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Civil Procedure > Pre-litigation phase > Flashcards

Pre-litigation phase Flashcards

1
Q

Who is the dominus litis in civil procedure?

A

Applicant/plaintiff.

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2
Q

What are the two stages of the pre-litigation phase?

A
  1. Preliminary questions
  2. Pre-litigation issues
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3
Q

What are the preliminary questions?

A
  1. Cause of action
  2. Locus standi
  3. Jurisdiction
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4
Q

What does locus standi depend on?

A
  1. Whether or not there is direct and substantial interest in the matter
  2. Requisite capacity to litigate.
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5
Q

What are pre-litigation issues?

A

Issues that must be considered as litigation approaches.

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6
Q

What are the pre-litigation issues?

A
  1. Demand
  2. Calculation of time limits
  3. Service of legal documents
  4. Action or application
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7
Q

What is an application procedure?

A

Matters in which there is no material dispute of fact but there is dispute of law and the parties set out their respective cases in writing, and the court then decides the matter by considering the documents before it.

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8
Q

What is the difference between an application and an action?

A

The manner in which the evidence is placed before the court.

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9
Q

How is evidence placed before the court in application proceedings?

A

Affidavits.

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10
Q

What is an ex parte application?

A

An application made without notice to a respondent.

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11
Q

What is an on notice application?

A

An application in which notice is given to the respondent.

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12
Q

What is an action?

A

A matter in which there is a material dispute of fact and which involves a trial at which witnesses give evidence and are cross-examined.

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13
Q

How is evidence placed before the court in action proceedings?

A

Oral evidence

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14
Q

What are the steps to action proceedings?

A
  1. Pleadings
  2. Pre-trial procedures
  3. Trial
  4. Judgment, interest and costs.
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15
Q

What are pleadings?

A

The stage of an action during which the parties exchange a series of documents containing allegations and counter-allegations.

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16
Q

What is the purpose of pleadings?

A

To define the issues in dispute between them.

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17
Q

What is the pre-trial stage?

A

The stage during which the parties prepare for the trial by obtaining a trial date (set down), inspect each other’s documents (discovery), secure the attendance of witnesses (subpoena) etc.

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18
Q

What is the trial stage?

A

The stage during which both sides lead the evidence of witnesses, who are subject to cross-examination to test the truth of their evidence.

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19
Q

What are the sources of civil procedure law?

A
  1. MCA
  2. SCA
  3. MC & HC rules
  4. Constitution
  5. Audi alteram partem rule.
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20
Q

What are the documents ancillary to an action?

A
  1. LOD
  2. Summons and particulars of claim
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21
Q

What are the documents ancillary to an application?

A
  1. LOD
  2. Notice of motion and affidavit.
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22
Q

What is jurisdiction?

A

The power/competence which a particular court has to hear and determine an issue between parties brought before it.

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23
Q

What are the two crucial jurisdictional questions?

A
  1. What general type?
  2. Which particular one?
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24
Q

What are the subsidiary questions to the general type question?

A
  1. Monetary value of the claim
  2. Nature of the matter
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25
Q

How is the particular type of court determined?

A

By linking the matter to the geographical area of jurisdiction of a particular court.

26
Q

What essentially must be taken into account when determining jurisdiction?

A
  1. Value of claim
  2. Nature of claim
  3. Area to which the claim is linked.
27
Q

How do you link the matter to the geographical area of the court?

A
  1. Residence/employment
  2. Incident occurred in the area.
28
Q

When is jurisdiction determined?

A

At the time that the proceedings are instituted.

29
Q

When are proceedings deemed to have been instituted?

A

Once the papers initiating those proceedings have been served on the other party.

30
Q

What is locus standi?

A

Right to sue or be sued.

31
Q

What are the tests for locus standi?

A
  1. Whether or not the party concerned has a direct and substantial interest in the matter
  2. Whether or not that party has legal capacity to litigate in the matter.
32
Q

What is the common-law position regarding locus standi?

A

A person wishing to institute or defend legal proceedings must have a direct and substantial interest in the right that is the subject matter of the litigation, and in the outcome of the litigation.

33
Q

What is important about standing?

A
  1. It is divorced from the substance of the case
  2. Arises as a point in limine before the merits are considered.
34
Q

What are the requirements of locus standi?

A
  1. Direct interest in the relief sought
  2. Interest must not be too far removed
  3. Interest must be actual
  4. Interest must be current.
35
Q

Which section of the Constitution deals with locus standi?

A

Section 38.

36
Q

Who may seek relief ito section 38?

A

(a) Own interest
(b) behalf of another person who cannot act in their own name
(c) member of/in the interest of a group/class of persons
(d) public interest
(e) association acting in the interest of its members

37
Q

What is jurisdiction?

A

The power or competence which a particular court has to hear and determine an issue between parties brought before it.

38
Q

What are the characteristics of the Small Claims Court?

A
  1. Matters up to R15 000
  2. Only natural persons may sue
  3. Juristic persons may be sued
  4. State may not be sued
  5. No cross-examination of witnesses, presiding officer proceeds inquisitorially
  6. No appeal against judgments
  7. No legal representation
39
Q

In what instances does the Constitutional Court have exclusive jurisdiction?

A
  1. Disputes between organs of the state concerning the constitutional status, powers or functions of those organs of state
  2. Constitutionality of any parliamentary or provincial Bill in certain circumstances
  3. Applications by members of the national Parliament or one of the provincial legislatures to declare all or part of an Act of Parliament or the particular legislature to be unconstitutional
  4. Constitutionality of any amendment to the Constitution
  5. Whether or not Parliament or the President has failed to fulfil a constitutional obligation
  6. Certification of a provincial constitution.
40
Q

When can the CC sit as a court of first instance?

A

In matters which are sufficiently serious and urgent to require the immediate attention of the CC.

41
Q

What are the two jurisdictional questions ito HC and MC?

A
  1. Whether the matter must be brought in the HC or MC?
  2. In which particular division must the matter be brought?
42
Q

What is the value of the claim in HC?

A

Matters involving a claim for more than R400 000 are heard in the HC.

43
Q

What is the value of the claim in MC?

A

Matters involving a claim for not more than R400 000 are heard in the HC.

44
Q

What is the value of the claim in DC?

A

Not more than R200 000.

45
Q

What is the value of the claim in RC?

A

More than R200 000 not more than R400 000.

46
Q

How do you proceed with a matter if the HC has concurrent jurisdiction with the MC?

A

MC bc it is cheaper and quicker and choosing the HC may result in a costs order calculated on the MC scale which is less than costs calculated on the HC scale.

47
Q

How do you establish geographical ties for jurisdiction?

A
  1. Work or domicile
  2. Incident arised in the area.
48
Q

Why is it important to get jurisdiction right?

A
  1. Claim may be dismissed without dealing with the substance of the claim.
  2. In an action, opponent will raise a special plea of lack of jurisdiction which brings the matter to an end.
  3. In an application, the court will not hear the matter if it is not satisfied that it has jurisdiction, based on the facts stated in the papers.
49
Q

What is the most important general principle underlying HC jurisdiction?

A

The doctrine of effectiveness.

50
Q

What are the three foundations of HC jurisdiction ito the common law?

A
  1. Defendant/respondent is domiciled or resident in the court’s area
  2. Cause of action arose in the court’s area
  3. The property involved in the claim is situated in the court’s area.
51
Q

In what claims do these grounds typically apply?

A
  1. Claims relating to property
  2. Claims sounding in money
52
Q

What is the doctrine of effectiveness?

A

Court’s time should not be wasted by bringing a particular matter before it if it is clear from the outset that the court’s judgment will not be effective.

53
Q

What is the locus standi of minors?

A
  1. Under 7- no capacity, action brought in the name of the guardian or legal representative
  2. Over 7- limited capacity, brought in their own name, assisted by guardian or legal rep or brought in the name of the guardian or legal rep.
54
Q

When may minors litigate without assistance?

A
  1. Applying for a curator ad litem to be appointed
  2. Where court grants permission
  3. Applying for permission to marry without guardian’s consent
  4. When statute permits.
55
Q

What is a demand?

A
  1. A request for payment or a request for the performance of a legal obligation.
  2. An attempt to obtain satisfaction without incurring the expense of formal litigation.
56
Q

What is purpose of the LOD?

A
  1. Sets out client’s cause of action
  2. Allows the other side an opportunity to remedy the problem
  3. Puts the other side in mora.
57
Q

What is a power of attorney?

A

Written document which confers authority on an agent to act for his principal.

58
Q

What is a special power of attorney?

A

Description of the nature of the particular action, nature of relief to be claimed, parties’ names, attorneys’ names authorised to act on client’s behalf.

59
Q

What is a general power of attorney?

A

Authorised to perform all acts on behalf of the principal which he might normally perform himself.

60
Q

What is the time period of First Out Last In?

A

When a section or rules requires something to be done within a certain time period, the first day is excluded and the last day included.

61
Q

When is an LOD a notice?

A

When it is a legal requirement to send a LOD giving notice to the recipient that you intend to take legal action.

62
Q

What are the circumstances in which a demand must be made?

A
  1. Where legislation requires that notice be given or a LOD be delivered prior to litigation
  2. Where demand must be made to complete a cause of action.

Civil Procedure (14 decks)

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