High Court Practice Lecture Notes

A comprehensive vocabulary set covering the sources, officials, pre-litigation steps, action and application procedures, discovery, trials, appeals, and execution of judgment in South African High Court practice.

Superior Courts Act No. 10 of 2013

The legislation that repealed the Supreme Court Act No. $59$ of $1959$ and regulates the High Courts of South Africa.

Uniform Rules of Court

The standard set of procedural rules used across the several Provincial and Local Divisions of the High Court.

Practice Directives

Notices issued by Judge-Presidents of various Divisions to regulate proceedings specific to their respective regions.

Judicial Case Flow Management Committee

A committee formed in the office of the Chief Justice responsible for determining how practice is conducted in all Courts.

Inherent Jurisdiction

The principle that the High Court can do anything provided it is not prohibited, including preventing abuse of Court procedure.

Stare Decisis

The established legal principle in South Africa where a lower Court is bound by the decisions of a higher Court.

Audi Alteram Partem

A principle of the adversary system ensuring that all parties are afforded an equal opportunity to state their cases to the Court.

Constitutional Court

The highest Court in South Africa for all constitutional matters and any other matter granted leave to appeal on an arguable point of law of general public importance.

Supreme Court of Appeal (SCA)

A Court situated in Bloemfontein that serves purely as a Court of appeal and is not a Court of first instance.

Court of First Instance

A Court where legal proceedings can normally be initiated.

Full Court (Full Bench)

A High Court sitting of three Judges, typically for important questions or certain appeals.

Registrar

A senior official and head of Court Administration at a Provincial or Local Division into whose office pleadings are issued and filed.

Sheriff

Executive Officers of the Court appointed in terms of Section $2$ of the Sheriffs Act No. $90$ of $1986$ responsible for service and execution.

Taxing Master

An officer in the Registrar's office who ensures that legal bills of costs comply with Rule $70$ and are necessary for the attainment of justice.

Family Advocate

An official appointed in terms of Act No. $24$ of $1987$ to furnish reports and recommendations regarding the welfare of minor children in divorce matters.

Interpreters

Sworn translators admitted by the High Court to assist witnesses testifying in languages other than English or Afrikaans.

Court Orderly

An officer who assists the Court during proceedings by calling witness names and handling documents for the Judge.

Judge’s Clerk

The personal secretary of a Judge responsible for law reports, messages, and scheduling appointments through chambers.

Court Stenographer

A person contracted to perform mechanical recording of High Court proceedings to produce a written record if required.

Master of the High Court

Official in charge of administering deceased and insolvent estates, and the property of minors or persons under curatorship.

National Director of Public Prosecutions (NDPP)

The head of the National Prosecuting Authority (NPA) which institutes criminal proceedings on behalf of the State.

Registrar of Deeds

Official appointed under Act No. $47$ of $1937$ who submits reports regarding disputes over immovable property.

Legal Practitioner

A term in Act No. $28$ of $2014$ referring to Advocates and Attorneys admitted and enrolled to practice throughout the Republic.

Locus Standi in Iudicio

The capacity of a person to act as a litigant, possessing both the capacity to sue and a direct interest in the litigation.

FICA (Financial Intelligence Centre Act)

Legislation, specifically Amendment Act $1$ of $2017$, requiring Attorneys to understand their clients and associated risks.

Cause of Action

The legal fact, arising from contract, delict, or other source, that gives rise to an obligation resulting in liability.

Prescription

The date by which a claim is extinguished by the passage of time, which must be noted on the front cover of a legal file.

Cost Estimate Notice

A written notice required under Section $34$ of Act No. $28$ of $2014$ specifying financial implications, hourly rates, and work outlines.

Mora Letter

A letter used to place a party in default to remedy a breach of contract.

Rule 41A

The Uniform Rule of Court that compels litigants to consider mediation before proceeding to Court.

Joint Minute (Mediation)

A document filed under Rule $41A(4)(a)$ recording a decision to mediate the dispute or specific aspects of it.

Without Prejudice

A protective phrase for communication that forms part of a bona fide attempt to settle a dispute, rendering it privileged.

Demand

A written notice of a creditor’s claim required by Section $4$ of the Prescribed Rate of Interest Act No. $55$ of $1975$ to determine mora interest.

Prescribed Rate of Interest

Calculated as the Reserve Bank Repurchase Rate plus $3.5\%$, which is $11.25\%$ as of $1$ May $2023$.

Institution of Legal Proceedings against Certain Organs of State Act No. 40 of 2002

Legislation regulating the notice periods and prescription for claims against national or provincial departments and municipalities.

Debt (under Act 40 of 2002)

Legal liability arising from delict, contract, or acts/omissions under law for which an organ of state is liable for damages.

Organ of State

Includes national/provincial departments, municipalities, and functionaries exercising power under the Constitution.

Section 3 Notice (Act 40 of 2002)

Requirement to give written notice of intention to sue an organ of state within $6$ months from the date the debt became due.

Condonation

A Court order granting relief for failure to serve required notices timeously upon showing 'good cause'.

Section 129 (National Credit Act)

Requires credit providers to draw default to a consumer's notice in writing and propose referral to a debt counsellor.

Power of Attorney

A document proving an Attorney's authority to act on behalf of a party, filed if the authority is disputed under Rule $7$.

Contingency Fees Act No. 66 of 1997

An enabling statute allowing Legal Practitioners to charge fees only if successful or to charge increased fees for the risk taken.

Pactum de Quota Litis

Common law contingency agreements previously considered unlawful as gambling in lawsuits.

Maintenance and Champerty

Common law terms describing the illegal practice of supporting a lawsuit in exchange for a share of the proceeds.

Normal Fees

Fees normally charged by a Legal Practitioner for legal work in the absence of a contingency agreement.

25% Limit

The maximum percentage of the total amount awarded to a client that an Attorney can charge under a contingency fee agreement.

Rule 18

The Uniform Rule of Court specifying the general requirements for all pleadings, including paragraph numbering and concise statements.

Minors

Natural persons under the age of $18$ who have limited or no capacity to act as litigants without a guardian.

Infant

A minor under the age of $7$ who is legally incapable of acting as a litigant even with assistance.

Curator Ad Litem

A person appointed by the Court to represent a minor or mentally disabled person specifically in civil litigation.

Curator Bonis

A person appointed by the Court to administer the property and general affairs of an individual incapable of doing so.

Tacitly Emancipated Minor

A minor who has achieved independent legal capacity through the guardian's consent to their living away and conducting business.

Fugitives from Justice

Persons willfully avoiding South African Court processes through hiding or exile who are prohibited from suing.

Jurisdiction

The legal competence of a Court to hear a specific matter and grant an order, defined by Section $21$ of the Superior Courts Act.

Doctrine of Effectiveness

A common law principle stating a Court only has jurisdiction if it has the power to give effect to its judgment.

Doctrine of Submission

Acquisition of jurisdiction based on the consent of a person who would otherwise not be subject to the Court's authority.

Actor Sequitur Forum Rei

The principle that a Plaintiff must usually institute action in the forum where the Defendant resides or carries on business.

Ratione Domicilii

Jurisdiction based on the Defendant being domiciled or resident within the Court's defined geographical area.

Ratione Contractus

Jurisdiction founded on the dispute rising from a contract concluded, performed, or breached within the Court's area.

Ratione Delicti Commissi

Jurisdiction founded on a claim for damages where the delict was committed within the Court's geographical limits.

Ratione Rei Sitae

Jurisdiction exercised by the Court where a real right or immovable property in dispute is physically situated.

Continentia Causae

The principle regarding cohesion of cause of action, often important in class action suits to keep connected matters in one Court.

Peregrinus

A foreigner or person who is not resident/domiciled within the jurisdiction of the Republic or a specific Court.

Incola

A person who is resident or domiciled within the jurisdiction of a specific Court.

Domicilium Citandi et Executandi

A chosen address in a contract for the purpose of serving legal notices and executing judgments.

Action Procedure

The legal process initiated by summons where substantial factual disputes are resolved via oral evidence at trial.

Application Procedure

The process initiated by notice of motion where evidence is placed before the Court in the form of written affidavits.

Plaintiff and Defendant

The terms describing the parties involved in an action procedure.

Applicant and Respondent

The terms describing the parties involved in an application procedure.

Separation of Issues

A Court order under Rule $33$ to adjudicate liability (merits) and quantum separately to facilitate a shorter trial.

Simple Summons

A form of summons used for a 'debt or liquidated demand' which sets out only the nature of the claim in concise terms.

Liquidated Demand

A claim for a specific thing such as a fixed sum of money, registration of transfer, or delivery of a specific movable asset.

Combined Summons

A summons used for illiquid claims (like damages) that includes the Plaintiff’s material facts in an annexed 'Particulars of Claim'.

Declaration

The full expounding of a Plaintiff's claim delivered after a Notice of Intention to Defend a simple summons.

Rule 16A

The rule requiring notice to the Registrar if a person raises a constitutional issue in an application or action.

Joinder of Convenience

A Rule $10$ procedure where multiple parties join an action because the dispute depends on similar questions of law or fact.

Compulsory Joinder

The mandatory inclusion of a party who has a direct and substantial legal interest in the subject matter of the litigation.

Non-joinder

A technical defect where a necessary and essential party was not included in the legal proceedings.

Misjoinder

The improper inclusion of a party in legal proceedings who has no actual interest in the matter.

Rule 10A

Requires the joinder of the Provincial or National Executive if the validity of a law or rule is challenged.

Rule 18(10)

Specifies detailed requirements for Plaintiffs suing for personal injury damages, such as date of birth and nature of disability.

Dies induciae (Standard)

A minimum of $10$ Court days after service for a Defendant within the jurisdiction to deliver a Notice of Intention to Defend.

Dies induciae (State)

Not less than $20$ Court days after service for actions against a Minister or officer of the State.

Dies non

The period between $16$ December and $15$ January, which is not counted in the time allowed for delivering pleadings.

Rule 3

Restricts the issuing and filing of processes at the Registrar's office to weekdays, generally between $9$ a.m. and $3$ p.m.

Service of Process

The official delivery of Court documents performed by the Sheriff exhibits the original and leaves a copy with the Defendant.

Substituted Service

A Court-ordered method of service (like newspaper publication) when normal forms of service are impossible to effect.

Edictal Citation

Procedure under Rule $5$ used to serve legal process upon a person who is outside of the Republic.

Default Judgment

A judgment granted when the Defendant fails to deliver a Notice of Intention to Defend or a plea.

Notice of Bar

A Rule $26$ notice demanding that a defaulting party deliver their pleading within $5$ days, failing which they are barred.

Rule 31(5)

Allows the Registrar to grant default judgment for liquidated claims in instances where no notice to defend was filed.

Gundwano v Steko Development CC

Constitutional Court ruling that a Registrar cannot declare a person’s primary home executable when granting default judgment.

Rescission

The setting aside of a judgment that was erroneously sought or granted, or where the party shows sufficient cause for default.

Notice of Intention to Defend

The formal notification by a Defendant that they dispute the claim, appointing an address within $25$ kilometers of the Court.

Summary Judgment

A Rule $32$ procedure for liquidated claims where a Plaintiff believes the Defendant has no bona fide defence.

Liquid Document

A written instrument signed by the Defendant acknowledging unconditional indebtedness for a fixed sum, like a cheque or bond.

15 Days (Summary Judgment)

The time period within which a Plaintiff must apply for summary judgment after the Defendant has delivered a plea.

Bona Fide Defence

A genuine defence disclosed in an affidavit that has a reasonable possibility of succeeding at trial.

Security de restituendo

Security furnished for the restitution of money paid under a provisional sentence if the sentence is later reversed.

Exception

A legal objection raised under Rule $23$ alleging that a pleading is vague, embarrassing, or lacks a cause of action.