Summary CIV3701

ivil Proc Notes General introduction: What is the Law of Civil Procedure?  Civil procedure forms part of the formal adjectival law of South Africa, that regulates civil litigation and the enforcement of substantive rights  It is a mechanism used to enforce the rights that are derived from the substantive private law. Differences between Civil Procedure and Criminal Procedure: Basis Civil (Private) Criminal (Public) PARTIES Application: Applicant and Respondent (brings application vs. opposes) Action: Plaintiff and Defendant (institutes action vs. defends) State and Defendant VOLUNTARY/COMPULSORY Voluntary Compulsory (state decides whether to prosecute) DECISION: Respondent/Defendant liable for Applicant/Plaintiff’s claim Accused guilty of crime or offense. BURDEN OF PROOF Balance of Probabilities Beyond a Reasonable doubt RECOURSE BETWEEN PARTIES Punishment:  Damages  Specific Performance Punishment:  Fine  Imprisonment AIM OF PUNISHMENT Monetary compensation for loss suffered or to compel/prevent a party to do/from doing something. Retribution, Deterrence, Rehabilitation  Civil procedure is broader than criminal procedure due to the burden of proof in civil cases being much easier to prove, and because criminal cases function mainly between the State and the accused, it is limited to the criminal environment, whereas civil procedure is not just between individuals but also groups of people, applications brought in the public interest etc.  Material (substantive law): private law and criminal law  Formal Law: Civil procedure, criminal procedure and law of evidence.  Law of evidence is NB to CPL because it dictates what evidence must be brought forward to court in order to prove your claim and enforce your rights. General principles of the Law of Civil Procedure (guarantees):  Fundamental rights or guarantees that the parties to a civil action may claim/protect. Nature:  These guarantees are the basic requirements have to be met in order to effectuate procedural justice.  These guarantees are the foundation that all the procedural law must be built on, if the foundation is absent, then one cannot bring about procedural justice.  General principles are general in their scope, but flexible in nature, and they never constitute an absolute requirement in all circumstances. Flexible Nature:  Must be able to bend where necessary; must be subject to reasonable limits. Importance of the general principles:  With the above in mind the following are very NB:  If you understand the NB of principles, you will have a better understanding of the rules.  Meaningful reform: these principles bring about or help to insure meaningful reform of our civil procedural system can be done.  Meaningful reform of the system will only be possible if these general principles are kept in mind  the danger is that streamlined, efficient procedures will abandon the fundamental guarantees of civil procedure.  Comparative study: a meaningful comparative study of two countries can only be done when the general principles of the two countries are the same.  ∴. Can only do a successful comparative study if you understand the guarantees of both countries. Particular guarantees include: a) Everyone must have equal and effective access to an independent, impartial and competent judiciary.  Costs and duration of the lawsuit should be reasonable.  Separation of Powers: the state should not be able to influence the courts, the 2 should be independent of one another. b) Audi alteram partem:  Eckhart: “both parties must be allowed the opportunity to give their case”  This is the overriding principle of law of criminal procedure, it ensures that: i) The defendant is informed of the proceedings ii) Both parties are mutually kept informed of the nature of the opponent’s case, as well as the grounds of the case. iii) Both parties ar