on urgent basis must not only set out the material
facts on which his application rests, but also the circumstances upon which their claim for
urgent relief rests65. A person against whom an order is granted in his/her absence in an
urgent application, may, by notice, set the matter down for reconsideration66. if applicant
brought application affecting another person’s interests on ex parte basis judge will issue
rule nisi with return day to afford latter the opportunity to be heard (audi alteram partem
rule).

Chapter 9: Action Procedure

• POC = Particulars of Claim.
• Note to Reader: A lot of this section will make more sense once you have also read
chapters 14 and 16.

Introduction
• In an adversarial system, litigation begins long before the dispute is adjudicated and
pronounced upon by a judge at a trial hearing; the litigation procedure in the rules
involves, among others, the exchange of pleadings and documents. Trial-action procedure
can be divided into 3 stages: pleadings stage, preparation for trial, and trial hearing.
• The pleadings stage + preparation for trial = Pre Trial stage. Pleadings commence with
issuing of summons, and is followed by an exchange of pleadings, that is formal
documents wherein litigants establish all facta probanda (material facts) of their case.
Pleadings are served on the opposing party and then filed with clerk/registrar. Averments
made in pleadings are not under oath and are therefore not considered evidence 67. At trial
the parties adduce facta probantia, the evidence needed to prove their material allegations
(facta probanda).
• The preparation-for-trial phase starts at the close of pleadings (litus contestatio)At this
stage we say there’s been a joinder of issue; the issues in disputed have been crystalized
and the parties begin collecting evidence needed to prove their claims/defences.
Preparation for trial ends with the commencement of trial.

The Pleading Stage

• Pleadings are distinguished from other court documents by two factors: firstly they set out
the material facts of a claim, defence, or answer to a defence, and secondly they specify
relief that is prayed for. The following are pleadings:

65
HCR 6(12)(b).
66
HCR 6(12)(c).
67
It is permissible in application proceedings to plead evidence, but evidence in actions must be led at trial.
 1) Particulars of claim (combined summons as well).
2) A declaration.
3) A plea (main claim or counterclaim).
4) A replication (reply to the plea).
5) Third party claim attached to a third-party notice.
6) An interpleader claim.
7) Provisional sentence summons.
8) An exception.
• Procedures in the HC and MC are generally similar; focus in this module is on the HC.
All the procedures mentioned below don’t always occur in every pre-trial phase, and
whether a certain procedure will be launched by a party depends on the action, or
inaction, of the opponent and what the party concerned wishes to achieve.
1) Combined/Simple Summons68: particulars of claim, setting out the nature of the
claim, is annexed to a combined summons . When initiated by simple summons, the
defendant is served with a declaration containing the plaintiff’s particulars of claim69.
The POC must affirm that the court has jurisdiction, that the plaintiff has locus
standi, and there must be a prayer for relief.
2) Plea70: the defendant responds to the summons by entering a notice of intention to
defend, and then responds fully to the plaintiff’s POC in their plea. Plea = paragraph-
by-paragraph, point-by-point, reply to the merits of the plaintiff’s claim.
3) Counterclaim: where the defendant responds to the plaintiff’s clai by raising a
claim, this is called a claim in reconvention. If a defendant raises a counterclaim, the
plaintiff must respond with a plea in reconvention71.In these circumstances the
pleading procedure will fall into two categories, and the same procedures will apply
for both but in reverse:
a) The plaintiff’s claim in convention.
b) The defendant’s claim in reconvention.
4) Replication: can be filed by plaintiff in response to defendant’s plea, but is only
necessary when intended to place new facts before the court72 It is usually necessary
where the defendant’s defence is one of confession and avoidance.
5) Other Procedural Steps: a party can apply anytime to amend their pleadings via
notice of intention to amend and setting out the details of the amendment in the
notice. It is often used to correct errors in pleadings, clarify a cause of action,
introduce a further/alternative cause of action, or to extend/limit relief sought. Where
a party fails to comply with specific rules, or fails to deliver a pleading timeously, the
opposing party can, through an interlocutory application on notice, set that pleading
aside as irregular. This could be an advocate’s signature not being on the POC, a
premature set down, or the use of the wrong type of summons. Instead of replying to

68
A simple summons does not have an attached particulars of claim. Once the defendant files notice of
intention to defend this triggers the plaintiff’s duty to file a declaration. Once filed, the process is the same as
with combined summons. Simple summons is usually used when there’s a liquidated claim or demand; where a
prima facie case can be made in simple summons then no further particulars are required.
69
This only after the defendant has entered an intention to defend.
70
Only if the action is defended; if the defendant fails to enter an intention to defend/submit a plea, then the
plaintiff will apply for default judgement.
71
HCR 25.
72
It is unnecessary when it is bare denial of the plea.
 a specific pleading on its merits, a party could except against the whole pleading
where it is vague and embarrassing or fails to disclose a cause of action/defence.
Where a paragraph/portion has a word/phrase that is scandalous, vexatious, offensive,
or irrelevant, a party may make interlocutory application to have that
phrase/word/paragraph struck. Mediation, security for costs, and notice of bar are all
also additional procedures that may occur.

Preparation-for-Trial Stage
• Preparation for trial may include, inter alia,
1) Discovery of documents/notice to compel discovery.
2) Expert evidence.
3) Medical examination of persons and inspection of things.
4) Further particulars for purposes of trial.
5) Subpoenas.
6) Pre-Trial conferences.
Trial-Stage
• Broadly entails the following:
1) Opening addresses of counsel (plaintiff’s advocate followed be defendant’s). Plaintiff
carries onus of proving the case and thus leads evidence first, calls and examines
witnesses (subject to cross-examination by defendant’s counsel). The plaintiff is
entitled to final examination. Leading questions under cross-examination is
permissible.
2) Presentation of evidence by parties: first the plaintiff followed by defendant. The
method is questioning by counsel, and each witness goes through examination cross
examination, and re-examination.
3) After both counsel close their cases, each gets opportunity to make oral arguments
before the court, whereafter the judge delivers judgement. Judgement must be given
on merits, and a costs order must accompany judgement.
Nature, Purpose, and Function of Pleadings
• Primary objective = to enable each party to come to trial completely prepared to meet the
case of the other party73. The nature of a pleading = document setting out the material
facts relied upon by the pleader. Pleadings also establish a party’s locus standi in iudicio
as well as the court’s jurisdiction. Pleadings don’t need to be commissioned under oath
and do not constitute evidence.
• Pleadings have 5 practical functions in civil litigation:
1) Defining issues in dispute: this is the principle function of pleadings; to establish the
issues between the parties. A pleader may not withhold material facts with the
strategic goal of ambush at trial.
2) Defining the limits of the action: parties are strictly bound by allegations/issues in
their pleadings; parties cannot adduce evidence at trial not raised in their pleadings.
Judges may also not raise issues that the parties themselves haven’t pleaded.

73
Benson and Simpson v Robinson 1917 WLD 126.
 3) Establishing whether the issues are good in law: pleadings are necessary to
determine if a pleader has disclosed a cause of action. Where a litigating party raises
immaterial or irrelevant issues that don’t require the court’s intervention, the
opposing party may except.
4) Placing the issues on record: to prevent further litigation on the same matter (if it is
litigated on again, a party can plead res judicata).
5) Establishing the onus of proof: the persuasive/overall burden of proof in civil
actions is usually determined by the pleadings. Plaintiff adopts primary burden of
proof74, which is determined by the issues raised , and parties are not allowed to
plead in a way that artificially places the burden on the other party75.
• General principles of pleadings are set out in HCR 18 (very similar to MCR 6), and the
courts have a very wide discretion in allowing infringements as long as they don’t
prejudice the other party:
1) The Heading: HCR 18(2) dictates that each pleading indicating in which court the
pleading is being filed and cites the litigating parties correctly. Registrar/clerk assigns
a case number which appears at the top right corner of the front page.
2) Division into paragraphs: HCR 18(3) dictates that each pleading must be divided
into paragraphs (sub-paragraphs where necessary). These must be numbered
consecutively, each containing a separate averment.
3) Pleading only of material facts: HCR 18(4) provides each pleading must contain a
clear/concise statement of all material facts on which pleader relies to establish cause
of action, claim, defence, or answer to any other pleading. Each pleading must be
sufficiently particular to allow the opposing party to understand/reply to it. Material
facts = facta probanda; facta probantia (evidentiary material) may not be pleaded at
all. It is also incorrect to aver a conclusion of law without pleading the facts to
support it76. Since the procedure for requesting further particulars for the purposes of
pleadings was abolished in 1987, parties are obliged to provide more detailed
averments than in the past.
4) The Prayer: a pleading must contain a prayer, which sets out relief sought based on
averments made in the POC. A pleading not containing relief claimed (the prayer)
will not disclose a complete cause of action, rendering the document irregular. Often
prayed for is further and alternative relief, which allows a plaintiff to claim relief not
specifically prayed for. When a creditor prays for repayment of a debt, interest should
be prayed for separately. Note the duplum rule: in terms of common law (now
codified in section 103 of the National Credit Act) when the interest amount is equal
to the capital amount, interest ceases to run.
5) The signature: pleadings must be signed by an advocate (attorney with right of
appearance).
• Particularity in pleadings:77
1) Contract: when a pleader relies on contract, it must be stated whether the contract
was oral/written and when, where, and by whom it was concluded. If written, a true
copy and (if applicable) letter of demand should be attached78.

74
Unless the defendant raises a special defence (confession and avoidance).
75
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A).
76
Milman NO v Klein 1986 (1) SA 465 (C).
77
These are particular requirements for different causes of action.
 2) Divorce: a party suing/bringing a claim in reconvention for divorce must give details
of any other person involved/relevant in some way79.
3) HCR 18(10) – (11) deal with the particulars required from a plaintiff claiming
damages generally, or damages/personal injury for the death of another.
4) A prayer for relief must be set out at the end of the pleading.
• If the defendant wishes to defend the action after summons has been issued, they must
issue a notice of intention to defend80 within the prescribed time (dies induciae) in the
summons (usually 10 court days, calculated by excluding the first day and including the
last day). The defendant has the following options:
1) Refrain from defending the action.
2) Defend the action (bare denial is not acceptable).
3) Attempt to settle the matter by agreement.
4) Confess and avoid/consent to judgement. Defendant admits material facts relied upon
by plaintiff but alleges other facts which neutralise plaintiff’s claim.
• Thereafter, the defendant files a plea, essentially an answer to the plaintiff’s claim/POC. It
has the purpose of informing the plaintiff of the defendant’s defence. Since the defendant
must, paragraph-by-paragraph, respond to the plaintiff’s POC it also serves to determine
the issues of the matter. This is a response to the plaintiff on the merits.
• A defendant can also raise a special plea, a defence based on facts separate from the
merits of the plaintiff’s claim i.e., not a reply to the plaintiff’s material factual
statements. It raises a defence which either delays or destroys the plaintiff’s cause of
action81. The need to introduce evidence is what distinguishes a special plea from an
exception82. Examples of special please:
1) Dilatory Plea: non-joinder, misjoinder, lis pendens.
2) Declinatory Plea: lack of jurisdiction, prescription, estoppel, res judicata.
• A defendant could also have a counterclaim (claim in reconvention) which may be
instituted in the same action. The counterclaim doesn’t have to relate to the plaintiff’s
claim or even arise from the same facts. Counterclaims are usually set out in the
defendant’s plea under the heading “counterclaim”. If the counterclaim does relate to the
same facts as the main action, the defendant may refer to the same factual averments in
the claim and plea and request they be incorporated into the counterclaim for
convenience. The procedural requirements are essentially the same in the HC and MC
except in the magistrate’s court where the defendant’s counterclaim exceeds the
magistrates court’s jurisdiction, in which case the defendant must stay the proceedings
using section 47 of the Magistrate’s Courts Act and reinstate proceedings in the HC. The
plaintiff must respond to the counterclaim by way of counterplea83.
• The replication is the plaintiff’s reply to the defendant’s plea, but is only necessary in
practice when the defendant made factual averments that requires a response , such as
confession and avoidance etc.

78
HCR 18(6) – (7).
79
District courts posses no jurisdiction; HCR 18(8) must be followed in the regional court.
80
Not a pleading, merely a notice.
81
Declinatory plea/special plea in abatement = destroys the cause of action while dilatory plea = delays the
action.
82
Evidence is required to introduce a special plea because it raises issues ex facie not apparent from the
plaintiff’s POC.
83
Same requirements as counterclaim.
• Close of Pleadings: the term “close of proceedings” (litus contestatio) indicates the end
of the pleading stage, where both parties have delivered all their respective pleadings. NB
to know when this point is because certain events aimed at preparation for trial can only
take place after close of pleadings such as:
1) Discovery of documents.
2) Request for further particulars for trial.
3) Pre-trial conferences.
4) Set down for trial.
• Pleadings are considered closed when:
1) A party has joined issues without making new averments and without adding another
pleading.
2) The last day for delivery of the replication or subsequent pleading has elapsed and
the party concerned has failed to deliver.
3) The parties agree, in writing, that pleadings are closed and file agreement with the
court.
4) Parties are unable to agree on the close of pleadings and the court declares them close
on application of one party.
• An important matter regarding litus contestatio involves the transmissibility of a claim,
when is a claim transmissible from a deceased’s estate to their heir’s? Prior to the Nkala
judgement, delictual claims for personal injury died with the plaintiff, but after the
judgement the claim is transmissible to the estate of the heir.
• Set down for trial: the uniform court rules don’t prescribe uniform procedure for set
down of cases to trial in the High Court, but the Magistrate’s Court does. The plaintiff in
both MC and HC will usually take steps to enrol the matter for trial. The procedure,
broadly, entails the plaintiff, after the close of proceedings, to communicate with the
registrar/clerk in the prescribed matter to obtain a court date. The defendant is then
notified of the trial date by the plaintiff or the clerk/registrar.

Chapter 10: Summons and Particulars of Claim

Functions of Summons
• A trial action is commenced by the service of summons, which is signed by plaintiff,
plaintiff’s legal representative, and issued by the registrar/clerk. A summons is, in effect, a
legal demand that initiates the action procedure against the defendant. It is directed to the
sheriff and directs him to inform the defendant, by service of the summons, of the nature
of the plaintiff’s claim and the dies induciae as well as procedural steps to take should
defendant wish to defend the claim.
• Summons has two functions: it informs defendant of plaintiff’s claim and cause of action,
and it initiates the process by which the defendant is brought before the court. The
following are the legal effects of issuing summons:
1) It determines the jurisdiction of the court. Plaintiff must abide by choice of forum
and change of jurisdiction will only be allowed by permission of the court or by
withdrawal of summons.
 2) Summons interrupts the running of prescription84
3) The issuing of summons renders the action lis pendens in another court (the plaintiff
cannot institute proceedings on the same cause of action elsewhere).
4) It allows the plaintiff’s heirs to inherit the claim on death of plaintiff (only if
pleadings are closed/litus contestatio when they die).
• After summons have been issued, further pleadings are exchanged without the sheriff.

Different Types of Summons

• Nature of plaintiff’s claim/demand dictates what kind of summons will be used:
1) Simple Summons: founded on a debt or liquidated demand owed to the plaintiff85.
Just summons, no POC. The plaintiff is bound, if the defendant defends the action, in
terms of HCR 20 to issue a declaration (identical to the POC).
2) Combined Summons: used where plaintiff’s claim not founded on a debt/liquidated
demand86. Consists of summons and POC87. According to HCR 17(2) a POC consists
of a statement of all the material facts relied upon by the plaintiff in support of the
cause of action.
• In the magistrate’s court, attorneys generally prefer the combined summons (as the simple
summons, even when the claim is founded on a liquidated demand/debt) for time and
effectiveness reasons. However, combined summons must be used when the matte is
subject to the provisions of the National Credit Act. In the HC, simple summons is
obligatory for liquidated demands/debts.

Requirements of Summons
• The formal requirements for both simple and combined summons is set out in HCR 17
and MCR 588. The following technical requirements must be met:
1) Must be addressed “to sheriff or his deputy”, directing him to inform the defendant
that, if they wish to defend the action, they must give notice of intention to defend
within the prescribed dies induciae.
2) If combined summons, must state that, after 20 days of giving the summons, the
defendant must deliver a plea, an application to strike out, or an exception.
3) In HC, every summons must be signed by the and advocate and attorney/party acting
unrepresented. In MC, advocate not necessary.
4) Both typed of summonses must contain a physical address for delivery of further
pleadings (within 15km of the attorney’s offices/unrepresented plaintiff’s address).
5) Summons must be signed by the clerk/registrar and made returnable to the sheriff.
6) Summons must set out the citation of defendant.89.
7) Summons must set out the citation of plaintiff same as defendant.

84
Section 15(1) of the Prescription Act.
85
This is used where no further evidence is required to prove the quantum of the plaintiff’s claim.
86
Sets out plaintiff’s claim in much greater detail.
87
Usually annexed as “Annexure A: Particulars of Claim”.
88
Simple summons must be in accordance with form 9 (HC) an form 2 (MC). Combined summons must be in
accordance with form 10 (HC) and form 2B and 2C (MC).
89
Initials/first names, surname, residence or place of business, occupation etc.
• The substantive requirements: simple summons doesn’t constitute a pleading but must
nevertheless comply with substantive requirements to ensure the defendant understands
the nature of the plaintiff’s claim. It must contain the following:
1) Brief explanation of the cause of action.
2) Reference to the court’s jurisdiction.
3) Reference to the parties’ locus standi.
4) Legal conclusion drawn from the material facts provided.
5) A request for legal relief.
6) If the issue is based on contract, summons must indicate whether it was oral/written
(copy attached for written), and where, when, and by whom it was concluded.
A combined summons is a pleading, and its form is governed by HCR 18 and MCR 6:
1) Needs to have a title.
2) Must be divided into paragraphs.
3) Must contain a clear and concise statement of material facts in issue.
4) When based on contract, same obligations as with simple summons.
If these requirements aren’t complied with, a pleading will be declared irregular in terms
of rule 30(11).

Particulars of Claim
• POC/declaration are both pleadings and must comply with the general rules of HCR
18/MCR 6. Since POC are also part of combined summons, HCR 17/MCR 5 also applies.
Additional requirements established by HCR 20(2) and (3)/MCR 15(2) and(3):
1) Declaration/POC must set forth the nature of the claim, conclusions of law which the
plaintiff deduces from the facts, and prayers for relief claimed.
2) Where plaintiff seeks relief in respect of several distinct claims founded on separate
and distinct facts, such claims/facts shall be stated separately.
• POC must contain, inter alia, the following:
1) Citation of parties.
2) Jurisdiction and addresses of both parties.
3) Locus standi.
4) Cause of action.
5) Prayers for relief.

Simple Summons Combined Summons

Claims for debts/liquidated demands Any claim

Cause of action summarised in abbreviated Cause of action in separate POC annexed to

POC summons
 Followed by declaration once defendant Must comply with HCR 18 and MCR 6.
enters intention it defend.

Must Comply with HCR 18 and MCR 6/

• The title of the POC must contain enough relevant information to enable the
registrar/clerk to locate the court file. Averments must be split into paragraphs/sub-
paragraphs that are consecutively numbered, each paragraph containing a distinct and
separate averment. This prevents mixing up different points and allows easier
identification and response to points by the opponent.
• Facta probanda (material facts) not facta probantia (evidentiary material) is pleaded.
Should a plaintiff fail to plead material facts, the defendant may except to it (irregular
step) as the POC fails to disclose a cause of action. The defendant can also except of the
POC is vague and embarrassing90.
• When based in contract, the POC must contain the information required as in above.
When based on divorce, HCR 18(8) and (9)/MCR 6(8) set out the requirements. When the
claim is based on bodily injury then the requirements are set out in HCR(10)/MCR (9)91.
For injuries on behalf of deceased HCR 18(11)/MCR (10)n sets out requirements92.

Chapter 12: Judgement at an Early Stage

• Reminder: please read my footnotes, they are not just references. NB in this chapter.

Notice of Intention to Defend

• After summons has been served, the defendant has choices:
1) Refrain from defending the action.
2) Defending the action.
3) Attempt to settle by agreement.
4) Confess/consent to judgement being taken by the plaintiff (benefit is avoiding
liability for costs).
• When defendant defends the action, he must file a notice of intention to defend with the
registrar/clerk and notice be sent to the plaintiff. The purpose of a notice of intention to

90
Note: not just ordinarily vague; it must be of such nature that defendant cannot even respond to POC as,
e.g., it is so full of contradictions.
91
The damages must be set out so the defendant can easily assess quantum. Plaintiff’s date of birth, the
nature/extent of the injuries, or the nature/effect of disability must be present. Also included must be any
damages for pain and suffering, medical costs/other expenses, loss of income and enjoyment of amenities of
life, and disfigurement.
92
The name/date of birth of the deceased and any other person claiming damages, as well as any “loss of
support” from any of the deceased’s lawful descendants.
 defend is to place the defendant’s attorneys on record93. This address will be considered
effectual and valid unless the rules require personal service. Issuing a notice of intention
to defend does not invalidate a future exception or special plea. If the defendant fails to
enter an intention to defend within the dies induciae94 then the plaintiff may apply for
default judgement. Note in terms of the High Court rules, days are measured as court
days, but the Superior Courts Act makes reference to calendar days. Therefore, regarding
dies induciae, outside the court’s jurisdiction = calendar days, whereas within the court’s
jurisdiction = court days.
• Defective/irregular notice of intention to defend:
1) Doesn’t indicate the case number.
2) It’s not properly delivered as required by MCR 12(2).
3) It’s not properly signed as required in MCR 12(2).
4) It doesn’t contain a postal address/address for service as required by MCR 12(2).
5) It was properly set out originally, but the defendant’s attorney ceased to act for the
defendant.
6) It is entered on behalf of a company, but the company didn’t obtain a valid resolution
by the board.
If the notice is defective in respect of 2), 3), or 4) the plaintiff must provide the defendant
with a notice of defect. If defendant doesn’t amend, then plaintiff can apply for default
judgement.

Short-Cut Judgement
• It’s not always necessary to wait until trial to obtain judgement, and 2 processes become
relevant here which allow the plaintiff access toa short-cut judgement (judgement before
trial):
1) Default95 Judgement: the plaintiff applies for judgement against the defendant
because of the defendant’s default. If granted, it effectively allows the plaintiff to win
the matter without hearing the opposing party’s side. A notice of bar must be filed as
an interlocutory pleading before default judgement can be applied for. Default
judgement is available when:
a) Defendant fails to give notice of intention to defend. This is most often the case;
proceedings are simply undefended. Alternatively, the notice of intention to
defend is defective according to the rules.
b) When the defendant fails to deliver a plea within the dies induciae and following
a service of notice of bar. In the HC, where a defendant has delivered notice of
intention to defend but has failed to deliver their plea within the dies induciae,

93
This also serves to inform the plaintiff of where the service of documents should be effected (usually the
defendant’s attorneys’ office).
94
In the HC this depends on whether summons was served within the court’s jurisdiction or not. If inside the
jurisdiction, defendant has 10 court days to defend, and if more than 150km from the court the defendant has
1 month. In any other case (less than 150km but still outside the courts jurisdiction) the defendant has two
weeks. This according to section 24 of the Superior Courts Act. In the Magistrate’s Court there’s no distinction
between inside and outside the court’s jurisdiction.
95
A party is in default when it fails to deliver and file a pleading within a prescribed dies induciae and has been
warned of impending notice of bar.
 you cannot immediately apply for default judgement, but must first issue a notice
of bar96.
c) When the plaintiff fails to deliver a declaration or is barred from doing so.
Defendant must also apply for a notice of bar to afford the plaintiff a further 5
days, Default judgement for the defendant entails dismasal of the plaintiff’s
action.
d) When a defendant/plaintiff does not appear for trial following due notice.

2) Summary Judgement: is available where the plaintiff has a clear-cut claim and it’s
clear that the defendant has no valid defence and is entering an appearance to defend
to delay proceedings. Our focus will be on default judgement.
• Procedure to obtain default judgement: this depends on
1) Whether the claim is for a debt/liquidated demand, or if the claim is illiquid.
2) Whether the claim is in the HC or MC.
a) High Court: where the claim is not for a liquidated demand/debt the court will
adjudicate the default judgement application (after the plaintiff set the matter
down for hearing in motion court)97. When the claim is for a liquidated
demand/debt the case is heard administratively by the registrar98. Plaintiff files
application for default judgement, notice of which must be given to the
defendant (unless the application is on the basis that the defendant failed to
deliver a notice of intention to defend). Registrar can make various order, and
can refer it to a court hearing if evidence is required99 or if the registrar has
doubts of the merits of the default judgement application. A party can also set a
matter down for reconsideration by the court.
b) Magistrate’s Court: distinction also drawn between liquid and illiquid claims.
The clerk himself can grant judgement for liquid claims, who will usually verify
that the cause of action is disclosed in the POC. If it pertains to the defendant’s
failure to enter an appearance to defend, the clerk will usually check for proper
service. The clerk will grant judgement and inform the plaintiff’s attorney. In an
unliquidated claim, the magistrate deals with it administratively in chambers (not
usually in open court). NB to note: a claim for an unliquidated100 amount is not
restricted simply to claims for damages (although these are most common).
Unliquidated claims can become liquid upon agreement by the parties. Default
judgement applications are supported by affidavits.

96
This gives the defendant another 5 days within which they can deliver their plea, failure to do so resulting in
being ipso facto barred from pleading and consequently default judgement.
97
If default judgement is applied for on the basis that defendant failed to enter an appearance to defend, no
set down is necessary. However, if the defendant fails to plead, then notice of set down must still be given to
defendant at least 5 court days before the hearing.
98
Relieving case load off of judges.
99
For example, the quantum of the claim must be evidenced at trial.
100
A liquidated claim = claim for a specific, ascertainable, determinable amount. If its liquidated by agreement,
clearly it’s a liquidated claim.
 Chapter 14: Defective Processes and Noncompliance with the Rules
• Note to reader: special pleas and exceptions are considered in both chapters 14 and
16.

Introduction
• Purpose of pleadings = clearly define the facta probanda (issues) between the parties. If
pleadings are vague and confusing, or don’t comply with the rules they cannot serve this
purpose. There are interim (interlocutory) remedies available to the litigating parties for
certain defects:
1) Exception: attacks an entire pleading that lacks a (complete) cause of action,
defence, or is drafted in vague/embarrassing manner.
2) Application to strike out: material averments/facts which are offensive.
3) Application to set aside an Irregular step: where there has been procedural
noncompliance with the rules of court.
4) Enforcement and condonation: forcing compliance with the rules or condoning
noncompliance with the rules.
5) Amendments of pleadings: allows a pleader to amend their on pleading.
Exceptions
• Derived entirely from English law, the procedure is described in HCR 23/MCR 19. It is a
legal objection to a formal and material defect in the opponent’s pleading and may be
used when a pleading is incapable:
1) Of reasonable interpretation.
2) Revealing a cause of action.
3) Of raising a defence recognised in law.
• Nature: It is a completely procedural mechanism, and the defect appears ex facie the
opponent’s pleading: no facts outside the pleading may be raised and, for the purposes of
deciding on the pleading, a court will assume truthfulness of the material averments in the
pleading. One cannot except to an affidavit, and an exception may therefore only be used
in action proceedings. An exception must always contain a prayer because a pleading
must always contain a prayer and an exception is a pleading101
• The purpose of raising an exception is:
1) To attempt to settle the matter without having to proceed to trial.
2) Saving time and costs.
3) To protect the excepting party from having to plead to issues which are unclear,
vague, or otherwise embarrassing102.
4) The object of an exception is not to take advantage of a technical flaw, but to dispose
of a case, or part thereof in an expeditious manner, or to protect the excipient against
embarrassment, which is serious enough to meet the costs of exception103.

101
Usually the relief sought is that the exception be upheld with costs.
102
Essentially, prevention of embarrassment and prejudice.
103
Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd 1961 (1) SA 704 (C).
• It is not an application, but rather a sui generis procedure104. The exception itself
constitutes a pleading and, if granted, the respondent is usually permitted to amend their
defective pleading (proceedings grind to a halt until the defect is cured).
• When considering exceptions, the pleading as a whole is considered, not just specific
parts of the pleading. An exception “strikes at the heart” of a pleading, it renders the
entire pleading excipiable. This is different to the striking out procedure that targets
specific parts of a pleading.

• When may exception be taken?105: apart from only being open In trial actions, it is only
not an option against a simple summons, as a simple summons does not constitute a
pleading. A party receiving an excipiable pleading can, within the relevant dies induciae,
raise an exception.
1) Vagueness and Embarrassment: a litigating party is entitled to know what case
they will meet in court. If this isn’t apparent from the pleading, the pleading is
vague/unintelligible, and a person is entitled to raise an exception such that they are
protected from subsequent embarrassment or prejudice106.A pleading may be
vague/embarrassing if:
a) Material averments/facts could be interpreted any number of ways. This type of
embarrassment is substantial, e.g., where it’s unclear if the plaintiff is suing in
contract or delict (or both), or the defendant fails to admit, deny, or confess +
avoid an allegation (where the defendant doesn’t follow the requirements of HCR
22 or MCR 17).
b) There are contradictory averments, especially where 2 averments cannot exist
simultaneously while both remain true107.
c) It doesn’t meet the particularity requirements, inter alia, the material averments
required by the rules.
Procedure on Grounds of Vagueness and Embarrassment: the plaintiff will deliver
a notice of exception, within the dies induciae for filing another pleading108 which
informs the plaintiff that the excipient excepts to the defendant’s plea based on the
following material averments. A fixed time period is then given to the defendant to
rectify the irregularity, failure to do so resulting in delivery of notice of motion to
except. Note if an exception is upheld it completely destroys the pleading, but it does
not destroy the other party’s claim/defence or stop the litigation in favour of the
excipient109. In a hearing for an exception, prejudice is a requirement, and the
excipient must show that the vagueness/embarrassment would cause
substantial/material embarrassment.
2) A pleading lacks averments or is bad in law: all claims must disclose a complete
cause of action, that is a formula that establishes material facts justifying a legal
conclusion and prayer.
104
Even though the parties are called excipient and respondent respectively. A pleading the can be excepted to
is referred to is an excipiable pleading.
105
HCR 23(1) and MCR 19(1).
106
Prejudice in a pleading which is vague, or embarrassing could likely arise If they have to plead against
107
For example, two claims (or defences) contradict each other without being pleaded in the alternative.
108
15 days if it’s the plaintiff, 20 if it’s the defendant according to HCR 23 and MCR 19.
109
Although it will do so where the opposing party cannot meaningful rectify the default by amendment.
 a) Lacking averments necessary to sustain a cause of action: a claim can only
succeed if it discloses a fully complete cause of action (HCR 22 and MCR 18). If
a pleader failed to allege/defend according to the elements set out by substantive
law (e.g., for contract there must be a contract, that was concluded, and there must
be breach of a material term). Since jurisdiction, locus standi, and misjoinder all
complete causes of actions, and a cause of action is incomplete without, these are
expectable grounds110. These are special exceptions which can also be raised as
special peas, which is most often more beneficial because:
I. Extrinsic evidence is not permissible with exceptions but is with special
pleas. You stand and fall ex facie the pleading.
II. The defendant is usually given the chance to amend following an
exception, but a special plea deposes off the matter.
b) Bad in Law: this kind of exception is not related to the manner in which the claim
was pleaded but is rather premised on the fact that the law does not recognizes
such a claim (the claim doesn’t exist: a defence to assault that the plaintiff was
“really annoying”). This type of exception does finally dispose of the matter and
destroys the other party’s claim/defence.
Striking Out (Motion to Expunge)
• Striking out is aimed at removing words, phrases, or paragraphs from the opponent’s
pleading which are scandalous, vexatious, or irrelevant. No new evidence may be
adduced; it is ex facie the pleadings. Unlike an exception, striking out is done by
application.
• When is striking out appropriate vs excepting: an exception is appropriate where the
objection goes to the root of a pleading as a whole because it’s vague/embarrassing or
fails to disclose a cause of action. Striking out is appropriate where individual paragraphs
/sections do not comprise an entire claim/defence (or are scandalous, vexatious, or
irrelevant). Case law reference Salzmann v Holmes111. The closer connected the objection
is to the cause of action, the more likely an exception will be appropriate.
• Grounds for Striking Out: the meaning of scandalous, vexatious, or irrelevant have
been succinctly defined in Vaatz v Law Society of Namibia112:
1) Scandalous: averments which may or may not be relevant, but which are abusive and
defamatory. This may include personal attack, gossip, rumour, and innuendo.
2) Vexatious: pertains to averments which are intended to harass/annoy.
3) Irrelevant: statements which do not contribute to the decision in the matter (usually
statements that constitutes facta probantia).
• Procedure to Strike Out: Contained in HCR 23(2) (Pleadings) and HCR 6(15)
(affidavits). Application is made with a founding affidavit that states the averments which
are scandalous, vexatious, or irrelevant, and the issue of prejudice is also addressed.

110
Should only be used when the facts giving rise to the exception occur ex facie the pleadings.
111
If a question is asked, name drop this case and you’ll be good.
112
Reference was made to the plain English definitions of these words.
The Irregular Step
• This is the third process to deal with a defective pleading and is governed by HCR 30 and
MCR 60A. An irregular step = an action taken by the opponent which is not sanctioned
by the rules of court. The pleader has somehow failed to comply with the rules of court
and the step they have taken is irregular.
• An irregular step may be raised when the raising party has knowledge of the irregularity
and the irregular party has not taken another step in the proceedings (if they have, the
irregular step Is deemed to be waived). A further act is an act that drives the litigation one
stage closer to conclusion.
• Irregular steps include:
1) Adress for service hasn’t been provided in summons.
2) The pleading is incorrectly signed (formal requirements of the rules).
3) There’s a defective notice of appeal.
4) Where there is premature enrolment.
5) Where a proper power of attorney hasn’t been fled.
• The Procedure:
1) Become aware of irregularity.
2) Deliver notice affording opponent chance to rectify (dies induciae of 10 days).
3) Application for an irregular step is delivered (notice of motion and founding
affidavit) and the issue of prejudice is addressed.

Exception Striking Out Irregular Step

Available to either party Available to either party Available to either party

Trial actions only Both trials and motions Both trials and motions
Must establish prejudice if Must always establish Must always establish
vague and embarrassing prejudice prejudice
An objection, apparent ex Removal or Whole/partial setting aside of
facie the pleadings, which word/phrase/paragraph which an entire pleading because of
extinguishes entire pleading should not be in pleading rule noncompliance.
A notice amounting to a An interlocutory application An interlocutory application
pleading and a short form notice and a short form notice
Taken against a pleading Taken against a pleading or an Taken against a pleading or
which contains no cause of affidavit that is scandalous, affidavit amounting to an
action, or is vague and vexatious, or irrelevant irregular step infringing HCR
embarrassing (but not an 22 or 18, or MCR 17 and 6
affidavit)
No pleading over necessary No pleading over necessary No further procedural step
may be taken
 Chapter 16: Plea, Counterclaim, Replication, and Close of Proceedings

The Plea113
• This is the defendant’s answer to the plaintiff’s claim, wherein the defendant sets out their
defence, achieved by the defendant’s pleading to each averment made by plaintiff in one
of the ways recognized by the rules, and clearly setting out the material facts upon which
they rely.
• Plea on the merits pertains to the substance of the plaintiff’s claim; defendant attacks the
validity of the plaintiff’s cause of action regarding the material facts of the case. Plea on
merits vs special plea: a special plea is a legal objection to some aspect of the plaintiff’s
claim. It’s important to plead over the merits: plead for a hearing on the merits in the
alternative relief to the special plea, such that if the special plea isn’t granted the plea may
still be heard on the merits.
• A plea does not need to be filed if the defendant excepts or applies for striking out. In all
other cases, the dies induciae114 indicate the plea must be delivered within 20 days from
issue of summons/declaration (simple vs combined)
• Plea on the merits typically engages the plaintiff’s averments by either:
1) Admitting the allegation.
2) Denying the allegation.
3) Making a non-admission.
4) Confessing and avoiding.
5) Pleading a tender.
6) Pleading an alternative defence.
7) Pleading a counterclaim.
• Similarly to the POC, the plea must be consecutively split into paragraphs, each of which
isolate allegations and responses. It’s possible to group a number of paragraphs together
e.g., “in response to paragraphs 1 – 7 the defendant admits/denies all the allegations”.
There is some flexibility for the defendant; they don’t have to respond to each sentence
individually.
• A plea also concludes with a prayer, which would usually be for dismissal of the claim
with costs. When a plea is drafted it is very important to avoid bare denials, and the
defendant avoids this by clearly and concisely stating all material facts which he relies on.

Special Pleas
• Apart from raising a plea on the merits the defendant may also raise a special plea, which
is not a reply to factual statements made by the plaintiff, but rather raises a special legal
defence which either destroys or delays the cause of action115. A special plea raises issues
which are no apparent ex facie the pleadings, and therefore extrinsic evidence is allowed
to be used to prove the plea.
• The need to introduce evidence is what separates a special plea from an exception.

113
Dealt with more deeply in Civil Procedure 314.
114
HCR 22(1) and MCR 17(1).
115
Destroys = declinatory (abatement) and delay = dilatory.
• If evidence required – proceed with special plea. If the defect is apparent ex facie the
pleading – proceed with exception.
• There is no legal consensus on whether it’s necessary to plead over a special plea, in other
words submit a prayer that the matter be heard on the merits in the alternative to the
special plea.
• A special plea can be raised as a point in limine, or it can be set down for hearing before
trial.
Exception Special Plea
Available to either party Defendant only
Apples to trial actions only Both trials and applications
An objection apparent ex facie the pleading A special legal defence which isn’t apparent
ex facie the pleadings and is proved by
extrinsic evidence
It is a notice which amounts to a pleading Usually contained in the defendant’s plea, but
may be dealt with separately as a point in
limine
Taken against a pleading (but not affidavit) Taken against plaintiff’s POC/declaration or
which contains incomplete cause of action or raised as a point in limine in an answering
is vague and embarrassing affidavit to the plaintiff’s founding affidavit
Extinguishes the entire pleading Destroys or postpones the cause of action

• Dilatory Special Pleas:

1) Arbitration: if arbitration was a condition precedent to the institution of legal
proceedings, arising for example from a contract, If one party sues without
submitting to arbitration, a special plea of arbitration may be raised. The litigation is
then stayed pending the outcome of the arbitration.
2) Lis Pendens: where there is already another action pending between the same parties
in relation to the same cause of action.
3) If summons is issued before the cause of action is complete, the defendant may raise
a special plea for premature summons.
• Special Pleas In Abatement:
1) Prescription: where a plaintiff’s claim has prescribed it is unenforceable116.
Prescription can be raised at any time, not just before litus contestatio. If both an
exception and a special plea are viable in this circumstance, obviously a special plea
would be preferable as it destroys the plaintiff’s cause of action.
2) Misjoinder and Nonjoinder117.
3) Res Judicata: a competent court has already reached final judgement118 in the matter
based on the same cause of action and the same parties. If the plaintiff is unhappy
with that judgement they can apply for appeal/review, but cannot institute the claim
de novo in another court.
4) Special plea to lack of jurisdiction.

116
However, a court cannot raise this mero motu and, unless the defendant raises a special plea, the claim can
still be granted.
117
Misjoinder = someone who should not have been joined to the action was joined while nonjoinder = a party
who should have been joined in the action was not joined.
118
This court is considered functus officio.
 5) Lack of locus standi.
• Drafting a Special Plea: a special plea is usually contained separately at the start of a
defendant’s plea under the heading “special plea”. That section will state that the
defendant raises a special plea and sets out the material facts that supports that special
plea. There’s no uniform practice on pleading over the merits, but this is certainly
preferable for the defendant,
• Counterclaims: not prescribed for assessment purposes.
Replication and Litus Contestatio
• Both simple and combined summons processes, from the stage the defendant files a plea,
looks exactly the same. Defendant files a plea and the plaintiff has the opportunity to
replicate (responds to the defendant’s plea by means of a replication). This is only
necessary if the defendant raises new averments in the plea, which the plaintiff cannot
leave unchallenged.
• The plaintiff must deliver the replication within 15 court days of receiving the defendant’s
plea (HCR 25, MCR 15). A plaintiff who fails to issue a replication within the dies
induciae is ipso facto barred from doing so.
• At this point, the process concludes with the close of pleadings (litus contestatio).
❖ Important Note to Reader! Go back and re-read page 42 of my notes, It
repeats/mixes in with this chapter and must be read together119.

119
Congratulations on making it all this way! Go make a cup of coffee, come back and do it again. You got this.