FACULTY OF LAW
Civil Procedure A
2017
Course Outline
Lecturer: Mr S Khan
Email: [email protected]
Room: F6A, First Floor, Faculty of Law
CIVIL PROCEDURE A 1. INTRODUCTION
1.1 Overview
The Civil Procedure Course is a compulsory semester course undertaken in the first semester of the penultimate year of the LLB degree.
The purpose of the course is to introduce students to basic civil procedure in the
Magistrate’s and High court. The course covers the courts with civil jurisdiction, questions of locus standi, action proceedings from letter of demand to trial and commonly utilised interlocutory applications such as summary judgment, exceptions, and Applications to Strike Out.
The Legal course blends the development of legal skills with the necessary theoretical background and practical application of procedures and rules of practice.
The course is assessed by way of one examination written in June, as well as class work comprising of one written assignment and one test.
1.2 Credit Value: 10 credits.
1.3 Assumptions of Prior Learning
In order to be able to successfully complete this course, students must:
be able to read and write good English;
be able to express themselves clearly and coherently in English as a precursor to developing good drafting skills;
have a working knowledge of the foundations of our law including basic causes of action in areas such as contract, delict and the structure of our courts;
be capable of independent learning and research;
be able to work in groups.
2. OUTCOMES
2.1 Critical Outcomes Students will be able to:
Collect, analyse and evaluate information from statutes, case law and
other source materials;
Interact and apply court acts and rules;
Work in groups;
Communicate effectively and use technology;
Identify and solve problems.
2.2 Intended Specific Outcomes
At the end of the course, students should have achieved the following outcomes:
To understand the reason for the existence of civil rules of practice, given the historical and cultural context in which the rules developed.
To understand and identify the preliminary issues involved in civil procedure such as locus standi, jurisdiction and causes of action;
To understand the difference between application and action proceedings;
To know and understand the order, purpose and content of major pleadings in Magistrate’s and High court such a summons, appearance to defend, declaration, plea and counterclaim;
To know and understand the purpose and content of specific interlocutory applications such as exceptions, irregular proceedings, applications to strike out and summary judgment;
The ability to identify the legal procedure to be followed to dispose of a matter through litigation from a given set of facts.
3. TEACHING METHODS
The course is taught by Mr Siraaj Khan. It has been divided into specific topics which will be covered in the form of viva voce lectures. Students are expected to read ahead of the next lecture so that they may participate in the lecture and solve legal problems either individually or in groups. There is no comprehensive handout for the course and as such, students will be expected to take their own notes during lectures and to supplement these notes with readings provided in the course outline. It is expected that students assume responsibility for their own learning by independent study according to the guidance provided by the detailed course outline. Feedback for assignments and tests will usually be given at the voluntary seminars. Students are referred to the Faculty’s ‘Law Student’s Survival Guide’ in respect of DP requirements for attendance of lectures. Students are welcome to discuss problems with the lecturer.
4. COURSE CONTENT
Introduction to civil procedural law
Overview of Civil Procedure
The court system and key officials, the sheriff, stages of a dispute, action vs application procedure.
Pre litigation Issues
Cause of action, locus standi, jurisdiction.
Pleading Stage
The summons, particulars of claim, service of the summons, default judgment, notice of intention to defend, declaration, exceptions, irregular proceedings, application to strike out, plea, counterclaim and replication.
Selected Interlocutory Applications
Summary judgment
Pre Trial Proceedings
Discovery, pre-trial conference and further particulars for purposes of trial.
5. RESOURCES
A course guide will be handed to students during lectures. This is designed to give some guidelines as to the most important aspects of each topic and assist in preparation for lecture sessions. The prescribed text book is:
S Pete et al Civil Procedure: A Practical Guide (2011) 2 ed OUP In addition to the above, the following texts will be of great assistance:
C Theophilopoulos et al Fundamental Principles of Civil Procedure (2011) 2 ed LexisNexis
Cilliers, Loots and Nel Herbstein and Van Winsen: The Civil Practice of the Superior Courts in South Africa (2009) 5 ed Juta.
Harms Civil Procedure in the Supreme Court (loose leaf) Butterworths
Juta's Statute Editors The Supreme Court Act and Magistrates' Courts Act and Rules Juta (The Acts can be found electronically on Netlaw);
Erasmus Superior Court Practice (loose leaf) Juta;
Paterson Eckard’s Principles of Civil Procedure in the Magistraties’ Courts (2001) Juta
Daniels Technique in Litigation (2003) 5 ed Juta;
Erasmus and Van Loggerenberg Jones and Buckle The Civil Practice of the Magistrates’ Courts in South Africa (loose leaf) vols 1 & 2, Juta.
Harms Ahmler’s Precedents of Pleadings (2009) 7 ed
Marnewick Litigation Skills for South African Lawyers (2007)
Besides the texts on civil procedure, students will need to consult other sources, in particular:
Chapters 2 and 8 of the Constitution of the Republic of South Africa, 1996.
Superior Courts Act 10 of 2013, Magistrate’s Courts Act 32 of 1944, the Uniform Rules of Court, the Magistrate Court Rules and various other acts which also regulate procedural aspects.
Students may be referred to relevant journal articles during the course.
6. STUDENT ASSESSMENT 6.1 ASSESSMENT BREAKDOWN
The percentage mark allocation for the course will be broken down as follows:
Test: 15
Assignment: 15 Examination: 70 Total: 100
7. EVALUATION
This course is evaluated by the students by completing a course evaluation form that requires students to respond to specific questions that invite them to make comments about good and bad aspects of the course.
8. CONTACT DETAILS
Mr Siraaj Khan ([email protected]) Office F6A (first floor, Law Faculty)
Please note assignment and test dates:
Assignment due date : TBA
Test: TBA
9. ASSESSMENT OUTCOMES
Specific Outcomes
At the end of this course, students should be able to:
Assessment Criteria
The evidence students must provide in order to show that they are
competent
Assessment Tasks
How evidence of
competence is collected
Understand the background of, and the need for, civil
procedure rules in South Africa
The students is able to identify the context and purpose of rules in civil litigation
Written Test
Written examination
Identify preliminary issues in civil procedure
The student is able to correctly identify issues of standing, jurisdiction as well as identify the cause of action in matters
Written Test
Written examination
Understand the difference between action and application proceedings
The student is able to identify the appropriate proceedings to follow from a given set of facts and explain why.
Written Test
Written examination
Class exercises
Know and understand the purpose and content of major pleadings
A student is able to understand which pleading to file and what stage of a dispute. Furthermore, a student is able to list and discuss the content of the pleading.
Written Test
Written Examination
Class Exercises
Written Assignment
Identify the legal procedure to be followed in a specific matter
Students are able to correctly apply their knowledge of civil procedure to a given set of facts.
Written Examination
Written Test
TABLE OF CONTENTS Section 1
Introduction:
1.1 Course Overview Section 2
Overview of Civil Procedure
2.1 The Court System & Key Officials 2.1.1 Magistrate’s Court
2.1.2 High Court 2.1.3 Supreme Court 2.1.4 Constitutional Court 2.2 The Sheriff
2.3 Stages of a Dispute 2.3.1 Pre litigation 2.3.2 Pleading Stage 2.3.3 Preparation for Trial 2.3.4 Trial
2.3.5 Post Trial
2.4 Action vs Application Procedures 2.4.1 Application proceedings 2.4.2 Action Proceedings Section 3
Pre litigation Issues 3.1 Cause of Action 3.2 Locus Standi
3.2.1 Grounds of locus standi 3.2.2 Capacity
3.3 Jurisdiction 3.3.1 Overview
3.3.2 Magistrate’s Courts jurisdiction 3.3.3 High Court jurisdiction
3.4 Demand 3.5 Time limits
Section 4 Pleadings
4.1 The Summons 4.1.1 Description
4.1.2 Technical aspects 4.1.3 Notes
4.2 Particulars of claim
4.2.1 Heading (Rule 6(2) and 18(2))
4.2.2 Statement of facts on which the claim is based (Rule 6(4) and Rule 18(4)) 4.2.3 Jurisdiction
4.2.4 Cause of action 4.2.5 Prayer
4.3 Service of the Summons 4.3.1 General
4.3.2 Methods of Service 4.4 Notice of Intention to Defend 4.4.1 Contents
4.4.2 Notes
4.5 The Plea and counter-claim 4.5.1 Content
4.5.2 Counter-claim 4.5.3 Special pleas
4.6 Replication (and further steps) 4.7 Close of Pleadings
4.8 Possible extra steps: further particulars and declarations 4.8.1 Requests for further particulars
4.8.2 Declarations
4.9 Defective pleadings and non-compliance with rules 4.9.1 Exceptions
4.9.2 Applications to strike out
4.9.3 Application to set aside an irregular step
4.9.4 Enforcing compliance and condoning non-compliance 4.9.5 Amendment of pleadings
4.10 Short-cut judgments 4.10.1 Default judgment 4.10.2 Summary judgment
4.10.3 Consent and confession to judgment
Section 5:
Pre-trial Pleadings and preparation for trial 5.1 Notice of set down
5.2 Discovery of documents and related procedures 5.2.1 Discovery procedures
5.2.2 Medical examinations and technical inspections 5.2.3 Request for further particulars for trial
5.2.4 Subpoena of witnesses 5.2.5 Special evidence 5.2.6 Pre-trial conference 5.6.7 Final preparation for trial
