High Court Practice Lecture Notes

Preface, Importance, and Methodology of High Court Practice

• Welcome and Theoretical Purpose:
  • The course aims to provide a thorough practical understanding of civil procedure in South African High Courts.
  • The scope ranges from initial instructions to the final stages of appeal and review.
  • The overarching objective is effective and successful litigation conducted with high ethical standards and professional conduct.
• Legislative and Authority Obligations:
  • Candidates must stay abreast of legal changes via personal research (e.g., De Rebus, recent case law).
  • Relevant gender references in materials are inclusive of all genders unless the context suggests otherwise.
  • Key legislative anchors include the Superior Courts Act No. $10$ of $2013$ and the Legal Practice Act No. $28$ of $2014$.
• Importance of the Subject:
  • Forms part of the National Certificate in Attorneys' Practice.
  • Relates specifically to SAQA Unit Standard ID $116088$: Applying the Practical Aspects of Trial Advocacy.
  • Constitutes Module $2.1$ of the School for Legal Practice curriculum.
• Assumed Learning and Approach:
  • Students are assumed to possess substantive LLB level knowledge, including legal research, analytical skills, and ethical problem-solving.
  • The course utilizes an outcomes-based approach, moving away from a content-driven (rote memorization) model.
  • Emphasis is on active learning, practical implementation, and integration of various legal subjects (e.g., Commercial Litigation, Matrimonial Matters).

Sources and Underlying Principles of High Court Procedure

• Primary Sources:
  • Acts: Superior Courts Act No. $10$ of $2013$ and the Constitution Seventeenth Amendment Act No. $72$ of $2012$.
  • Rules: Uniform Rules of Court and specific Rules of the various Divisions.
  • Practice Directives: Issued by Judges President of specific Divisions to regulate Local procedure.
  • Common Law: Includes principles of jurisdiction and the Inherent Jurisdiction of the High Court (the power to regulate its own process provided it is not prohibited by law).
  • Case Law and Stare Decisis: Strict adherence to the principle where lower Courts are bound by the decisions of higher Courts (restated in Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats).
• Principles of Procedural Fairness:
  • Equal Access: All persons must have reasonable access to an independent judiciary at a reasonable cost.
  • Audi Alteram Partem: Ensuring the Defendant is notified and both parties can state their case.
  • Party Control: Litigants determine whether to institute or defend and define the scope of the dispute, though this is now qualified by Judicial Case Flow Management.
  • Public Proceedings: Trials must take place in public, and judgments must be rational and motivated.

The Structure of the High Court and Officials

• The Constitutional Court:
  • Situated in Johannesburg; consists of the Chief Justice, Deputy Chief Justice, and $9$ other Judges.
  • The highest Court for all matters (not just constitutional) where leave to appeal is granted.
  • Quorum is at least $8$ Judges.
• The Supreme Court of Appeal (SCA):
  • Situated in Bloemfontein; purely a Court of appeal (no original jurisdiction).
  • Quorum in civil matters is usually $5$ Judges, but the President of the SCA may direct a quorum of $3$.
• High Court Divisions:
  • There are $9$ main seats (e.g., Eastern Cape in Makhanda, Gauteng in Pretoria, Western Cape in Cape Town).
  • Minister may establish Local Courts (e.g., Gqeberha, Johannesburg, Durban).
  • Provincial Divisions have concurrent jurisdiction with Local Divisions in the latter’s area.
• Key Court Officials:
  • Judges: Appointed by the President on recommendation of the Judicial Services Commission.
  • The Registrar: Head of Court Administration; issues summonses, determines the form of security, and manages files.
  • The Sheriff: Executive officer responsible for service of process and execution of attachments/orders.
  • The Taxing Master: Official in the Registrar's office who taxes bills of costs according to Tariff $70$.
  • The Family Advocate: Investigates and reports on the welfare of minor children in matrimonial/guardianship matters (Act $24$ of $1987$).
  • Master of the High Court: Administers deceased and insolvent estates; property of minors/persons under curatorship.

Pre-Litigation: Consultation, Mandate, and Ethics

• Initial Consultation Strategy:
  • Goal: Establish relationship, obtain facts, and advise on success prospects/costs.
  • Requirement: Comply with the Financial Intelligence Centre (FICA) Amendment Act $1$ of $27$ (understanding client risks).
  • Logistics: Note prescription dates in bold on the file cover immediately.
  • Engagement: Provide a written Cost Estimate Notice per Section $35(7)$ of the Legal Practice Act, including hourly fees and withdrawal consequences.
• Professional Mandate:
  • Rule $7$: A Power of Attorney is no longer required to issue summons but must be produced if the Attorney’s authority is disputed within $10$ days.
• Contingency Fees (Act $66$ of $1997$):
  • Enables "no-win-no-fee" agreements for risk compensation.
  • The uplift fee may not exceed more than $100\%$ of the "normal fee".
  • Total fee is capped at $25\%$ of the amount awarded/settlement.
  • Agreement must be in writing and signed by both parties.
  • Note: Common law contingency agreements were declared unlawful in Ronald Bobroff & Partners Inc v De La Guerre.
• Mediation (Rule $41A$):
  • Mandatory Step: A Plaintiff/Applicant must file a Rule $41A$ Notice (Form $27$) agreeing to or opposing mediation.
  • Defendant/Respondent must also file a corresponding notice before a plea/opposing paper.
  • Referral to mediation suspends time limits for $30$ days from the date of the joint minute.

Jurisdiction and Locus Standi

• Grounds for Jurisdiction (Section $21$ of the Superior Courts Act):
  • Doctrine of Effectiveness: The Court must have the power to enforce its judgment.
  • Actor Sequitur Forum Rei: Plaintiff brings action in the Defendant's forum.
  • Ratione domicilii: Based on the party’s domicile (status matters, money claims).
  • Ratione contractus: Action where the contract was concluded, performed, or breached.
  • Ratione delicti commissi: Where the delict was committed.
  • Matrimonial Jurisdiction: Act $70$ of $1979$ requires domicile or ordinary residence for at least $1$ year.
• Locus Standi (Capacity to Sue/Be Sued):
  • Minors: Under $7$ (incapable; must be represented by guardian); $7$ to $18$ (limited capacity; assisted by guardian).
  • Married Persons: Community of property requires written consent for litigation unless it concerns trade, profession, or separate property.
  • Section 38 (Constitution): Allows group/class actions, public interest actions, and those acting for persons who cannot act themselves.

Letters of Demand and Statutory Notices

• General Purpose: A demand determines the start of mora interest and informs the debtor to assess the quantum.
• Prescribed Rate of Interest: Calculated as the Repurchase Rate plus $3.5\%$ (Current rate as of $1$ May $2023$ is $11.25\%$).
• Act $40$ of $2002$ (Organs of State):
  • Notice must be served within $6$ months from the date the debt became due.
  • Summons cannot be served until $30$ days after the notice is served.
  • Court may grant condonation for non-compliance on "good cause".
• National Credit Act (NCA) Section $129$:
  • Required before enforcing a credit agreement.
  • Consumer must be in default for at least $20$ business days.
  • $10$ business days must elapse after delivery of the Section $129$ notice before litigation.
  • Sebola case: Requires "track and trace" proof of delivery to the correct post office.

Action Procedure: Summons and Pleadings

• Summons Types:
  • Simple Summons (Form 9): Only for "debt or liquidated demand" (e.g., fixed purchase price, delivery of account). Does not contain full particulars.
  • Combined Summons (Form 10): For unliquidated claims (e.g., damages, divorce). Accompanied by full Particulars of Claim.
  • Provisional Sentence Summons (Form 3): Based on a "liquid document" (acknowledgment of debt signed by Defendant for a fixed sum).
• Service of Process (Rule 4):
  • Served by Sheriff between $07:00$ and $19:00$.
  • Substituted Service: Used when the Defendant is in RSA but cannot be found.
  • Edictal Citation (Rule 5): Used when the Defendant is outside RSA; requires verified translation for foreign service.
• Dies Induciae (Time limits for notice of intention to defend):
  • Defendant within jurisdiction: $10$ Court days.
  • Minister/State: $20$ Court days.
  • SCA/Outside jurisdiction but within RSA: $2$ weeks to $1$ month depending on distance ($150\,km$ threshold).
  • Dies non: $16$ December to $15$ January (excluded from calculation of pleading intervals).
• Default Judgment:
  • Granted by the Registrar (Rule $31(5)$) for liquidated demands ($R200.00$ or $R650.00$ standard costs).
  • Granted by the Court (Rule $39(1)$) for unliquidated claims (requires evidence on quantum).
  • Rescission: Under Rule $31(2)(b)$ (good cause/$20$ days), Rule $42$ (erroneously sought), or Common Law (bona fide defence).
• Summary Judgment (Rule 32):
  • Can only be applied for after the Defendant has delivered a Plea.
  • Plaintiff must apply within $15$ days of receipt of Plea.
  • Affidavit must verify the cause of action and explain why the defence is not triable.
• The Plea and Special Pleas:
  • Plea: Must admit, deny, or confess and avoid every allegation (Rule $18/22$).
  • Special Plea: Raises defences apart from merits (e.g., lis pendens, arbitration, prescription, res judicata).

Discovery and Pre-Trial Proceedings

• Discovery (Rule 35):
  • Occurs after the close of pleadings (litis contestatio).
  • Requires a Discovery Affidavit identified in Schedule $1$ (Part $I$: relevant docs; Part $II$: privileged docs).
  • Litigation Privilege: Statements for trial, communications between Attorney/Counsel are privileged.
• Expert Witnesses (Rule 36):
  • Notice of intention must be delivered within $30$ days (Plaintiff) or $60$ days (Defendant) from the close of pleadings.
  • Summary of opinion must follow within $90$ days (Plaintiff) or $120$ days (Defendant).
• Pre-Trial Conference (Rule 37):
  • Plaintiff must appoint a date within $5$ days of receiving the trial date notice.
  • Fundamental to narrow issues and explore settlement.
  • Rule 37A (Judicial Case Management): Active Judge oversight for specific categories like RAF, Health MEC, or PRASA.
• Separation of Issues (Rule 33):
  • Often used to decide "merits" (liability) separately from "quantum" (damages).

Application (Motion) Procedure

• Form of Documents: Notice of Motion and Founding Affidavit.
• General Categories:
  • Ex Parte (Form 2): No notice to other parties (used for insolvency, admissions, or when notice would frustrate relief).
  • On Notice (Form 2(a)): Standard form giving the Respondent $10$ days to oppose.
• Sets of Affidavits:
  1. Founding Affidavit (Applicant).
  2. Answering Affidavit (Respondent) - within $15$ days of notice to oppose.
  3. Replying Affidavit (Applicant) - within $10$ days of answering affidavit.
• Interdicts:
  • Interim: Requires a prima facie right, irreparable harm, balance of convenience in favour of Applicant, and no alternative remedy.
  • Final: Requires a clear right, actual injury or reasonable apprehension, and no alternative remedy.
• Anton Piller Order: Ex parte application to preserve vital evidence likely to be destroyed; requires a supervising Attorney.
• PIE Applications (Prevention of Illegal Eviction):
  • Requires Section $4(2)$ notice authorized by the Court.
  • Notice must be served at least $14$ days before the hearing.
  • Court must consider "Ubuntu" (solidarity/human dignity) and interests of the elderly, children, and woman-headed households.

Reviews and Appeals

• Reviews (Rule 53):
  • Concerns the process (irregularities, bias, lack of jurisdiction).
  • Grounds under Section $22$ of Superior Courts Act.
  • PAJA: Reviews of administrative action must be launched within $180$ days.
• Appeals (Rule 49):
  • Concerns the result of the judgment (merits/substance).
  • Requires Leave to Appeal: Test is "reasonable prospect of success" or a compelling reason (Section $17$).
  • Notice of Appeal must be delivered within $20$ days after leave is granted.
  • Operation of judgment is suspended pending appeal unless the Court directs otherwise (Section $18$).

Execution and Miscellaneous

• Warrants for Execution:
  • Issued after judgment or taxed bill of costs.
  • Movable Property: Sheriff demands satisfaction, inventories, and sells by auction after $15$ days.
  • Rule 46A (Immovable Property): Requires judicial oversight for primary residences to prevent homelessness. Court may set a Reserve Price.
• Evidence on Commission (Rule 38):
  • If a witness is too ill or abroad to testify at trial, the Court can appoint a Commissioner.
• Authentication of Documents (Rule 63):
  • Verification of foreign signatures via seals of consular officials/Notaries to ensure validity in RSA Courts.