CIV3701/102/3/2020

Tutorial Letter 102/3/2020

Civil Procedure
CIV3701

Semesters 1 and 2

Department of Criminal and Procedural Law

This tutorial letter contains important information

about your module.

BARCODE

Dear Student
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This tutorial letter contains the following:

CONTENTS

1 INTRODUCTION

2 APPROACH TO STUDY MATERIAL

3 HINTS ON EFFECTIVE STUDY AND PREPARATION

4 TYPE OF ASSESSMENT QUESTIONS AND FORMULATION

5 ASSIGNMENT SKILLS NECESSARY

6 GENERAL INFORMATION ON THE EXAMINATION

7 CASE STUDIES

8 AMENDMENTS TO THE STUDY GUIDE AND TO CERTAIN RULES OF COURT

9 CONCLUDING REMARKS

1 INTRODUCTION

1.1 General

We would like to welcome you to this module. We trust that you will find this tutorial letter
useful in your examination preparation. Although your preparation starts on page one of
both the study guide and tutorial letter 101 and the prescribed textbook, your goal should
not be simply to pass this module, but rather to pass it having gained understanding and
insight into the subject.

Many of you complain that Civil Procedure is an abstract subject. To change this view and
to illustrate to you that Civil Procedure is used in everyday circumstances to solve practical
problems, we have decided to analyse and discuss a number of case studies.

Remember, your academic preparation is also the start of the preparation for legal practice.
Use this tutorial letter to develop and/or complement your learning in Civil Procedure.

1.2 Purpose of the tutorial letter

This tutorial letter is designed to guide and help you in studying Civil Procedure and in
preparing for the assignments and examination. The goal is to better equip you with the
necessary skills and approaches for studying the module and for writing assignments and
the examination.

A good assignment and examination writing technique and approach will yield good results.
This tutorial letter therefore explores the do’s and don’ts of examination preparation and

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examination taking skills, and strategies for improving your assignment and examination
answering skills. The tutorial letter looks at skills such as:

 analysing past exam questions

 planning essays
 writing appropriately and accurately
 arguing effectively, using appropriate concepts and theories
 managing your time during an examination
 prioritising information in the examination
 prioritising questions during the examination
 knowing the negatives and positives of past exams

We have also included a case studies based on certain reported cases and reflect
situations as they occurred. Full references are provided for the benefit of students who
would like to read these cases. Bear in mind that it is compulsory to read these cases
for examination purposes.

Mastery of the techniques of written response and good preparation are important aspects
of a good examination and assignment performance. If you follow the suggested study
method as described in this tutorial letter, you should not have any difficulty in mastering
the subject and passing CIV3701.

2 APPROACH TO THE STUDY MATERIAL

Because Civil Procedure is a practice orientated subject, your approach to studying the
subject contents will necessarily differ from how you approach predominantly theoretical
subjects. You will not pass this subject if you simply memorise the study material – you
need to understand it and must be able to apply what you have learned to any given facts.
This implies that you should be able to, inter alia, analyse the various processes and
procedures and understand when each is applicable and why.

In practice, a client will not come to you and instruct you, for example, to issue a provisional
sentence summons: it is up to you to make that decision and then to explain to your client
why that is the correct or most appropriate course of action to follow. This is not always
easy: often you will be confronted by a complex set of facts which you will have to sort
through to enable you to separate the relevant information from the irrelevant. Then you will
have to ask the right questions to supplement inadequate information before you are able to
decide on the most appropriate procedural course to achieve a particular goal. This course
aims to prepare you to meet this challenge. Therefore, when studying this module, we
suggest you place yourself in the position of a practitioner who either has to explain a
procedure to his or her client, or defend his or her decision before court. This will result in
your constantly asking yourself the following sort of questions: Why must procedure X, and
not procedure Y, be used? What is the difference between procedure X and procedure Y?
What is the purpose of a particular procedure? How and where does a particular procedure
fit into the whole litigation process? Is there another procedure which can be used to
achieve the same goal? How will I recognize a particular procedure? What is the next
procedural step? By constantly asking yourself these and similar questions while studying,
you will study the subject content with insight and you will be in a good position to handle
problem-type questions in the examination.

We often find that students tend to study the various processes and procedures in isolation,
and not with a view to understanding how each one fits into the whole litigation process.
This creates problems when you have to answer problem-type questions in which a number
of these processes and procedures are linked, because you will not know how they are
linked. Please ensure that you understand the schematic outline of the whole litigation

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process contained in study unit 16.3 and refer back to it regularly while studying. If you
understand this outline it will be easier to understand where all the other related processes
and procedures fit in (such as the steps to be taken to rectify defective pleadings or
applications for interim payments).

It should be clear by now that you will not be able to master the work if you do not start
preparing early – two weeks before the examination is simply not enough time. You will find
most of the concepts and the terminology new and strange, but the more you go over the
work, the more accustomed you will get to it and the less your chance of becoming
confused.

This is a very interesting subject and there is an underlying logic to all the processes and
procedures – allow you the opportunity to discover this and enjoy the subject!

3 HINTS ON EFFECTIVE STUDY AND PREPARATION

3.1 General remarks

As a distance education student, you are offered the benefit of controlling the time and pace
of your studies. However, this benefit may be fruitless without proper and efficient study and
preparation. There is simply no substitute for good, timeouts and thorough study and
preparation if you want to do well in your portfolio assessment.
Preparation is crucial. Your study and preparation, though partly examination orientated,
does not begin days and/or hours before the portfolio assessment. All should start very
early in the semester or module period. It is through good study and preparation that you
will become well acquainted with the subject matter.

Most students come to a distance education university with some ideas about how to go
about studying, and how to prepare and revise for the portfolio assessment. However, the
strategies you used in the past may have been effective for the type of assessment done
then and the type of institution you attended then, but those strategies are not necessarily
the most efficient now. To help you, we will explore strategies for improving your
preparation techniques and skills. We will also help you refine your assignment and
examination performance skills.

3.2 Study thoroughly, do not memorise unthinkingly

Preparing for portfolio assessment is not just about learning and memorising facts and
information – such as the names of cases, titles of statutes or numbers of the rules of court
– so that you can regurgitate them. Simply memorizing and repeating information is not
enough to get you a good mark. University examination entails the following, among others:

 Knowledge of what your lecturers expect of you

 Consideration of the assessment criteria
 Identification, selection and application of important legal principles and theories
 Realistic self-expectations
 Development of efficient and acceptable answering techniques and approaches
 Application of relevant legislation to answer problem-type questions

It is essential that you know the content of all the statutory provisions and rules that you
have been instructed to study. This implies that you should also understand the content
thereof to such an extent that you are able to apply it when confronted with a given set of
facts.

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Your learning and studying should be thorough to enable you to gain a deeper
understanding of the prescribed material. You should study the material thoroughly in order
to understand the subject (after all, you need the knowledge to be able to practice law and
advice clients).

3.3 Employ contextual and integrated study

Study the tutorial material in the context of the study guide as a whole. An example may
make this clearer: Do not study the magistrates’ courts jurisdiction in isolation. This is only a
first step. Ensure, as a first step, that you understand what jurisdiction entails and why it is
important; then study the provisions governing jurisdiction in each of the courts in the court
structure, note the differences and their interrelation, and also understand why these
differences exist.

3.4 Do not study selectively

Do not study selectively. Please note that no portion of the study is excluded for
examination purposes, unless specifically so directed by your lecturers. The examination
paper is composed of questions drawn from all parts of the study guide.

3.5 Do not rely too much on past question papers

Please bear in mind that past papers have never been used as the basis for setting a
portfolio assessment. Rather, pay more attention to the tutorial letters and content of the
study guide assignments, especially the activities and feedback.

The (only) value of past papers is to obtain an idea of the kinds of questions asked and
what is expected of you.

3.6 Practice study guide activity questions

There are number of assessment activities in each study unit. The importance of activities
and feedback cannot be over-emphasized. The activities are important in guiding you
through the tutorial material and in testing your insight and understanding of a particular
study unit. They will help you monitor your progress in achieving the stated study unit
outcomes. The activities are designed as part of the learning and teaching process and for
evaluation purposes.

Each activity is in effect an assignment for a specific study unit. The activity feedback
contains necessary comment that is designed to enable you to:

 evaluate the correctness of your answers

 focus on the subject matter
 measure whether, and to what extent, you have applied knowledge and skills
 present your answers in an appropriate format

3.7 Consult lecturers and tutors (where tutors are available)

It is important that you be in communication with your lecturers or tutors as part of your
study and preparation. When something about the course or the material is not clear,
consult your lecturers to make it clear. As you are a distance and self-directed education
learner, it is difficult for your lecturers to be aware of any confusion in your studies, except
when this shows in your assignment answers. A lecturer who does not hear from students
may well conclude that they understand the subject and do not need further assistance.

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You may arrange office or telephonic consultation sessions with your lecturers. Unisa also
provides tutorial sessions, based on demand, at Unisa centres. Look out for these tutorial
sessions, which are provided by tutors. Also see 5.4 in Tutorial letter 101/3/2020 regarding
tutor services.

4 TYPES OF ASSESSMENT QUESTIONS AND FORMULATION

4.1 General

Both the examination and assignment questions are formulated specifically with a view to
assessing the knowledge and comprehension of students, as well as assessing their
capacities of application, analysis, integration and evaluation. In formulating the questions,
lecturers take into account the students’ level of education.

4.2 True–false questions

True–false questions usually consist of a statement which is either correct or incorrect. You
then answer “true” (if you think a statement is correct) or “false” (if you think a statement is
incorrect).

When answering true–false questions, be alert for qualifying words such as:

 all, none, always, never (which generally make a statement false)

 most, some, usually, seldom (which tend to make a statement true)

Similarly, be alert for multiple ideas or concepts within the true or false question. The
general rule is that all parts of the statement must be true or the entire statement is false. If
any one part of the statement is false, the whole statement is false, even if it contains
certain elements of truth.

4.3 Multiple statement questions

Here the assessment item is composed of a question, correct answer(s) and distracters
(incorrect statements). The formulation of multiple statement questions will differ. For
example, the question may consist of 1 correct statement/answer and 3 to 4 incorrect
statements/answers (distracters); or it may consist of 2 correct statements and 3 incorrect
statements; and so forth.

Multiple statement questions are generally kept simple and straightforward in design. They
attempt to test and assess your competency in the module/course and to measure your
achievement of the intended course/module objective. The statements are designed to give
you a broad overview of the module and, at the same time, to draw your attention to its
scope. They are also designed to teach you to read accurately. In general, be wary of
absolute statements (such as “always”, “never”, “only”, etc – they tend to indicate a wrong
statement).

See Tutorial Letter 101/3/2020 for examples of these types of questions, and Tutorial
Letters in the 200 series for commentaries on these multiple-choice questions.

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4.4 Case analysis questions

Case study questions are used to test your ability to interpret real or factual situations. The
most common requirements in a case analysis are:

 problem identification and problem solving

 comprehension of complex situations
 identification of central issues
 deduction or inference

4.5 Essay questions

Essay questions may be formulated as short essay or long essay questions. Essay
questions are designed to test your ability to synthesis information and/or to organise your
thoughts on paper. When answering an essay-type question, it is important to use a good
writing strategy that will persuade the reader and examiner that you know your study
material.

A good writing strategy in this instance includes your familiarity with the terminology used in
the question, your ability to dissect the question, and your ability to grasp the essence of
the question – that is, your ability to identify what the question requires in terms of content
and genre.

For example, suppose the question contains the following prompt:

Discuss the relationship between the actor sequitur forum rei rule and the ratione domicilii.

The simplified and implied question here is:

What is the “actor sequitur forum rei” and what is the “ratione domicilii”? How are the two
concepts related to each other in regard to the court’s jurisdiction?

In response to the above question, your answer should roughly be as follows:

The term actor sequitur forum rei is a Roman law rule, and it basically means that the
plaintiff must institute an action against the defendant in the area where the defendant is
domiciled or against the defendant in the area where the defendant is domiciled or resident.
It is regarded as one of the accepted rationes jurisdictionis, and if another link with a court
exists it need not be followed. If the actor sequitur forum rei rule is followed to give a court
jurisdiction, then such court is vested with jurisdiction ratione domicilii. The ratione domicilii
under common law means that the court where the defendant is either domiciled or resident
will have jurisdiction to hear claims sounding in money. This principle is relevant where the
defendant is domiciled in South Africa. Thus the principles overlap.

Note the following: When answering essay questions, particularly open-ended questions,
you need to explain, develop and support your thesis or the crux of your answer, drawing
upon materials from texts, lectures and other sources. You must be sure to support any,
and all generalizations with concrete evidence, relevant facts and specific details that will
convince your reader that your thesis or point is valid. Make your main points stand out by
writing distinct paragraphs, and indicate the relationship between them with transitions.

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4.6 Open-ended question

An open-ended question is designed to encourage a full, meaningful answer using the

subject's own knowledge and/or feelings. It is the opposite of a closed-ended question,
which encourages a short or single-word answer.

Open-ended questions also tend to be more objective and less leading than closed-ended
questions.

Open-ended questions typically begin with words such as “Why” and “How”, or phrases
such as “Tell me about ...” Often they are not technically a question but a statement that
implicitly asks for a response.

5 ASSIGNMENT SKILLS NECESSARY

5.1 General

Assignment questions are the first assessment of your ability to develop a clear, concise
and well-supported point of view on a specific question, researching relevant material (both
related to and exceeding the study material skills), and working within a given set of criteria.
Furthermore, they help you gain a more in-depth understanding of particular topics in
CIV3701.

5.2 Assignment skills necessary

5.2.1 Determining the type of question

The question may be set in a variety of ways. It may be set as an actual question, as a
short sentence (for example, “explain”, “discuss”), as an essay question, as one or more
points which you need to address, or in some other way.

It is important to make sure you read the question and the marking criteria properly and
thoroughly, and answer accordingly (see sections 3 and 4.2 above).

5.2.2 Analysing the question

In assignments you have enough time at your disposal to analyse the question. You should
do this by separating the question from the context and analysing each part. Typical
questions that you may ask yourself are:

 What is the question asking me to do?

 What else should I consider from the contextual material as part of the answer?
 Is there anything that requires clarification?

5.2.3 Researching the answer

Bear in mind that an assignment gives you the benefit of unrestricted access to study
material and sources in the same way as an open book examination. Your assignment
answers should therefore be of high scholastic quality and show evidence of your effective
research, application and use of correct information.

You should research appropriate material to answer your question. Your prescribed study
material should be the first source you consult. Look at the study guide, tutorial letters and
textbook(s).

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Note: Your prescribed study materials are compiled in such a way that you should not
need to research additional material.

5.2.4 Writing/Formulating your answer

Your answer should be well reasoned, clearly developed and concise. It should answer the
question within the framework of the contextual material and the marking criteria. Your
answer should therefore:

 apply relevant rules, principles and doctrines

 appropriately reference information sources, where applicable
 answer the question asked

5.2.5 Information needed per mark

The questions are all very specific, and you must be guided by the number of marks
awarded for a question to determine how much information is required in the answer. When
answering, always remember that the examination is more about the “quality” than
“quantity” of information. Avoid unnecessary wordiness and do not include irrelevant
information.

5.2.6 Numbering of questions and sequencing of answers

Always indicate the number of the question you are answering.

You do not have to answer questions in the order or sequence in which they appear in the
examination paper. You may start with the easiest question first and do the hardest
question last, as long as the answers are clearly numbered. This approach reduces
anxiety, increases your confidence, and assists you in thinking clearly and triggering your
memory. By the time you have reached the hardest questions, you will probably have
relaxed enough to remember the relevant material.

5.2.7 Clarity and legibility

A clearly typed or written answer with readable information is what we ask from you. With
your clear and legible work, you help us find the creditworthy points that you wanted to
communicate to us. Type or write your answer clearly and concisely, and keep to the point.

5.2.8 Proofreading your answer

Always reserve a few minutes after completing your paper to proofread your answers
carefully for grammatical and spelling errors. If your spelling skills are poor, make sure you
know how to spell the relevant terminology correctly.
The proofreading exercise will involve:

(a) making sure you have stuck to the question and not digressed from it;
(b) checking the quality of your answers.

If you find you have inserted irrelevant statements and paragraphs, neatly cross out them
out. It is better to cross out a statement or a paragraph that is irrelevant (and to replace it
with a relevant one if you have time and space) than to allow it to stand. In this context
quality is always preferable to quantity.

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5.3 When answering the question in the module

5.3.1 Understand and answer the questions asked

Answer exactly what the questions ask. In order to answer exactly what a question asks,
you must read it carefully and be sure you understand exactly what it is asking. Be sure to
distinguish between relevant information and extraneous information.

5.3.2 Be aware of the meaning of the question’s words and answer appropriately

You should ensure that your response matches the requirements of the question. When
answering a question, take into account the “directive words” or “prompts” or “key words”,
which are carefully chosen and contain specific instructions about what you are to write.

The following words are arranged into groups according to whether the question requires
you to identify, explain, compare or assess something. These words are often found in
examination questions to guide you on what your answer should include and how it should
be focused and structured. The words all have different meanings and will require a
different approach and style of answer.

IDENTIFY

The first group comprises question words which elicit direct answers.

 LIST – Write an itemized series of concise statements.

 ENUMERATE – Write in a list or outline form, making points concisely one by one.
 DESCRIBE – Recount, characterize, sketch, relate in a sequence or story form.
 DEFINE – Give clear, concise, authoritative meanings.
 STATE – Present main points in brief, clear sequence, usually omitting minor details
and examples.

EXPLAIN

As a group, these words tend to suggest fully thought out and demonstrated answers:

 DISCUSS – Consider various points of view, analyze carefully, and give reasons pro
and con.
 ANALYSE – Summarize fully with detail in accordance with a selected focus, consider
component parts of ideas and their inter-relationships
 EXPLAIN – Clarify, interpret, and give reasons for differences of opinion or of results,
analyse causes.
 ILLUSTRATE – Use a word picture, diagram, or concrete example to clarify a point.
 OUTLINE – Organise a description based on main points and subordinate points,
stressing the arrangement and classification of the subject matter.

COMPARE

These action words are premised on an analysis which works to integrate ideas under
focus; emphasizing similarities [and] differences …

 COMPARE – Look for qualities or characteristics that resemble each other.

Emphasize similarities, but also note differences.
 CONTRAST – Stress differences, dissimilarities of ideas, concepts, events, problems,
etc., but also note similarities.
 RELATE – Show how ideas or concepts are connected to each other.
 Related words: DISTINGUISH

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ASSESS

Writing an essay question with these action words involves invoking acceptable criteria and
defending a judgment on the issue, idea, or question involved. Underlying questions here
include “to what extent?” and “how well?”.

 CRITICISE – Express your judgment about the merit or truth or usefulness of the
views or factors mentioned in the question.
 EVALUATE – Appraise, give your viewpoint, cite limitations and advantages, include
the opinion of authorities, and give evidence to support your position. (cf., CRITICISE)
 INTERPRET – Translate, give examples or comment on a subject, usually including
your own viewpoint.

5.3.3 Following instructions

It is important to read and follow instructions carefully in order to answer the question
asked. Instructions are important in that they tell you exactly what the examiner wants in the
answer, and you should follow them. For instance, you may be instructed to give reasons
for your answers. No marks will be awarded if this is not done. Conversely, when you are
told merely to name something, you will earn no additional marks for furnishing reasons for
your answer and will waste valuable time doing so.

Also take care not to confuse issues. For example, the portfolio assessment questions
should clearly indicate whether their subject matter relates to the superior courts or the
lower courts. No marks would be awarded for an answer that related to the incorrect court.

5.3.4 Answering specific questions specifically

Specific questions need to be specifically answered. This means that an answer is either
correct or incorrect. Neither the student nor the examiner is given much room for
manoeuvring.

There is a tendency for students to wander away from the specific question, to mention
something related only indirectly to it, and to make sweeping statements. One of the ways
to avoid wandering is always to keep in mind the key words that tell you the approach you
should take when answering the question. Consider the following example:

Evaluate the changes constitutional law has made to civil procedure.

In order to answer this question satisfactorily, you should be able to identify the following:

 Task words, which tell you what you have to do – that is, the action you need to
perform. Task words are usually verbs.
 Limiting words, which limit and define the question to make it workable.
 Content words, which are the key words of the question. They tell you what the
focus of the question is and what you should write about.

The key words of the above example question are as follows:

 “Evaluate” is the task word. In this question, the task is to appraise, give your
viewpoint, and cite limitations and advantages.
 The limiting words are “constitutional law” and “civil procedure”. Limiting words are
usually about the topic area and help you to focus your research and reading on that
area.

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 The content word is “changes”. In this question, you should not just write about
constitutional law and civil procedure but focus on evaluating the changes
constitutional law has made to civil procedure.

6 GENERAL INFORMATION ON THE EXAMINATIONS

6.1 General

Students are often unsure about what constitutes a good answer or what is expected in an
answer. A good answer is not only determined by the subject content, but also by the
presentation of the answer: in other words, the manner in which you have presented your
argument/answer or how the wording of the question made a difference to the manner in
which you handled the information.

6.2 Some general guidelines

6.2.1 Amount of information needed

The questions are all very specific and therefore you must take note of and be guided by
the number of marks allocated to each question to determine how much information is
needed. Please bear in mind that quality, and not quantity is important. Your answer should
contain sufficient relevant information and you should omit what is irrelevant as it earns you
no marks and simply wastes valuable time. Often students give only state two marks’ worth
of information and then they simply fill space with waffle, or repeat the same statement in a
number of different ways. Repetition does not increase the marks awarded and waffle, even
if factually correct, does not earn you any marks either. Do not waste time – rather apply
your creativity to the questions that you can answer well.

To illustrate: In a past examination students were asked to determine whether a combined

summons is a process or a pleading (for two marks). The answer should be more or less as
follows: It is a combination of the two, as the summons is a process (it simply represents a
step in the action, taken with the aid of the court or a court officer), while the particulars of
claim is a pleading (it contains an adequate statement of the material facts of the claim to
which the defendant must answer) but these two parts cannot be separated from each
other. Most students obtained between one half and one mark for their answers because
they either simply said “combination” or “pleading” without giving comprehensive reasons
for their answers. Others gave a long answer, containing irrelevant information such as the
formal particulars contained in the summons, its appearance and that it is the equivalent of
the declaration, etcetera.

6.2.2 Time management

The management of your time during the examination is very important. Always pay
attention to the mark allocation. The number of marks allocated gives an indication of the
amount of time to be spent on each question. The paper counts for 100 marks and you
have two hours in which to answer it. This means that you should spend approximately 1,2
minutes per mark when answering the paper. In practical terms this means that to answer a
question of five marks, you have six minutes. Try and stick to this method of time
calculation, as it is difficult to pass if you do not answer all the questions.

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6.2.3 Understanding the question

Before you start answering the question, ensure that you know exactly what is being asked
and what is expected of you. For example, if you are asked to name the types of
applications available in the High Court, you should simply state the types without any
further particulars or even examples. Had we required more information, the question would
have been phrased differently to read “name and discuss” or “name and indicate the
instances when each will be used”. Also pay attention to the use of key words in a question,
as these words indicate the direction your answer should take or what aspects your answer
should cover.
To illustrate: Ace Bank is liquidated due to fraud perpetrated by its directors. A total of 234
plaintiffs, each with a valid claim, come together because they cannot afford to institute
individual claims against Ace Bank. With these facts in mind, advise these potential
plaintiffs on how they can institute action against Ace Bank (in liquidation). (6)

Note the words in bold type, as these constitute the key words. Also note the instruction
“advise” (in other words, you need to suggest a solution and, obviously, also the reasons for
your suggestion) and the fact that six marks have been allocated to it (indicating the need to
give much detail).

The answer should roughly be as follows: This large number of plaintiffs can be voluntarily
joined as plaintiffs. The requirements laid down by the rules of court are that each person
should have a claim and against the same defendant and one or more plaintiffs must be
entitled to institute a separate action. The claim must depend on substantially the
same question of law or fact and this question must arise in each potential separate
action.

The sections in bold type represent the core parts of the answer and also indicate how the
marks were awarded. Note how the keywords (in bold) in the question correspond to the
bold type parts of the answer. Also, note how complete the answer is. The less complete
your answer, the less marks awarded. Remember, when we indicate that we require a
complete answer, we mean it. We are often amazed when students write only a sentence
or two in response to a question of six or more marks, thus dealing only superficially with
the question, and yet expect high marks. Marks are certainly not given away. This subject
requires detailed knowledge and detailed answers.

6.2.4 Better and poorer answers

The following points have been found to distinguish better examination and assignment
question answers from poorer answers.

Good answers are ones which:

 are clear in what they say

 keep to the point and are well reasoned
 are organised into separate paragraphs
 apply the law appropriately to the facts or clearly demonstrate the application of the
law to the facts
 have good evidence to back up assertions

Poorer answers typically contain some or all of the following faults:

 Have no paragraph structure – ideas just run together in a continuous flow

 Present ideas in an illogical order
 Have lots of general theory with no specific information
 Are cut and pasted from other places without acknowledgement of the sources

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 Make lots of assertions without any evidence to support them

 Are clearly written/typed in a hurry and are disorganised
 Miss the point in question and waste a lot of space on irrelevant material

6.2.5 Understanding the instructions

This paragraph is related to the previous one. Below are a number of command words and
an indication of their meaning. This list is by no means complete.

6.2.5.1 Words that require direct answers

 List – information is itemised

 Name, state and indicate – only the main points are set out briefly
 Describe – information is given in a narrative form
 Define – give a clear, concise and authoritative meaning. Reference to relevant case
law is expected if applicable.

6.2.5.2 Words that require a well-reasoned and illustrated answer

 Discuss – different views or characteristics are considered and analysed, reasons

are given for a statement/view and pros and cons are indicated if applicable. Case
law may be relevant.
 Explain – clarify, interpret and give reasons for differing views or results
 Illustrate – use words or examples to elucidate a point

6.2.5.3 Words that require comparisons

 Compare – focus on characteristics or features that indicate both similarities and

differences. The use of a table in your answer does not in itself constitute a
comparison!
 Contrast – focus on the differences in approach, concepts, field of application,
etcetera, but also mention similarities

6.3 The 2020 examinations

Students will sit for the examination in the module in both the May/June 2020 and the
October/November 2020 examination period.

Please take note of the following problems to avoid in future:

6.3.1 Preparation

Prepare thoroughly and start early. Take note that part of the examination paper is based
on activity questions and assignments. Sometimes the wording of the questions remains
unchanged, but questions are often based on the activity/assignment questions. In such
instances they are modified or changed slightly or asked from a different perspective.
Consequently, you need to understand the work and not try and memorise everything
indiscriminately – this serves no purpose.

6.3.2 Prescribed legislation

Despite the fact that students are told in the study guide, as well as in the tutorial letters, to
study certain sections, this instruction is ignored by many, with the result that these
students cannot answer some of the questions. Legislation can also be accessed via the
internet.

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6.3.3 Reading the questions

Please read the questions thoroughly and make sure that you know what is being asked.
Many students do not read the questions carefully and then answer them incorrectly. Do not
lose marks in this careless fashion. Also ensure that if you are requested to “name” a
procedure or documents, you do not include a discussion thereof. This could cause you to
run out of time. Unless specifically stated otherwise, you are required to give detailed
reasons for your answers. Many students simply answer “yes” or “no” or simply make a
statement without explaining it. In these instances, no marks are awarded! Marks lost in this
manner sometimes mean the difference between passing and failing. Also, check to see
that you have answered all the subsections of a question, as we often find that students
overlook certain parts of the questions.

The mark allocation is part of the question, and gives an indication of how much detail an
answer should contain. It stands to reason that a four-mark question would require far more
detail than a two-mark question. “Detail” presupposes an answer that displays particularity,
not vague descriptions.

Many students do not give reasons for their answers as instructed, or they inadequately
substantiate their answers. Marks are not awarded for merely stating “yes” or “no”. Answers
must be substantiated. You must be guided by the mark allocation to determine how much
information is required in your answers.

Take for example the following question:

X is domiciled in Cape Town and is a fish merchant who guarantees the delivery of fresh
fish daily to restaurants. X concludes a contract with P in terms of which X undertakes to
deliver 500 kg of fish per month to P’s restaurant situated in Johannesburg, where P is also
domiciled. Despite repeated demands, X fails to deliver the required quantities of fish to P’s
restaurant. As a result, P suffers damages to the amount of R410 000. With these facts in
mind, answer the following question, giving reasons for the answer.

Could P institute proceedings against X in the Western Cape High Court, Cape Town
(Western Cape Division, Cape Town) on the grounds of breach of contract? (3)

If you were simply to answer “yes” without giving reasons, your answer would not be worth
any mark. If you were simply to answer that X is domiciled in Cape Town, your answer
would be worth only half a mark. In your answer you should at least refer to the ratione
domicilii and actor forum rei principles, and to obtain maximum marks you should also show
the relationship between the two principles.

Some students muddle the provisions, rules and principles governing the jurisdiction of the
High Court with those governing the jurisdiction of the lower court.

Take for example the question whether the High Court can have jurisdiction in an action for
breach of contract based on the “cause of action”.

Students could incorrectly answer “no”, arguing that the “cause of action” did not arise
“wholly” within the jurisdiction of the High Court concerned. The mistake here lies in
applying section 28(1)(d) of the Magistrates’ Courts Act of 1944, to “cause of action”,
instead of the common law principle of rei gestae. The correct answer is “yes”, based on
the rei gestae principle.

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6.3.4 Selective preparation

Please do not “spot” – no student can afford to lose 10 or 15 marks in this way. For some
reason, many students ignored the appeal and review section of the study guide, or only
studied certain parts of it. Many students, who obtained a final mark of 45%, received less
than five marks out of ten for this question – the conclusion is obvious.

6.3.5 Terminology

Please ensure that you learn to use the correct terminology from the start. Students often
refer to a “liquidated document”. No such document exists, and students are penalised for
such mistakes. In this instance students should have referred to a “liquid document” and a
“liquidated demand”.

6.4 Answering the examination questions:

We assume that you have by now got to grips with the subject and have worked actively
and prepared thoroughly to remember the information needed to produce good answers in
the examination.

What makes a good “examination” answer? What makes a good “examination” answer is
not analysed only in terms of the content, but also in terms of how you present the
information how you argue your answer.

Finally, please note the mar allocation of questions, and make sure the content of your
answer corresponds with the mark allocation. Also ensure that your answers are legible, or
clear and accurately numbered to facilitate the marking thereof.

7. CASE STUDIES

7.1 Introduction

You will notice that each case study comprises four parts: facts, reference, analysis and a
jurisdictional question/procedural question, depending on the focus of the case. Note that
the information contained under each heading is integrated with the other headings, which
together aim to give more insight into the relevant tutorial matter.

The questions appearing under the heading "Analysis" were devised to enable students to
correlate the content of the study guide with the facts of a particular case study. These
questions are often not difficult at all but because they deal with the implications of the
given facts, they should stimulate insight into the tutorial matter. The tutorial matter is
placed in a particular context and as a result, should have more meaning for you. You will
miss the purpose of the exercise if you regard these questions as simple and as a result fail
to think about them in relation to the given facts. You will also notice that these questions
are directly related to the question appearing under the heading: “Jurisdictional issue" or
“Procedural issue”. You will notice that the commentary under this heading is not
particularly long because many of the issues have been dealt with already under the
previous heading.

The commentary that follows is a guideline; a detailed commentary would serve no useful
purpose. As mentioned already, the case studies have been devised in order to stimulate
insight into the tutorial matter. This can only be achieved if you work meticulously through
each question and think carefully about its implications for the study material.

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Please note that the references to the applicable study guide unit appear in brackets after
each question under the heading: “Analysis”. These references will therefore not be
repeated in the commentary.

NOTE: These cases were decided before the advent of the Jurisdiction of Regional Courts
Amendment Act 31 of 2008 and the Superior Courts Act 10 of 2013. However, it is the
principles extracted from these cases that are important.

7.2 JURISDICTION: HIGH COURT

CASE STUDY: 1

Facts

An action for damages on the grounds of breach of contract was instituted in the then
Witwatersrand Local Division (WLD). The plaintiff, Ewing McDonald & Co Ltd, was an incola
of the WLD; the defendant, M & M Products Co, was a peregrinus of the whole Republic.

The contract was concluded outside the Republic but it was implemented throughout the
Republic so that Johannesburg was the locus solutionis (ie, place of performance of an
obligation) and the WLD, the forum solutionis. The plaintiff obtained an order in the WLD
authorising the attachment ad fundandam jurisdictionem, (and in the alternative, attachment
ad confirmandam jurisdictionem) of the defendant's right and title to certain trademarks
registered in the Republic. The trademarks were subsequently attached in accordance with
the order, by the sheriff for the jurisdictional area of the then Transvaal Provincial Division
(TPD).

The defendant challenged the order of attachment, arguing that all the trademarks were
registered in Pretoria and as such, outside the area of jurisdiction of the WLD. The
defendant's application was granted and the order of attachment set aside.

The plaintiff appealed against the order setting aside the attachments on the following
grounds, inter alia, that section 26(1) of the Supreme Court Act of 1959 permitted an order
of one division to be executed on assets found outside the jurisdictional area of that
division, thereby rendering its judgment effective. Because an attachment after judgment
would render that court's judgment effective, an attachment before judgment would endow
the court with the required jurisdiction to adjudicate the matter.

Source: Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A)

ANALYSIS

(1) What are the requirements for an order for attachment ad fundandam
jurisdictionem?

A court will assume jurisdiction over a peregrine defendant of the whole Republic if
attachment of the defendant’s property ad fundandam jurisdictionem has taken place within
the court’s area and the plaintiff is an incola of the court concerned.

In this instance, the attachment founds or establishes jurisdiction. It is on the basis of the
attachment that the court assumes jurisdiction over the peregrine defendant. That the
cause of action occurred outside the jurisdiction of the court is not relevant. For details
regarding the formulation of this requirement through the decided cases, see page 110 of
the textbook and study guide unit 8.4.2.

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(2) What are the requirements for an order for attachment ad confirmandam
jurisdictionem?

In an instance where the defendant is a peregrinus of the whole Republic, a court may
exercise jurisdiction if the cause of action has taken place within the court's area of
jurisdiction and attachment ad confirmandam jurisdictionem of the defendant’s property has
occurred. On account of the fact that the cause of action has arisen within the court's
jurisdictional area, the attachment confirms (ie, in the sense of completing) the already
existing, but imperfect, jurisdiction of the court. In this instance, it is irrelevant whether the
plaintiff is an incola or peregrine of the court.

(3) In terms of the given facts, is an order of attachment ad confirmandam

jurisdictionem competent in view of the fact that the contract was concluded
outside the Republic?

At common law it is not required that the whole cause of action must arise within the
jurisdictional area of a court. Section 28(1)(d) of the Magistrate’s Courts Act of 1944 waives
the common law in this respect. However, in the High Court, the common law rule applies.
Therefore, for the purposes of the exercise of jurisdiction in the High Court, it is sufficient
that either the conclusion of a contract, its performance or its breach should have occurred
within the jurisdictional area of a division; any one of these events will establish a valid
cause of action.

In terms of the given facts, it is irrelevant that the contract was concluded outside the
Republic. The fact that the place of performance of the contract was within the jurisdictional
area of the WLD establishes a cause of action that could justify an order for attachment ad
confirmandam jurisdictionem.

JURISDICTIONAL ISSUE

May an order of attachment for the purposes of jurisdiction be executed outside the
jurisdictional area of a division in terms of section 26(1)?

On the facts, the order of attachment granted by the WLD was executed by the Deputy-
Sheriff for Pretoria in respect of trademarks registered in the jurisdictional area of then
Transvaal Provincial Division. The order for attachment was subsequently set aside on
appeal by the WLD per Nienaber AJA on the ground that section 26(1) did not extend the
jurisdiction of a division so as to enable it to order an attachment of property situated
outside its own jurisdictional area which it otherwise was not competent to do so.

Section 26 therefore only applies to the service of a process outside a division, once it has
been established that the division concerned is competent to exercise jurisdiction, for
example the service of a summons.

Note: For the benefit of those students who have not yet studied the Law of Things, we
point out that trademarks can be classified as incorporeal matter and therefore can be
attached.

Note further: Section 26(1) of the Supreme Court Act 59 of 1959 has now been replaced
by section 42(2) of the Superior Courts Act 10 of 2013. See study guide unit 8.5 that
explains the historical context of this case.

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7.3 JURISDICTION: LOWER COURTS

CASE STUDY: 2

Facts

The plaintiff (Rotary Motors (Pty) Ltd) issued summons against the defendant (Seyer) for
goods sold and services rendered, alleging that the whole cause of action arose within the
jurisdictional area of the magistrate's court for the district of Mariental. The defendant raised
a special plea in the following terms (620 G-J):
Special plea

Defendant raises the following special plea to plaintiff’s summons as amplified by the
further particulars thereto. Defendant avers that this honourable court does not have
jurisdiction in this action over the person of the defendant inasmuch as plaintiff’s cause of
action did not, as is required by the provisions of section 28(1)(d) of Magistrates’ Courts Act
32 of 1944, as amended, arise wholly within the district of this honourable court as is
alleged by plaintiff, by reason of the fact that plaintiff agreed to accept payment from
defendant for the goods and services allegedly supplied by plaintiff to defendant, in the form
of a cheque payable to plaintiff drawn by defendant on the George branch of Trust Bank.

Plaintiff accordingly agreed that it was a material term of the contract between the parties
that payment for the goods and services on which plaintiff’s claim is based would have
been made in George, outside the jurisdiction of the above honourable court.

At the hearing of the special plea, the plaintiff stated the following under cross-examination:
"Ek het voorwaardelik aanvaar dat tjek betaal sal word deur die bank."

The magistrate dismissed the special plea and the defendant took the matter on appeal.

Source: Seyer v Rotary Motors (Edms) Bpk 1989 (4) SA 619 (SWA)

ANALYSIS

(1) State the provisions of section 28(1)(d) of Magistrates’ Courts Act.

Section 28(1)(d) provides that a district magistrate's court (or regional magistrate’s court)
will be competent to exercise jurisdiction over the person of a defendant if the whole cause
of action arose within the district of the court, irrespective of whether or not the defendant
resides, carries on business or is employed in the district or regional division (ie, whether
the provisions of s 28(1)(a) apply or not). Hence, the cause of action (and not the physical
presence of the defendant) forms the nexus between the defendant and the area of the
court.

(2) What is the meaning of the term "whole cause of action"?

Compared to the requirements at common law, as applied for the purposes of jurisdiction in
the High Court, the term "cause of action" is given a restricted meaning in regard to the
exercise of jurisdiction by a magistrate's court. In the High Court, either the conclusion of a
contract or its performance or its breach would be regarded as a sufficient cause of action
for the exercise of jurisdiction. In the magistrate's court, the whole cause of action must
have arisen within the district (or regional division) concerned, for example, the conclusion
and breach of a contract.

You must study the McKenzie's and King's Transport case in this context.

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(3) If a court does not have jurisdiction in terms of section 28(1)(d) to hear a matter,
does it mean that the court cannot hear the matter at all?

No, nor does it necessarily mean that no other court (ie a court for another district or
regional division) can hear the matter. It is important to realise that section 28 contains
various grounds for jurisdiction, and that one ground is not more important than another.
Each one is an alternative and independent ground. Jurisdiction in terms of section 28(1)(d)
is therefore not a prerequisite for jurisdiction in terms of section 28.

Jurisdiction in terms of one of the grounds also does not rule out jurisdiction in terms of
another ground. In theory and based on a given set of facts, it is therefore quite possible for
various courts to have jurisdiction and on different grounds (eg, one in terms of s 28(1)(a),
another in terms of s 28(1)(d) or even s 28(1)(b)). In such an instance, the circumstances of
the case (such as costs, convenience, etc) will dictate in which court the plaintiff, as master
of the suit, will choose to institute action.

JURISDICTIONAL ISSUE

Did the whole cause of action arise within the jurisdictional area of the district
magistrate's court of Mariental for the purposes of section 28(1)(d)?

On the facts, the conclusion and performance of the contract occurred in Mariental. The
important question is whether its breach occurred in Mariental or in George, the cheque
being drawn at a bank in George.

On evidence under cross-examination, the plaintiff stated that he had accepted the cheque
subject to the condition that it would be paid by his bank in Mariental. The implication was
that if the cheque were dishonoured, the breach would occur in Mariental.

On appeal, the court found that the whole cause of action had arisen within the district of
Mariental and that the magistrate had correctly dismissed the special plea.

CASE STUDY: 3

Facts

Badenhorst bought Theophanous' café, situated in the magisterial district of Albertinia.

Clause 11 of the written deed of sale contained a restraint of trade clause forbidding
Theophanous directly or indirectly to compete with Mrs Badenhorst within a 10 km radius of
Albertinia.

Approximately nine months later, Theophanous began trading in a café 300 metres from
the café he had sold to Mrs Badenhorst. Mrs Badenhorst accordingly brought an urgent
application on notice of motion in the Albertinia magistrate's court for an order restraining
Theophanous from directly or indirectly doing business for his own benefit or managing any
business on the specified premises.

At the hearing, Theophanous raised a point in limine (ie a preliminary point at the outset of
the hearing) that a magistrate's court did not have jurisdiction to grant the order requested
by Badenhorst.

The magistrate upheld Theophanous' argument on the ground that Badenhorst was
seeking an order for specific performance, even though her claim was couched in the form
of a prohibitory interdict, and because there was no claim in the alternative for damages,
section 46(2)(c) prohibited a magistrate's court from granting such an order. The application
was dismissed with costs.

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On appeal to then Cape Provincial Division (CPD), Badenhorst contended that the
magistrate's decision was incorrect because the order sought was for an interdict, and that
in terms of section 30(1), a magistrate's court is competent to grant such an order,
notwithstanding the provisions of section 46(2)(c).

Source: Badenhorst v Theophanous 1988(1) SA 793 (C)

ANALYSIS

(1) What is the jurisdictional purpose of section 46 of the Magistrates’ Courts Act?

The purpose of section 46 is to exclude totally the competence of a lower court to exercise
jurisdiction in respect of the specific causes of action stated therein.

(2) What are the particular requirements of section 46(2)(c)?

Subject to the exceptions stated in section 46(2)(c) (i)-(iii), a district magistrate's court is
prohibited from granting an order for specific performance unless the payment of damages
is also sought in the alternative. The implication is that a magistrate's court may grant an
order for specific performance only if the payment of damages is sought as an alternative.
Example: "The plaintiff prays that the defendant be directed to build the wall as agreed,
alternatively, payment of damages in the sum of R160 000."

(3) What is a prohibitory interdict?

A prohibitory interdict is an order restraining a person from committing a threatened wrong

or from continuing to commit an existing wrong.

(4) In what instances is a court reluctant to issue an order for specific

performance?

The answer is adequately set out in study unit 3.2.3 of Tutorial letter 501/3/2018 and pages
81-83 of prescribed textbook. Further comment is unnecessary.

(5) What is an order ad factum praestandum?

Literally translated, the term ad factum praestandum means the performance

(praestandum) of an act (ad factum). Hence an order ad factum praestandum refers to a
judgment in which a person is ordered to perform or to refrain from performing some act.

In context, an order ad factum praestandum is associated with an order for specific

performance. It is important to realise that specific performance is one of the established
remedies for breach of contract. However, judicial practice is not clear on this. Should the
specific performance mean only the order given for the fulfilment of a contractual obligation
and whether, in relation to specific performance, a distinction should be made between a
claim ad factum praestandum and a claim ad pecuniam solvendam (ie the payment of an
amount which is due and payable?). See further question 6 below.

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(6) Does the decision in Tucker's Land and Development Corporation (Edms) Bpk
v Van Zyl 1977 (3) SA 1041 (T) in any manner relate to the above facts?

In Tucker's Land, a distinction was drawn between orders ad factum praestandum and
orders ad pecuniam solvendam, and the conclusion was correctly drawn that in relation to
the performance of a contract, an order ad pecuniam solvendam is not an order for specific
performance, whereas an order ad factum praestandum is an order for specific
performance, thereby falling beyond the scope of jurisdiction of a magistrates' court.

On the given facts, Badenhorst, under the guise of a prohibitory interdict, is in fact
requesting the enforcement of a contractual obligation, that is, the restraint-of-trade
agreement contained in clause 11 of the contract. In terms of Tucker's Land, the granting of
such an order is an order ad factum praestandum, and therefore in reality an order for the
specific performance of a contractual obligation that falls beyond the jurisdictional
competence of a district magistrate’s court.
JURISDICTIONAL ISSUE

Do the provisions of section 46(2)(c) prohibit the exercise of jurisdiction by a district

magistrate's court in respect of the enforcement of a restraint-of-trade agreement,
notwithstanding the provisions of section 30(1)?

The competence of a district magistrate's court to grant an interdict in terms of the

provisions of section 30(1) is subject to the jurisdictional limitations prescribed by the
Magistrates’ Courts Act 32 of 1944. Section 46(2)(c) provides that a magistrate's court is
prohibited from granting an order for specific performance without an alternative for
damages.

On the facts, Badenhorst's application for a prohibitory interdict to restrain Theophanous

from trading in Albertinia in terms of a restraint-of-trade agreement in fact amounts to a
request for the enforcement of a contractual obligation. An order so granted would be one
ad factum praestandum and hence, in practice, be the equivalent of an order for specific
performance without the alternative for damages. Such an order would therefore be
contrary to the provisions of section 46(2)(c), and therefore beyond the jurisdictional
competence of a district magistrate's court.

CASE STUDY: 4

Facts (in brief)

The appellant (Oosthuizen) sustained serious bodily injuries as a result of a motor vehicle
collision on 1 March 2003. The appellant issued summons in the magistrate’s court in
respect of a claim of damages against the respondent (the Fund) in the Pretoria
magistrate’s court a year later (2004). The claim was found to exceed the monetary
jurisdiction of the magistrate’s court (then R100 000). However, the plaintiff was unable to
withdraw the case from the magistrate’s court and issue fresh summons in the North
Gauteng High Court, Pretoria, as the claim had prescribed. The appellant then applied to
have the case transferred from the magistrate’s court to the High Court having jurisdiction.

The High Court found in favour of the Fund. The court held that there is no statutory
provision authorising such transfer. Section 173 of the Constitution of the Republic of South
Africa, 1996, was found not to be applicable to the case. The case went on appeal.

The appellant contended that the “interests of justice” required the High Court to use its
inherent jurisdiction to order a transfer of the case to the High Court. The appeal court
found that section 173 does not give any court, including High Courts, carte blanche to
meddle or interfere in the affairs of inferior courts. A High Court may not use its inherent

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jurisdiction to create a right. It was found that the appellant has a right to institute action in
the appropriate forum to the full extent of his claim. It was found that the appellant’s
attorneys were to blame for the prescription of part of his claim. However, the appellant was
not without a remedy and he could institute a claim for compensation against his attorneys
to recover the difference between what might be recovered in the magistrate’s court and the
full extent of his claim. The appeal was dismissed with costs.

Source: Oosthuizen v Road Accident Fund (258/10) [2011] ZASCA 118 793 (C); 2011 (6)
SA 31 (SCA)

ANALYSIS

(1) State the provisions of section 50(1) of the Magistrates’ Court Act.

Section 50(1) of the Magistrates' Court Act allows for a defendant to request a transfer of a
case from a magistrate’s court to a high court having jurisdiction. Read section 50(1).

(2) Does the plaintiff have recourse to the transfer of a case from the lower courts
to the High Court?

There is no statutory equivalent for the plaintiff. A plaintiff chooses the forum in which to
litigate and therefore he or she must bear the consequences of doing so. A plaintiff who has
instituted an action in the magistrate’s court is free to change his or her mind and abandon
the action in the lower court, and commence proceedings in a High Court, with resulting
cost implications.

(3) State the provisions of section 173 of the Constitution.

This section states that the Constitutional Court, Supreme Court of Appeal and the High
Court of South Africa (or a Division of the High Court) have the inherent power to protect
and regulate their own process, and to develop the common law, taking into account the
interests of justice.

JURISDICTIONAL ISSUE

Was the appellant successful in transferring the case from the magistrate’s court to
the High Court having jurisdiction?

The appellant was not successful and his appeal was dismissed with costs. The Supreme
Court of Appeal found that a High Court may not use its inherent jurisdiction to create a
right. Therefore, section 173 was not applicable to the case. The appellant had a right to
institute action in the appropriate forum to the full extent of his claim. It was found that the
appellant’s attorneys were to blame for the prescription of part of his claim. However, the
appellant could institute a claim for compensation against his attorneys to recover the
difference between what might be recovered in the magistrate’s court and the full extent of
his claim.

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7.4 COURT PROCEDURE

CASE STUDY: 5

Facts

In its summons a commercial firm, Neves Builders, claimed the following (540-541 B):

(a) Payment of the sum of R6 500, being plaintiff’s fair and reasonable charge for work
done and materials supplied by plaintiff for and on behalf of defendant at
defendant's specific instance and request during December and January 1984 and
which amount defendant has despite demand refused and/or neglected to pay
although the said amount is due and payable;
(b) interest at the rate of 11% per annum a tempore morae;
(c) alternative relief;
(d) costs of suit.”

De la Cour, the defendant, entered an appearance to defend whereupon the plaintiff

applied for summary judgment which the defendant opposed. The defendant’s opposing
affidavit contained the following allegations summarised as follows (541 B- F):

In outline the defence is as follows. The plaintiff is a builder. In November 1983 defendant
engaged him to do some alteration work at a block of flats which is divided into sectional
titles. The work was not undertaken on the basis of a "fair and reasonable" charge as
alleged by plaintiff, but in terms of two quotations for R1 360 (alterations to office
accommodation) and R2 600 (alterations to a flat). The work was required to be finished
before 1 January 1984. The defendant avers that the alterations did not go well. Plaintiff’s
workmen did some damage; some of the work was poorly executed and had to be re-done
by another contractor; some of the work was not done at all; work continued beyond 1
January 1984, exposing defendant to a damages claim by an incoming tenant; and various
items were removed from the site by plaintiff or his workmen. Annexed to the papers is a
detailed list of the "damages" which defendant claims to have suffered by reason of the
aforegoing. He subtracts the total damages from the aggregate of the two contract prices
and arrives at a balance in favour of the plaintiff in the sum of R2 708,10. He then says in
his affidavit:

“I am accordingly prepared to acknowledge liability to plaintiff in the amount of R2 708.10,

which I accordingly tender him in full and final settlement of his claim."

At the hearing plaintiff’s counsel moved for summary judgment in the amount of R2 707,90
on the basis that the defendant in his opposing affidavit had acknowledged his liability to
that amount, had shown no defence to that portion of the claim and that the tender to pay in
full and final settlement was ineffective.

Source

Neves Builders & Decorators v De La Cour 1985 (1) SA 540 (C)

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ANALYSIS

NOTE: Please note the date of the judgment – the quantitative jurisdiction for courts
was then much lower than today! Your focus should be on the principles illustrated,
not the amount in dispute!

(1) Judging from the nature of the claim set out above, what type of summons did
the plaintiff issue?

The plaintiff issued a simple summons, the reason being that on the face of it the claim is
for a liquidated demand.

(2) Why does the plaintiff’s claim only set out the bare essentials and not describe
all the material facts of the claim? (Rules 17 and 20)

The Uniform Rules of Court simply do not require a description of all the material facts of
the claim. Rule 17 requires that all such material facts be described only in respect of an
unliquidated claim. The reason is clear: in the case of a simple summons, the claim is fixed
or easily determinable. These claims are often left undefended thereby allowing default
judgment to be granted against the defendant or if defended, would sustain an application
for summary judgment. It is therefore unnecessary to give a full statement of the claim and
all that is required is that the cause of action be concisely described in the summons.
Details of the claim only become necessary if the defendant has entered an appearance to
defend and an application for summary judgment has been refused. (Obviously the same
applies where the matter is defended by agreement between the parties and where an
application for summary judgment was not made timeously.) Only at this stage is the
plaintiff compelled to furnish the defendant with a declaration. (See Uniform Rule 20(1).)
The declaration must state the nature of the claim and those conclusions of law that the
plaintiff is entitled to deduce from the facts. (See Uniform Rule 20(2).)

(3) What is the purpose of an application for summary judgment?

The purpose of an application for summary judgment is to obtain judgment speedily against
a defendant whose defence against the plaintiff’s claim does not raise any issue for trial.
Please note: at the time this matter was decided, the summary judgment procedure under
Uniform Rule 32 was available if a defendant had no bona fide defence against the
plaintiff’s claim and had entered an appearance to defend solely for the purpose of delaying
the action. Rule 32 has since been amended: see 8 below!

(4) What types of claim can give rise to an application for summary judgment?
(Rule 32)

The types of claim are set out in Rule 32 of the Uniform Rules of Court and need not be
repeated. However, it is important to understand the following.

Application for summary judgment is restricted to these types of claim. Moreover, each of
the grounds for summary judgment fall within the scope of a "debt or liquidated demand".
As has been stated in (1) above, a simple summons must be issued if the claim is for a
"debt or liquidated demand". This indicates the procedural relationship between a simple
summons and the application for summary judgment. What is also evident is that
application for summary judgment cannot be brought on an unliquidated claim.

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(5) Is the plaintiff’s claim capable of speedy and prompt ascertainment?

The defence raised by the defendant indicates that the plaintiff’s claim is not capable of
speedy and prompt ascertainment. Oral evidence would have to be heard in order to clarify
the areas of dispute between the parties and to determine the amount of the claim.

On account of the issues raised in the defendant’s opposing affidavit (under the old Rule 32
the defendant was required to indicate a bona fide defence – in this matter such defence
raised by the defendant attempted to show that the plaintiff’s claim was unliquidated), it is
clear that proof of the plaintiff’s claim would be difficult and protracted and that it would be
necessary to rely on oral evidence. The plaintiff’s claim is therefore not expressly capable of
speedy and prompt ascertainment which is an essential requirement for a claim to be
liquidated. A liquidated claim is one of the grounds for an application for summary judgment
and formed the basis of the application in the present instance.

CASE STUDY: 6

Facts

In a contested application the applicant sought the ejectment of the respondent company
from certain premises in Laudium. In the founding affidavit the deponent of the applicant
company alleged that it was the owner of certain premises situated in Bengal Street, and
that the respondent was in unlawful possession thereof, in that it unlawfully occupied a
portion thereof. The resolution which empowered the deponent of the applicant company to
proceed with this application provided, inter alia, that the lease between the applicant
company and the present tenant of the promises, one M, not be renewed and that should
the tenant not vacate the premises, that the necessary steps be taken to evict such tenant
and anyone else occupying the premises.

A notice of motion was served on the respondent to which the latter replied by way of a
lengthy answering affidavit. The court was consequently confronted with a vast number of
pages of conflicting testimony. At the hearing of the matter counsel for the respondent
addressed argument in limine in terms of which he sought the dismissal of the application.
Counsel argued in the first instance that a proper cause of action had not been disclosed in
the founding papers as respondent was a sub-lessee of M and the company resolution
referred expressly to M. He submitted that motion procedure was inappropriate where
ejectment is sought. Secondly, it was argued that if an applicant sought an alternative order
that the matter be referred for viva voce evidence, the applicant must make its election at
the outset.

Source

Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd 1994 2 SA 342 (T)

ANALYSIS

(1) On the facts of the matter, what type of application did the applicant use to
commence proceedings?

The applicant used an "ordinary" application (Form 2(a)) as notice of the proceedings to
another person was necessary because that party’s rights or interest are affected by
the relief claimed. (A claim for ejectment threatens a person's occupational rights and
therefore notice of such proceedings is obviously necessary.)

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(2) Identify the documents which the parties are allowed to exchange in opposed
proceedings in terms of the Uniform Rules of Court.

Rule 6 provides for the following documents: (a) A notice of motion to which the supporting
affidavit is attached; (b) the answering affidavit (Rule 6(5)(ii)); (c) the replying affidavit (Rule
6(5)(e)). (The court has the discretion to permit the filing of further sets of affidavits, but only
in exceptional circumstances: see Rule 6(5)(e).)

(3) Are the documents referred to in question (2) above classified as "pleadings" or
as "processes"?

They are classified as “processes". The textbook explains the courts’ definition of a process
and it is therefore not repeated here. It is necessary to distinguish these concepts as
different rules and principles apply in each instance, and certain steps to rectify technical
mistakes in documents can only be taken in respect of either of these types of documents.

(4) The court indicated that action proceedings are the usual form of proceedings
where ejectment is sought. What type of summons would be appropriate in
such an event and why?

The simple summons, as ejectment falls within the definition of a "debt or liquidated
demand". This is confirmed by the fact that ejectment is one of the grounds for summary
judgment as set out in Rule 32 of the Uniform Rules of Court.

(5) When does a dispute of fact arise?

It arises when

(a) the respondent denies material allegations made on the applicant’s behalf and
produces positive evidence to the contrary
(b) the respondent admits the allegations contained in the applicant’s affidavit, but
alleges other facts which the applicant disputes
(c) the respondent concedes that he/she has no knowledge of the main facts stated by
the applicant, but may deny them, putting the applicant to the proof thereof, while
giving evidence to show that the applicant (and his/her deponents) are biased and
untruthful or unreliable and that certain facts upon which the applicant relies to prove
the main facts, are untrue.

(6) Did a real dispute of fact arise on the facts of this matter?

Although the court does not expressly rule on this point, it would appear that it did not:
despite the fact that the respondent denied the cause of action (as set out in the founding
affidavit), it produced no positive evidence to the contrary. In fact, the court specifically
indicated that the allegation of the existence of a sublease (and the applicant’s denial
thereof) did not establish a different cause of action; nor was there a conflict between the
founding affidavit and the applicant company’s resolution.

(7) What orders may a court make where a genuine dispute of fact arises which
cannot be settled without the hearing of viva voce evidence?

The court may:

(a) dismiss the application.

(b) order that oral evidence be heard on specified issues
(c) order the parties to trial with appropriate directions as to pleadings, et cetera. (Rule
6(5)(g)).

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PROCEDURAL ISSUE

Is motion procedure inappropriate if ejectment is sought?

Deciding the correct form of procedure to use is by process of elimination. Neither the
Uniform Rules of Court nor the Supreme Court Act prescribes or prohibits a particular
procedure in this instance. Consequently, one has to determine whether or not there is a
real dispute of fact regarding any material question of fact, or, if such a dispute does exist,
whether or not it can nevertheless be satisfactorily determined without the aid of oral
evidence.

In the present instance the court was of the opinion (at 343J) that although action may be
the usual form of proceedings where ejectment is sought, there is no indication in reported
cases that motion proceedings are incompetent; it would depend on the facts of the
particular case.

The court also pointed out that the practice of using motion proceedings has in recent years
been extended, rather than limited. Turning to the facts of the case, the court pointed out
that even though respondents answering affidavit referred to the existence of a sublease
and the applicant's replying affidavit denied such allegation, this was not sufficient to
establish a different cause of action: it is still the applicant's ownership and the respondent's
alleged unlawful occupation which is in issue. (Note: The applicant is prima facie entitled to
possession by virtue of his/her ownership. The cause of action arises out of the fact that the
applicant is owner and therefore entitled to possession.)

CASE STUDY: 7

Facts

In an appeal to the Supreme Court of Appeal (SCA), the appellant, Mr BS Nkola, had an
admitted liability to the respondent, Argent Steel Group (Pty) Ltd. This liability stems from a
deed of suretyship that Mr Nkola signed in favour of Argent, guaranteeing the obligations of
a company controlled by him and to which credit facilities had been extended by Argent.
The company failed to honour its obligations to Argent, and Argent then claimed an amount
of R2 851 504 from Mr Nkola as surety. The court of first instance, the East London Circuit
Local Division of the High Court granted judgment in the sum of R914 712 (plus interest
and costs) and also declared two immovable residential properties belonging to Mr Nkola
executable.

Mr Nkola’s appeal to the full court of the Eastern Cape Division, Grahamstown, was
dismissed whereupon he approached the SCA. In essence, Mr Nkola’s argument remained
the same. He argues that he has substantial movable assets in the form of, largely, shares
and loan accounts in companies under his control, as well as very expensive motor cars,
and that Argent should have obtained execution in respect of these before seeking
execution in respect of the immovable properties. In other words, he argued that these
movable assets should have been attached and sold in execution before the immovable
property could be sold in execution. He also pointed out that the sheriff had not issued a
nulla bona return, and that the value of his assets exceeded that of the judgment debt.
However, no evidence was placed on record that Mr Nkola pointed out any movable assets,
corporeal or incorporeal, to the sheriff. The appeal was dismissed with costs.

Source

Nkola v Argent Steel Group (Pty) Ltd 2019 2 SA 216 (SCA)

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ANALYSIS

(1) Did the appellant, Mr Nkola, have a right of appeal from the court of first instance
against that court’s judgment?

No, there is no right of appeal available in the High Court, and therefore the appellant first
had to obtain leave to appeal from the court passing the judgment (i.e., the court of first
instance) (see section 16(1)(a) of the Superior Courts Act 10 of 2013). Likewise, when the
appellant wanted to appeal against the judgment of the full court of the Eastern Cape
Division, Grahamstown, he first had to obtain leave to appeal from the SCA – in this latter
instance leave to appeal is referred to as “special leave “ -- see section 16(1)(b).

It is only in respect of a decision of a magistrates’ court that an aggrieved litigant is allowed

one appeal as of right – see section 83 of the Magistrates’ Courts Act 32 of 1944.

(2) What is the purpose of execution?

Execution is a process meant to assist a judgment creditor to obtain satisfaction of a

judgment debt, should the judgment debtor fail to honour a judgment given against him/her.
In other words, the aim is to enforce a judgment debt.

(3) What does the process of execution entail?

A writ of execution (in the magistrates’ courts it is referred to as a warrant of execution) is

first obtained from the registrar of the particular court. This writ instructs and allows the
sheriff of the court to attach the property of the judgment debtor which may thereafter be
sold at a public auction. The proceeds so obtained are used to pay what is owed to the
judgment creditor.

(4) What is a “nulla bona” return?

The sheriff is obliged to file a return of service with the registrar and the judgment creditor,
reporting to them on what he has done on the writ (Uniform Rule 45(4)). Should a sheriff
find no attachable property or insufficient property to satisfy the writ of execution, this fact is
reported, and the return of service reporting that fact is generally referred to as a nulla bona
return.

(5) When may a judgment creditor execute against immovable property?

The common law rule that a judgment debtor’s movable property must be attached and sold
to satisfy the debt before the judgment creditor can proceed to execute against the debtor’s
immovable property, is given effect in Uniform Rules 45 and 46. In particular Rule 46(1)(a)
provides as follows:

(a) No writ of execution against the immovable property of any judgment debtor shall
issue until –
(i) a return shall have been made of any process which may have been issued
against the movable property of the judgment debtor from which it appears that
the said person has not sufficient property to satisfy the writ;
or

(ii) such immovable property shall have been declared to be specially executable by
the court …
This Rule must be read with Rule 45 which provides generally for execution and the
sheriff’s obligations in this regard. In particular Rule 45(3) provides that the sheriff, when
commanded to execute the order to demand payment of the debt, must proceed to the
“dwelling-house or place of employment or business” of the debtor, and (a) demand

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payment, and failing payment (b) demand that so much movable and disposable property
be pointed out as he may deem sufficient to satisfy the writ of execution, and (c) failing such
pointing out, search for such property.

It is clear that the rules of court place an obligation on a judgment debtor to point out the
property he or she wishes to be taken and sold to satisfy the debt. In the present instance,
there was no evidence on record that the appellant pointed out any movable assets –
instead, he merely claimed to have assets of a value far in excess of the judgment debt
which the respondent could execute “should it choose to do so”. The court questioned why
a person of such obvious wealth as Mr Nkola did not dispose of his assets and pay the
admitted debt to Argent, and held that in these circumstances it is considered that Mr Nkola
had behaved in a “tricky manner” and that as a consequence, the common law and rules of
court placed no obligation on a judgment creditor to execute against movable assets, and
allowed the execution against immovable property to proceed.

CONSTITUTIONAL ISSUE

Was the appellant correct in arguing that the common law, as reflected in Uniform
Rule 46, has effectively been changed by the Constitutional Court decisions relating
to the right to adequate housing (section 26 of the Constitution) which might be
jeopardised where execution is permitted in respect of a debtor’s primary residence,
and that consequently, a nulla bona return is required before immovable property
can be declared specially executable.

While it was common cause that one of the houses concerned was the primary residence of
Mr Nkola and his family, and the other that of his elderly father, the court rejected the
appellant’s contention and held that the sheriff’s return met the requirements of Rule
46(1)(a)(i).

The court made it clear that what this subrule requires as a result of these decisions, is that
in all cases where a debtor’s home is in issue, a court must consider all the relevant
circumstances of a debtor and then exercise a discretion whether to order execution
against such property. This reflects the principle that “a poor person who runs the risk of
losing a home should not be placed in jeopardy without a proper consideration of his or her
circumstances” (220A). In considering the approach by the court of first instance, the SCA
held that it took into account all of Mr Nkola’s personal circumstances, including the fact
that he was a person of considerable means. Consequently, on his own account, Mr Nkola
is “not the kind of person who qualifies for the protection required by Gundwana”. In fact, he
had the means to avert the execution in respect of his primary residence by paying the
judgment debt, but chose not pay his admitted liability.

In conclusion: it is evident, the mere fact that a debtor’s primary residence is at stake, does
not automatically bar a court from declaring the property specially executable on
constitutional grounds. This is the case, even if the debtor is indigent. What is required to
give effect to the protection offered by section 26 of the Constitution, is that there must be
judicial oversight in such an event to determine whether the right to adequate housing is
implicated. Where a court duly considered all the relevant circumstances and considers
it appropriate, it may order execution against such property.

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8. AMENDMENTS TO THE STUDY GUIDE AND TO CERTAIN RULES OF COURT

Civil Procedure is a dynamic field of law. As courts are primarily involved with protecting
society’s legal interests, court rules (in particular) are regularly amended to help ensure the
effective functioning of the civil justice system. Recently, changes to court rules have not
only changed some existing procedures, but have introduced a new procedure (judicial
case management). This brings the South African civil legal practice in line with
developments abroad, which includes a shift in the adversarial system towards greater
judicial participation in civil litigation proceedings.

The flyleaf of the current Study Guide indicates that the currency period of the Guide is from
2019-2021. This means that a new and fully updated Study Guide will only be available
from 2022. However, since the publication date of the current Study Guide, numerous
legislative and court-rule amendments have occurred that impact its contents. Most of these
have come into operation during the period January to October 2019. This tutorial letter
serves to inform you of these changes, and where necessary, to assist you to amend your
Study Guide for study and examination purposes.

In some instances, the amendments published in the various Government Gazettes amount
to cosmetic changes (improved wording; the removal of sexist language; the replacement of
Latin phrases with plain language; etcetera) and these changes will not be indicated below.
We confine this notification to substantial changes to the court rules in so far they impact
the Study Guide content.

8.1 Amendments to the Study Guide

8.1.1 Ad study unit 3.8

Note the following:

Since its publication in the Government Gazette (GG No 38022 of 22 September 2014), the
Legal Practice Act 28 of 2014 has come into operation piecemeal. This Act provides, inter
alia, for the restructuring of the legal profession; the establishment and functioning of a
single South African Legal Practice Council and Provincial Councils in order to regulate the
affairs of legal practitioners and their conduct to ensure accountable conduct; and the
admission and enrolment of legal practitioners.

The South African Legal Practice Council was only recently established, and in future
attorneys and advocates will be admitted and enrolled in terms of this Act. As the Act
repeals the Attorneys Act, 1979 as well as the Admission of Advocates Act, 1964 in toto,
any reference to these repealed acts or to law societies and bar councils (in particular the
last paragraph in study unit 3.8), should be read to refer to the Legal Practice Act, 2014
and the South African Legal Practice Council and Provincial Councils respectively.

Please note that while the Act refers to attorneys and advocates, section 24 makes
provision only for the admission and enrolment of a “legal practitioner”, and all legal
practitioners must comply with the requirements contained in section 24(2), read with
section 26 regarding the required qualifications.

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8.1.2 Ad study unit 4.5

The quantitative jurisdiction limit for the small claims courts has been increased with effect
from 1 April 2019: see GG No 42282 of 5 March 2019.

Delete the reference to “R15 000” in line 17, page 25, and replace with “R20 000”.

8.1.3 Ad study unit 12.3

Insert the following on page 85 as further paragraphs immediately before study unit 12.3.1:

“Uniform Rule 16(2)(b) provides that when a party terminates his or her attorney’s authority
to act for him or her, but does not appoint a further attorney to act, such party must appoint
an address within 15 kilometres of the office of the Registrar for the service of all
documents in the proceedings.

When an attorney ceases to act for a party, such attorney may give notice to the party by
facsimile or electronic mail (instead of by registered post): Uniform Rule 16(4)(a). The
formerly represented party must within 10 days after the notice of withdrawal notify the
Registrar of a new address for service. Failure to do so will render such party liable for the
payment of costs occasioned by subsequent service (Rule 16(4)(b).

Similarly, magistrates’ courts rule 52A(1)(b) requires an attorney that ceases to act for a
party to inform the said party to appoint within 10 days a physical address for service within
15 kilometres of the courthouse, and notify all other parties and the registrar/clerk of the
court of the fact, as well as of a postal address, facsimile and electronic address. As in the
case of Uniform Rule 16, failure to do so will render the said party liable for the payment of
the costs occasioned by subsequent service (rule 52A(1)(d).”

8.1.4 Ad study unit 17.2

In the last paragraph of this study unit on page 113, delete the last part of the second
sentence from the word “provided” up to and including “para 23.4)”.

8.1.5 Ad study unit 21.3

Insert the following immediately after the example provided on page 128:

“Uniform Rule 23(2)(a) requires the party intending to make an application to strike out to
first afford the party who delivered the offending pleading the opportunity to remove the
cause for complaint within a particular time period.”

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8.1.6 Ad study unit 21.8

Insert the following note on page 131:

“Uniform Rule 30A no longer only enforces compliance with the Uniform Rules, but now
also provides that an order or direction made in a judicial management process referred to
in Uniform Rule 37A be complied with. As in the case of a court rule, failure to comply with
such an order or direction may lead to the striking out of the claim or defence (as the case
may be).”

8.1.7 Ad study unit 23.3.2

Insert the following on page 140 as a new last paragraph (immediately after the three points
explaining the meaning of “sound reasons”):

“Further instances of rescission of a default judgment is provided for in Uniform Rule 31(6).
This Rule provides, first, that if a plaintiff consents in writing to a default judgment being
rescinded (set aside), any person affected by such judgment that has been granted, may
apply to court to have the judgment rescinded (Rule 31(6)(a)). Secondly, provision is now
also made that a judgment debtor against whom a default judgment has been granted (or
any affected person) may apply for rescission if the judgment debt plus interest plus
costs granted in the judgment have been paid (Rule 31(6)(b)). An application for
rescission in this instance must be accompanied by “reasonable proof” of such payment
and may, after service of the application on the judgment creditor, be heard by a judge in
chambers (Rule 31(6)(c) and (d)).”

8.1.8 Ad study unit 23.4

Please amend as follows on page 140:

Delete
 in the fifth paragraph, line 3, the reference to “notice of intention to defend” and
replace it with “plea on the merits”
 in the fifth paragraph, the complete last sentence (from the word “From” up to and
including “summons only.”)
 the complete sixth paragraph
 the first sentence of the seventh paragraph

Replace the deleted portions with the following:

“Please note that the procedure regarding summary judgment in the High Court has
undergone a drastic amendment.

Rule 32(2) now provides that a plaintiff may, after a defendant has delivered a plea on the
merits (no longer a notice of intention to defend!), apply for summary judgment. In the
accompanying affidavit, the plaintiff must no longer aver that the defendant has no bona
fide defence and that appearance has simply been filed to delay the action. Instead, the
plaintiff must now –

(a) verify the cause of action (and the amount claimed);

(b) identify any point of law relied upon and the facts upon which the claim is based; and

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(c) briefly explain why the defence as pleaded does not raise any issue for trial.

The rest of the procedure has essentially remained the same, and the information in the
textbook in this regard is self-explanatory.”

8.1.9 Ad study unit 24.3.4

Insert the following note on page 144:

“Note that the timeframes for giving notice of intention to call an expert and for delivery of
the summary of an expert’s opinion and the reasons therefor have changed. In both cases,
the time periods for compliance start to run after close of pleadings (and are no longer
determined with reference to the trial date). However, both must be delivered on the
opposing party before a first case management conference is held in terms of Uniform Rule
37A.

In keeping with the objective of the Rule, Rule 36(9A) now requires that the parties must
endeavour to appoint a single joint expert and to file a joint minute of experts.”

8.1.10 Ad study unit 24.3.7

Insert the following as a new study unit 24.3.7 on page 144:

“24.3.7 Judicial case management

A new Uniform Rule 37A now introduces a judicial case management system into our
system of civil procedure. This is an attempt to alleviate congested trial rolls, and to address
the problems that cause delays in the finalisation of cases. In other words, this system aims
to improve the efficiency of the civil judicial system by expediting adjudication and thus, in
so doing, improve access to justice.

This system shall apply at any stage after a notice of intention to defend has been filed in –

(a) those categories of defended actions as determined by the Judge President of any
Division in a Practice Note or Practice Directive; and

(b) in any other proceedings that the Judge President determines of own accord or upon
the request of a party to be appropriate for case management (Rule 37A(1)).

It should be noted that the provisions of Rule 37 relating to a pre-trial conference do not
apply to matters under case management (Rule 37A(3)) which is understandable, since
both these procedures aim to expedite adjudication.

Should a party in a defended matter which falls within a category designated by the Judge
President, apply for a trial date after close of pleadings, the Registrar must issue an
electronic notice to all parties, informing them –

 of the date, time and place of a case management conference to be presided over by
a case management judge;
 that they must hold a meeting (similar to a pre-trial conference) prior to the case
management conference, and must consider the issues identified in Rule 37A(10)
relating to the conduct and trial of the action. These issues relate to matters such as
soliciting admissions with a view to narrowing issues and curtailing the need for oral
evidence; expert witnesses and the feasibility of the appointment of a single expert;
the identity of witnesses; discovery, and other matters that may expedite the trial-
readiness of the case;

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 that the plaintiff must, not less than two days before the case management
conference, ensure that the court file has been ordered, secured, paginated and
indexed, and that a minute of the preceding meeting referred to above, has been
delivered, detailing what had transpired at that meeting and what further steps, if
applicable, remain to be taken to render the matter trial-ready with a timetable
indicating when these steps will be taken.

In addition to the above minute, the parties are also required to deliver a detailed
“statement of issues” setting out the issues not in dispute, as well as issues in dispute and
the parties’ respective contentions in this regard (Rule 37A(9)). The Rule allows a judge a
wide scope to engage at a case management conference to enable him or her to explore
settlement of all or some of the issues, including enquiring whether mediation has been
considered; to try and limit the number of witnesses by agreement; to eliminate
unnecessary evidence; and identify and record the issues to be tried (Rule 37A(11)).

Rule 37A(12) empowers the case management judge to act in a number of ways at the
case management conference, such as certifying the case as trial-ready; refuse
certification; direct that a further case management conference be held; strike the matter
from the case management roll; give a variety of directions, and make any order as to costs
(including de bonis propriis). Unless a matter has been certified trial-ready, it may not
proceed to trial (rule 37A(6)(a)).

A matter will not be certified as trial-ready until the case management judge is satisfied that

 the case is indeed ready for trial;

 the unresolved issues have been adequately defined;

 the requirements regarding discovery and expert testimony (Rules 35 and 36) have
been complied with; and

 any potential causes of delay in commencing or conducting the trial have been pre-
empted as far as possible (Rule 37A(12)).

The record of the case management conference, the minutes submitted by the parties and
any directions issued by the case management judge, must be included in the court file and
placed before the trial judge (who will ordinarily be a different judge). However, no record
of any settlement discussion or offers may be placed in the file. Otherwise, the trial judge is
entitled to have regard to all documents included in the court file during the conduct of the
trial and in considering any application for postponement and issues of cost. Failure to
comply with the requirements of Rule 37A may attract an adverse costs order. (Rule
37A(13)-(16)).”

8.1.11 Ad study unit 24.4.2

Insert the following on page 145 as a new sentence at the end of the first paragraph:

“Note that the pre-trial conference now applies only in cases not subject to case
management as contemplated in Rule 37A.”

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8.1.12 Ad study unit 24.5.2

Insert the following on page 147 at the end of the third paragraph:

“Further note that Uniform Rule 38(1) previously referred to “any deed, instrument, writing
or thing” which a party had in his or her possession or over which the party had control.
This description of the object has now been extended to refer to “any deed, document,
book, writing, tape recording or electronic recording”, and is collectively referred to as a
“document” or “thing”. The procedure for the production and inspection (as well as the
copying or photographing) of the document or thing is now provided for in this Rule.

The request for the production of a document must be done by using a new form, Form
16A, which has been included in the First Schedule. The procedure for the production of a
document or of a thing is contained in Rule 38(b) and Rule 38(c) respectively, and provides
for the Registrar to be informed of the whereabouts of the document or thing; the conditions
upon which inspection, copying or photographing may take place; and the return of the
document or thing.”

8.2 Amendments to certain rules of court for general noting

Although you are not required to study the following two amendments for purposes of the
assignments or coming examinations, our policy is to keep our students up to date with new
developments. This is particularly important for students who are currently in their final year
of study, or who are entering practice shortly.

8.2.1 Uniform Rules of Court

 Rule 31 Judgment on confession and by default and rescission of judgments

The heading of the Rule has been amended to include “and rescission of judgments”.

 Rule 43

This Rule has been substituted for a new Rule 43.

While the procedure contained in this Rule is not specifically included in the syllabus of this
module, you need to take note that the title of the Rule has been changed from “Matrimonial
matters” to “Interim relief in matrimonial matters”, which more accurately describes the
procedure. Importantly, you should also note that “interim custody” has been substituted for
“interim care” (Rule 43(1)(c)) and “interim access” to “interim contact” (Rule 43(1)(d)). The
changed terminology will in particular affect the phrasing used in pleadings and settlement
agreements in divorce matters.

8.2.2 Magistrates’ courts rules

In recent years, the Rules Board has sought to start aligning the court rules for the High
Courts and the magistrates’ courts. To this end, rule 52A was inserted after rule 52 to
provide for the withdrawal, appointment or substitution of an attorney of record.

 Rule 52A Notice of withdrawal, appointment or substitution as attorney of record

When an attorney ceases to act for a party, provision is now made in rule 52A(1)(a) for an
attorney to inform such party of the fact by delivering a notice at the party’s last known
address, the registrar/clerk of the court, and all other parties to the proceedings.

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 CIV3701/102/3/2020

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 CIV3701/102/3/2020

9. CONCLUDING REMARKS

You are again encouraged to contact us if you experience any problems with the content of
the study material. We will gladly assist you, as it is important to us that you master this
subject and complete the course successfully.

We wish you a successful semester.

PROF E HURTER
ADV B NDLAZI
MS M MOTHAPO

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