TERM 2:

PLEADING STAGE
(1) CONTINUE WITH SUMMONS/POC
(2) NOTICE OF INTENTION TO DEFEND
Basic pleadings (continued)
Implications of not following HC rule 18(12) &
MC rule 6(13)
Failure to comply with provisions
Pleadings deemed irregular step
Opposite party application to set aside pleadings
Certain circumstances pleadings excipiable
Pleaders failure to rectify pleadings claim/defence
dismissed/set aside.
Basic pleadings (continued)
Provisions for summonses relating exclusively to
MCs
Electronic addresses
Plaintiffs attorney must include electronic, facsimile and postal
address in summons
Plaintiff may indicate preferred manner of service
Defendant consents to exchange/service of subsequent
documents and notices by way of facsimile/electronic mail
Should defendant refuse/fail to consent court may on
application by plaintiff grant consent just and appropriate
terms as to costs.
Basic pleadings (continued)
Provisions for summonses relating exclusively to
MCs (continued)
Provision for jurisdictional averments
Defendant cited under jurisdiction conferred on court by S
28(1)(d) of Act averment that whole CoA arose within
district/region
When plaintiff relies on S 28(1)(g) averment that property
situated within district/region
Abandonment of part of claim under S 38 of Act
Set-off under S 39 of Act.
Basic pleadings (continued)
Service and methods of service (see pgs 6-7)
NB substituted service and edictal citation
Lapsing and superannuation of summons
MC rule 10 eliminated by new rule 10 providing for
Edictal Citation
Matter always governed by common law in HC
Plaintiff must proceed with action within reasonable time
Failure = summons becoming stale
Reasonable time depends on cases facts final decision in
courts discretion.
PARTICULARS OF CLAIM

The Plaintiff is B Torr, an adult businessman of 15 High Street, Grahamstown.

The Defendant is A Cox, an adult teacher whose full names are to the Plaintiff unknown of 124 Disa Street, Port
Elizabeth.

During or about February 2009 and at Grahamstown, Plaintiff and one Peter Twice, entered into a verbal
agreement in terms of which Plaintiff agreed to sell and deliver to Peter Twice certain building materials, at a
costs of R 155 000,00 to be paid in cash on delivery.

Plaintiff duly delivered the building material to Defendant at his place of residence on 21 February 2009.

Defendant paid to Plaintiff an initial amount of R 45 000,00 on delivery of the building material.

Notwithstanding demand, Defendant has failed to pay the balance of R 110 000,00 to the Plaintiff .

Defendant is also indebted to ABC (Pty) Ltd in the sum of R 30 000,00 for a similar transaction as referred to in
paragraph 3 above.

In the premises Defendant is indebted to Plaintiff in the sum of R 110 000,00.

WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AS AGAINST THE DEFENDANT FOR:

Payment of the sum of R 110 000,00;
Interest thereon from 22 February 2009 to date of payment;
Costs of Suit;
Further and/or alternative relief.

Basic pleadings (continued)
Summons served defendant several choices
Do nothing
Contact plaintiffs attorney attempt to settle
matter by agreement
MC consent to judgment, HC confession to
judgment
Defend matter enter appearance to defend
matter on defended basis.
Basic pleadings (continued)
Notice
Delivery of notice
Dies induciae

For next week:
Public lecture: The recognition of a class action in
South Africa (Mon, 1715)

Guest lecture: The impact of the Constitution on
the law of civil procedure (Tues, 1030)

Hand-in of assignments: either 1230 or 1630
(Tues)

BREAK?: two thirds of class attend public lecture
(Wed, 1030)
Civil Procedure A
Counterclaims, FP, litis contestatio
Counterclaims
Overview
Claim brought by defendant against plaintiff
Plaintiffs claim = claim in convention
Defendants counter-claim = claim in reconvention
Normal rules for drafting particulars of claim apply to counterclaims
Counter-claim linked to plaintiffs claim
Normally parties same defendant sued in personal capacity may
counter-claim in representative capacity
Claim and counter-claim heard at same hearing, unless they arise from
different sets of facts
Judgments should be given pari passu/simultaneously in MC and HC.
Procedure?
Counterclaims in the MC?

Replication, reply, etc!
Replication
Only necessary if defendant raises new averments in
plea plaintiff cannot leave unchallenged
Defendant makes new averments as part of plea of
confession and avoidance
Possible steps after replication
Defendants rejoinder to plaintiffs replication
Plaintiffs surrejoinder to defendants rejoinder
Defendants rebutter to plaintiffs surrejoinder
Plaintiffs surrebutter to defendants rebutter
Only necessary to respond by means of above pleadings
when new averments are made in previous pleading
Litis Contestatio
Litis contestatio: exact time pleadings close, moment
issue joined between parties
Effect: freezes plaintiffs rights at that moment
Instances where pleadings considered closed:
1. Party joined issue without alleging new matter and without
adding further pleading
2. Last day allowed for filing replication/subsequent pleading
elapsed not filed
3. Parties agree in writing that pleadings are closed and
agreement filed with registrar
4. Parties unable to agree on close of pleadings court declares
them closed.
Further particulars BEFORE close of
pleadings?(pp 9-10)
General overview
HC rule 35(12) and MC rule 23(13)
Purpose: presumably to ensure party is in position to reply
to pleadings.
Not necessary to wait until close of pleadings
Request inspection by serving notice according to HC
Form 15/MC Form 15B
Applicable to applications and actions
Appearance to defend entered request to make available
for inspection clearly specified document/tape recording
for pleading purposes
Vague request for general class of documents not permitted
Must be relevant to a reasonably anticipated issue in the
action

Preparation for trial
Step 1: Setting matter down for trial
Step 2: Discovery process
Step 3: Technical and medical examinations
Step 4: Obtaining further particulars for trial
Step 5: Issuing necessary subpoenas
Step 6: Arranging for special evidence
Step 7: Arranging and attending pre-trial
conference
Step 8: Final preparation for trial advice on
evidence.
Motswai v RAF 2013 (3) SA 8 (SGHC)
Dishonest litigation by carnivorous and
predatory litigators: mount the steed of greed
Process systematically exploited by a predatory
cabal of administrators, attorneys, advocates and
professional experts, to the detriment of accident
victims and taxpayers.
Para 61 (claims by legal practitioners)
Paras 71-72 (claims by expert witnesses)
Hearing to determine: costs (AND
disbursements!!) de bonis propriis
CIVIL PROCEDURE A

Declarations and the defence
(technical basis)
Introduction

The Sheriff (Serves documents)
The Clerk / Registrar (court admin)




Prelitigation (prelim issues,
demand)
Litigation (pleadings, prep for trial)
Trial
Post Litigation (costs)


material dispute of facts
legislation
(summons v notice of motion)
Key Officials
Stages of a
Dispute
Action /
Application
Stage one: before
On what basis am I suing?
Contract
Delict



Who can sue or be sued?
Common law: Direct & Subst Interest
Legislation: Section 38 (Const)
Capacity: minors, mentally ill, prodigals,
insolvents, judges, p/ships


Which court must I sue out of?
Value of claim
Nature of Claim



Is it necessary?
Complete cause of action
Legislation



Cause of
Action
Locus
Standi
Jurisidiction
Demand
Stage two: pleadings
m


RETURN OF SERVICE

Defend Ignore
Settle
/Consent
SUMMONS & PARTICULARS
OF CLAIM
Notice of
Intention
to Defend
Default
judgment
-Satisfy Claim (s 57)
-Consent to
judgment (s 58)
-Settle
-Pay into court
Declarations

Only necessary in actions with simple
summons
HC rule 20 and new MC rule 15
Like a POC
Default?
Defence on a technicality (NB but also
responses to defective pleadings and
non-compliance with rules)
General overview
Pleadings that fail to concisely and accurately define
issues in matter/do not comply with court rules
Procedures to attack defective pleadings:
Exception
Application to strike out
Procedures to respond to breaches of court rules
Application to set aside irregular step
Enforcing compliance and condoning non-compliance with
rules
Procedure to cure defective pleadings.
Exceptions
Legal objection to pleading pleading not legally
valid for purpose
Defect apparent ex facie document excipiable
Party bringing exception = excipient
Defect in pleading not apparent ex facie pleading
exception itself bad
Effect: dismissal/setting aside of claim/defence.
Exceptions
2 major grounds for taking exception
1. Failure to disclose CoA/defence
Most serious fault
Bring exception truth of each allegation in pleading not
questioned
Defendants plea material facts necessary for defence
to plaintiffs CoA failure, plea excipiable.
Scallan v Cadbury (Pty) Ltd (2006) 8 BLLR 811 (SE).
Both Mr Buchanan and Mr Redding submitted, however, that a
constitutional claim could and should be implied from the averments
set out in the particulars of claim. I must confess to an inability to
grasp the basis upon which such implication should be drawn from
the particulars of claim as it stands. I am put in mind, however, of the
pictures which were once a popular feature on the back of cereal
boxes some years ago. The seemingly unintelligible jumble of dots
and squiggles, if stared at long enough, would suddenly resolve
themselves, for instance, into a picture of a tiger lurking in the foliage.
I have stared long and hard at the pleadings but it does not appear
to me that any tiger in the form of a constitutional claim is lurking in
the verbiage thereof. However, when two senior counsel, each
instructed by an experienced attorney, assure one that it is indeed
there, then one is loath mero motu to decide otherwise. Despite my
reservations I will therefore proceed to deal with the exception in the
light of counsels submissions.

Exceptions
2 major grounds for taking exception (continued)
2. Vague and embarrassing
Pleading ambiguous/lacks clarity
Vagueness must result in prejudice/embarrassment
Strikes at formulation of CoA, not legal validity
Examples:
Lack of clarity/ambiguity
Omission of material facts
Contradictions in pleadings.
Exceptions
Prejudice requirement
Harmonisation of practice regarding exceptions in MC
& HC
Exceptions
Procedure for lodging exception
Procedure in general
Time periods
Notice
Hearing
Consequences for failing to lodge exception
Consequences of successful exception
Overlap with special plea?
Applications to strike out
Offending averment deleted/erased from
pleading
2 requirements
Distinction between exception and application
to strike out
Within period allowed for filing any subsequent
pleading.
Other responses to defective pleadings
and non-compliance with rules
1. Application to set aside irregular step (rule 30A,
27)
2. MC Rule 60 non-compliance with rules,
including time limits and errors
3. Amendment of pleadings


Agenda:
Applications to strike out and pleas
Notice of Intention to Defend


Substantive Technicality
grounds


Plea Exception/
Appl to strike out
Applications to strike out
Offending averment deleted/erased from
pleading
2 requirements
Distinction between exception and application
to strike out
Within period allowed for filing any subsequent
pleading.
Plea

General overview
Plea: defendants reply to plaintiffs particulars of claim
and defendants defence
Plea on merits
Substance of plaintiffs claim
Attacks validity of CoA regarding facts of case
Special plea
Legal objection to some aspect of plaintiffs claim
Plea on merits added as alternative to special plea.
Plea on merits
Time limits
Defendant must deliver 20 days after delivering
notice of intention to defend/receiving plaintiffs
declaration
NA in case of exception/application to strike out
Different kinds of pleas on merits
Admit allegation
Deny allegation
Confess and avoid allegation
Not admit allegation.
3 general responses
Counter-claim
Alternative defence
Tender.

Drafting plea on merits

Pleadings divided into consecutively numbered paragraphs
each containing allegations of fact
Isolate allegations and respond
Admit all the allegations.
Drafting different plea responses
Respond (Yes, or No, or Yes But..., or I have no way of
knowing, you prove it., admit all the allegations) to each
allegation in every paragraph of particulars of
claim/declaration
After responding end off plea with a prayer.
Dealing with all plaintiffs allegations: Fail to deal with each
and every fact in particulars of claim/declaration facts
ought to have been denied deemed admitted

Special pleas
Dilatory special pleas
Arbitration
Lis pendens
Special pleas in abatement
Special plea of prescription
Special plea of misjoinder/non-joinder
Special plea of res judicata
Special plea to jurisdiction
Special plea of non locus standi in judicio (lack of
locus standi).


Drafting and hearing a special plea?
Raised at start of defendants plea in separate section
with heading Defendants Special Plea
Statement defendant raising particular special plea
Facts upon which special plea based
No uniform practice regarding need to plead over on
merits all defences defendant intends to raise raised
at same time.
Separate hearings for special pleas?
No provision for separate hearings of special pleas in MC
S 54 conference
HC rule 33(4)

Civil Procedure A
Counterclaims, FP, litis contestatio
Counterclaims
Overview
Claim brought by defendant against plaintiff
Plaintiffs claim = claim in convention
Defendants counter-claim = claim in reconvention
Normal rules for drafting particulars of claim apply to counterclaims
Counter-claim linked to plaintiffs claim
Normally parties same defendant sued in personal capacity may
counter-claim in representative capacity
Claim and counter-claim heard at same hearing, unless they arise from
different sets of facts
Judgments should be given pari passu/simultaneously in MC and HC.
Procedure?
Counterclaims in the MC?

Replication, reply, etc!
Replication
Only necessary if defendant raises new averments in
plea plaintiff cannot leave unchallenged
Defendant makes new averments as part of plea of
confession and avoidance
Possible steps after replication
Defendants rejoinder to plaintiffs replication
Plaintiffs surrejoinder to defendants rejoinder
Defendants rebutter to plaintiffs surrejoinder
Plaintiffs surrebutter to defendants rebutter
Only necessary to respond by means of above pleadings
when new averments are made in previous pleading
Litis Contestatio
Litis contestatio: exact time pleadings close, moment
issue joined between parties
Effect: freezes plaintiffs rights at that moment
Instances where pleadings considered closed:
1. Party joined issue without alleging new matter and without
adding further pleading
2. Last day allowed for filing replication/subsequent pleading
elapsed not filed
3. Parties agree in writing that pleadings are closed and
agreement filed with registrar
4. Parties unable to agree on close of pleadings court declares
them closed.
Further particulars BEFORE close of
pleadings?(pp 9-10)
General overview
HC rule 35(12) and MC rule 23(13)
Purpose: presumably to ensure party is in position to reply
to pleadings.
Not necessary to wait until close of pleadings
Request inspection by serving notice according to HC
Form 15/MC Form 15B
Applicable to applications and actions
Appearance to defend entered request to make available
for inspection clearly specified document/tape recording
for pleading purposes
Vague request for general class of documents not permitted
Must be relevant to a reasonably anticipated issue in the
action

Preparation for trial
Step 1: Setting matter down for trial
Step 2: Discovery process
Step 3: Technical and medical examinations
Step 4: Obtaining further particulars for trial
Step 5: Issuing necessary subpoenas
Step 6: Arranging for special evidence
Step 7: Arranging and attending pre-trial
conference
Step 8: Final preparation for trial advice on
evidence.
Motswai v RAF 2013 (3) SA 8 (SGHC)
Dishonest litigation by carnivorous and
predatory litigators: mount the steed of greed
Process systematically exploited by a predatory
cabal of administrators, attorneys, advocates and
professional experts, to the detriment of accident
victims and taxpayers.
Para 61 (claims by legal practitioners)
Paras 71-72 (claims by expert witnesses)
Hearing to determine: costs (AND
disbursements!!) de bonis propriis
Civil Procedure A
Prep for trial (FP and Discovery)
Preparation for trial
Step 1: Setting matter down for trial
Step 2: Discovery process
Step 3: Technical and medical examinations
Step 4: Obtaining further particulars for trial
Step 5: Issuing necessary subpoenas
Step 6: Arranging for special evidence
Step 7: Arranging and attending pre-trial
conference
Step 8: Final preparation for trial advice on
evidence.
Further particulars BEFORE close of
pleadings?(pp 9-10)
General overview
HC rule 35(12) and MC rule 23(13)
Purpose: presumably to ensure party is in position to reply
to pleadings.
Not necessary to wait until close of pleadings
Applicable to applications and actions
Appearance to defend entered request to make available
for inspection clearly specified document/tape recording
for pleading purposes
Vague request for general class of documents not permitted
Must be relevant to a reasonably anticipated issue in the
action

Further particulars for trial (AFTER close
of pleadings)
Further particulars only permitted for purpose of
trial preparation
Purpose?
Prevent surprises at trial
Inform party what opponent is going to prove to enable
him to prepare case
2 considerations render requesting further
particulars pointless
Procedure?
Discovery procedure
Means by which each party can compel the other to reveal
the documentary evidence which he has in his possession or
under his control, which relate to the action and which he
intends to use in the action or which tend to prove or disprove
either partys case(Eckard, 194)

Purpose:
allows each party knowledge of/access to documents in
opponents possession relevant to trial
Prevents parties being surprised and eliminates disputes about
issues where evidence is incontrovertible

HC rule 35 and MC rule 23

S 50 Promotion of Access to Information Act 2 of 2000
('PAIA').

Procedure?
Prompted by notice to discover
In response:
Affidavit filed with 2 schedules
Automatic discovery? (HC v MC)
Contents?: Information may fairly lead train of
enquiry that may advance case/damage opponents
case
Privileged documents: opponent not entitled to inspect:
Witness statements taken for purposes of proceedings
Communications btn att and client, att and advocate
Failure to discover?

Follow up notices:
Notice to inspect:
Party delivers notices to other party requiring documents/tape
recordings (extended meaning) discovered to be made available
for inspection
When and where?

Notice to specify

Notice to produce

Notice to admit
For last week:
Final prep:
Pre-trial conference
Practical considerations
Trial itself
Exam structure
Civil Procedure A
Prep for trial & practical
considerations
Agenda
Final prep:
Pre-trial conference
Practical considerations
Trial itself
Reminder:
Pleadings stage and pre-trial stage
Pleading stage
Parties define issues in dispute between them
Issues defined in writing and set out in pleadings
Documents (pleadings with different legal names)
exchange between parties
Pre-trial stage
Pleadings close pre-trial stage begins
Parties prepare for trial: set down, discovery, issuing
subpoenas, pre-trial conference, etc.
Preparation for trial
Step 1: Setting matter down for trial
Step 2: Discovery process
Step 3: Technical and medical examinations
Step 4: Obtaining further particulars for trial
Step 5: Issuing necessary subpoenas
Step 6: Arranging for special evidence
Step 7: Arranging and attending pre-trial
conference
Step 8: Final preparation for trial advice on
evidence.
Pre-trial conference
In the High Court?
No less than 6 weeks before date of trial
Curtails proceedings, curb costs, settle matter
Setting the agenda
Conference itself and minute
Special order as to costs
In the Magistrates Court?
Issues
Contents of new s 54?


END OF COURSE BUT!!!:
Practical considerations on pg 18 including:
Indexing and paginating
Consultations

For tomorrow:

Exam structure
Go over 2012 exam paper
Plan revision session before exam
Civil Procedure A
Final lecture
Revision
Areas of concern for exam:
civil procedure is that part of adjective law that
regulates civil litigation and the enforcement of
substantive rights, obligations and remedies (H &
W 1)

*E]mbodied in [the] practices and rules [of civil
procedure] are the great waves of history: the
socio-economic as well as the intellectual
changes, revolutions, and stagnations of history
Civ Proc A exam 2013
14 June, GHV, PM
2 hours, out of 70
SECTION A (COMPULSORY) = 50 marks
Questions ranging from 3-10 marks
SECTION B (CHOICE OF 2x Qs) = 20 marks each
Both questions subdivided into 2 sub-questions
Civ Proc Exam 2012 (revision and
expectations)
(a) A defendant receives a notice of bar in terms of rule 12(1)(b).
What is the consequence of this to a defendant?
(2)

(b) Name the three basic methods of pleading to a plaintiffs
particulars of claim.
(3)

(c) Rule 37 of the High Court Rules deals with a pre-trial
conference. List 8 aspects which should be canvassed between
litigants at such a conference.
(8)

(a) Must file plea within 5 days
If not will be barred from pleading
Judgment may be taken
(2)
(b) Admit
Deny
Confess and avoid
(3)

(c) Any 8 of :
Date, place
Prejudice due to non-compliance
Settlement proposals
Any issue to mediation etc
Transfer to another court
Separation of issues
Any admissions
Onus
Production of proof by affidavit
Responsible for copying etc.
Documents which serve as evidence without etc
(8)

A party to an action fails to provide further particulars for purpose of trial as requested by
an opponent. What orders may a court make in such an instance?
(3)

Explain the circumstances in which the following special pleas may be filed by a
defendant:

Lis pendens;
Res judicata;
Non joinder.
(6)

A party files a request for further particulars, which is not strictly necessary to enable him
to prepare for trial. What is the possible consequence to that party of doing so?
(3)

In which circumstances must a plaintiff initiate proceedings by way of a letter of demand?
Provide examples of these.

(5)
Order their delivery
Dismiss the action
Or strike out defence
(3)

Action pending same parties
same cause of action
same subject matter

Point of issue already adjudicated on
between the same parties
must be end to litigation

Has correct party been cited
clear that another party should have been joined
(6)

At conclusion of trial
Court may disallow all costs flowing from unnecessary request
May order either party to pay wasted cost, even on attorney and client scale
(3)
Ordered by statute NCA, Small claims court or Legal proceedings against state or any other
Necessary to complete the cause of action payable on demand
Notice of breach clause
Place debtor in mora
(5)

Question 2
Mistakes a. citation of plaintiff pls full name, and gender of def.
b. numbering of clauses
c. whole cause of action arose clause left out

All three, notice of irregular proceedings to set aside.
Have to amend. Stay until complied with.

d. Clause 3 reference to Twice. Unknown person

Exception vague and embarrassing alternatively no
cause of action

Exception application
Must amend if possible.

e. Paragraph 7 - irrelevant

Application to strike out
Clause itself is expunged/removed.

w
Jurisdiction
Grahamstown incorrect
Whole cause of action did not arise
Due to delivery of materials in PE
Court cannot hear case

Prescription
summons served more than 3 years after amount
became due on 21/2/2009


Jurisdiction R110 000 falls outside the quantum
allowed
Should abandon R10 000
May be remedied.

SECTION B for your own study (not Q2(a))
Revision session? Still wanted? 12 June?

AND FINALLY:

It's hard to detect good luck - it looks so much
like something you've earned.
Frank Clark
Agenda:
Applications to strike out and pleas
Notice of Intention to Defend


Substantive Technicality
grounds


Plea Exception/
Appl to strike out
Applications to strike out
Offending averment deleted/erased from
pleading
2 requirements
Distinction between exception and application
to strike out
Within period allowed for filing any subsequent
pleading.
Plea

General overview
Plea: defendants reply to plaintiffs particulars of claim
and defendants defence
Plea on merits
Substance of plaintiffs claim
Attacks validity of CoA regarding facts of case
Special plea
Legal objection to some aspect of plaintiffs claim
Plea on merits added as alternative to special plea.
Plea on merits
Time limits
Defendant must deliver 20 days after delivering
notice of intention to defend/receiving plaintiffs
declaration
NA in case of exception/application to strike out
Different kinds of pleas on merits
Admit allegation
Deny allegation
Confess and avoid allegation
Not admit allegation.
3 general responses
Counter-claim
Alternative defence
Tender.

Drafting plea on merits

Pleadings divided into consecutively numbered paragraphs
each containing allegations of fact
Isolate allegations and respond
Admit all the allegations.
Drafting different plea responses
Respond (Yes, or No, or Yes But..., or I have no way of
knowing, you prove it., admit all the allegations) to each
allegation in every paragraph of particulars of
claim/declaration
After responding end off plea with a prayer.
Dealing with all plaintiffs allegations: Fail to deal with each
and every fact in particulars of claim/declaration facts
ought to have been denied deemed admitted

Special pleas
Dilatory special pleas
Arbitration
Lis pendens
Special pleas in abatement
Special plea of prescription
Special plea of misjoinder/non-joinder
Special plea of res judicata
Special plea to jurisdiction
Special plea of non locus standi in judicio (lack of
locus standi).


Drafting and hearing a special plea?
Raised at start of defendants plea in separate section
with heading Defendants Special Plea
Statement defendant raising particular special plea
Facts upon which special plea based
No uniform practice regarding need to plead over on
merits all defences defendant intends to raise raised
at same time.
Separate hearings for special pleas?
No provision for separate hearings of special pleas in MC
S 54 conference
HC rule 33(4)