CIV3701 STUDY NOTES.

STUDY UNIT 1 INTRODUCTION TO CIVIL PROCEDURE Page 1 of 2 1. CLASSIFICATION ON CIVIL PROCEDURE AND ITS PLACE WITHIN LEGAL SYSTEM • ADJECTIVE LAW covers law of evidence, CIVIL PROCEDURE and criminal procedure. • Law of procedure EXISTS FOR sake of something else, namely, SUBSTANTIVE LAW – enforces rules and provisions of substantive law. • SUBSTANTIVE LAW DETERMINES RIGHTS AND OBLIGATIONS of PERSONS. • ADJECTIVE LAW deals with PROCEDURE to be adopted to enforce a right or duty. • Civil law is about private person recovering what is due to him, civil procedure is part of civil law which enables person to go about doing that in PRACTICE. • SA uses system of procedure based on ADVERSARIAL SYSTEM, involves opposing parties who ‘fight’ case with court acting as impartial referee. Court does not involve itself in dispute or instruct parties how they should run cases, provided they obey rules of court. • CIVIL LAW COMPARED to CRIMINAL LAW: (1) CRIMINAL matters are essentially PUBLIC in nature, CIVIL matters are essentially PRIVATE in nature. PLAINTIFF or APPLICANT is known as dominus litis, which means ‘lord’ or ‘master’ of litigation. Nothing happens unless plaintiff or applicant takes steps to initiate various processes. Processes involve choosing correct court; issuing, serving summons or notice of motion; setting matter down for trial. (2) ACCUSED found guilty of criminal offence is usually punished by means of FINE or IMPRISONMENT or both. DEFENDANT/RESPONDENT found liable must usually pay damages or perform some service for plaintiff/applicant. (3) Main AIMS of CRIMINAL PUNISHMENT are RETRIBUTION, DETERRENCE, REHABILITATION and INCAPACITATION. CIVIL LIABILITY majority of judgments include orders for PAYMENT OF MONEY. Some cases SPECIFIC PERFORMANCE. Money claim often attached as alternative to claim for specific performance, also possible for damages in addition to specific performance. Some civil cases aimed at PREVENTING someone from doing something, such as claim for PROHIBITORY INTERDICT. Other civil claims: EJECTMENT, SEQUESTRATION & DIVORCE. 2. ENFORCING THE LAW 2.1 FUNCTION OF THE COURTS • FUNCTION of courts is to RESOLVE DISPUTES between LEGAL SUBJECTS or between LEGAL SUBJECTS AND STATE. • Both CIVIL AND CRIMINAL PROCEEDINGS may be described as systems of DISPUTE RESOLUTION sanctioned (enforced) by STATE. Page 2 of 2 • JUDICIAL OFFICER (JUDGE, MAGISTRATE or COMMISSIONER) will hear presentation of evidence and arguments of both parties in environment controlled by formal rules and then decide matter in form of judgment or order enforced by state. • STATE has NO DIRECT INTEREST in CIVIL PROCEEDINGS, merely provides infrastructure within which to resolve dispute, if necessary, enforces order/judgment of court. • COURT ADMINISTRATION AND TIME are provided free of charge to citizens involved of civil dispute. • Parties conduct civil proceedings INDEPENDENTLY and without interference from state. 2.2 SUBJECT MATTER • CIVIL PROCEEDINGS relate to DISPUTE BETWEEN LEGAL SUBJECTS (one of which may be state or official of state) – dispute of this nature is described as CLAIM. • CRIMINAL PROCEEDINGS are between STATE AND ORDINARY CITIZEN. State acts through prosecutor or state advocate on behalf of citizen against whom alleged criminal offence has been committed (COMPLAINANT). Arise only from alleged transgression of rules of common law dealing with crimes or statutory provisions of criminal law. • Civil and criminal proceedings rely on different areas of substantive law, based on different procedures, possible for person to lay criminal charge and institute civil proceedings on same cause of action. • EXAMPLE: If D assaults G, G may lay criminal charge against D on grounds of assault & may also institute civil proceedings to claim compensation for personal & monetary damages allegedly incurred. 2.3 PARTIES • CRIMINAL PROCEEDINGS – STATE and accused. Person who suffered as result of criminal conduct of accused is called COMPLAINANT. • CIVIL PROCEEDINGS: Proceedings commenced by SUMMONS: person who STARTS is PLAINTIFF & person against whom is issued is DEFENDANT. Proceedings brought on APPLICATION: person bringing application is APPLICANT, opposing party is RESPONDENT. Matter goes on APPEAL: person lodging appeal is APPELLANT & other party is RESPONDENT. 2.4 ONUS OF PROOF • CIVIL PROCEEDINGS – burden of proof is on BALANCE OF PROBABILITIES. Court must be satisfied that version put forward by plaintiff/applicant is more probable than that by defendant/respondent. • CRIMINAL PROCEEDINGS – more stringent, onus is on state to prove BEYOND ALL REASOANBLE DOUBT that accused committed offence as charged. Court must be satisfied that no probably conclusion can be reached other than that accused committed offence. STUDY UNIT 2 SOURCES OF CIVIL PROCEDURAL LAW Page 1 of 2 1. INTRODUCTION • Unlike Magistrate’s Courts (MC), civil procedure of High Court (HC) does not consist solely of statutory provisions and rules of court, substantial part consists of common law rules. 2. STATUTORY LAW • Much of law relating to civil procedure is derived from various Acts, rules of court and jurisprudence built up around their interpretation. • FOLLOWING STATUTES are main statutory sources for purposes of civil procedure: (1) Superior Courts Act 10 of 2013 (replaced Supreme Court Act 59 of 1959). (2) Magistrates’ Courts Act 32 of 1944. (3) Small Claims Courts Act 61 of 1984. (4) Constitution of Republic of South Africa, 1996. • Each division of HC has PRACTICE MANUAL (Practice Directions or Practice Notes) supplementing rules, elaborates on specific aspects of practice and administration. • Constitutional Court (CC) & Supreme Court of Appeal (SCA) also have Practice Directions. Judges are, however NOT BOUND by Practice Directions. • ACTS are PRIMARY LEGISLATION, COURT RULES are SUBORDINATE LEGISLATION. 3. RULES OF COURT