Civil Procedure Textbook PDF

Page 1 of 751 Page 2 of 751  Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxfo...

Page 1 of 751 Page 2 of 751  Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries. Published in South Africa by Oxford University Press Southern Africa (Pty) Limited Vasco Boulevard, Goodwood, N1 City, Cape Town, South Africa, 7460 P O Box 12119, N1 City, Cape Town, South Africa, 7463 © Oxford University Press Southern Africa (Pty) Ltd The moral rights of the author have been asserted. Second Edition – Fifth impression 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press Southern Africa (Pty) Ltd, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographic rights organisation, DALRO, The Dramatic, Artistic and Literary Rights Organisation at [email protected]. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press Southern Africa (Pty) Ltd, at the above address. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Civil Procedure: A Practical Guide Print ISBN: 978-0-190411-26-8 ePUB ISBN: 978-0-190412-24-1 Third edition 2016 Acknowledgements Publisher: Penny Lane Development editor: Melissa De Grill Project manager: Lindsay-Jane Lücks Editor: Revenia Andra Abrahams Indexer: Michel Cozien Proofreader: Language Mechanics Typesetter: Orchard Publishing The authors and publisher gratefully acknowledge permission to reproduce copyright material in this book. Every effort has been made to trace copyright holders, but if any copyright infringements have been made, the publisher would be grateful for information that would enable any omissions or errors to be corrected in subsequent impressions. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. Page 3 of 751 Contents in brief GENERAL INTRODUCTION STAGE ONE: BEFORE LITIGATION PART 1: PRELIMINARY QUESTIONS ACAUSE OF ACTION BLOCUS STANDI CJURISDICTION PART 2: PRE-LITIGATION ISSUES ADEMAND BCALCULATION OF TIME LIMITS CSERVICE OF LEGAL DOCUMENTS DACTION OR APPLICATION? STAGE TWO: LITIGATION PART 1: APPLICATIONS INTRODUCTION AGENERAL PRINCIPLES BON NOTICE APPLICATIONS CEX PARTE APPLICATIONS PART 2: ACTIONS INTRODUCTION APLEADINGS BPRE-TRIAL PROCEDURES CTRIAL DJUDGMENT, INTEREST AND COSTS STAGE THREE: AFTER LITIGATION PART 1: APPEALS AND REVIEWS INTRODUCTION AAPPEALS BREVIEWS PART 2: DEBT COLLECTION PROCEDURES INTRODUCTION AWRITS AND WARRANTS OF EXECUTION BSECTION 65 PROCEDURE CADMINISTRATION ORDERS Page 4 of 751 STAGE FOUR: ADDITIONAL PROCEDURES ASETTLEMENT BPROVISIONAL SENTENCE CINTERIM RELIEF PENDING JUDGMENT DARREST TANQUAM SUSPECTUS DE FUGA EMULTIPLE PARTIES AND ACTIONS FINTERDICTS GDRASTIC PROCEDURES HDECLARATIONS OF RIGHTS AND STATED CASES ISMALL CLAIMS COURT PROCEDURES JOTHER CIVIL COURTS ANNEXURES AALTERNATIVE DISPUTE RESOLUTION (ADR) IN CIVIL PRACTICE BIMPACT OF THE NATIONAL CREDIT ACT AND THE CONSUMER PROTECTION ACT ON CIVIL PROCEDURE CDIAGRAMS (INDICATED IN THE TEXT WITH ICONS D1, D2, D3, etc) DPRECEDENTS (INDICATED IN THE TEXT WITH ICONS P1, P2, P3, etc) ECITATIONS FSHORT FORM, PARTICULARS OF CLAIM Page 5 of 751 Contents Contents in brief Preface Acknowledgements New to this edition The authors GENERAL INTRODUCTION 1Civil procedure and its place within the legal system 2The court system and the officials 2.1A practical approach 2.2The Magistrates’ Courts: District and Regional 2.3The High Court Provincial Divisions Local Divisions Supreme Courts of the former TBVC States: 2.4The Supreme Court of Appeal 2.5The Constitutional Court 2.6The officials 3Where to find the relevant law 4The impact of the Constitution on civil procedure 5A general mind map of civil procedure 5.1The big picture 5.2The stages Stage One: Before litigation – the beginning of the story Stage Two: Litigation – the middle of the story Stage Three: After litigation – the end of the story Stage Four: Additional procedures – adding to the basic story 5.3The parts Stage One, Part 1: Preliminary questions A: Cause of action B: Locus standi C: Jurisdiction Stage One, Part 2: Pre-litigation issues A: Demand B: Calculation of time limits C: Service of legal documents D: Action or application Stage Two, Part 1: Applications Stage Two, Part 2: Actions A: Pleadings B: Pre-trial procedures C: Trial D: Judgment, interest and costs Page 6 of 751  Stage Three, Part 1: Appeals and reviews A: Appeals B: Reviews Stage Three, Part 2: Debt collection procedures A: Writs and warrants of execution B: Section 65 procedure C: Administration orders Stage Four: Additional procedures A: Settlement B: Provisional sentence C: Interim relief pending judgment D: Arrest tanquam suspectus de fuga E: Multiple parties and actions F: Interdicts G: Drastic procedures H: Declarations of rights and stated cases I: Small Claims Court procedures J: Other civil courts STAGE ONE: BEFORE LITIGATION PART 1: PRELIMINARY QUESTIONS A: CAUSE OF ACTION 1Introduction 2Delictual claims Example 1: Motor vehicle collision Example 2: Assault 3Contractual claims Example 1: Sale on credit – seller’s remedies Example 2: Sale for cash – seller’s remedies Example 3: Buyer’s remedies 4Divorce actions Example 1: Divorce 5Claims based on liquid documents Example 1: Liquid document PART 1: PRELIMINARY QUESTIONS B: LOCUS STANDI 1Introduction 2Direct and substantial interest 2.1The common-law position 2.2Actions based on the Bill of Rights 2.2.1Class actions under section 38(c) of the Constitution 2.2.2Own interest standing in terms of section 38(a) of the Constitution Page 7 of 751  3Capacity to litigate 3.1Children 3.1.1What is a ‘child’? 3.1.2Children under the age of seven 3.1.3Children of seven years and older 3.1.4Costs 3.1.5Dual capacity 3.1.6Appointment of a curator ad litem 3.1.7Litigation without assistance 3.1.8The Children’s Act and Bill of Rights 3.2Married women 3.2.1Abolition of the marital power 3.2.2Consent to litigate – marriages in community of property 3.3Mentally disabled persons 3.4Prodigals 3.5Insolvents 3.6Fugitives from justice 3.7Alien enemies 3.8Diplomats and the like 3.9Judges 3.10Members of Parliament, provincial legislatures and municipal councils 3.11Trusts 3.12Partnerships, firms, associations and the like 3.12.1General overview 3.12.2High Court – rule 14 3.12.3Magistrates’ Courts – rule 54 4Representation of parties 4.1Power of attorney 4.2Representation of parties in the High Court 4.3Representation of parties in the Magistrates’ Courts 4.4Representation of indigent persons 4.4.1In forma pauperis proceedings in the High Court 4.4.2Pro deo proceedings in the Magistrates’ Courts PART 1: PRELIMINARY QUESTIONS C: JURISDICTION 1General introduction 1.1What is jurisdiction? Question 1:What general type? Question 2:Which particular one? 1.2Why focus only on jurisdiction relating to the High Court and Magistrates’ Courts? 1.2.1Specialist courts 1.2.2Small Claims Courts 1.2.3Supreme Court of Appeal Page 8 of 751  1.2.4Constitutional Court 1.3Jurisdiction relating to the High Court and Magistrates’ Courts – what are the main issues? Question 1:High Court or Magistrates’ Court? Question 1.1:What is the value of the claim? Question 1.2:What is the nature of the claim? Question 2:Which particular division of the High Court or Magistrates’ Court must hear the matter? 1.4When is jurisdiction determined? 1.5Why is it important to get jurisdiction right? 2Magistrates’ Courts jurisdiction 2.1General overview Question 1:High Court or Magistrates’ Court? Question 1.1:What is the value of the claim? Question 1.2:What is the nature of the claim? Question 2:Which particular Magistrates’ Court? 2.2The value of the claim – section 29 2.2.1The general rule 2.2.1(a)Section 29(1)(a) – delivery or transfer of property 2.2.1(b)Section 29(1)(b) – ejectment 2.2.1(c)Section 29(1)(c) – right of way 2.2.1(d)Section 29(1)(d) – liquid document or mortgage bond 2.2.1(e)Section 29(1)(e) – credit agreements 2.2.1(f)Section 29(1)(f) – Matrimonial Property Act 2.2.1(g)Section 29(1)(fA) – Close Corporations Act 2.2.1(h)Section 29(1)(g) – all other actions 2.2.1(i)Section 29(1B) – divorce and related matters – Regional Magistrates’ Courts 2.2.2How to calculate the R200 000 and R400 000 limits 2.2.2(a)Splitting of single claims not allowed – section 40 2.2.2(b)Combining separate claims is allowed – section 43(1) 2.2.2(c)Only the amount in issue is taken into account – sections 37(1) and 37(2) 2.2.2(d)Interest and costs not taken into account – section 37(3) 2.2.3Exceptions to the general rule 2.2.3(a)Consent – section 45 2.2.3(a)(i)First limitation 2.2.3(a)(ii)Second limitation 2.2.3(b)Abandonment – section 38 Example 1 Example 2 Example 3 2.2.3(c)Deduction of an admitted debt – section 39 Page 9 of 751  Scenario 1 Scenario 2 2.3The nature of the claim – section 46 2.3.1Status claims 2.3.1(a)Wills – section 46(2)(a) 2.3.1(b)Mental capacity – section 46(2)(b) 2.3.1(c)Perpetual silence – section 46(2)(d) 2.3.2Claims for specific performance 2.3.2(a)The general rule 2.3.2(b)Exceptions to the general rule 2.3.2(b)(i)Exception 1 – rendering of an account 2.3.2(b)(ii)Exception 2 – delivery or transfer of property valued at or under R200 000 2.3.2(b)(iii)Exception 3 – delivery or transfer of property valued at over R200 000 2.3.2(c)Summary 2.4The area to which the claim may be linked – section 28 2.4.1Defendant’s residence or business or employment – section 28(1)(a) 2.4.1(a)Where does a natural person reside? 2.4.1(b)Where does a company or close corporation reside? 2.4.1(c)Where does a partnership reside? 2.4.1(d)Where does the state reside? 2.4.1(e)What does ‘carries on business’ mean? 2.4.1(f)What does ‘is employed’ mean? 2.4.2Cause of action arising ‘wholly’ – section 28(1)(d) 2.4.3Other grounds of territorial jurisdiction 2.4.3(a)Partnerships – section 28(1)(b) 2.4.3(b)Incidental proceedings – section 28(1)(c) 2.4.3(c)Interpleader proceedings – section 28(1)(e) 2.4.3(d)Consent – section 28(1)(f) 2.4.3(e)Immovable property – section 28(1)(g) 2.4.4Divorce and related matters – which particular Regional Magistrates’ Court 3High Court jurisdiction 3.1General overview 3.2The doctrine of effectiveness 3.3The three most common grounds of High Court jurisdiction 3.3.1Ratione domicilii 3.3.2Ratione rei gestae 3.3.3Ratione rei sitae 3.4The two most common types of claims 3.4.1Claims relating to property 3.4.1(a)What is a claim relating to property? 3.4.1(b)Which of the grounds of jurisdiction apply? 3.4.1(b)(i)Immovable property – claims involving title Page 10 of 751  3.4.1(b)(ii)Immovable property – claims for transfer 3.4.1(b)(iii)Movable property – claims involving title 3.4.1(b)(iv)Movable property – claims for delivery 3.4.2Claims sounding in money 3.4.2(a)What is a claim sounding in money? 3.4.2(b)Which of the grounds of jurisdiction apply? 3.5The jurisdictional principles applicable to certain additional claims 3.5.1Claims sounding in money against foreign peregrini 3.5.1(a)Attachments to found and confirm jurisdiction 3.5.1(b)Consent to jurisdiction 3.5.2Claims for divorce and associated relief 3.5.3Claims for interdicts 3.5.4Single claims involving two or more jurisdictions 3.6Inherent jurisdiction PART 2: PRE-LITIGATION ISSUES A: DEMAND 1What is a demand? 2Forms of demand 3The contents of the demand 4Circumstances where demand must be made 4.1Demand (or notice) required by statute 4.1.1The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (‘the Act’) 4.1.2Interim interdicts against the government: the General Law Amendment Act 62 of 1955 4.1.3The Customs and Excise Act 91 of 1964 4.1.4The National Credit Act 34 of 2005 4.1.5The Small Claims Court Act 61 of 1984 4.2Demand essential to complete a cause of action 4.2.1Payable on demand 4.2.2Notice of breach clauses 4.2.3Placing a debtor in mora 4.2.4Demand to give right of cancellation 5Other consequences of demand: costs and interest 5.1Costs relating to the issue of summons 5.2Unliquidated debts: delivering demand to start the running of interest PART 2: PRE-LITIGATION ISSUES B: CALCULATION OF TIME LIMITS 1Introduction 2Time periods within a certain period 2.1FOLI: first out last in 2.2Court days and calendar days Page 11 of 751  3Time periods after a certain period 4Practical note: service of court process PART 2: PRE-LITIGATION ISSUES C: SERVICE OF LEGAL DOCUMENTS 1Introduction 2The issue of process and duties of the sheriff 3Methods of service in terms of the Rules of Court 3.1The usual methods of service in the High Court 3.2The methods of service in the Regional and District Magistrates’ Courts 4Substituted service and edictal citation 4.1Substituted service in general 4.2Service of legal process outside the country 4.2.1High Court, Regional and District Magistrates’ Courts: application for edictal citation 4.2.2.Substituted service via electronic media 5Jurisdiction and service distinguished PART 2: PRE-LITIGATION ISSUES D: ACTION OR APPLICATION? 1The decision: action or application? 2Essential differences between actions and applications 2.1Actions 2.2Applications 3The essential differences between trial courts and motion courts 4Making the choice: action or application? 5A real dispute of fact? STAGE TWO: LITIGATION PART 1: APPLICATIONS INTRODUCTION Introduction PART 1: APPLICATIONS A: GENERAL PRINCIPLES 1Distinguishing characteristics 1.1Interlocutory applications 1.2Urgent applications 1.3Ex parte applications vs on notice applications 2Notice of motion – general principles Page 12 of 751  3Affidavits – general principles 3.1Form and content of affidavits 3.2Inadmissible evidence in affidavits 3.2.1Hearsay 3.2.2Privileged communications 3.2.3Matter excluded by the rules of court 3.2.3(a)Scandalous, vexatious or irrelevant matter 3.2.3(b)Inadmissible new matter 3.2.4Matter excluded by the use of inherent jurisdiction 3.3Striking out inadmissible evidence PART 1: APPLICATIONS B: ON NOTICE APPLICATIONS 1When is it appropriate to bring an on notice application? 2Step 1: The applicant’s notice of motion 2.1High Court: notice of motion 2.2Regional and District Magistrates’ Courts: notice of motion 3Step 2: The applicant’s founding and supporting affidavits 4Step 3: The service of the application papers 4.1Service in the High Court, and District and Regional Magistrates’ Courts 5Step 4: Respondent’s notice of intention to oppose 5.1High Court procedure 5.2Regional and District Magistrates’ Courts procedure 6Step 5: The respondent’s answering affidavits 7Step 6: The applicant’s replying affidavits 8Step 7: Further affidavits 9Step 8: Setting the matter down for hearing 10Step 9: The hearing 10.1The court’s order if no real dispute of fact has arisen on the papers 10.2The court’s order if a real dispute of fact has arisen on the papers 10.2.1The court may decide the matter on the affidavits alone 10.2.2The court may refer the matter to oral evidence 10.2.3The court may refer the matter to trial 10.2.4The court may dismiss the matter, with costs 10.3In certain cases, the court may decide to make no order 11Step 10: Optional further steps – counter-applications and joinder applications PART 1: APPLICATIONS C: EX PARTE APPLICATIONS 1Ex parte applications in the High Court 2Ex parte applications in the Regional and District Magistrates’ Courts 3Preparing ex parte application papers Page 13 of 751  3.1High Court: notice of motion 3.2Regional and District Magistrates’ Courts: notice of motion 4The court’s options: final orders and rules nisi 5Intervention in ex parte applications 6The requirement of utmost good faith in ex parte applications PART 2: ACTIONS INTRODUCTION 1Introduction 2The stages of an action 2.1The pleadings stage 2.2The pre-trial stage 2.3The trial stage 2.4The judgment stage 3Amendments to the Magistrates’ Courts Rules PART 2: ACTIONS A: PLEADINGS 1General overview 1.1The two sides of the argument 1.2The steps involved in pleadings 1.2.1The five basic steps 1.2.2Possible extra steps 2The basic pleadings 2.1Step 1: Summons and particulars of claim 2.1.1What is a summons? 2.1.2What are particulars of claim? 2.1.2(a)Citation of parties 2.1.2(b)Locus standi 2.1.2(c)Jurisdiction of the court 2.1.2(d)Cause of action 2.1.2(e)Prayer 2.1.3Different forms of summons 2.1.3(a)Combined summons 2.1.3(b)Simple summons 2.1.3(c)Provisional sentence summons 2.1.4Drafting a summons 2.1.4(a)High Court rule 17(1)(a) and Magistrates’ Courts rule 5(1)(a) – dies induciae 2.1.4(b)High Court rule 17(1)(b) and Magistrates’ Courts rule 5(1)(b) – warning to defendant 2.1.4(c)High Court rule 17(2) and Magistrates’ Courts rule 5(2) – appearance of document Page 14 of 751  2.1.4(d)High Court rule 17(3) and Magistrates’ Courts rule 5(3) – signatures 2.1.4(e)High Court rules 17(4)(a) and (b) and Magistrates’ Courts rules 5(4)(a) and (b) – citations 2.1.5Drafting particulars of claim – High Court rule 18 and Magistrates’ Courts rule 6 2.1.5(a)Signatures – High Court rule 18(1) and Magistrates’ Courts rule 6(1) 2.1.5(b)Title of the action – High Court rule 18(2) and Magistrates’ Courts rule 6(2) 2.1.5(c)Paragraphs – High Court rule 18(3) and Magistrates’ Courts rule 6(4) 2.1.5(d)The full facts – High Court rule 18(4) and Magistrates’ Courts rule 6(3) 2.1.5(e)Requirements: breach of contract – High Court rule 18(6) and Magistrates’ Courts rule 6(6) 2.1.5(f)Requirements: divorce – High Court rule 18(8) and (9) and Magistrates’ Courts rule 6(8) 2.1.5(g)Requirements: bodily injuries – High Court rule 18(10) and Magistrates’ Courts rule 6(9) 2.1.5(h)Requirements: death – High Court rule 18(11) and Magistrates’ Courts rule 6(10) 2.1.5(i)Implications of not following High Court rule 18(12) and Magistrates’ Courts rule 6(13) 2.1.5(j)Further averments relating to the Magistrates’ Courts only 2.1.6Provisions for summonses relating exclusively to the Magistrates’ Courts 2.1.6(a)Electronic addresses 2.1.6(b)Provisions for the defendant 2.1.6(c)Provision for jurisdictional averments 2.1.6(d)Provisions relating to legislation 2.1.6(e)Suing as a cessionary 2.1.6(f)Declaration that immovable property is executable 2.1.6(g)Automatic rent interdict summons 2.1.7Lapsing and superannuation of summons and judgments 2.2Step 2: Notice of intention to defend 2.2.1The notice 2.2.2Delivery of the notice 2.2.3Dies induciae 2.3Step 3: Plea and counterclaim 2.3.1Plea 2.3.1(a)General overview 2.3.1(b)Plea on the merits 2.3.1(b)(i)Time limits 2.3.1(b)(ii)The different kinds of pleas on the merits 2.3.1(b)(ii)(a)Admission of facts Page 15 of 751  2.3.1(b)(ii)(b)Denial of facts 2.3.1(b)(ii)(c)Confession and avoidance 2.3.1(b)(ii)(d)Non-admission 2.3.1(b)(ii)(e)Counterclaim 2.3.1(b)(ii)(f)Alternative defence 2.3.1(b)(ii)(g)Tender 2.3.1(b)(iii)Drafting a plea on the merits 2.3.1(b)(iii)(a)Drafting the different plea responses 2.3.1(b)(iii)(b)Dealing with all the plaintiff’s allegations 2.3.1(b)(iii)(c)The consequences of not observing the rules when drafting pleas 2.3.1(b)(iii)(d)Material facts: avoiding bare denials 2.3.1(c)Special pleas 2.3.1(c)(i)General overview 2.3.1(c)(ii)Dilatory special pleas 2.3.1(c)(ii)(a)Special plea of arbitration 2.3.1(c)(ii)(b)Special plea of lis pendens 2.3.1(c)(ii)(c)Special plea of premature summons 2.3.1(c)(iii)Special pleas in abatement 2.3.1(c)(iii)(a)Special plea of prescription 2.3.1(c)(iii)(b)Special plea of misjoinder or non-joinder 2.3.1(c)(iii)(c)Special plea of res judicata 2.3.1(c)(iii)(d)Special plea to jurisdiction 2.3.1(c)(iii)(e)Special plea of non locus standi in judicio 2.3.1(c)(iv)Drafting a special plea 2.3.1(c)(v)Separate hearings for special pleas 2.3.2Counterclaims 2.3.2(a)Overview 2.3.2(b)Procedure 2.3.2(c)Counterclaims in the Magistrates’ Courts 2.4Step 4: Replication (and possible subsequent steps) 2.4.1Replication 2.4.2Possible steps after replication 2.5Step 5: Close of pleadings (litis contestatio) 3Possible extra steps: further particulars and declarations 3.1Requests for further particulars 3.1.1General overview 3.1.2High Court rule 35(12) and Magistrates’ Courts rule 23(13) 3.1.3High Court rule 35(14) and Magistrates’ Courts rule 23(15) 3.2Declarations 4Responses to defective pleadings and noncompliance with the rules 4.1General overview 4.2Response 1: Exception 4.2.1The two major grounds for taking an exception 4.2.1(a)Failure to disclose a cause of action or defence 4.2.1(b)Vague and embarrassing Page 16 of 751  4.2.2The prejudice requirement 4.2.3Procedure for lodging an exception 4.2.3(a)The procedure in general 4.2.3(b)Time periods 4.2.3(c)Notice 4.2.4The hearing 4.2.5The consequences of failing to lodge an exception 4.2.6The consequences of a successful exception 4.2.7The overlap between exception and special plea 4.3Response 2: Application to strike out 4.4Response 3: Application to set aside an irregular step 4.5Response 4: Enforcing compliance and condoning noncompliance 4.5.1In the High Court 4.5.1(a)Rule 30A – noncompliance with the rules 4.5.1(b)Rule 27 – extension of time, removal of bar and condonation 4.5.2In the Magistrates’ Courts 4.5.2(a)Rule 60 – noncompliance with rules, including time limits and errors 4.6Response 5: Amendment of pleadings 4.6.1General overview 4.6.2Stage one: notice of intention to amend 4.6.3Stage two: objecting to the amendment 4.6.4Stage three: giving effect to the amendment 5Shortcut judgments 5.1General overview 5.2Shortcut judgment 1 – Default judgment 5.2.1Overview 5.2.2Default of appearance 5.2.2(a)Defendant’s default of appearance to defend 5.2.2(b)Plaintiff’s default of appearance at trial (comparuit default) 5.2.2(c)Defendant’s default of appearance at trial 5.2.3Default of pleadings 5.2.3(a)Default of plea 5.2.3(a)(i)Default of plea: High Court 5.2.3(a)(ii)Default of plea: Magistrates’ Courts 5.2.3(a)(iii)Default of plaintiff’s plea in reconvention 5.2.3(b)Default of declaration 5.2.4Applying for default judgment 5.2.4(a)The procedure in the High Court 5.2.4(a)(i)If the claim is not for a debt or liquidated demand 5.2.4(a)(ii)If the claim is for a debt or liquidated demand 5.2.4(b)The procedure in the Magistrates’ Courts 5.2.5Barring Page 17 of 751  5.2.5(a)General overview 5.2.5(b)Automatic barring 5.2.5(c)Notice of bar 5.2.5(d)Removal of bar 5.3Shortcut judgment 2 – Summary judgment 5.3.1General overview 5.3.2Permissible claims 5.3.2(a)On a liquid document 5.3.2(b)For a liquidated amount in money 5.3.2(c)For delivery of specified movable property 5.3.2(d)For ejectment 5.3.3The application 5.3.4The supporting affidavit 5.3.5Responding to an application for summary judgment 5.3.6The court hearing 5.3.7The usual order 5.3.8Special orders for costs 5.4Shortcut judgment 3: Consent and confession to judgment 5.4.1Judgment on confession in the High Court – rule 31 5.4.2Judgment by consent in the Magistrates’ Courts – rule 11 PART 2: ACTIONS B: PRE-TRIAL PROCEDURES 1Introduction 2Step 1: Set down 2.1Set down in the High Court 2.2Set down in the Magistrates’ Courts 3Step 2: Discovery and related procedures 3.1What is discovery? 3.2Discovery procedures 3.2.1Notice to discover 3.2.1(a)When must discovery take place? 3.2.1(b)What must be discovered? 3.2.1(c)The discovery affidavit 3.2.1(d)Remedies for failure to discover 3.2.1(d)(i)Notice to inspect undisclosed documents – rule 35(3) (High Court)/rule 23(3) (Magistrates’ Courts) 3.2.1(d)(ii)Document or tape recording may not be used – rule 35(4) (High Court)/rule 23(4) (Magistrates’ Courts) 3.2.1(d)(iii)Application to compel discovery – rule 35(7) (High Court)/rule 23(8) (Magistrates’ Courts) 3.2.2Notice to inspect 3.2.3Notice to specify 3.2.4Notice to produce 3.2.5Notice to admit Page 18 of 751 4Step 3: Medical examinations and technical inspections 4.1Medical examinations – claim for bodily injuries 4.1.1Arranging the examination 4.1.2Objecting to the examination 4.1.3Report on the examination 4.1.4Other medical reports, records, X-rays, etc. 4.2Technical inspection – claim relating to object 4.2.1Arranging the inspection 4.2.2Objecting to the inspection 4.2.3Report on the inspection 4.3Magistrates’ and High Court procedures compared 5Step 4: Request for further particulars for trial 5.1What are further particulars for trial? 5.2The procedure 6Step 5: Subpoena of witnesses 6.1Subpoenas in the High Court 6.1.1Normal subpoena 6.1.2Subpoena duces tecum 6.1.3Failure to comply with a subpoena 6.1.4Calculating witness fees 6.2Subpoenas in the Magistrates’ Courts 7Step 6: Special evidence 7.1Expert evidence 7.2Photographs, plans, models and diagrams 7.2.1In the High Court 7.2.2In the Magistrates’ Courts 7.3Evidence on commission 7.3.1In the High Court 7.3.2In the Magistrates’ Courts 7.4Evidence by means of interrogatories 7.4.1In the High Court 7.4.2In the Magistrates’ Courts 7.5Evidence on affidavit 8Step 7: Pre-trial conference 8.1Pre-trial conference in the High Court 8.1.1Calling the conference 8.1.2Setting the agenda 8.1.3The conference 8.1.4The rule 37 minute 8.1.5Special order as to costs 8.2Pre-trial conference in the Magistrates’ Courts 9Step 8: Final preparation for trial 9.1Advice on evidence 9.2Case-flow management 9.3Preparation of trial bundles Page 19 of 751  9.4Indexing and paginating the court file PART 2: ACTIONS C: TRIAL 1Trial in the High Court 1.1Introduction 1.2Parties not present 1.3Open court 1.4Recalcitrant witnesses 1.5Duty to begin 1.6Opening address 1.7Plaintiff’s case 1.8Application for absolution from the instance 1.9Defendant’s case 1.10Closing address 1.11Reopening the case 1.12Inspections in loco 1.13Reference to a referee 2Trial in the Magistrates’ Courts PART 2: ACTIONS D: JUDGMENT, INTEREST AND COSTS 1Judgment 1.1Judgment in the High Court 1.1.1Judgment at the close of the plaintiff’s case 1.1.2Judgment at the close of the defendant’s case 1.1.3Interpreting the court’s judgment 1.2Judgment in the Magistrates’ Courts 2Variation and setting aside of the court’s judgment 2.1Variation and rescission of judgment in the High Court 2.1.1Variation of judgment in the High Court 2.1.1(a)Variation in terms of common law 2.1.1(b)Variation of a judgment in terms of rule 42(1) 2.1.2Rescission of judgment in the High Court 2.1.2(a)Rescission in terms of rule 42(1) 2.1.2(b)Rescission in terms of rule 31(2)(b) and reconsideration in terms of rule 31(5)(d) 2.1.2(b)(i)A reasonable explanation for default 2.1.2(b)(ii)The existence of a bona fide defence 2.1.2(b)(iii)The application must be brought bona fide 2.1.2(c)Rescission in terms of the common law 2.1.3Void judgments 2.1.4Abandonment of a judgment 2.2Rescission and variation of judgments in the Magistrates’ Courts Page 20 of 751  2.2.1Variation and rescission in general 2.2.2Rescission of default judgments in particular 2.2.2(a)Good reason 2.2.2(b)Good cause shown 3Interest 3.1General overview 3.2The rate of interest 3.2.1Simple and compound interest 3.2.2National Credit Act 34 of 2005 3.3The date from which interest runs 3.3.1Unliquidated vs liquidated debts 3.3.2Liquidated debts 3.3.2(a)The mora ex re situation 3.3.2(b)The mora ex persona situation 3.3.3Unliquidated debts 3.4The in duplum rule 3.5Drafting a claim for interest 4Costs 4.1Introduction 4.2General rules relating to an award of costs 4.3The tariffs of costs and the costs charged by an attorney 4.3.1The tariff 4.3.2The costs charged by an attorney to his client 4.4Types of cost awards 4.4.1Award of costs on the party-and-party scale 4.4.2Award of costs on the attorney-and-client scale 4.4.3Award of costs on the attorney-and-own-client scale 4.4.4Award of costs de bonis propriis 4.4.5Interim costs orders 4.4.5(a)Costs 4.4.5(b)Costs in the cause 4.4.5(c)No order as to costs 4.4.5(d)Costs to be reserved STAGE THREE: AFTER LITIGATION PART 1: APPEALS AND REVIEWS INTRODUCTION Introduction PART 1: APPEALS AND REVIEWS A: APPEALS 1General overview 2Preliminary issues relating to appeal Page 21 of 751  2.1What may be appealed – judgments, orders and rulings 2.1.1High Court matters 2.1.2Magistrates’ Courts matters 2.2Appeal on the facts versus appeal on the law 2.3Principles governing appeals in discretionary matters 2.4The effect of a pending appeal on the judgment of the lower court 2.5Disputing the validity of law in the Magistrates’ Courts 3The different routes an appeal may follow 3.1Appeals from the Magistrates’ Courts 3.1.1The usual route 3.1.2Shortcut appeals directly to the Constitutional Court 3.1.2(a)Direct access cases 3.1.2(b)Declarations of invalidity in constitutional cases 3.1.2(c)The leapfrog to the Constitutional Court 3.2Appeals from the High Court 3.2.1The usual route 3.2.2Shortcut appeals directly to the Supreme Court of Appeal or Constitutional Court 3.2.2(a)Direct access in constitutional cases 3.2.2(b)Declarations of invalidity in constitutional cases 3.2.2(c)The leapfrog to the Constitutional Court 3.2.2(d)The leapfrog to the Supreme Court of Appeal 4Leave to appeal 4.1Overview 4.2Grounds for granting leave to appeal and special leave to appeal 4.3Application to the High Court for leave to appeal 4.4Petition to the Supreme Court of Appeal for special leave to appeal 5The procedure leading up to the appeal hearing 5.1Appeals to the High Court: the procedure 5.1.1Overview 5.1.2The noting of an appeal 5.1.2(a)Request for written judgment (rules 51(1) and (2) of the Magistrates’ Courts Rules) 5.1.2(b)Procedure on noting an appeal (rules 51(3), (4), (7) and (8) of the Magistrates’ Courts Rules) 5.1.3The prosecution of an appeal 5.1.4Preparing the court record and subsequent procedures 5.2Appeals to the full court of the High Court: the procedure 5.3Appeals to the Supreme Court of Appeal (SCA): the procedure 5.4Appeals to the Constitutional Court: the procedure 6The appeal hearing 6.1Further evidence on appeal and the raising of new points 6.2No appeal or order granted without a practical effect or result 6.3Condonation of noncompliance with rules 6.4The judgment Page 22 of 751 PART 1: APPEALS AND REVIEWS B: REVIEWS 1General overview 2Review jurisdiction 3Grounds for review 4The procedure to bring a matter under review 5Opposing the application for review 6Time limits 7Urgent reviews 8Powers of the court on review 9Court record required PART 2: DEBT COLLECTION PROCEDURES INTRODUCTION Introduction PART 2: DEBT COLLECTION PROCEDURES A: WRITS AND WARRANTS OF EXECUTION 1General overview and effect of the National Credit Act 2Attachment and sale of corporeals 2.1Writ of execution in the High Court 2.1.1Overview 2.1.2Attachment and sale of movables 2.1.3Attachment and sale of immovables 2.2Warrant of execution in the Magistrates’ Courts 2.2.1Overview 2.2.2The warrant of execution 2.2.3Attachment – what can and cannot be attached 2.2.4The attachment 2.2.5Execution 3Attachment and sale of incorporeals 3.1Attachment of incorporeals in the High Court 3.1.1Attaching a debt owed to the judgment debtor by a third party 3.1.2The procedure for attaching incorporeal property 3.2Attachment of incorporeals in the Magistrates’ Courts 3.2.1Emoluments attachment orders versus garnishee orders 3.2.2Emoluments attachment orders 3.2.2(a)What is an emoluments attachment order? 3.2.2(b)How is such an order obtained? 3.2.2(c)Out of which court must the emoluments attachment order be issued? 3.2.2(d)What is the effect of the order? Page 23 of 751  3.2.2(e)What if the judgment debtor leaves his employment? 3.2.3Garnishee orders 4Interpleader proceedings 4.1General overview 4.2Interpleader proceedings in the High Court – rule 58 4.3Interpleader claims in the Magistrates’ Courts – rule 44 5Superannuation of judgments 5.1Superannuation of judgments in the High Court 5.2Superannuation of judgments in the Magistrates’ Courts PART 2: DEBT COLLECTION PROCEDURES B: SECTION 65 PROCEDURE 1General overview 2Section 65M 3The section 65A procedure 4Juristic persons and the state PART 2: DEBT COLLECTION PROCEDURES C: ADMINISTRATION ORDERS 1General overview 2The procedure 2.1The application for an administration order 2.2The hearing 2.3The administration order 2.4The appointment of an administrator and his tasks 2.5Payment to the administrator and to the creditors STAGE FOUR: ADDITIONAL PROCEDURES A: SETTLEMENT 1General overview 2Offers at common law: unconditional offer versus offer of compromise 2.1The unconditional offer 2.2The offer of compromise 2.2.1Introduction 2.2.2Making an offer of compromise: possible pitfalls 2.2.3Accepting an offer of compromise: possible pitfalls 2.2.4Proving an offer of compromise: responding to a claim 3Offers to settle during litigation 3.1Introduction: offer to settle as a defensive weapon 3.2Settlement procedures during litigation in the High Court 3.2.1Written offers and tenders Page 24 of 751  3.2.2The consequences of a ‘without prejudice’ offer or tender 3.2.3The contents of a written offer or tender 3.2.4Accepting an offer or tender 3.2.5Performance in terms of an offer or tender 3.2.6Rule 41: settlement procedure 3.3Settlement procedures during litigation in the Regional and District Magistrates’ Courts 4Methods of recording agreements to settle 4.1General settlement agreements and acknowledgements of debt 4.2Making settlement agreements orders of court 4.3Confession to judgment in the High Court 4.4Admission of liability and consent to judgment in the Regional and District Magistrates’ Courts 4.4.1Section 57: admission of liability procedure 4.4.2Section 58: consent to judgment procedure 4.5Recording settlements during litigation in the Regional and District Magistrates’ Courts – rule 27 B: PROVISIONAL SENTENCE 1Introduction 2Requisites for provisional sentence 3What is a liquid document? 4Provisional sentence in the High Court 4.1Provisional sentence summons 4.2Opposing and replying affidavits 4.3The evidentiary burden 4.4The consequences of provisional sentence 4.5Possible outcomes in provisional sentence matters 5Provisional sentence in the Regional and District Magistrates’ Courts C: INTERIM RELIEF PENDING JUDGMENT 1The two types of interim relief pending judgment 1.1Interim relief: actions for bodily injuries – rule 34A of the High Court Rules and rule 18A of the Magistrates’ Courts Rules 1.2Interim relief: actions for divorce – rule 43 of the High Court Rules and rule 58 of the Magistrates’ Courts Rules D: ARREST TANQUAM SUSPECTUS DE FUGA 1The Malachi case: tanquam suspectus de fuga unconstitutional 2Going forward: the possibility of arrest tanquam suspectus de fuga? E: MULTIPLE PARTIES AND ACTIONS 1General overview 2Joinder of parties and causes of action 2.1Introduction 2.2Joinder in the High Court Page 25 of 751  2.2.1Joinder of several causes of action 2.2.2Joinder of more than one plaintiff or defendant 2.2.3Joinder of state authorities 2.2.4Separation of trials 2.3Joinder in the Magistrates’ Courts 2.3.1Joinder of several causes of action 2.3.2Joinder of more than one plaintiff or defendant 2.3.3Separation of trials 3Consolidation of actions 3.1Consolidation of actions in the High Court 3.2Consolidation of actions in the Magistrates’ Courts 4Voluntary intervention in a matter 4.1Intervening in a High Court matter 4.2Intervening in a Magistrates’ Court matter 5Forced intervention in a matter 5.1The need for forced intervention Example 1 Example 2 5.2Inviting intervention in terms of the Apportionment of Damages Act 34 of 1956 5.3Magistrates’ Courts – joinder in terms of rule 28(2) 5.3.1The grounds for joinder 5.3.2The procedure for effecting joinder 5.3.3The effect of joinder 5.4High Court and Magistrates’ Court – third party procedure in terms of rule 13 of the High Court and rule 28A of the Magistrates’ Courts Rules 5.4.1Introduction 5.4.2The grounds for joinder of a third party 5.4.3The procedure for effecting joinder of a third party 5.4.4Opposition by the third party 5.4.5The effect of a third party notice F: INTERDICTS 1General overview 2The two types of interdicts: prohibitory and mandatory interdicts 3Final and interim interdicts 4Jurisdiction to grant interdicts 5Purposes for which an interdict may be granted 6Final interdicts 6.1What is a clear right? 6.2What is an injury actually committed or reasonably apprehended? 6.3What does the absence of any other satisfactory remedy mean? 7Interim interdicts 7.1What is a prima facie right? 7.2What is a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is granted? Page 26 of 751  7.3What is a balance of convenience in favour of the granting of the interim relief? 7.4What does the absence of any other satisfactory remedy mean? 7.5Treatment of interim interdicts pending an appeal or application for leave to appeal 7.6The granting of interim interdicts and separation of powers 8How to decide whether to apply for an interim or a final interdict in practice 9Applying for an interdict: the usual procedural steps in practice 10Remedies for breach of interdict 11Structural interdicts G: DRASTIC PROCEDURES 1Anton Piller orders 1.1What is an Anton Piller order? 1.2Applying for an Anton Piller order 1.3Procedural requirements 1.4Procedural safeguards 1.5The form of the order contained in the notice of motion 2Knox D’Arcy interdicts 2.1What is a Knox D’Arcy interdict? 2.2General principles and procedural requirements 2.2.1The purpose of the interdict 2.2.2The justification for the interdict 2.2.3What the applicant must show 2.2.4The applicant’s onus of proof 2.2.5Notice to the respondent 2.2.6Noncompliance with court orders 3The civil recovery of property: the Prevention of Organised Crime Act 121 of 1988 3.1Introduction 3.2Preservation of property in terms of POCA 3.3Forfeiture of property in terms of POCA 4Protection orders in terms of the Domestic Violence Act 116 of 1998 4.1What is a domestic violence protection order? 4.2Defining a domestic relationship 4.3The definition of domestic violence 4.4Locus standi to apply for a protection order 4.5Applying for a protection order: the procedure 4.6Serving the order on the respondent 4.7The orders the court may make 4.8The Older Persons’ Act 13 of 2006 5Spoliation orders 5.1What is a spoliation order? 5.2The mandament van spolie distinguished from the reivindicatio 5.3The procedure for obtaining a spoliation order 5.4An example of application papers for a mandament van spolie order Page 27 of 751 H: DECLARATIONS OF RIGHTS AND STATED CASES 1General overview 2Declarations of rights: general principles 2.1Circumstances in which a declarator may be granted 2.2Existing, future or contingent right or obligation 2.3The court’s decision 3Special cases and points of law – rule 33 3.1Special cases – rule 33(1) to (3) 3.2Separating issues in pending actions – rule 33(4) 3.3Deciding the case on a point of law – rule 33(6) 4Stated cases on appeal, in the Constitution, and other statutes I: SMALL CLAIMS COURT PROCEDURES 1General overview 2Locus standi 3Jurisdiction of the Small Claims Court 3.1Area of jurisdiction 3.2Jurisdiction in respect of persons 3.3Jurisdiction in respect of causes of action 3.4Matters beyond the jurisdiction of the Small Claims Court 3.5Abandonment 3.6Concurrent jurisdiction with the District Magistrates’ Courts 4Instituting legal action 4.1The letter of demand 4.2The summons and particulars of claim 4.3The defendant’s response: statement of defence 5Procedure at court 6A Small Claims Court case study: Abel Achebe v Ben Baxter 6.1The facts 6.2The legal opinion 6.3The section 29 letter of demand (a) Planning the letter of demand (b) The final letter of demand 6.4Abel’s particulars of claim 6.5Preparing Ben’s statement of defence 6.6Ben’s statement of defence J: OTHER CIVIL COURTS 1General overview 2Admiralty Courts 3Tax Courts 4Competition Appeal Court 5Labour Courts 6The Land Claims Court Page 28 of 751  7Special Investigating Units (SIUs) and Tribunals 8Equality Courts 9Children’s Courts 10Maintenance Courts 11Summary: miscellaneous other civil courts ANNEXURES A: ALTERNATIVE DISPUTE RESOLUTION (ADR) IN CIVIL PRACTICE 1ADR and the civil justice system 2Statutory subject-specific ADR processes 3The primary objectives of ADR 3.1ADR as a cost-cutting measure 3.2ADR results in cooperative and participatory dispute settlement 3.3ADR helps facilitate access to justice 3.4ADR helps relieve court congestion 4ADR procedures: facilitative, adjudicative and evaluative processes 4.1Facilitative processes 4.1.1Negotiation 4.1.2Mediation 4.1.3Conciliation 4.2Adjudicative processes 4.2.1Arbitration 4.2.2Types of arbitration 4.3Evaluative procedures 4.3.1Expert appraisal process 4.3.2Case evaluation 5Hybrid ADR procedures 5.1The mini-trial 5.2Med-Arb: mediation culminating in arbitration 5.3Arb-Med-Arb: arbitration followed by mediation and a final arbitration award 5.4Med-Rec: mediation followed by a recommendation 5.5MEDALOA: Mediation and last-offer arbitration 6Advantages and disadvantages of ADR processes 6.1Flexible, informal and simplified procedures 6.2Voluntariness and party autonomy 6.3Maintenance of relationships 6.4Confidentiality 6.5Reduction of costs 6.6Lack of court protection 6.7The risk of incurring double costs 6.8Lack of access to sufficient information 6.9The danger of prescription 6.10Uncooperative parties Page 29 of 751 B: IMPACT OF THE NATIONAL CREDIT ACT AND THE CONSUMER PROTECTION ACT ON CIVIL PROCEDURE 1Introduction 2The National Credit Act 34 of 2005 2.1Introduction 2.2Aspects of jurisdiction 2.3Procedures and pleadings 2.3.1Letter of demand to complete a cause of action 2.3.2Notice as a prerequisite for legal proceedings 2.3.3Summons 2.3.3(a)Averments in the summons 2.3.3(b)Nature of the summons 2.3.4The particulars of claim 2.4Judgments and orders 2.4.1Summary judgment 2.4.2Consent to judgment 2.4.3Default judgment 2.5Statutory cap on amount which can be claimed – interest (in duplum) 2.6The debt review procedure 2.6.1The debt review order 3The Consumer Protection Act 68 of 2008 3.1Introduction 3.2The CPA legal framework 3.3The National Consumer Commission, National Consumer Tribunal, and Consumer Courts 3.4Jurisdiction in terms of the CPA 3.5Consent to and confirmation of judgments 3.6Service and delivery of documents 3.7The applicability of the Consumer Protection Act (CPA) to credit agreements entered into in terms of the National Credit Act (NCA) 3.7.1The interpretation of section 5(2)(d) of the CPA 3.7.2Conclusion 3.8The Commissioner’s power to summons persons 3.9The CPA plain language requirements 3.10Statutory causes of action based on the CPA 3.11General impact of the CPA on civil procedure C: DIAGRAMS D: PRECEDENTS E: CITATIONS 1Citing the plaintiff 1.1Citing the plaintiff: private individuals 1.2Citing the plaintiff: business entities 1.3Citing the state as plaintiff: government departments and parastatals Page 30 of 751  2Citing the defendant 2.1Citing the defendant: private individuals 2.2Citing the defendant: business entities 2.3Citing the state as defendant: government departments and parastatals F: SHORT FORM, PARTICULARS OF CLAIM 1Goods sold and delivered 2Balance due for goods sold and delivered 3Work done and material supplied 4Professional services rendered 5Promissory notes 6Cheques 7Bills of exchange 8Acknowledgements of debt 9Monies lent and advanced Page 31 of 751 Preface A number of years have passed since the first edition of this book was published in 2005. In 2008, the book found a new home with its present publishers, Oxford University Press, and after the success of the second edition of the book and the various reprints, we now present the third edition. We are very pleased with the confidence displayed in the book by the present publishers, as well as with the positive reviews of the two preceding editions of the work by experts in the field. The fact that the work has established a firm niche for itself in the market is, we believe, largely due to the fact that the central ideas upon which this book is based have been well received by its main audience, consisting of students and legal practitioners in their first few years of practice. In preparing this third edition of the work, we have tried not to tinker too much with the central ideas referred to above, in order to provide a practical guide to civil procedure in both the High Court and the Magistrates’ Courts, which is: both informative and useful to students and practitioners; written in plain easy-to-understand language; paying close attention to the manner in which the work is structured so as to provide the clearest possible mind map of an area of law which can be difficult to grasp; balancing the need for academic rigour with the goal of making the material accessible; and providing a range of additional tools, including an extensive glossary and a set of useful precedents and diagrams. We have made every effort to ensure that the law reflected in the third edition of this book is up to date as at 11 November 2016. The most important changes to the book were those changes brought about by the restructuring of the High Court, which took effect by virtue of the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013. Many of these changes have, in theory, impacted court processes, procedures and structures fairly dramatically but the practical effect of the amendments and how they translate into practice remains to be seen. We cannot predict the future and the practical responses with complete accuracy. Readers are advised to bear in mind the comments set out above when they read this book. Specific mention must be made of the fact that this third edition of the book once again includes two valuable additional chapters contributed by Professor Omphemetse Sibanda. These two chapters deal with alternative dispute resolution and the impact of the National Credit Act and the Consumer Protection Act on civil procedure. These two additional chapters constitute Annexures A and B of this third edition of the book, and we are delighted with the contribution these additions make to the book as a whole. We are also delighted to welcome a new author to the book, Toni Palmer, who recently completed her bar exams to join the KwaZulu-Natal Society of Advocates. The general aim of this book As its title suggests, this is a practical, down-to-earth guide to civil procedure. It is designed for students and legal practitioners who are establishing their practices and need a book which is both easy to understand and sufficiently detailed to provide a solid introduction to this complex area of the law. The most important aim of this book is to provide you, the reader, with an effective mind map of the way in which the different concepts involved in this difficult subject fit together. Everything about the book – from the style in which it is written and the way in which the concepts are ordered to the diagrams and glossary which are provided – is designed to assist you in developing a practical understanding of what the subject is about. Page 32 of 751 Constructing an effective mind map We believe that an effective mind map is built up in layers: you need to start with the big picture before struggling with the details. For example, imagine trying to find your way around a strange country. It would be silly to start at one corner of a detailed map of the country, trying to memorise the names of all the roads and towns on the map. It makes more sense to start with the main cities and provinces in order to get a general idea of where things are. Only after you have an idea of the ‘big picture’, will you add more detail to that picture. In other words, you will start with a general mind map before going in to more specific details. We believe that it is the same with civil procedure. In our opinion, starting at ‘A’ and plodding your way through to ‘Z’ is not the best way to approach this subject. What you need, right from the beginning, is a big picture of what civil procedure is all about. As you explore the subject in more and more detail, the big picture remains in the back of your mind, ensuring that you do not get lost in all the detail. The more you learn, the more detailed your mind map becomes. We have taken pains to convey the information contained in this book in such a way that a general mind map is firmly in place before we embark on more detailed discussion in any particular area. Clear language This book is written in ordinary language that everyone can understand. In fact, you may find that reading the book is more like listening to a friend explaining something to you than picking your way through a difficult legal text. The last thing an overworked law student or young legal practitioner needs is a textbook full of obscure terms. We hope that the clarity of expression makes your task of mastering this difficult subject a little easier. Unified approach Traditionally, civil procedure in the Magistrates’ Courts and in the High Court has been taught separately, as if the two systems were completely different from one another. This is not the case. Apart from the issue of jurisdiction and appeals, the concepts and processes used in the Magistrates’ Courts and the High Court are often identical nowadays. Therefore, apart from the sections on jurisdiction and appeals, we adopt a unified approach in this book: we deal with the procedures in the Magistrates’ Courts and the High Court together, pointing out differences when they arise. This saves time and energy. His/her In order to avoid the clumsy use of his/her and he/she in the text, we have opted to use ‘he’ and ‘his’ throughout. Some of us felt strongly that we should use ‘she’ and ‘her’, but ultimately we remained with ‘he’ and ‘his’. No slight is intended to the many female legal students and practitioners who we hope will find this book useful. The scope of this book This book is not designed to be an exhaustive academic reference work. Although we have endeavoured to state the law as accurately as possible as at 11 November 2016, it should be borne in mind that this work is primarily an introductory practical guide to the subject. Practitioners involved in litigation are advised to consult appropriate reference works when researching particular areas of the law of civil procedure. Practitioners will note that, at various places in this book, we set out step-by-step guidelines to the various procedures, for example, prosecuting an appeal or bringing a judgment debtor before a Magistrates’ Court in terms of s 65. Practitioners are warned that these guidelines attempt to do no more than set out the most salient Page 33 of 751 steps of the procedures dealt with. Those involved in litigation should always closely scrutinise the relevant Acts, rules, case law, and, very importantly, the practice in the division as reflected in the relevant practice directive so as to ensure that they comply fully with the requirements of the law. Having said that, we hope that this work will provide practitioners with a practical point of departure, as well as a useful starting point for their research. Acknowledgements by authors This book was inspired by our experiences over years of lecturing, witnessing first-hand the difficulties faced by students, candidate attorneys, and new practitioners in coming to grips with civil procedure. It originated in lecture notes and research built up over a number of years. We wish to acknowledge all those students and colleagues who have contributed in any way to the ideas set out in this work. We also owe a debt of gratitude to the learned authors of the many outstanding textbooks which we have used in our research. We have made every effort to acknowledge these contributions as accurately as possible in the text, but wish to acknowledge more generally the textbooks we cite in the References section at the end of the book. We would like to thank Andrea Murray for her assistance as a researcher on this book and Adrian Bellengere, a senior lecturer of evidence and civil procedure at the University of KwaZulu-Natal for contributing his time, academic knowledge, and practical expertise to the book. Earlier editions of the book also benefited greatly from the contributions made by Andreas Coutsoudis, Tarryn Poppesqou, Amanda Ferneyhough, and Aslam Moolla, which assisted us in updating this book. We would also like to thank Professor David McQuoid-Mason, Professor Tanya Woker, Usha Jivan, Michael Wood-Bodley, Barry Skinner SC, Mary O’Gorman and Brett Lewis, who all assisted with academic and practice-related queries in earlier editions of the book. Furthermore, we would like to thank the team at Oxford University Press for their patient and professional assistance in the preparation of this edition. Thank you to Penny Lane, the publisher; Lindsay-Jane Lücks, project manager; Revenia Abrahams, copy editor; Melissa De Grill, development editor; Linda Fischer, Higher Education publishing assistant; and Alison Garlick, permissions researcher, all from Oxford University Press. Finally, thank you to Liana Viljoen, reference researcher from the University of Pretoria. Stephen Peté, David Hulme, Max du Plessis, Robin Palmer, Omphemetse Sibanda and Toni Palmer, November 2016 Page 34 of 751 Acknowledgements The authors and publishers gratefully acknowledge permission to reproduce copyright material in this book. Every effort has been made to trace copyright holders, but if any copyright infringements have been made, the publisher would be grateful for information that would enable any omissions or errors to be corrected in subsequent impressions. For the revisions included in this third edition, the authors and publishers gratefully acknowledge permission to reproduce the following copyright material: General Introduction Quote on p5, footnote 13, from Hoexter, C & Olivier, M (2014) The Judiciary in South Africa Cape Town: Juta, reprinted by kind permission of Juta & Company Ltd. Stage 1 Part 1C Quote on p66, footnote 233, Erasmus, HJ and Van Loggerenberg, DE Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa Cape Town: Juta, R6 12, 2016, Rule-p6, reprinted by kind permission of Juta & Company Ltd. Quote on p95, footnote 363, Erasmus, HJ and Van Loggerenberg, DE Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa Cape Town: Juta, R6 10 2016, Act-p102, reprinted by kind permission of Juta & Company Ltd. Quote on p99, footnote 381, Erasmus, HJ and Van Loggerenberg, DE Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa Cape Town: Juta, RS 10 2016, Act-p211, reprinted by kind permission of Juta & Company Ltd. Stage 4B Quote on p431, footnote 91, Van Loggerenberg, DE Erasmus: Superior Court Practice Cape Town: Juta, OS, 2015, D1-118, reprinted by kind permission of Juta & Company Ltd. Stage 4C Quote on p437, Van Loggerenberg, DE Erasmus: Superior Court Practice Cape Town: Juta, R5 1, 2016, D1-580, reprinted by kind permission of Juta & Company Ltd. Quote on p437, Van Loggerenberg, DE Erasmus: Superior Court Practice Cape Town: Juta, OS, 2015, D5-581, reprinted by kind permission of Juta & Company Ltd. New to this Edition The third edition of Civil Procedure: A Practical Guide provides a clear and concise introduction to the complex area of civil procedure. The civil procedures used in the High Court and District and Regional Magistrates’ Courts are discussed in detail, with the new edition providing additional and more extensive references to practice directives and practice manuals of the various divisions for the legal practitioner’s reference. The practice and procedures of the Supreme Court of Appeal, Constitutional Court and Small Claims Court are also discussed. This text has been updated to reflect legal developments which have transpired since the publication date of the 2nd edition of this book. These developments include, but are not limited to, the following: Page 35 of 751  Structure and naming of the courts: The impact of the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013 on all aspects of civil procedure including: –The restructuring and rationalisation of the High Court, from many High Courts to one High Court comprising various divisions; –The renaming of the divisions of the High Court to reflect the High Court’s restructuring, including the new nomenclature of ‘main’ and ‘local’ ‘seats’ (instead of ‘local’ and ‘provincial’ ‘divisions’); –The amended jurisdiction of various divisions (including the introduction of new divisions of the High Court); –The amended jurisdiction of the Supreme Court of Appeal (which is no longer the final court of appeal in respect of non-constitutional matters) and the Constitutional Court (which is now the apex court in respect of all matters); –Various amendments to the appeal process in the High Court, including the new test for leave to appeal as set out in section 17 of the Superior Courts Act 10 of 2013, and the new process for obtaining leave to appeal to the Supreme Court of Appeal from the High Court hearing an appeal from the Magistrates’ Court; Appealability: The amended test for appealability of orders, incorporating the ‘interests of justice’ standard, in particular with reference to the judgment of the Constitutional Court in National Treasury and Others v Opposition to Urban Tolling Alliance and Others; Execution pending appeal: The amended test for execution of orders pending an appeal (or an application for leave to appeal), as augmented by section 18 of the Superior Courts Act 10 of 2013; Prescribed rate of interest: Amendments to the Prescribed Rate of Interest Act 55 of 1975 and, specially, the manner in which the prescribed rate of interest is determined; Service: Introduction of new rules of service in the High Court, including service by hand, registered post, facsimile and electronic mail (for process other than that initiating application proceedings) in terms of High Court rule 4A, developments in respect of substituted service by Facebook and other forms of social media, and the amendment of High Court rule 19 to require service addresses within a radius of 15 kilometres of a division of the High Court (as opposed to 8 kilometres); Locus standi: developments in case law regarding locus standi under section 38(a) of the Constitutional (constitutional own-interest standing) and developments in respect of class actions; Jurisdiction: Amended monetary jurisdiction of District and Regional Magistrates’ Courts; amended monetary threshold of the Small Claims Court; the new test for the ‘residence’ of a company, for purposes of establishing jurisdiction, in the light of Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country Estate (Pty) Ltd (27956/2010) ZAWCHC 439 (16 November 2011); National Credit Act: Recent decisions considering the impact of the National Credit Act 34 of 2005 on debt enforcement, including the delivery of section 129 notice and termination of debt review proceedings; Emolument attachment orders: Recent legal developments in respect of emolument attachment orders in the light of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others (16703/14) ZAWCHC 99; 2015 (5) SA 221 (WCC); 3 All SA 644 (WCC); (2015) 36 ILJ 2558 (WCC) (8 July 2015); and Provisional sentence: The Constitutional Court’s developments in respect of the provisional sentence procedure in Twee Jonge Gezellen (Pty) Ltd and Another v Land and Page 36 of 751  Agricultural Development Bank of South Africa t/a The Land Bank ZACC 2; 2011 (5) BCLR 505 (CC); 2011 (3) SA 1 (CC). This text offers all the content required for undergraduate LLB courses in Civil Procedure, and also serves as a useful first reference for candidate attorneys, pupil advocates, legal practitioners, magistrates and judges. Ancillary material is available to lecturers prescribing this book. The authors Stephen Peté BA LLB (Natal) LLM (Cape Town) MPhil (Cantab) PhD (UKZN). Stephen Pete is an Associate Professor in the School of Law, University of KwaZulu-Natal, Howard College Campus, Durban. He is the recipient of a Distinguished Teacher award in recognition of excellence in teaching at the University of Natal. He is an admitted attorney, having practised in both the public and private sectors for a number of years. David Hulme BA LLB LLM (Natal). David Hulme is a Senior Lecturer in the School of Law, University of KwaZulu-Natal, Howard College Campus, Durban. He is an admitted attorney, having practised in the private sector for a number of years. Max du Plessis BIuris (SA) LLB (Natal) LLM (Cantab) PhD (UKZN). Max du Plessis is an Associate Professor in the School of Law, University of KwaZulu-Natal, Howard College Campus, Durban. He is a practising advocate with a specialisation in constitutional and international law, a member of the KwaZulu-Natal Bar, and a senior research associate at the Institute for Security Studies, Pretoria. He is also an associate tenant, Doughty Street Chambers, London. Robin Palmer BA LLB (Witwatersrand) PG Dip Maritime Law LLM (Natal). Robin Palmer is a practicing advocate of the High Court of South Africa, and Professor of Law in the Faculty of Law, University of Canterbury, New Zealand. He is also the Excutive Director of the Institute for Professional Legal Training, affiliated to the University of KwaZulu-Natal, Durban, and Honurary Research Fellow in the School of Law, University of the KwaZulu-Natal, Durban. Omphemetse Sibanda B Juris LLB (Vista) LLM (Georgetown) LLD (UNW). Omphemetse Sibanda is a Professor in the Department of Criminal and Procedural Law, and the Director of the School of Law, University of South Africa (UNISA). He is also a former Chair of the Department of Criminal and Procedural Law at UNISA. His academic and research areas are civil procedure and international economic law. He is one of the co-authors of the South African National LLB Standards. Toni Palmer Page 37 of 751  LLB (UKZN) LLM (Cantab). Toni Palmer is a pupil advocate at the KwaZulu-Natal Bar, and former research clerk at the Constitutional Court. General introduction 1 Civil procedure and its place within the legal system The obvious place to start a book on civil procedure is to look at how it fits into the law as a whole. If law is about the creationand enforcement of rights, procedure is that part of law that deals with enforcement. In South Africa, we use a system of procedure (both civil and criminal) based on the adversarial system. This involves opposing parties who ‘fight’ a case, with the court acting as an impartial referee. The court does not involve itself in the dispute or instruct the parties how they should run their respective cases, provided that they obey the rules of court. To keep things simple, let us start with the term ‘civil procedure’ itself. First, let us look at the civil part of the term, and then at the procedure part. Civil procedure is part of civil law. The easiest way to understand what civil law is about is to compare it to criminal law: 1. In criminal cases you have the state versus an accused. In civil cases you have a plaintiff versus a defendant (in a civil action), or an applicant versus a respondent (in a civil application). 2. Criminal matters are essentially public in nature. Once a crime has been reported, the wheels of the criminal justice system (police, prosecuting authorities, criminal courts, prisons) are set in motion to apprehend, prosecute, convict and punish the criminal. Civil matters, on the other hand, are essentially private in nature. The state does provide a system of civil courts within which parties can fight out their legal battles, but it is up to the parties themselves to initiate and pursue matters. If the parties fail to pursue a matter, the state, or the court for that matter, will not intervene. For this reason, the plaintiff or applicant, as the case may be, is known as dominus litis, which means the ‘lord’ or ‘master’ of the litigation. Nothing will happen unless the plaintiff or applicant (usually with the help of his or her attorney) takes steps to initiate the various processes. These processes involve, inter alia, choosing the correct court in which to proceed; issuing and serving the summons or notice of motion; setting the matter down for trial or hearing; and so on. Although the state may be one of the parties in a civil matter, it is regarded as being on an equal footing with any other private individual or juristic person (such as a company or close corporation) involved in that matter. 3. Criminal cases are about deciding whether or not the accused is guilty of a crime or an offence. Civil cases are for the most part about deciding whether or not the defendant or respondent is liable for the plaintiff’s or applicant’s claim. 4. The guilt of an accused in a criminal matter must be proved beyond a reasonable doubt, whereas the liability of a defendant or respondent in a civil matter need only be proved on a balance of probabilities. 5. An accused who is found guilty of a criminal offence is usually punished either by means of a fine or imprisonment or both. A defendant or respondent who is found liable in a civil matter must usually pay damages (money) or perform some service for the plaintiff or applicant. 6. The main aims of criminal punishment are retribution, deterrence, rehabilitation and incapacitation. It is often said that criminals must ‘repay their debt to society’, but this is only in a metaphorical sense: the purpose of criminal punishment is not really to obtain monetary compensation from the criminal, although fines are a common form of punishment for lesser Page 38 of 751  offences. When it comes to civil liability, money plays a much greater role and the majority of civil judgments include orders for the payment of money. A common example is a ‘smash and bash’ case, in which the owner of a motor vehicle damaged in a collision claims the fair and reasonable cost of repairing his or her vehicle from the person who caused the accident. But not all civil cases involve claims for the payment of money. In some cases, the person who initiates a civil case wants the other party to do something. A common example is a claim for specific performance in terms of a contract, in which one of the parties to the contract asks the court to order the other party to carry out that party’s obligations in terms of the contract. Of course, a money claim is often attached as an alternative to a claim for specific performance, and sometimes it is also possible for damages (i.e. money) to be claimed in addition to specific performance. In some civil cases, the order sought is aimed at preventing someone from doing something, such as a claim for a prohibitory interdict preventing your client’s neighbour from chopping down a large tree which, when felled, is likely to fall onto your client’s house. There are also many other civil claims, such as those for ejectment, sequestration and divorce, which do not necessarily involve claims for money. In practice, however, such claims are generally connected to money claims (e.g. for arrear rent in the case of ejectment, and maintenance in the case of divorce). What is important to bear in mind is that civil procedure belongs to civil law and not to criminal law. Banish words such as ‘crime’, ‘guilt’, ‘punishment’ and ‘accused’ from your thoughts. Think rather of words such as ‘claim’, ‘liability’, ‘damages’, ‘respondent’ and ‘defendant’. This brings us to procedure – the second half of the term ‘civil procedure’. If civil law is often (although by no means only) about a private person recovering what is due to him or her (often money), then civil procedure is that part of civil law which enables the person to go about doing that in practice. In other words, civil procedure is the ‘nuts and bolts’ part of civil law. Other areas of civil law, such as delict and contract, tell you whether or not you have a valid legal claim, whilst civil procedure tells you precisely how to go about enforcing that claim. The respective bodies of law relating to delict and contract, for example, are each part of substantive law, whereas civil procedure is part of procedural (sometimes referred to as adjectival) law. 1 It is worth noting that, because civil law covers a much wider area than criminal law, civil procedure is wider in scope, and more complex, than criminal procedure. No single right existing outside of criminal law can be enforced without the use of civil procedure. This means, of course, that you need to possess a sound knowledge of substantive law to be able to understand civil procedure. It is not an exaggeration to state that civil procedure forms the basis for much of what most attorneys actually do in their professional lives. A sound knowledge of civil procedure is vital for any legal practitioner, and for this reason aspirant attorneys and advocates are expected to display a proper understanding of the subject in their respective professional examinations. In conclusion, it is worthwhile bearing in mind that civil procedure and criminal procedure are both heavily influenced by the law of evidence. The main point of both civil and criminal litigation is to place evidence before the court. Evidence, therefore, dominates procedure, and the type of procedure used is determined by the manner in which evidence must be presented in each case. Page 39 of 751  2 The court system and the officials 2.1A practical approach For those readers who may be studying this subject for the first time, it is worth emphasising that civil procedure is a practicalsubject. It may help to have a physical picture of the courts and officials in mind as you work your way through the text. As you learn a particular procedure, you should imagine the documents going back and forth between real officials and litigants. It is also a good idea to determine whether or not there are any courts situated near the area where you live. If any, you should visit these courts and find out all you can about them. In this way, when we speak about a particular type of court in this book, you will have a picture of a real place in your mind. Civil procedure is more to do with processes that take place in the real world than with abstract academic concepts. Ignoring for the moment the various special courts which exist in South Africa (e.g. Small Claims Courts, the Labour Court, the Competition Appeal Court, Tax Courts, the Land Claims Court, the Electoral Court, etc.),2 the basic court system, from less to more senior, consists of the following courts:3 1. Magistrates’ Courts;4 2. The High Court of South Africa (‘the High Court’);5 3. The Supreme Court of Appeal; and 4. The Constitutional Court. 2.2 The Magistrates’ Courts: District and Regional The whole country is divided up into many magisterial districts and each of these magisterial districts is served by a particular Magistrates’ Court. For example, the Durban magisterial area is served by the Durban Magistrates’ Court. If you drive down the KwaZulu-Natal coast, you will come to the magisterial district of Umzinto, which is served by the Scottburgh Magistrates’ Court, and then to the Port Shepstone magisterial district, which is served by the Port Shepstone Magistrates’ Court, and so on. In addition to Magistrates’ Courts for Districts (which we name ‘District Magistrates’ Courts’ in this book), a number of Magistrates’ Courts for Regional Divisions (which we name ‘Regional Magistrates’ Courts’ in this book) have been established to deal with civil matters.6 Think about it next time you travel around the country: at any particular time during your journey, you will be within the jurisdictional area of a specific Magistrates’ Court. Try to obtain a good legal diary as soon as possible. It should have a complete list of all the magisterial districts in South Africa, together with the names of the Magistrates’ Courts that serve them, and the attorneys who practise in these areas. Remember that the names of the magisterial districts are not always the same as the names of the courts that serve them. This can make the life of a candidate attorney a bit tricky. For example, the magisterial district of Klip River in KwaZulu-Natal is served by the Ladysmith Magistrates’ Court. Remember also that a single magisterial district may include more than one municipal area. For example, the magisterial district of Pinetown in KwaZulu-Natal includes the municipal areas of Pinetown as well as Westville. Magisterial districts are in the process of being rationalised, with the aim of making their boundaries consistent with provincial and municipal boundaries. New magisterial districts and district courts have been established in Gauteng and the North West since 1 December 2014, and in Mpumalanga and Limpopo since 25 January 2016. 7 Practitioners should anticipate that the magisterial districts in the remaining provinces will also be rationalised soon. Page 40 of 751  Although not of much practical use to the average attorney, it is interesting to note that Antarctica, Prince Edward Island, and Marion Island are deemed to fall within the magisterial district of Cape Town for the purposes of the administration of justice.8 2.3 The High Court In order to understand the present High Court system, it is necessary to refer briefly to the system that existed before the advent of the present constitutional dispensation. Prior to the enactment of the 1996 Constitution, there was a single Supreme Court of South Africa, which was divided into a number of divisions. There were six provincial and three local divisions, with one appellate division, which was the highest court in the hierarchy. Each provincial division had its own territorial area over which it exercised legal control, while the appellate division served to unify the court by providing the final decision in any case taken on appeal from the provincial divisions. In addition, each of the former independent homelands (i.e. Ciskei, Transkei, Venda and Bophuthatswana – formerly known as the TBVC states) had its own superior court system. A new system of High Courts (which replaced the earlier label ‘Supreme Court’) was introduced with the 1996 Constitution.9 In theory, each High Court was a separate entity within a system of High Courts.10 The new appellate court, which was named the Supreme Court of Appeal, was completely separate and outside the High Court system. 11 A Constitutional Court (often referred to as the ConCourt) was also established, serving as the final arbiter in matters relating to constitutional issues.12 Apart from these changes, the advent of the 1996 Constitution altered little in practice as far as High Courts were concerned.13 Schedule 6 of the Constitution made certain transitional arrangements, according to which each division of the former Supreme Court was to be regarded as a High Court, retaining all its previous powers, its area of authority, and its previous name.14 During this ‘transitional’ period, the High Court system looked like this: Provincial Divisions 1. The Cape Provincial Division (CPD) sat in Cape Town and had jurisdiction over the old Cape Province, excluding the areas of jurisdiction of the Eastern Cape and Northern Cape divisions. 2. The Eastern Cape Division (ECD) sat in Grahamstown and had jurisdiction over the eastern portion of the old Cape Province. 3. The Northern Cape Division (NCD) sat in Kimberley and had jurisdiction over the northern part of the old Cape Province. 4. The Natal Provincial Division (NPD) sat in Pietermaritzburg and had jurisdiction over the old province of Natal. 5. The Orange Free State Provincial Division (OPD) sat in Bloemfontein and had jurisdiction over the old province of the Orange Free State. 6. The Transvaal Provincial Division (TPD) sat in Pretoria and had jurisdiction over the old province of the Transvaal. Local Divisions 1. The Durban and Coast Local Division (DCLD) sat in Durban and had jurisdiction over the coastal strip of KwaZulu-Natal. 2. The Witwatersrand Local Division (WLD) sat in Johannesburg and had jurisdiction over the area around Johannesburg. Page 41 of 751 3. The South-eastern Cape Local Division (SECLD) sat in Port Elizabeth and had jurisdiction over the area around Port Elizabeth. Supreme Courts of the former TBVC States:15 1. The Transkei General Division; 2. The Bophuthatswana General Division; 3. The Ciskei General Division; and 4. The Venda Supreme Court. The Supreme Courts of the former TBVC States referred to above had the status of provincial divisions.16 The three local divisions referred to lacked certain of the jurisdictional powers of the provincial divisions (in respect of appeals and reviews), but in other respects each local division exercised concurrent jurisdiction with a particular provincial division.17 So, for example, the Durban and Coast Local Division exercised concurrent jurisdiction with the Natal Provincial Division over the coastal strip of KwaZulu-Natal. Schedule 6 of the Constitution, while preserving the structure of the past, nevertheless explicitly envisaged the rationalisation of the courts, including their structure, composition and functioning, with a view to establishing a judicial system suited to the requirements of the Constitution. The process of rationalisation turned out to be very slow, despite a provision in Schedule 6 stating that it was to occur ‘as soon as practicable’. On 1 March 2009, the outdated names of the High Courts reflected above were finally changed when the Renaming of High Courts Act 18 came into operation. This was a welcome change given the fact that many High Court names still reflected their apartheid origin. 19 In terms of the Renaming of High Courts Act, the High Courts seated in the places mentioned in the first column of the table set out below were known by the names set out in the second column of the said table: Seat of High Court Name of High Court Bhisho Eastern Cape High Court, Bhisho Bloemfontein Free State High Court, Bloemfontein Cape Town Western Cape High Court, Cape Town Durban KwaZulu-Natal High Court, Durban Grahamstown Eastern Cape High Court, Grahamstown Johannesburg South Gauteng High Court, Johannesburg Kimberley Northern Cape High Court, Kimberley Page 42 of 751 Mafikeng North West High Court, Mafikeng Mthatha Eastern Cape High Court, Mthatha Pietermaritzburg KwaZulu-Natal High Court, Pietermaritzburg Port Elizabeth Eastern Cape High Court, Port Elizabeth Pretoria North Gauteng High Court, Pretoria Thohoyandou Limpopo High Court, Thohoyandou The abbreviations indicating these renamed courts in the South African Law Reports are as follows: Name of court Abbreviation Eastern Cape High Court, Bhisho ECB Eastern Cape High Court, Grahamstown ECG Eastern Cape High Court, Mthatha ECM Eastern Cape High Court, Port Elizabeth ECP Free State High Court, Bloemfontein FB KwaZulu-Natal High Court, Durban KZD KwaZulu-Natal High Court, Pietermaritzburg KZP Limpopo High Court, Thohoyandou LT North Gauteng High Court, Pretoria GNP North West High Court, Mafikeng NWM Northern Cape High Court, Kimberley