Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits (as opposed to procedures in criminal law matters). The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.
Sources The sources of civil procedure in South Africa are to be found in the Magistrates' Courts ActAct 32 of 1944. and Rules,GN R740 in GG 33487 of 23 August 2010. the Superior Courts Act (which repealed and replaced the Supreme Court Act), the Uniform Rules of Court, jurisprudence, court practice rules and other legislation. Notice ought also to be taken of the Seventeenth Constitutional Amendment Bill.Bill 6 of 2011. Since its establishment in 1985, the Rules Board alone has competence to make rules for courts.
Constitution The Constitution of the Republic of South Africa, 1996, as the supreme law of the Republic, provides the overarching framework for civil procedure; the Constitution has been responsible for significant changes to civil procedure since its inception in the 1990s, as in, for example, debt collection matters,Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC). access to the courtss 38. and prescription, in particular with respect to litigation against the state.
Section 8 applies Chapter 2 of the Constitution, the Bill of Rights, to "all law". Therefore, litigation cannot be conducted without considering section 36 of the Constitution, the limitations clause; and several Chapter 2 rights directly relate to the law of civil procedure: the right to equality before the law (section 9), to freedom and security (12), to property (25), to have access to adequate housing (26), and the right to have access to courts (34).
Courts
System The South African court system comprises the lower courts, including indigenous courts, and other judicial and quasi-judicial bodies established by legislation; the superior courts, which the Superior Courts Act defines as the Constitutional Court, the Supreme Court of Appeal, and the High Courts; and special courts such as the Small Claims Court, the Labour Court, the Competition Appeal Court, the Tax Courts, the Land Claims Court, and the Electoral Court.
Different procedures apply in different courts. There is only a slight distinction between the procedures of the High Court and those in the Magistrate's Court; save where otherwise indicated, it is safe to assume that the form and content of the proceedings is the same. However, both courts have their own empowering statutes and court rules. The Act, in each case, sets out what kinds of disputes may be heard by each court, and the rules prescribe how the disputes will be brought before court: that is to say, the form of pleadings and time limits.
Magistrate's Court The magistrate's courts are the lower courts in South Africa. These are so-called "creatures of statute", governed by and created under the Magistrates' Courts Act, and therefore do not have inherent jurisdiction. This means that they may only hear matters prescribed by the Act. There are two kinds: the district Magistrate's Court and the Regional Magistrate's Court. The Republic of South Africa is divided into magisterial districts and regional divisions, and each has a magistrates' court. The Regional Court was previously only a criminal court; however, since August 2010, it has also had civil jurisdiction. Matters in the magistrate's court are presided over by a magistrate under the leadership of a Chief magistrate.
Section 4(3) of the Magistrates' Courts Act provides that all processes issued in a magistrates' court apply throughout the country.
In terms of the Seventeenth Constitutional Amendment Bill, the Magistrate's Court would be renamed the "Lower Court," and the presiding magistrates known as "Magistrates," who would be appointed by the Judicial Service Commission. It is anticipated that both the Seventeenth Constitutional Amendment Bill and the Superior Courts Bill will be promulgated in 2012.
High Court The term "High Court" is misleading, because it suggests that there is only one, whereas in reality there are many, divided into provincial (CPD, ECD, NCD, TPD, NCP, OPD) and local divisions (WLD, DCLD, SECLD).
The High Court enjoys "inherent jurisdiction", which means that it derives its powers from common law (although statutory law does modify these powers). It is due to this inherent jurisdiction that the High Court may hear any matter, whereas lower courts are more limited. Inherent jurisdiction will be exercised in order to prevent abuse of the law, which ultimately exists to properly facilitate the administration of justice. Inherent jurisdiction was subsumed under section 173 of the Constitution of the Republic of South Africa: courts now cannot exercise jurisdiction beyond the ambit of the Constitution.
Matters in the High Court are presided over by judges under the leadership of the Judge President. Administration is led by the office of the Registrar of the High Court, whose duties are similar to those of the clerk of the court.
Supreme Court of Appeal The Supreme Court of Appeal (SCA), located in Bloemfontein, is the highest court in appeal cases with no constitutional basis. Matters in the SCA are presided over by judges under the leadership of the President of the Supreme Court of Appeal. In terms of the amendments proposed in the Seventeenth Constitutional Amendment Bill, the Constitutional Court would become the highest court in respect of all matters (not just those in which a constitutional point is raised), so that leave to appeal any decision of a high court would be granted directly to the Constitutional Court if this is deemed to be in the interest of justice. The SCA would continue to exist; indeed, its workload would be enhanced, in that it would have to deal also with appeals from courts of similar status to that of a High Court, such as the Competition's Court and the Labour Court.
Constitutional Court This is the highest court in constitutional matters. It is located in Johannesburg and is presided over by judges under the leadership of the Chief Justice.
Personnel Owing to the volume of administrative work involved in court matters, each court has a comprehensive system of administration. The key officer in civil matters is the Clerk or Registrar of the Court. This official undertakes such administrative duties as issuing summonses, receiving pleadings, compiling court rolls and keeping records, and also has the task of noting judgments in certain matters.
In practice, the roles of Clerk and Registrar are often covered by the same person, who wears different hats depending on whether she administers lower-court or regional-court matters.
The sheriff of the court (known formerly as the messenger of court) is a creature of statute, created by the Sheriff's Act,Act 90 of 1986. which came into force in 1990. Her jurisdiction is specific, and her duties are set out in section 14 of the Magistrates' Courts Act and in the Rules. She has the power to deliver and serve court documents and judgments, to execute writs and to conduct arrests. Whereas the clerk or registrar plays a mostly administrative role, the sheriff is charged with more practical matters.
Finally, there are legal representatives and presiding officers.
Pre-litigation A civil dispute may be and usually is divided into three stages:
pre-litigation; litigation; and post-litigation.
The pre-litigation stage involves certain preliminary enquiries: into, for example, whether there is in fact a case, the kind of action to be taken, the identity of the person against whom it is to be pursued, for how much, by whom, and in which court—everything, that is, which must occur prior to the point at which a dispute is actually referred to a court. It may also involve correspondence with an opponent and the sending of a letter of demand.
Cause of action One of the first questions to be asked is on what basis the claim is founded; what, in other words, is the cause of action? The cause of action is essential in identifying the elements which must be proved to be successful with the claim.Pete et al 2006, p. 3. It is therefore an enquiry into substantive law, assisting in the determination of the appropriate civil procedure to be followed. Examples include breach of contract and damages in delict. The best way to deal with a matter is to identify the cause of action with as much particularity as possible. In the case of breach of contract, for example, one should identify the type of breach, be it misrepresentation or mora debitoris or something else. A set of facts may disclose multiple causes of action: In the case of a motor-vehicle collision in which a breadwinner dies, a claimant may sue both for damage to the vehicle and for loss of support.
Locus standi Before a party may sue in a court of law, he has to prove that he has title to sue. This is determined by two questions:
whether a particular person or juristic person is the right party to sue; and whether that person has the ability or capacity to sue.
Grounds Under the common law, a litigant had title to sue if he could show that he had a direct and substantial interest in the matter. The requirements were as follows:
the plaintiff must have had an adequate interest, not merely a technical one; the interest must not have been too far removed; the interest must have been actual, not abstract or academic; and the interest must have been current, not hypothetical.
In actions based on the Bill of Rights, the grounds on which a litigant may have locus standi are listed in section 38, in terms of which the following may litigate:
anyone acting in his own interest;s 38(1)(a). anyone acting on behalf of another person who cannot act in his own name;s 38(1)(b). anyone acting as a member of, or in the interest of, a group or a class of persons;s 38(1)(c). anyone acting in the public interest;s 38(1)(d). and an association acting in the interest of its members.s 38(1)(e).
Capacity Someone may be the right person to litigate, but he may still lack capacity to sue. Capacity determines a litigant's title not only to sue, but also to be sued. The general rule is that natural and juristic persons have the capacity to sue. There are, however, certain exceptions:
minors; insane persons; prodigals; and insolvents.
There is also special position of the following:
judges; diplomats; fugitives from justice; trusts; and partnerships.See Pete and Hulme, pp. 14–37.
Jurisdiction Once a person has decided what is his cause of action, and who is going to institute the claim, he can determine out of which court to sue. The general principle in jurisdiction is that the plaintiff has the choice, because he is dominus litis. There are various factors which may affect where a case will be heard:
residence; cause of action; the place where the dispute arose; the quantum and nature of the claim; consent; location of the property; and other factors.