Please note that these are notes from 2023, please consult your lecturer to double-check sections that

are prescribed/not prescribed.

Ch 1 & 2 - General Introduction

Ch 1 - Introduction to the law of civil procedure
The law of civil procedure regulates how a person's rights, remedies and duties (substantive
law) may be enforced. Procedural law enables a party to approach a court for legal relief on
the basis of an infringement of rights, and is thus a mechanism for the enforcement of
substantive law.

 Action proceedings = commences through summons, Plaintiff v Defendant.

 Application proceedings = commences through notice of motion supported by
affidavit, Applicant v Respondent.
Ex parte application = no notice of motion or respondent (eg. applying to be admitted
as an attorney)

Civil proceedings Criminal proceedings

Plaintiff v Defendant (action) or State v Accused
Applicant v Respondent (application)
Question of liability Question of guilt
Balance of probabilities Beyond reasonable doubt
Outcome: damages or specific Punishment: fine and/or imprisonment
performance

Principles underlying the law of civil procedure

○ Audi et alteram partem = parties must be afforded an equal opportunity to present
their case to the court. Defendant must be notified of proceedings and both parties
must be informed of the nature and grounds of the opposing case (right to notice).
○ Equal & effective access to an independent, impartial and competent judiciary. This
includes the requirement that costs and duration must be reasonable. (S34 of the
Constitution)
○ Party control = decision to litigate, scope of dispute and evidence presented rests with
the parties.
○ Direct oral communication between parties and court during the presentation of
cases.
○ Public hearing.
○ Court must consider evidence on objective and rational grounds, and give a reasoned
and legally motivated judgement.
○ Judgement is final and binding, but there is provision for higher recourse (appeal or
review).

Mediation
A more affordable alternative to civil litigation, can take the form of private mediation or
court-annexed mediation
▪ MCR are very comprehensive in this regard, however court-annexed
mediation was suspended indefinitely by Dept. of Justice in 2022 so there is
a disconnect.
▪ Conversely, HCR are very vague and doesn't properly regulate the
mediation process. Unclear whether it envisages court-annexed mediation,
but rules provide that there may be adverse cost implications for not
seeking mediation without good reason.

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Sources of civil procedural law
• Magistrates' Courts Act 32 of 1944
• Superior Courts Act 10 of 2013
• Constitution Seventeenth Amendment Act 2012
• Small Claims Court Act 61 of 1984

Each Act has a complementary set of rules which must be read together. Rules may be
amended by the Rules Board.

Stages of the civil litigation process

Stage 1 - Before litigation
Stage 2 - Litigation
Stage 3 - After litigation
Stage 4 - Additional procedures

Digitalization of courts
Pilot program called Court Online was introduced to make judiciary more accessible, cases
less time consuming and to reduce costs. However, the system seldomly works, is not user
friendly, and has unaddressed security concerns.

Ch 2 - Structure and officers of the court

Court system
• Small Claims Court = claims not exceeding R20k, litigation is preceded by letter of
demand, no legal representation, state cannot be a party.
• Magistrate's Court = divided into district courts (claims not exceeding R200k) eg.
Stellenbosch district court, but may include more than one municipal area, and
regional courts (claims between R200k and R400k). Created and functions within the
Magistrates' Court Act (creatures of statute).
• High Court = 14 provincial divisions, regulated by Superior Courts Act. Eg. Western
Cape division has its seat in Cape Town and is cited as WCC.
• Supreme Court of Appeal
• Constitutional Court

Stare decisis = lower ranking courts are bound by higher courts decisions to ensure
uniformity in decision-making (doctrine of precedent).

Court officials
High Court Magistrate's Court
- Judges - Magistrates
- Admin work done by Registrar - Admin work done by Clerk (district)
- Delivery of legal documents by or Registrar (regional)
Sheriff - Delivery of legal documents by
- Bill of costs by Taxing master Sheriff
- Bill of costs by taxing master

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Ch 3 - Consultation, Legal Representation, Demand and
Prescription
The initial consultation
○ Prior indication of facts - Ask the client to prepare relevant documentation prior to the first meeting. You
need to figure out of you can take on the case asap. Unless it amounts to unfair discrimination, you can
refuse to accept a mandate if prospects of success are low. Once you accept the mandate it is difficult to get
out of.
○ Prior indication of fees - To establish whether client can afford your services.
○ Conflict check - Is there a potential conflict of interest? The entire firm will be asked, can navigate around
this with existing and new clients, eg. Chinese wall where teams work in complete isolation with consent of
both clients. You may not be able to take on all new clients due to possible conflicts.
○ Determine the cause of action.
○ Determine locus standi - The right or capacity to bring an action to court.
○ Determine jurisdiction.
○ Terms of engagement - Send a letter of engagement after the consultation which elaborates on the firm's
authority and obligations, client's obligation to firm, how the firm will engage in client's mandate etc.
○ Undertakings regarding feedback - Keep the client updated, both on the matter and financially.
○ Action or application?
○ Should you appoint an advocate?

Take comprehensive notes during the consultation. Make sure the evidence supports the instructions. Have firm
and clear instructions, leave no room for doubt. Instructions must be complete, directly from the client and
confirmed in writing. Attorney must be reasonably satisfied about the client's identity and capacity to instruct.
Ensure that you have all the evidence before issuing court papers.

The legal practitioner should decline the mandate if:

1. They have a lack of expertise for a particular case.
2. There is an unavoidable conflict of interest.
3. The client gives unethical, unreasonable, conflicting or fraudulent instructions.
4. There is not enough time available to commit to the case given the current workload.
5. The client does not have the financial means to cover the fees.

Representation
General power of attorney = Written authorisation to represent/act on another's behalf in legal agency.
Special power of attorney = Authorises attorney to institute or defend special legal proceedings on client's behalf
and to conduct any other function that is incidental to such proceedings. For example, special power of attorney is
needed for appeal cases.

Representation in the High Court

• Can self-represent / instruct attorney with right of appearance / instruct attorney & advocate (an advocate
will likely be used if council specialises in that field or has relationship with court).
• HCR 7 provides for legal representation without needing to file for power of attorney.
• HCR 16 provides that the attorney must notify all other parties of their representation and supply an address
within 25km of court building for the delivery of documents (can use a correspondent if own address is too
far away).
• Opposing party can dispute your authority for acting on behalf of client within 10 days, you must then
produce written mandate from client before acting.
• Special power of attorney is needed for appeal cases and must be filed when applying for appeal date. Third
party can sign on client's behalf if unavailable.
• A party may terminate the attorney's mandate at any point. If the attorney withdraws, they must notify all
parties. It is good practice to withdraw at an early stage.
• An attorney requires 3 years post qualification experience to obtain right of appearance in the HC.

Representation in the Magistrate's Court

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 Representation in the Magistrate's Court
• Self-represent or legal practitioner.
• Advocates must be briefed, limitations on signatory powers.
• A candidate attorney can appear in a regional court after one year of experience in a district court.

Demand
A demand is a request for (1) payment or (2) performance of a legal obligation. It is transmitted before legal
proceedings start, usually because of a failure to respond to informal requests for payment or performance. It is
only issued once and reasonable steps must be taken to ensure it reaches recipient.

Demand can be oral or in writing. In certain circumstances a summons can constitute demand with no preceding
letter of demand.

The underlying rationale is that you want the recipient to assess their liability at this stage already. They make a
cost-benefit analysis decision. You are threatening to institute legal proceedings, and you can also threaten with
liability for costs.

The question of urgency is an objective one by the court. You decide if your matter is urgent, but the court can
find against your decision. If they decide the matter is not urgent, there can be adverse cost consequences for
your client. The more urgent, the less compliance with the rules. The court will usually grant interim relief in the
form of a rule nisi. See Luna Meubel Vervaardigers case for how the court decides what is urgent. This is further
discussed in Ch 8.

Components of a demand
1. Capacity: In what capacity are you sending it? Are you the legal representative on the client's behalf? Is the client
sending it in their own name?
2. COA: What is the cause of action? Give sufficient detail. Example for contractual COA:
• Conclusion of valid contract
• Material term
• Which has been breached
3. Demand: What are you demanding? Give a clear indication of what action is expected from the recipient.
4. Timing: Give a reasonable date by which to comply.
5. Noncompliance: What happens if they don't comply?

Circumstances where demand must be made

Where statute requires demand

• Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
• Customs and Excise Act 91 of 1964 (S96)
• National Credit Act 34 of 2005
• Small Claims Court Act 61 of 1984 (S29 plaintiff must deliver letter of demand to defendant by
hand/registered post before taking legal action, 14 days lapse before summons issued)
Note to reader: Just know that there are different pieces of legislation that have different requirements for sending
a letter of demand before engaging in litigation.

Where demand is needed to complete COA

• Contracts that are payable 'on demand' (not payable and no COA until payment is demanded)
• Notice of breach clauses (no COA until notice of intention to sue for breach given)
• Placing debtor in mora (contract does not stipulate specific time for performance, no COA until performance
demanded with reasonable time given)
• When a creditor intends to cancel an agreement with no cancellation clause (demand gives right of
cancellation)

Incomplete cause of action = can raise special plea, case will be thrown out. Premature/irregular proceedings,
court might award costs. As the party who failed to send letter of demand, you can still litigate on that matter if

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court might award costs. As the party who failed to send letter of demand, you can still litigate on that matter if
you send the letter. If client claims they did send the notice but they don't have evidence, you likely have grounds
to terminate the mandate.

Prescription
Note to reader: Focus is on extinctive prescription.
Extinctive prescription = A debt or obligation becomes unenforceable after a certain prescribed period of time,
you lose that right.
• Prescription Act 1943 (debts before 1970) and Prescription Act 1969. S11 provides for the extinctive
prescription periods of 30, 15, 6 and 3 years.
• The right to enforce prescription can be waived.
• Prescription periods use calendar days not court days.
• The prescription period can be interrupted, eg. an issuing of summons, or if the debtor admits liability to the
creditor (can be an oral admission, which can be difficult to provide evidence for in court). A letter of
demand does not interrupt prescription.
• Only defendant or respondent can raise prescription, not the court (it must be pleaded). You can thus still go
to court after the prescription period and hope that the other party doesn't bring up the technical objection.
• The period commences as soon as the debt becomes due - when the creditor has knowledge of debtor and
the facts from which the debt arises, deemed to have such knowledge if it could have been acquired by
exercising reasonable care.
• The rationale is that the prescription period promotes legal certainty from perspective of respondent, as the
plaintiff only has a defined period of time to raise the claim.

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Ch 4 to 6 - Jurisdiction
Note to reader: Understand the approach and formula. This section is NB.
Examples of possible questions:
- Explain entire process to establish jurisdiction in a district MC
- What are the specific grounds on which geographical jurisdiction can be established
NB to cite legislation in proper detail (sections and subsections).

Key:
MC = Magistrate's Court
HC = High Court
MCA = Magistrate's Court Act
MCR = Magistrate's Court Rules

Jurisdiction = the authority or competence of a particular court to hear a matter and grant
relief in respect of that matter. It is determined at the time proceedings are instituted, and
continues until the end of proceedings. If you don't have jurisdiction, defendant can raise
special plea of lack of jurisdiction.

Why is jurisdiction important?

1. No court has all-encompassing jurisdiction, there are limits.
2. If you choose the incorrect court, it may dismiss your matter.
3. This has potential cost implications for you or your client.
4. The matter may prescribe.
5. It may amount to professional negligence.

Inherent vs prescribed jurisdiction

The biggest distinction between the High Court and Magistrate's courts is that the HC has
inherent jurisdiction, meaning it can regulate its own processes and control its own
procedures, and can thus hear any matter not prohibited by statute. Whereas the MC is a
creature of statute and is governed by the Magistrates' Court Act and Magistrates Court
Rules.
Note to reader: Inherent jurisdiction is not prescribed.

General principles
Actor sequitur forum rei
In determining which court has jurisdiction, you follow the defendant to her place of
residence or domicile. MC - only look at residence; HC - can look at residence or domicile.

Effectiveness
Court will not assume jurisdiction if judgement will not be effective (the potential to be
enforced). Don't waste the court's time with a matter where it's clear that the court's
judgement will be ineffective. For enforcement, court needs control over debtor's
person/property.

Convenience
In practice, you can't use convenience alone to assume jurisdiction. There are statutory and
common law grounds in place which predominate. Effectiveness and convenience are rather
used as additional arguments to establish jurisdiction.

Consent

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Consent
A court can exercise jurisdiction over a defendant if they submit to the court's jurisdiction.
Not sufficient in all cases.

Legal terminology
Lis pendens = Pending legal action, same cause of action between same parties is pending
elsewhere, is currently in the process of being adjudicated. Can draft a special dilatory plea
to stall the litigation process.
Rei judicata = Litigation has already been decided on by court. Can raise a special plea in
abatement which destroys the COA completely.
Incola = a person domiciled or resident within the jurisdictional area of a specific court
Local peregrinus = person resides or is domiciled in SA, but is not an incola in that area (aka
peregrinus of court)
Foreign peregrinus = person is not resident or domiciled in SA at all (aka peregrinus of South
Africa)
Vagabundus = Someone who is not resident anywhere. It is relevant to determining
whether a person is resident within the territorial jurisdiction of a court for the purpose of
establishing jurisdiction. Our courts (as held in Mayne v Main) do not recognise vagabundus.

The formula for selecting the appropriate court

A) Which general type of court is competent to hear the matter?
1. What is the monetary value of the claim?
○ General rule is that claims > R400 000 go to HC and claims <= R400 000 go to MC
→ claims < R200 000 go to district MC, claims between R200 000 and R400 000
go to regional MC
○ If claim doesn't fit monetary jurisdiction, don't just assume MC doesn't have
jurisdiction - first consider abandonment, deduction and consent.
○ Can't split a single substantive claim to get to regional court (S40), but separate
amounts can be combined into a single summons (S43). Eg. each month's rent is
a separate cause of action, but don’t need to issue multiple summons. The
individual amount must be within court's jurisdiction.
○ Court can enquire into the whole amount, but ultimately looks at what the
plaintiff is claiming, regardless of what the original amount is (S37).
○ When determining which court has jurisdiction, only look at capital amount.
Subsequent claims will usually be for costs and further and alternative relief,
possibly even interest on the capital amount.

2. What is the nature of the claim?

○ S29 - can the set of facts be linked to any of the subsections? Certain sections
don't contain monetary values. These claims will to lead to district or regional
MC. The matter must be linked to one of these grounds. If you cannot link, then
proceed to HC.
○ S46 - provides for claims outside of MC jurisdiction, thus have to lead to HC.
Status claims and specific performance claims.

B) Which specific court has jurisdiction (which division/seat)?

This is done by establishing a link between the claim and a geographical area.

Magistrates Court
Section 29 claims NB (trial action in MC)
• S29(1)(a) delivery or transfer of property (movable or immovable) eg. rei vindicatio.

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 • S29(1)(a) delivery or transfer of property (movable or immovable) eg. rei vindicatio.
• S29(1)(b) ejectment against occupier of premises or land within the district. If
defendant doesn't dispute, the value of the claim doesn't affect jurisdiction. Defendant
can only raise a bona fide dispute as to right of occupation, cannot dispute based only
on value of claim. If bona fide defence, value of claim must then be within MC limits.
To determine the clear value: Determine difference between occupier's current rent
and suitable alternative accommodation in that area, multiplied by number of months
left of rental period. Who determines what is suitable alternative accommodation? It's
a complex exercise, does not need to be exact same size or price, ultimately court asks
if the person will have the same quality of life. Plaintiff has the incentive to make
difference as low as possible to ensure MC jurisdiction. Negative difference = District
court.
Commercial premises have another option available if no suitable alternative
accommodation. Look at profit that commercial occupier is expected to make during
the remainder of the rental period. If profit exceeds R400 000, can consider consent to
bring within MC jurisdiction.
• S29(1)(c) determination of a right of way - value of claim is irrelevant, go straight to
MC.
• S29(1)(d) actions arising out of a liquid document or mortgage bond. A liquid
document evidences liability without having to resort to extrinsic evidence and has the
following requirements: (i) an acknowledgement of indebtedness; (ii) ascertained
amount of money; (iii) payment presently due to creditor; (iv) whose identity is clear
from the document. Examples include acknowledgement of debt, promissory notes,
cheques, provisional sentence.
• S29(1)(e) credit agreements as defined by the National Credit Act - Nedbank 2019 all
credit claims must be heard in the MC regardless of amount.
• S29(1)(f) actions ito S16(1) of the Matrimonial Property Act where a spouse married in
CoP withholds consent.
• S29(1)(g) general provision for any other actions not mentioned (within monetary
jurisdiction), subject to S46.
• S29(1B)(a) nullity of a marriage/civil union and actions relating to divorce.
• S29(1B)(b) gives regional courts the same powers as the HC in matters related to
S29(1B)(a).

Abandonment (Section 38)

If the claim exceeds the monetary jurisdiction of the MC, the plaintiff may explicitly
abandon a portion of the claim in the summons or any time thereafter (including during the
trial before judgement). MCR 5(6)(c) says an averment of abandonment must be included in
the summons. If abandonment is made after the service of summons, MCR 55A says the
summons must be amended to include the particulars.

A plaintiff will be likely to abandon when the amount by which the claim is over the limit is
not large enough to justify incurring High Court costs, or when he anticipates not succeeding
with the full claim and the amount he expects to recover is within MC jurisdiction. Note that
the amount abandoned takes effect first on the part of the claim not upheld (if full claim not
awarded).
RULE: You get what you can prove up to max of R200 000 or R400 000.

Deduction (Section 39)

If there is a possible counterclaim, plaintiff may deduct counterclaim (admitted amount
owed) from his claim to bring within jurisdiction. It may be preferable to deduct from the
outset when there is likely to be a successful counterclaim, as the net award will be more.
See the numerical examples in the textbook for a more practical understanding.

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 See the numerical examples in the textbook for a more practical understanding.
RULE: You get what you can prove up to max, less the admitted debt.

Section 46 exclusions (go to HC)

○ Status claims:
▪ Wills
▪ Mental capacity
▪ Perpetual silence (order to institute the threatened action within a certain time, or
remain silent)
○ Specific performance (NB):
• S46(2)(c) Can't claim specific performance on its own in MC, must claim damages in
the alternative
• Distinction between claims ad factum praestandum (performance of an act) and
claims ad pecuniam solvendam (payment of money). Orders sounding money are not
specific performance claims for the purpose of S46 (Tucker v Van Zyl 1977) and are
thus not excluded from jurisdiction of MC.
• Specific performance in S46 must arise from contract (Olivier v Stoop 1978)
• Exceptions (where plaintiff can claim specific performance from MC without damages
in the alternative): Order to render an account (not very common in practice) &
delivery/transfer of property (movable/immovable) <=R200 000 or >R200 000 with
parties' consent.

Jurisdiction with regard to territory (Section 28)

The MC has jurisdiction over the following persons as defendant:
• S28(1)(a) any person who (1) resides, (2) carries on business or (3) is employed within
the district or regional division (read with the principle of actor sequitur forum rei).
1. Resides
○ To determine residence, the question is whether the place is his home, his
abode, place where he sleeps after work every night (Beedle & Co v Bowley
1895). There must be a pattern of regularity (Mayne v Main 2001). Must have a
residence, defendant cannot argue that they don't reside anywhere. The court
adopts a common sense realistic approach given the facts of the case.
○ A companies residence is where its head office/registered office is situated. For
close corporations the residence is either where the registered office is situated
or where the principle place of business occurs. For partnerships the residence is
where the principle place of business is situated.
○ The state's residence was argued to be Pretoria, but position is unclear.
2. Carries on business
○ Refers to one's own day-to-day business, requires a sense of regularity.
3. Is employed
○ Refers to someone employed by another, requires some permanence.
• S28(1)(d) any person (regardless of residence/business/employment) if the (4) cause
of action arose wholly within the district or regional division, ie. all the facts that must
be proved to establish a COA (facta probanda) occurred within the jurisdiction. The
evidence needed to prove those facts (facta probantia) can occur anywhere. When
this ground is used, a separate averment must be made that the COA arose wholly in
the court's jurisdiction.
○ In King's Transport v Viljoen 1954, a claim for vicarious liability was raised
following a car accident, and the plaintiff needed to prove the facta probanda for
vicarious liability, namely that the delict occurred within the scope of the
employees employment. Jurisdiction was disputed on the grounds that the
contract was signed outside the court's jurisdiction. However, the contract was
facta probantia and not needed to prove the plaintiff's case.

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 facta probantia and not needed to prove the plaintiff's case.
• S28(1)(c) anyone in incidental proceedings to the main action.

Mayne v Main 2001 - Residence is a different concept to domicile. Possible to have more
than one residence, however for the purpose of legal proceedings a person can only reside
in one place at any given moment (at the time of the issuing of summons, when jurisdiction
is decided).

Cause of action
The COA sets out the basis for the plaintiff/applicant's claim, and consists of every material
fact that must be proved to succeed, ie. facta probanda. The elements of the COA are
determined by substantive law.

‘Every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to
support his right to the judgment of the court. It does not comprise every piece of evidence
which is necessary to prove each fact, but every fact which is necessary to be proved.’
(McKenzie v Farmers' Co-operative Meat 1922)

This definition relates only to material facts (Inzinger v Hofmeyr and Others 2010).

Based on:
→ Delict
Elements of a delict must be proven, these are the material facts:
1. Conduct (act or omission)
2. Wrongfulness
3. Fault (intention or negligence)
4. Causation
5. Damage
→ Contract
3 substantive elements to prove breach of contract:
• Contract conclusion
• Material term
• Breach of contract

High Court
General overview
• Regulated by S169 of the Constitution.
• S21 Superior Courts Act limits the jurisdiction of a specific division to its defined
geographical area.
• Adjudicates claims over R400 000 where client doesn't want to abandon or deduct.
• In the HC you can look at residence AND domicile. Requirement for domicile of choice
is the intention to reside there permanently. Possible to have more than one
residence, but not more than one domicile.

Three common HC jurisdiction grounds

1. Ratione domicilii = defendant/respondent is resident OR domiciled in court's area
(actor sequitur forum rei). Note that domicile requires (1) physical presence and (2) the
intention to remain there indefinitely. It's possible to have more than one residence,
but not more than one domicile.
2. Ratione rei gestae = part of the COA arose in court's area. Not necessary for all the
facta probanda to occur in court's jurisdiction.
3. Ratione rei sitae = the property being claimed is in court's area (movable or

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 3. Ratione rei sitae = the property being claimed is in court's area (movable or
immovable property constituting the subject matter of the claim is situated in court's
area).

Section 46 exclusions
(a) validity or interpretation of a will or other testamentary document
(b) status of a person in respect of mental capacity
(c) decree of perpetual silence
(d) specific performance without alternative claim for damages

Claims against a foreign peregrinus

If the defendant is a foreign peregrinus, the plaintiff must apply to confirm (ad
confirmandam) or found (ad fundandam) jurisdiction. To confirm jurisdiction, the plaintiff
selects a court in area where COA arose. To found jurisdiction, the plaintiff selects a court
where they are resident/domiciled (exception to the common law rule of following the
defendant). In BOTH cases, attachment of defendant's property is required.

In Bid Industrial Holdings (Pty) Ltd v Strang, the court created additional jurisdictional
ground for circumstances where defendant has no property in SA: you may litigate against
foreign peregrinus if you serve summons 1. while they are in SA borders and 2. demonstrate
adequate connection between court and your claim (place where COA arose).

If the defendant is not physically present and has no property in SA, the plaintiff cannot
litigate in SA.

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Ch 7 - Locus Standi
Two requirements for locus standi
'A place to stand before the court.' The right or capacity to bring an action or appear in court.
1. Direct and substantial interest
2. Legal capacity

1. Direct and substantial interest

• The plaintiff must have an adequate interest in the subject matter of the litigation, interest must
not be too far removed and must be an actual interest (not abstract/academic/hypothetical).
• S38 of the Constitution extends locus standi to groups who in the past did not have direct and
substantial interest:
(a) Someone acting in their own interest
(b) On behalf of another person who cannot act in their own name
(c) As a member of/in interest of a group/class of persons
(d) In public interest
(e) An association acting in interest of members

Class actions
Class action = legal procedure which enables the claims of a group of individuals against the same
defendant in relation to a common issue of law or fact to be determined in a single suit. The class
members are bound by the outcome of the litigation on the common issues.

Class actions in South Africa were introduced for the first time by the Interim Constitution. To date
there is no regulatory framework for the procedure of class actions, and courts have developed their
own framework based on ad hoc references in various legislation (such as S38c of the Constitution,
Consumer Protection Act, etc).

In Children's Resource Centre Trust v Pioneer Foods 2013, the court set out the circumstances under
which a class action may be instituted and the procedural requirements which must be satisfied for a
class action to be certified (NB). These requirements apply to all areas of law, not just constitutional
claims:
1. A class identifiable by objective criteria
2. Cause of action raising a triable issue
3. Issues of fact or law common to all members of the class
4. The relief/damages must flow from the COA and must be ascertainable and capable of
determination
5. Appropriate procedure for allocating damages (benefit must flow to class members)
6. Proposed representative must be suitable to conduct class action on behalf of class (sufficient
funding/resources)
7. Class action must be found to be the most appropriate means of adjudicating the claim (as
opposed to a joinder) - look at number of class members, case by case basis.

In Mukaddam v Pioneer Foods 2013, the court said that those 7 requirements are merely factors to be
considered under the guiding criteria of the interest of justice.

• Opt-in class action = class members must proactively opt in to form part of the class action and
benefit from it (usually when class is smaller, individual notice is required).
• Opt-out class action = class members automatically form part of class action and are bound by
litigation unless they proactively opt out (usually when class is very large and geographically
dispersed, and independent litigation is unlikely. Individual notice to class members is not
necessarily required, but significant effort must be made to bring class action to attention of

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 necessarily required, but significant effort must be made to bring class action to attention of
class - advertising on tv, radio , newspaper, trade unions).
• Bifurcation = court divides class action into different phases, often done when individuals face
varying degrees of damages. For example, in Nkala v Harmony Gold Mining Company the court
divided it into the first phase (opt-out to determine liability) and second phase (opt-in to quantify
individual damages).
• Subclassing = court divides class into various subclasses, to facilitate determination of damages
for each subclass.

2. Legal capacity
The general rule is that natural and juristic persons have the capacity to sue and be sued, subject
to a few exceptions:
○ Children
Children do not have locus standi and must be represented or assisted by a guardian.
▪ S17 of the Children's Act defines a natural person under 18 as a child.
▪ Children under 7 must be represented.
▪ Children 7 and older can be represented or duly assisted.
▪ The representing guardian cannot be held liable for costs or damages awarded
against the minor.
▪ Guardian may act in dual capacity where they sue on their own behalf and also as the
child's representative. This usually occurs when damages are claimed against a 3rd
party on behalf of the minor, as well as medical expenses claimed by the guardian.
▪ Curator ad litem can act on the child's behalf (if the child has no guardian, conflict of
interest between child and guardian, or guardian refuses to act on child's behalf).
Usually on a pro bono basis.
▪ In certain cases the court can grant permission to litigate unassisted, for example
when applying for permission to marry without parental consent.
▪ S15 of the Children's Act extends locus standi in certain matters.
○ Married women
All married women now possess locus standi (principle of marital power abolished with the
1993 amendment of the Matrimonial Property Act).
▪ Spouses married in CoP require written consent to litigate, BUT a spouse without
consent still has locus standi. The only implication will be costs from their separate
estate.
▪ No consent needed for the following:
□ Legal proceedings between spouses.
□ Litigation regarding separate property.
□ Recovery of non-patrimonial damages due to delict.
□ Matters related to profession.
○ Mentally disabled persons
Mentally disabled persons do not have locus standi as they cannot appreciate the nature of
legal proceedings.
▪ HCR 57 provides for the appointment of curator ad litem (protect interests of
patient), followed by a curator bonis (manages property).
○ Prodigals
A prodigal is someone who is incapable of managing their own financial affairs (aka
spendthrift).
▪ Court order declares the person a spendthrift and limits legal capacity for certain
issues.
▪ Court may appoint a curator bonis to manage the estate.
○ Insolvents
Insolvents have restricted locus standi.
▪ The sequestrated estate will be managed by a court-appointed trustee.

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 ▪ The sequestrated estate will be managed by a court-appointed trustee.
▪ The insolvent can still sue and be sued in own name in certain circumstances.
▪ If a party becomes insolvent during litigation, the appointed trustee will substitute as
party to litigation.
○ Fugitives from justice
Fugitives from justice do not have locus standi at all.
▪ May defend but not institute proceedings
▪ Exception: If a default judgement is granted because they weren't served or changed
residence, they have the right to apply for rescission to defend the action.
○ Diplomats and judges
Diplomats and judges are entitled to certain immunities and privileges.

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Ch 11 - Service of Process
Covered briefly in class.
Necessity of service of process
Service (legal delivery) is the process defined by court rules in which court documents must
be delivered to the opposing party. The purpose of legal delivery is to comply with the audi
alteram partem rule which states that the defendant must be notified of proceedings and
both parties must be informed of the nature and grounds of the opposing case. It gives
legitimacy to the litigation procedure. Before proceedings can commence, documents must
be issued and signed/stamped and a case file opened.

Role of the sheriff

All legal documents must be served by the sheriff.
• To effect service, the sheriff must show the original process (summons and notice of
motion) and hand over a true copy to the opposing party, as well as explain the nature
and content of the process.
• Return of service constitutes prima facie evidence of the service (document in which
sheriff reports that service was duly effected). Sheriff will return original process and
return of service to the plaintiff's attorney.
• Nulla bona return = if the Sheriff could not effect service (unsuccessful return). In this
case the plaintiff can apply for substituted service.

Manner of service
• Procedures in HC and MC are similar.
• Personal service on the defendant is ideal since it ensures proceedings come to
knowledge of the defendant.
• However, if personal service is not possible, other methods of service include inter alia
service at the defendant's residence or business.

Substituted service and edictal citation

Substituted service = used when the physical whereabouts of a party are unknown, request
the court to authorize a substituted method of service by means of an ex parte application.
The onus is on the plaintiff to show reasonable evidence suggesting that the defendant is
still in SA.
For example, E-mail is not a recognized method of service to commence proceedings, but
can be requested as a substituted service. Can suggest leaving the document with friends or
relatives to effect service. If you can argue that the method will have reasonable prospects
of bringing it to the defendant's attention, court will be likely to authorize it. Propose a
range of methods of substituted service, eg. newspaper, social media, relatives. It is
necessary to show the court that all avenues have been exhausted before applying for
substituted service.

Edictal citation = a special form of substituted service used when the defendant is believed
to be outside the country. If ex parte application for leave to sue by way of edictal citation is
granted, the plaintiff will issue a citation (equivalent to a summons) with an intendit
(equivalent to particulars of claim). The court must issue a temporary order in the form of a
rule nisi. The defendant is given a period of 21 days to appear to defend.

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Ch 8 - The Application Procedure
Note to reader: NB to know the difference between action vs application and what the appropriate
procedure is for a given set of facts.

Action vs application proceedings

Action Application
Instituted by summons (simple or Instituted by notice of motion and
combined), followed by exchange supporting affidavits, followed by
of pleadings exchange of affidavits
Used to resolve factual disputes No material dispute of facts
Trial characterized by oral evidence Court adjudicates matter on the
papers (affidavit contains evidence)
Longer process Less expensive and faster
Plaintiff v Defendant Applicant v Respondent

Form of proceedings in HC and MC

HC - Application used where no material dispute of facts is foreseen.
MC - Action is the norm. MC is a creature of statute, can only use application procedure where it is
specifically authorised.

HC proceedings - choice between action and application (motion)

Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd is the leading case in this regard
and notes factors to be taken into account in making a choice:
1. Does statute or common law require either application or action? If no -
2. Is a bona fide material dispute of fact between the parties reasonably foreseeable? If yes -
action. If no - application.

Three ways in which a bona fide material dispute of fact may arise
• Respondent denies allegations and intends to present contrary evidence.
• Respondent admits allegations but alleges other facts which neutralise the applicant's case
and are in turn denied by the applicant.
• Respondent has no knowledge of alleged facts and intends to present evidence showing that
applicant is not credible or reliable.

Steps the court can take if a dispute of fact arises on the affidavits
• Dismissal of application with costs - where applicant should have reasonably foreseen that a
dispute of facts may arise.
• Order for oral evidence to be heard on specific issues ito HCR 6(5)(g) - only where dispute is
of a limited scope, not for extensive/complicated dispute of facts.
○ Plascon-Evans rule: the court may decide a fact in the applicant's favour without calling
for oral evidence when convinced of applicant's credibility. It enables the court to grant
final relief without resorting to oral evidence or trial.
• Referral to trial - for extensive/complicated factual dispute, application transformed into
action.

Application procedure
Two types of applications:
1. Ex parte applications (aka unilateral application)
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 1. Ex parte applications (aka unilateral application)
○ Applicant is the only party, thus no notice to respondent required
○ Notice only given to registrar (or clerk)
○ Increased obligation on applicant to act in utmost good faith
○ Applicable in the following circumstances:
▪ Where applicant is the only person with interest in the matter.
▪ Where application is merely a preliminary step in the proceedings (eg. application
to sue by way of edictal citation).
▪ Where urgent relief is required and notice to another party or delay will prejudice
the applicant. For an urgent ex parte application, the court may grant interim
relief in the form of a rule nisi as a safety mechanism to protect the potential
respondent's interests. This is an interim order that gives the respondent a return
date by which they must advance their version of the facts.

2. Application with notice (aka bilateral application)

○ Initiating proceedings against another person whose interests will be affected, must
thus give notice to the respondent and registrar (or clerk).
○ Applicant: Notice of motion (with address) & founding affidavit → Respondent: Notice
of intention to oppose (with address) & answering/opposing affidavit → Applicant:
Replying affidavit

Interlocutory (interim) application = Application brought while action is pending between parties
for purpose of resolving a dispute which arose during action. Usually used to force the respondent
to comply with a procedural rule. This application can be either on notice or ex parte.

Hearing of application
The procedure of the hearing is generally the same for all applications, except that an ex parte
application only has an one party, the applicant. As a rule, no oral evidence is heard by the court.
However, parties do get the opportunity to present oral arguments to the court. All necessary
documents/evidence must be annexed to the application, and all affidavits need to be certified by
a commissioner of oaths (initials on every page with signature, date and address on last page).

Urgent applications
• HCR 12(a) provides that 'a judge may dispense with the forms and service provided for in
these rules and may dispose of such matter at such time and place and in such manner and
in accordance with such procedure (which shall as far as practicable be in terms of these
rules) as to it seems meet.'
• Deviation from rules must align itself with the rules as far as is practically possible.
• Degrees of urgency set out in Luna Meubel Vervaardigers (Pty) Ltd v Makin:
(a) Urgency requires abbreviation of 10 day period between service and hearing but
matter must be set down for weekly motion day and papers filed in time.
(b) Urgency requires deviation from requirement to set matter down for court's weekly
motion day with proper notice to registrar, applicant may set it down for the next
motion day with shorter notice to registrar.
(c) Urgency such that applicant cannot wait for next motion day, applicant may set matter
down for next court day at 10am or same day if court has not yet adjourned.
(d) Urgency such that applicant cannot wait for next court day, may set matter down for
hearing at any reasonably convenient time, in consultation with registrar, be it at night
or over a weekend. There will always be a judge on duty to hear matters of such
urgency after hours.
• Urgent relief is always sought by means of an application, even if a material dispute of fact is
anticipated.

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 anticipated.
• Applicant must set out all material facts as well as circumstances upon which the claim for
urgent relief rests.
• A person against whom urgent order is granted may, by notice, set the matter down for
reconsideration. If urgent application affecting another's interests brought on ex parte basis,
judge will issue rule nisi with return date by which they must appear in court to afford that
person an opportunity to be heard.
• Anton Piller order allows the plaintiff to enter the defendant's premises and search for
evidence that they believe is being concealed. The purpose is to prevent the destruction or
removal of evidence.

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Ch 9 - The Action Procedure
Key:
MCR = Magistrates Court Rules
HCR = High Court Rules

An overview of the action procedure

1. Pre-trial stage
a. Pleadings stage
▪ Commences when action is instituted (summons issued).
▪ Characterized by exchange of pleadings which outline scope of dispute and issues
▪ Terminates when all pleadings have been exchanged and material facts of dispute
have been defined (litis contestation).
▪ May include:
i. Issuing of summons (simple or combined)
ii. Notice of intention to defend (if not defended: file notice of bar, apply for
default judgement)
iii. Declaration containing particulars of claim (only for simple summons)
iv. Plea and/or special plea
v. Counterclaim (defendant) and counterplea (plaintiff); replication;
amendment of pleadings; close of pleadings and set down for trial
▪ The HC doesn't have a uniform procedure for set-down of cases, but the MC
does. The plaintiff will usually enrol the matter for trial by communicating with
the registrar or clerk in the prescribed manner to obtain a trial date. It is however
also possible for the defendant to set the matter down.
b. Preparation for trial stage
▪ Consists of discovery of documents and inspection of relevant things
▪ Proper preparation is essential as there is no opportunity to gather further
evidence once trial commences (can only argue facts set out in pleadings)
2. Trial
• Continuous event
• Direct presentation of oral evidence
• Principle of party control, advocates in control of presentation of evidence
• Broadly entails opening addresses of counsel, presentation of evidence (questioning of
witnesses - examination in chief, cross-examination, and re-examination),oral
arguments and judgement with cost order
• Plaintiff usually goes first

Pleadings
Pleading = A document that sets out the material facts upon which a party's claim or defence is
based. The purpose is to inform each party of the nature of the opposing party's case and the
factual grounds on which it is based. This enables each party to come to trial completely prepared
to meet the case of the other party.

Pleadings also establish a party's locus standi and the court's jurisdiction. The main function is to
determine scope of the dispute and the facta probanda. Other functions include informing the
court of the nature and scope of dispute, determining the parties and serving as an official record
of the dispute. No evidence should be included in the pleading since averments are not made
under oath. The pleadings also specify the relief that is prayed for.

HC pleadings must be signed by advocate and attorney (or attorney alone if granted right of
appearance in HC), or by unrepresented litigant. A pleading differs from a founding affidavit in

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appearance in HC), or by unrepresented litigant. A pleading differs from a founding affidavit in
that it does not need to be commissioned, it is usually signed by the legal representative.

Formal requirements for pleadings according to HCR 18 and MCR 6

• Heading indicating the court, names of parties, case number and title of pleading
• Facts must be set out in distinct paragraphs
• Material facts must be set out clearly and concisely with sufficient particularity
• Particulars for specific cases:
○ HCR 18(6) A party relying on a contract - written or oral, when, where and by whom it
was concluded, true copy if written, copy of letter of demand if necessary.
○ HCR 18(8) A plaintiff suing for divorce - give details of time, date, place and any other
persons involved.
○ HCR 18(10) A plaintiff suing for damages - specify date of birth, nature, effects and
duration of disability alleged to give rise to damages and the different amounts
claimed.
▪ For personal injury claims, the prior position was that if the plaintiff dies during
proceedings, the claim dies with them. However, since Nkala the claim becomes
transmissible to the heir's estate if the plaintiff dies after litis contestation.
○ HCR 18(11) A plaintiff suing for damages as a result of death - specify date of birth of
deceased and person claiming damages
• Prayer for relief (often further and alternative relief)
• The signature

HCR 18(12) states that if a party fails to comply with these requirements, the pleading shall be
deemed to be an irregular step.

Examples of pleadings
• Combined summons
• Declaration
• Plea
○ Defendant's answer to the plaintiff's claim, on a paragraph-by-paragraph basis.
Purpose is to inform the plaintiff of the nature of the defence. The defendant may
either
i. Admit
ii. Deny
iii. Confess and avoid (alleges other facts which neutralise claim)
• Special plea
○ A defence based on facts separate from merits of plaintiff's claim. Raises other facts,
which if proven will either delay proceedings (dilatory plea) or destroy the claim (plea
in abatement/declinatory plea).
• Counterclaim (claim in reconvention)
○ Does not have to relate to plaintiff's claim or arise from same facts. Can be included in
same document as plea.
• Counterplea
○ Plaintiff's response to counterclaim. Aka plea in reconvention.
• Replication
○ Plaintiff's response to plea. Only necessary if defendant made new factual averments
that require a response.

A party can apply anytime to amend their pleadings via notice of intention to amend. It is often
used to correct errors, clarify a COA, or extend/limit relief sought. Where a party fails to comply
with specific rules or fails to deliver a pleading timeously, the other party can set that pleading

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with specific rules or fails to deliver a pleading timeously, the other party can set that pleading
aside as irregular through an interlocutory application on notice.

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 Ch 10 - Summons, Particulars of Claim and Declaration
What is a summons?
A summons is a written legal demand which initiates the action procedure against the
defendant. It is signed by the plaintiff and their legal representative, and issued by the
registrar/clerk to the sheriff. The sheriff will serve the summons to the defendant to (1)
inform him of the nature of the plaintiff's cause of action and (2) initiate the process
through which the defendant is brought before the court .

Legal effects of issuing summons:

• Determines court's jurisdiction
• Interrupts prescription
• Renders the action lis pendens (cannot institute proceedings using the same COA in
another court)

Types of summons
Note to reader: NB to know the difference.
a) Combined summons
• Used for any type of claim, except debt/liquidated demand claims
• POC are attached (annexed) to combined summons
• Constitutes a pleading (must comply with HCR 18/MCR 6)
• Generally preferred for time and effectiveness
• MUST be used when the claim is subject to the provisions of the National Credit Act
b) Simple summons
• Only used for claims for debt/liquidated demand
• These are claims where no further evidence is required to prove the quantum of the
plaintiff's claim (acknowledgement of debt of an ascertainable amount of money)
• No POC attached (abbreviated form of POC in body of summons itself)
• Not a pleading (defendant cannot raise irregular step)
• Declaration (identical to POC) filed after notice of intention to defend

Requirements of summons
The formal requirements for a summons are set out in HCR 17 and MCR 5.

A simple summons must contain:

1. Brief explanation of the COA
2. Reference to the court's jurisdiction
3. Reference to the parties' locus standi
4. Legal conclusion drawn from the material facts
5. Request for legal relief
6. If the COA is based on contract, summons must indicate if contract was oral or written,
when, where and by whom it was concluded and a copy if in writing.

A combined summons constitutes a pleading and must comply with the requirements in
HCR 18 and MCR 6.

Particulars of claim (POC)

• Constitutes a pleading (must comply with requirements in HCR 18 and MCR 6)
• Must contain:
Citation of parties

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 ○ Citation of parties
○ Locus standi
○ Court's jurisdiction (can be included in citation when relying on residence)
○ COA
○ Prayer for relief
• The title must be detailed enough to enable the registrar/clerk to locate the file.
Averments must be split into consecutively numbered paragraphs and subparagraphs,
with each paragraph containing a distinct and separate averment.
• The facta probanda (material facts) must be pleaded, not the facta probantia
(evidence). When deciding which facts to include, ask yourself what will the defendant
need to enable him to respond to each averment? Sufficient information must be
provided.
• If the POC fails to disclose a COA, the defendant can raise an exception (see Ch 14).
• See particulars for specific cases in formal requirements of pleadings in Ch 9
(contract/divorce/bodily injuries/deceased).

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Ch 12 - Judgement at an early stage
Notice of intention to defend
• After the summons is served, the defendant has several choices:
1. Do nothing.
2. Attempt to settle the matter with plaintiff's attorney.
3. Consent (MC) or confess (HC) to judgement (the benefit is avoiding liability for
costs).
4. Enter appearance to defend.
• When the defendant wants to defend the action, he must file a notice of intention to
defend with the registrar/clerk. The purpose of the notice of intention to defend is to
place defendant's attorneys on record.
• This service address will be used for all future service of documents to the defendant
and is considered valid and effectual, except where personal service is required.
• The defendant may still raise exception or special plea at a later stage, even after filing
a notice of intention to defend.
• If the defendant fails to enter appearance to defend within the specified time, the
plaintiff may apply for a default judgement process. In the HC, if the summons was
served inside the court's jurisdiction the time period is 10 days. If outside court's
jurisdiction, the time period is two weeks, or one month if place of service more than
150km from issuing court. In the MC, there is no distinction between service inside
and outside the court's jurisdiction. Note that the HCRs refer to court days but the
Superior Courts Act refers to calendar days. Thus, outside the court's jurisdiction: use
calendar days; within court's jurisdiction: use court days.

Shortcut judgements
Default judgement
The plaintiff may apply for default judgement if the defendant fails to enter appearance to
defend or has been warned that he may be barred if he fails to do so.

Default judgement may be given when:

a) Defendant fails to give notice of intention to defend (most common)
b) Notice of intention to defend is defective (contents do not comply with court rules)
c) Defendant fails to deliver plea within prescribed time period AFTER service of notice of
bar
If the defendant fails to deliver the plea within the prescribed time, the plaintiff must
serve a notice of bar in which the defendant has 5 days to file the plea, otherwise the
defendant will be barred from filing the plea, and the plaintiff can apply for default
judgement.
d) Plaintiff does not deliver declaration (in simple summons process) and is barred from
doing so
e) Plaintiff or defendant fails to appear at trial after due notice

Procedure in HC
Claims not for debt/liquidated demand:
• The court will adjudicate the default judgement application after the plaintiff has set
the matter down for hearing.
• If the defendant failed to enter notice of intention to defend, no notice of set down is
required. But if the defendant failed to deliver plea and ignores a notice of bar, then a
notice of set down must be given at least 5 court days before the hearing.
Claims for debt/liquidated demand (specific ascertainable amount):
• The default judgement application is considered administratively by the registrar.
Erica Vegter Civil Proc 244 Page 24
 • The default judgement application is considered administratively by the registrar.
• Again, if based on failure to enter notice of intention to defend, no notice required. If
based on failure to deliver plea and ignoring of notice of bar, notice of set down must
be given.
• The registrar can make various orders and can request a court hearing if evidence is
required in the default judgement proceedings
• A party that is dissatisfied with the registrar's decision can set the matter down for
reconsideration of the court within 20 days.

Procedure in MC
Claims for debt/liquidated demand:
• Clerk can grant judgement, will verify that COA is disclosed in POC
• If based on failure to enter notice of intention to defend, clerk will check proper
service of summons on the defendant
• Clerk will inform plaintiff's attorney of judgement

Unliquidated claim:
• Matter referred to court where the Magistrate deals administratively with the matter
in his chambers and will assess the amount recoverable and give an appropriate
judgement
• Request usually supported by affidavit
• Most often a claim for damages, but not restricted
• If parties agree on amount, it can become a liquidated claim

Summary judgement
When it is clear that the defendant has no valid defence, and is simply entering appearance
to defend to delay the matter.

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Ch 14 & 16 - Defective processes and pleas
Ch 14 - Defective processes and non-compliance
Pleadings must set out the party's material facts concisely. If the pleadings are vague, confusing, or non-
compliant they fail their purpose. There are a number of remedies available…
○ Exception → lacking COA or vague & embarrassing
• Legal objection to a formal and material defect which appears ex facie the opponent's
pleading
• Two circumstances where an exception can be raised:
1. Vague & embarrassing
▪ A person is entitled to know what case they must meet in court
▪ Where multiple interpretations of material fact are equally valid (eg. unclear if
suing in contract or delict), or contradictory averments
▪ Vagueness and embarrassment must amount to prejudice (onus on excipient)
▪ Excipient must deliver notice of exception with 15 days to fix the problem
▪ If not rectified, deliver actual exception
2. Lacks averments necessary to sustain a COA
▪ Pleading fails to disclose a COA or defence
▪ Specific requirements for COA must be met (contract or delict)
▪ Must know what the COA is and if all elements are averred in the pleading
▪ Special exceptions based on lack of jurisdiction, lack of locus standi or non-
joinder/misjoinder (these can also be raised as special pleas which is preferable
since exceptions don't permit external evidence and respondent can amend
pleadings from exception so matter won't be disposed)
▪ Where the pleading is bad in law, the opponent misunderstood the law and may
not rectify the pleading (matter disposed)
• Purpose is to settle the matter without trial to save time and costs, as well as protection from
embarrassment and prejudice
• Purely procedural mechanism, no external evidence and not an application
• Respondent must amend the pleadings and trial will halt until the defect is cured
• Exception cannot be raised against an affidavit
• Must contain a prayer (because exception is a pleading)
• Exception must be raised within the time period allowed for subsequent pleadings
• Look at entire pleading as a whole

○ Strike out → offensive

• Striking out a word, sentence or paragraph that is
1. Scandalous (abusive or defamatory)
2. Vexatious (harass or annoy)
3. Irrelevant (don't contribute to decision of matter)
• Essential question is whether the objectionable matter is essential to the opposing party's
COA
• Where the COA becomes questionable, likely to raise an exception rather
• Application procedure made with founding affidavit explaining offensive statements and
prejudice suffered

○ Irregular step → non-compliance with procedural rules

• HCR 18(12)
• A step not sanctioned by court rules
• Can raise if have knowledge of irregularity and have not taken further step in proceedings
(waived once further step is taken, eg. filing plea)

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 (waived once further step is taken, eg. filing plea)
• For example, no address for service, pleadings incorrectly signed, defective notice of appeal
• Procedure: Becomes aware of irregularity, deliver notice affording opponent opportunity to
rectify, wait 10 days, deliver application for irregular step
○ Enforcement and condonation → force a rule or allow non-compliance
○ Amendment → correct defective pleadings

Ch 16 - Plea, counterclaim, replication and close of pleadings

Plea
Plea = Defendants reply to plaintiff's particulars of claim or declaration.
Plea on merits = Attacks validity of COA regarding facts of case (substance of plaintiff's claim), usually
added to special plea. Isolate allegations and respond to groups of paragraphs. Concludes with prayer
(usually dismissal of claim with costs).
Special plea = Legal objection to some aspect of plaintiff's claim. Postpones or destroys operation of
COA. Raised at the start of defendant's plea in separate section.
• Special dilatory plea = delays operation of COA
▪ Special plea of arbitration
▪ Lis pendens (another action already pending between same parties based on same COA)
▪ Special plea of premature summons (summons issued before COA completed)
▪ Special of plea of misjoinder/non-joinder
• Special plea in abatement (declinatory) = destroys operation of COA
▪ Special plea of prescription
▪ Special plea of res judicata (competent court previously reached final judgement in
same matter)
▪ Special plea of lack of jurisdiction
▪ Special plea of non locus standi

Note to reader: NB to know the difference between exceptions and special pleas
Exception Special plea
Available to either party Available to the defendant
Only applies to trial action Applies to action and applications
Objection which is apparent ex facie (no Raises a special legal defence which is
external evidence) not apparent ex facie (proved by
external evidence)
A notice which amounts to a pleading Usually contained in the plea but may be
a separate point heard prior to trial
Taken against a pleading which contains Taken against Plaintiff's particulars of
no COA or is vague & embarrassing (not claim/declaration (action) or raised in
against an affidavit) answering affidavit (application)
Extinguishes entire pleading Destroys (declinatory plea) or postpones
(dilatory plea) the COA

Replication and reply

Plaintiff has an opportunity to replicate (respond to defendant's plea) if new averments are raised in the
plea which plaintiff cannot leave unchallenged. Eg. when defendant pleads fresh facts in plea which calls
for plaintiff to address. The plaintiff may then plead fresh facts in replication.

Close of pleadings (litis contestation)

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Close of pleadings (litis contestation)
Pleadings are considered closed when:
1. There has been a joinder of issues (issues in dispute have been crystalised) and there are no new
averments or pleadings.
2. The last day for delivery of a subsequent pleading has elapsed and party concerned has failed to
deliver.
3. The parties agree in writing that pleadings are closed and file agreement with the court.
4. Parties are unable to agree on the close of pleadings and the court declares them closed on
application of one party.

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