CIVIL PROCEDURE A

MUTSA MANGEZI m.mangezi@ru.ac.za

INTRODUCTION
South African civil procedure forms part of the countrys procedural (as opposed to substantive) law. Among its sources are the following: the Magistrates Court Act and Rules; the Supreme Court Act; the Uniform Rules of Court jurisprudence; rules of court practice; and other legislation.

THE COURT SYSTEM

The South African court system comprises lower courts and the High Court, as well as special courts. The lower courts are creatures of statute, divided into Magisterial Districts and Regional Divisions. The High Court enjoys inherent jurisdiction. It is divided into Provincial Divisions (CPD, ECD, NCD, TPD, NCP, OPD) and Local Divisions (WLD, DCLD, SECLD).

COURT PERSONNEL
The clerk of the court (or registrar) is the
administrative hand of the court, and has the duty

of
receiving and filing documents; notifying legal representatives; compiling the court roll; taxing Bills; and, where he has the relevant power, granting orders.

COURT PERSONNEL [2]

The sheriff of the court is a creature of statute (created by the

Sheriff's Act) whose jurisdiction is specific. He or she has the

power to serve documents and execute court orders. Whereas the clerk or registrar plays a mostly administrative role, the sheriff is charged with the more practical aspects. Finally, there are the legal representatives and the presiding

officers, whose duties are respectively to represent the

parties to a suit and to adjudicate such a suit.

Role of the Constitution

The Constitution of South Africa has had a deep (if not an especially wide) impact in effecting recent changes to civil procedure.

In respect of debt collection matters, the Constitutional

Court, in Coetzee and Matiso 1995 SA 631 (CC), held

that sections 65A to 65M of the Magistrates' Courts Act

32 of 1944, which provided for the imprisonment of judgment debtors in certain circumstances, were

inconsistent with the right to personal freedom in

section 11(1) in Chapter 3 of the Interim Constitution.

Access to the courts is usually restricted to those with a direct and

substantial interest in the matter, but section 38 of the Constitution extends access, when it is alleged that a right in the Bill of Rights has

been infringed or threatened, to the following:

anyone acting in his own interest; anyone acting on behalf of another person who cannot act in his

own name;

anyone acting as a member of, or in the interest of, a group or class of persons;

anyone acting in the public interest; and

an association acting in the interest of its members.

 The Constitution has

also had an impact on prescription, in

particular with respect to litigation against the state. Before the advent of the new constitutional dispensation, legislation set out strict notice requirements and severely limited prescription

periods for claims against an organ of state. In actions against

the Defence Force, for example, the prescription period was only six months, rather than the usual three years, and written notice had to be given one month before the institution of legal action. The Institution of Legal Proceedings against Certain Organs of State Act, however, has aligned these notice requirements and prescriptive provisions with the Constitution.

Stages of a Dispute [1]

A civil dispute may be divided into three stages: pre-litigation; litigation; and post-litigation.

Pre-litigation This stage involves the following preliminary enquiries: What is the action? Against whom? By whom? In which court? Where? What procedure?

Stages of a Dispute [2]

Litigation This stage involves or requires or mandates the exchange of documents; time limits; compliance with court rules and procedures; and, finally, the trial or hearing.
Post-litigation This stage involves questions of costs and the execution of court orders.

Readings
Eckard: pg 6 16 Pete & Hulme: Introduction
(especially on Role of the Const)