Introduction

Question 0

What is the difference between civil procedure and criminal procedure?

Answer 0

Civil procedure enables parties to take action to enforce rights and claim remedies or to defend actions brought against them.
Criminal procedure enables the State, acting on behalf of the public, to take action against persons who infringe the rules of criminal law.

Question 1

What is the Law of Civil Procedure?

Answer 1

Civil procedure is part of the adjective/formal law that enables a party to approach a court for legal relief, on the basis of the infringement of a party’s right. Civil procedure provides a mechanism for the enforcement of civil law (substantive).

Question 2

What is required for the law of civil procedure to be an effective procedure?

Answer 2

Civil procedure can be an effective procedure only if it pursues principles designed to ensure a fair legal process.

Question 3

What does section 34 of the Constitution state?

Answer 3

It states that everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court, or where appropriate, another independent and impartial tribunal or forum.

Question 4

What provides the framework for the South African law of civil procedure?

Answer 4

The Anglo-American adversarial system of civil procedure.

Question 5

What are the basic principles that underlie the law of civil procedure? - 8 points

Answer 5

a) All persons must have equal and effective access to an independent and impartial judiciary. Also that the costs and duration of litigation must be reasonable.
b) Both parties must have an equal opportunity to present their cases to the court. (Audi alteram partem).
c) Party Control- parties decide whether to institute action and determine the scope of the dispute, also decide on the evidentiary material to be presented as proof of their cases.
d) Provision must be made for direct oral communication between parties (personally or through legal reps.) and the court. Does not exclude possibility that NB elements of the presentation, such as evidentiary material, may be in writing.
e) The main proceedings (trial or application) must, in principle, take place in public.
f) The court must consider the evidentiary material on objective and rational grounds.
g) The court must give a reasoned and legally motivated judgement, and give it expeditiously.
h) The decision of the court is final and binding, but provision is made for appeal or review. A rescission of judgement is also possible in certain specific circumstances.

Question 6

What does the Audi alteram partem principle ensure? - 3 points

Answer 6

1- The defendant is notified of the proceedings;
2- Both parties are informed of the nature of the opposing party’s case, as well as the grounds on which it is based;
3- Both parties are afforded the opportunity to present their respective cases to the court.

Question 7

When were these principles acknowledged by our legal system?

Answer 7

It is submitted that these principles were acknowledged before the current constitutional dispensation was adopted in SA but they were granted constitutional recognition in the Bill of Rights.

Question 8

What does De Vos state about the entrenchment of civil procedural guarantees in the Constitution?

Answer 8

He states that it expresses a totally new approach to this branch of the law, of which the right to a fair trial lays the foundation for future development.

Question 9

In relation to the above mentioned principles, what else should also be considered?

Answer 9

The doctrine of judicial immunity.

Question 10

What does the doctrine of judicial immunity entail?

Answer 10

In terms of this doctrine a judicial office, in principle, enjoys judicial immunity from civil liability for damages that may arise from the exercise of his or her judicial duties, unless he/she acted maliciously or in bad faith.

Question 11

What principle does the doctrine of judicial immunity entrench?

Answer 11

It entrenches the principle of judicial independence, promotes the ability of the judiciary to administer the law without fear, favour or prejudice and is therefore consonant with section 165 of the Constitution.

Question 12

What are the principal sources of the Law of Civil Procedure?
- 11 points

Answer 12

1) The Constitution of RSA;
2) The Constitutional Court Complementary Act and the Rules of the Constitutional Court;
3) The Supreme Court Act;
4) The Rules of the Supreme Court of Appeal;
5) The Uniform Rules of Court applicable in all High Courts;
6) The Magistrates’ Courts Rules;
7) The Small Claims Court Act;
8) The common law underlying the rules of procedure and jurisdiction in the High Court;
9) Other legislation and regulations relevant to specialised courts;
10) Practice arrangements and directives applicable in respective divisions of the High Court;
11) Case Law.

Question 13

Where are the procedures of the High Court set out?

Answer 13

The Supreme Court Act, which must be read with the Uniform Rules of the Supreme Court.

Question 14

What must the Magistrates Courts Act be read together with?

Answer 14

The rules of the Magistrates’ Courts.

Question 15

What does each courts’ Act and its complementary set of rules contain?

Answer 15

They contain the principal procedures which make up civil litigation.

Question 16

Who may amend the Supreme Court Act and the Magistrates’ Courts Act, and their accompanying complementary set of rules?

Answer 16

The Acts may only be amended by parliament, however the Rules of Court may be amended or repealed by a statutory body called the Rules Board.

Question 17

In terms of s16 of the Constitutional Court Complementary Act, who is allowed to make rules for the CC?

Answer 17

Chief Justice is allowed to make rules for the CC.

Question 18

In terms of s25 of the Small Claims Court Act, who is allowed to regulate the Rules of the Small Claims Court?

Answer 18

It allows the Minister of Justice to regulate the rules.

Question 19

What else do the Rules of Court contain?

Answer 19

They also contain an annexures setting out the forms prescribed by the Rules. For the purpose of uniformity and consistency, these forms or precedents set out the formal structure of the various types of pleadings and documents necessary for litigation.

Question 20

What mechanisms can be used to solve civil disputes?

Answer 20

Civil disputes may be solved either through the mechanism of the civil-court structures or through alternative dispute resolution (ADR) structures. Thus, the Law of Civil Procedure applies not only in civil courts but also in ADR mechanisms by agreement between the parties.

Question 21

What different forms of ADR are there? - 3 points

Answer 21

1) Negotiation;
2) Mediation;
3) Arbitration.

Question 22

In ADR, what does Negotiation entail?

Answer 22

It is a structured form of bargaining between parties locked in a dispute.

Question 23

In ADR, what does Mediation entail?

Answer 23

It involves an impartial 3rd party employed to assist the parties in their negotiations with the aim of reaching an agreement.

Question 24

In ADR, what does Arbitration entail?

Answer 24

Compared to the two other forms of ADR, arbitration entails a more formal structure in that an impartial third party, the arbitrator, adjudicates on the dispute after taking evidence and hearing arguments from the parties. The decision of the arbitrator is usually binding on the parties (unless they’ve agreed to allow for appeal), a.though the decision may always be take on review.

Question 25

How may parties agree on Arbitration?

Answer 25

By inserting an arbitration clause or arbitration agreement in a contract, in which case any contractual agreement that may arise and is covered by the arbitration agreement will be subject to arbitration.

Question 26

When will an Arbitration agreement be subject to the Arbitration Act.

Answer 26

When the arbitration clause or agreement is in writing it, it is subject to the Act.

Question 27

Which ADR procedure is most often used?

Answer 27

ADR procedures often take the form of Arbitration proceedings which can be conducted by a formal national or international arbitration body.

Question 28

Give an example of a national Arbitration body?

Answer 28

The Arbitration Foundation of South Africa.

Question 29

In recent commercial legislation, what trend has begun to arise in terms of disputes that may arise from the relevant legislation?

Answer 29

It is a trend to provide for ADR mechanisms and alternative forums such as tribunals to deal with disputes that may arise from the relevant legislation.

Question 30

When taking instructions, what duty rests on the legal representative in terms of ADR?

Answer 30

A legal representative must consider the various ADR modes available to deal with the dispute at hand and select the most appropriate one according to the needs and circumstances of the client.

Question 31

Is ADR suitable for all types of disputes?

Answer 31

No, in some instances such as status and matrimonial matters, a court order must be obtained.