CIVIL EXAMINATION

QUESTIONS AND ANSERS

JURISDICTION

1. Name four causes of action in respect of which a Magistrates Court has

jurisdiction?1
a) Delivery or transfer of any property, movable or immovable, not exceeding
R200 000-00 (not applications);
b) Ejectment against the occupier of any premises or land within the court’s district:
Provided that, where the right of occupation of any such premises or land is in
dispute between the parties, such right does not exceed R200 000-00 in clear
value to the occupier (not applications); Provided further that there is
compliance with PIE Act;
c) Determination of a right of way (exception to bar on specific performance ito
section 46);
d) Liquid document or a mortgage bond, where the claim does not exceed R200
000-00;
e) Credit agreement as defined in section 1 of the National Credit Act, 34 of 2005
(any amount);
f) Actions in terms of section 16 (1) of the Matrimonial Property Act, 88 of 1984
(consent by other spouse), where the claim or the value of the property in
dispute does not exceed R200 000-00;
g) Actions, including an application for liquidation, in terms of the Close
Corporations Act, 69 of 1984;
h) Actions other than those already mentioned in this section, where the claim or
the value of the matter in dispute does not exceed R200 000-00 (for instance:
enforcement of arbitrator’s awards by action, granting of perpetual interdicts,
enforcement of foreign judgments).

2. Does a Magistrate's Court have jurisdiction to grant an order for specific

performance of a contract? 2
In term of S46 of the Magistrates’ Court Act, granting of specific performance is
beyond the jurisdiction of a magistrates’ court, unless there is an alternative for the
payment of damages which does exceed the amount determined by the minister, in
relation to the specific circumstance.

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3. Does a Regional court have the jurisdiction to decide the counterclaim of a
defendant whose counterclaim exceeds its jurisdiction in terms of monetary
claims?3
No. Section 47 of Magistrates’ Courts Act provides that when in answer to a claim
within the jurisdiction the defendant sets out a counterclaim exceeding the
jurisdiction, the claim shall not on that account be dismissed: but the court may, if
satisfied that the defendant has prima facie a reasonable prospect on its
counterclaim of obtaining a judgment in excess of its jurisdiction stay the action for a
reasonable period in order for him to institute a claim in a competent court.

4. Generally in civil cases, which of the parties has the burden of proof and the
duty to begin?4
The Plaintiff (Rule 39(13))
APPEALS

1. Where an appeal in a civil matter from a Magistrate’s Court to a Division of the

High Court has been heard by two judges:5
1.1. To which court does the appeal against the judgment of the two Judges
lie?
The Supreme Court of Appeal.

1.2. Which is the court that, in terms of section 16(1)(b) of the Superior Courts
Act 2013, Act 10 of 2013 , has to grant or refuse such leave to appeal?
Section 16 (1)(b) of the Superior Courts Act provides that an appeal against any
decision of a Division on appeal to it, lies at the supreme court of appeal, upon
special leave being granted by the Supreme Court of Appeal.

1.3. What procedure should be followed in terms of Section 17(3) of the Act to
obtain special leave to appeal under section 16(1)(b) thereof?6
Section 17(1)(3) provides that an application for special leave to appeal under
section 16(1)(b) may be granted by the Supreme Court of Appeal on application filed
with the registrar of that court within one month after the decision sough to
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be appealed against, or on such longer period as on good cause may be
allowed, and the provisions of subsection 2(c) to (f) shall apply with the changes
 required by the context.
The application must be lodged in triplicate with the Registrar and must be
accompanied by:
• A copy of the order of the court a quo appealed against;
• A copy of the judgement delivered by the court a quo; and
• A copy of the judgement of the court of the first instance.

2. Which (if any) judgement/orders of the Court of a provincial or local division

are no appealable in terms of section section 16(3) of Act 10 of 2013? 7
Notwithstanding any other law, no appeal lies from any judgment or order in
proceedings in connection with an application:
a) by one spouse against the other for maintenance pendente lite; b)
for contribution towards the costs of a pending matrimonial action;
c) for the interim custody of a child when a matrimonial action between his or her
parents is pending or is about to be instituted; or
d) by one parent against the other for interim access to a child when a matrimonial
action between the parents is pending or about to be instituted.

3. Is a judgment granted in terms of Rule 43 of the Uniform Rules of Court,

appealable? (1)8
No, section 16(3) provides that no appeal shall lie against a judgment granted in
terms of a Rule 43.

4. Under what circumstances and against which orders may a party in the
Magistrates Court appeal to a Provincial or Local Division of a High Court
having jurisdiction to hear the appeal?9
A party may appeal to the High Court against:
a) Any judgment of the nature described in section 48;
b) Any suit or order made in such a proceeding having the effect of a judgment or
final order in terms of chapter IX (Execution), and any order as to costs;

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 c) Any decision overruling an exception, when the parties concerned consent to
such an appeal before proceeding further in an action or whether it is appealed from
in conjunction with the principal order or with an order as to costs.
d) Any decision overruling an exception, when the parties concerned consent to
such an appeal, before proceeding further in an action or when it is appealed
from in conjunction with, the principal case, or when it includes an order as to
costs.

5. What documents would you expect to find in your brief on the day on which
you argue the above appeal in the High Court?10
a) Notice of Appeal;
b) Judgment and order granting leave to appeal
c) Notice of Set Down;
d) Record of proceedings of the MC; and
e) Judge’s reasons/judgment of the HC
f) Heads of Argument (Appellants and Respondents)

6. What are the principles applicable to appeals on questions of fact?11

a) A court of Appeal is reluctant to upset the factual findings of the trial judge (even if
the trial judge did not comment on the demeanour of the Witnesses) since judge
had the advantage of seeing and hearing the witnesses and observing their
demeanour, their appearance and personality and being steeped in the
atmosphere of the trial.
b) Where the trial Court made no finding on the credibility of a witness, the court of
the appeal has to decide the issues on the record.
c) Unless it is apparent from the record that the court a quo had materially
misdirected itself or erred to the extent that its findings were vitiate and fell to be
set aside, a court of Appeal will not interfere with the trial court's finding of the
fact and credibility.
d) The trial judge is in a better position than the court of Appeal to draw inferences to
assess probabilities in relation to the particular person's observed at the trial, if
the inferences are to drawn from admitted facts found by the trial judge, a court
of Appeal may be in the same position as the trial judge.
e) Where there has been no misdirection on fact by the trial judge, the assumption is
that his or her conclusion is correct. If it is mainly left to doubt as to the correctness
of the trial Judges conclusion, the appeal will uphold the decision.

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f) A misdirection may arise where:
• the reasons are on their face and unsatisfactory or the reasons are not
borne out by the record; or
• though the reasons as far as their go are satisfactory, the trial judge
overlooked other facts or probabilities.
g) The court of Appeal will misdirect findings, even based on credibility, according to
the nature of the misdirection and the circumstances of the particular case and
come to its own conclusion on the matter.
h) The court of Appeal should not be seeking to identify reasons that was to the
conclusion of the trial judge. No judgement can ever be perfect and
comprehensive. It does not necessarily follow that because something has not
been mentioned that it is not considered.

7. Discuss the procedure to be followed in an application for appeal against a

judgement/order of a single judge of the High Court.12
a) When leave to appeal is required, it may on a statement of the grounds there for
be requested at the time of the judgment or order, or
b) When leave to appeal is required and it has not been requested at the time of
the judgment or order:
• An application for such leave shall be made and
• the grounds there for shall be furnished within 15 days after the date of the
order appealed against
• Provided that when the reasons or the full reasons for the court’s order are
given on a later date than the date of the order, such application may be
made within 15 days after such later date.

8. Does a party in a trial in the High Court have an automatic right of appeal
against the judgment on the merits?13
No. The Plaintiff will first have to apply for leave to appeal in terms of section 17 of
Act 10 of 2013

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9. What steps, if any, will you take if you receive instructions to proceed with an
appeal three months after the judgement was given by the court?14
Rule 49(1)(b) requires that when leave to appeal is required and it has not been
requested at the time of the judgment or order, application for such leave shall be
made within 15 days after the date of the order, or if the full reasons for the Court’s
order are given on a later date, within 15 days after such later date.
The court may on good cause shown extend the period of 15 days.
Therefore the appealing party would have to:
a) File a notice of application for leave to appeal; and
b) File a substantive application for condonation.

10. Is the Appellant obliged to file Heads of Arguments before an appeal will be
heard?15
Yes the provisions of Rules 49(15) and 50(9) are peremptory and the appeal will be
struck from the roll in the absence of heads of argument by the Appellant.

11. Is the Respondent obliged to file Heads of Arguments before an appeal will be
heard?16

Yes. In terms of Rule 49(15) not later than 10 days before the appeal is heard the
respondent (in this case the Defendant) shall deliver heads of argument. (Only if
defendant opposes the appeal).

12. Under what circumstance is a defendant entitles to issue a writ of execution for
the taxed costs awarded in his favour before judgement is given on appeal in
the matter?17
Leave to appeal suspends execution proceedings and only circumstances in which
defendant entitled to writ is if applies to court a quo and obtains leave to do so,
usually coupled with an obligation to provide restitution if the appeal succeeds
According to Rule 45 (2) there must be an agreement on costs or taxation of the bill
of costs by the taxing master.

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RULE 10 – JOINDER OF PARTIES AND CAUSES OF ACTION

1. The plaintiff issued a combined summons against the defendant on a cheque

signed by the defendant personally. In his plea the defend says that he is not
liable for payment of the debt in terms whereof the cheque was issued and
avers that his wife, to whom he is married out of community of property, gave a
written undertaking to both the plaintiff and the defendant that she will pay the
debt and this undertaking was accepted by both the plaintiff and the
defendant.18
1.1. Can a Plaintiff join the Defendants wife as a co-defendant in the action,
where they are married out of community of property?19
Yes, his claim could alternatively be against her and the claim against her would
require the adjudication of the same issues of fact and law.

1.2. What considerations would determine the joinder of the Defendant’s wife
as a co-defendant?20
Whether the question arising between the plaintiff and the defendant, and the
plaintiff and the wife depends upon the determination of substantially the same
question of law or fact (Rule 10(3)).

1.3. What will the test be if an application to join the Defendant’s wife is
brought?21
Whether the party has a direct and substantial interest in the subject matter of
the action, a legal interest of the subject matter of the litigation that may be
affected prejudicially by the judgment of the court.

1.4. What will you advise the defendant, if you act on behalf of the defendant,
regarding the admission of the liability by his wife and your consultation
with the defendant regarding the merits of his defence to the claim if it
takes place before the close of pleadings?22
The defendant should serve a third party notice (Rule 13) with copies of all the
pleadings filed to date on his wife on the basis that he is entitled to an indemnity
from her should the plaintiff be successful against him.
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1.5. Will you advice be different if your consultation with the defendant takes
place after the close of pleadings? Explain briefly.23
Yes. After the close of pleadings a third party notice may only be served with
the permission of the court. It would therefore be necessary to make an
application to court in order to join his wife as a third party (Rule 13(3)(b).
RULE 11 – CONSOLIDATION OF ACTIONS

1. Rule 11 of the Uniform Rules of Court provides that a party to an action may
apply for the consolidation of the actions. Name the paramount consideration
which applies in an application for the consolidation under Rule 11 and briefly
discuss the matters an applicant should address in such an application.24
The paramount consideration is prejudice (not to be confused with convenience
which is the paramount test). The matters the applicant should address are
convenience and appropriateness namely: saving of costs and expediting matter,
hear various claims by plaintiff from same cause of action, one finding in factual
dispute with multiple parties.
Matters an applicant should address in a consolidation application (Joffe):
a) Jurisdiction;
b) Why separation of actions was instituted;
c) Why there must be a consolidation;
d) Balance of convenience;
e) That there must be no substantive prejudice to other parties; and f) Whether
there are issues common to the actions that may be dealt with by an order in
terms of rule 33(4).
RULE 13 – THIRD PARTY PROCEDURE

1. The second defendant informs you that he was not the only surety for the debt of
the first defendant and that Jack Fibber signed an identical deed of suretyship
for the same debt in favour of the plaintiff, but the plaintiff and Jack for the our
relatives and the plaintiff would probably never attempt to recover any part of
the debt from Fibber.
 The second defendant feels that it would be unfair if he is to pay the entire debt
of the first defendant and instructs you to it exhaust every possible remedy
against Jack Fibber to ensure that he pays at least part of the debt.25

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1.1. Would it be possible to do so
Yes.

1.2. Motivate your answer fully with reference to the appropriate procedural
steps to be taken.
A co-surety such as the second defendant is entitled to claim a proportional
share of the debt as contribution for his co-surety (Jack Fibber).
Since the second defendant has renounced the benefit of division, he cannot
rely on this as a defence. The second defendant can employ third party
procedure (Rule 13). As such the second defendant can claim that he is entitled
in respect of the relief which is being claimed against him, to contribution from
Jack Fibber (the third party).
In order to employ a third-party procedure, the second defendant must issue a
notice in accordance with form 7 of the first schedule of the rules, which notice:
• must be served by the sheriff with notice must state the nature and
grounds of the second defendants claim, the question or issue to be
determined and any relief or remedy claimed
• must be sure before the close of the pleadings or after the Close of
pleadings with the leave of the court.

2. May a Plaintiff issue a third party notice in terms of Rule 13?26

Yes. Rule 13 provides that “any party to an action” may issue a third party notice (i.e.
in a counterclaim).
Rule 14 – PROCEEDINGS BY AND AGAINST PARTNERSHIPS, FIRMS AND ASS.

1. How do you establish the identity of an opposing party against who you will
execute a judgment for cost if successful, where the opposing party is a firm
that no longer conducts business?
a) In terms of Rule 14(5), read with Rule 14(6), a Defendant sued by a firm may at
any time before or after judgment deliver to the Plaintiff, a notice calling for
particulars as to the full name and residential address of the proprietor as at the
 relevant date.
b) The Plaintiff must then within 10 days deliver a notice containing such
information (Rule 14(5)(b)).

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c) Concurrently with the said statement the Plaintiff shall serve upon the proprietor
referred to, a notice (in accordance with Form 8 of the First Schedule) and
deliver proof by affidavit of such service.
d) A proprietor served with such notice shall be deemed to be a party to the
proceedings, with the rights and duties of a Plaintiff.
e) If the proprietor disputes such status, the court may at the hearing decide that
issue in limine.
f) If a firm is sued and it appears that since the relevant date it has been
discontinued, the proceedings shall nevertheless continue against the person
(proprietor) stated by the firm to be the proprietor, as if sued individually (Rule
14(7) read with 14(8)).
g) In this instance, once you have obtained the name of the sole proprietor you
may request the court to declare that person as the sole proprietor and to
authorise execution against that person.
Rule 18 – RULES RELATING TO PLEADINGS

1. What appropriate remedies may defendant use to challenge a Particulars of

claim should you hold the view that if falls foul of Rule 18?27
A pleading is deemed to be an irregular step where the party fails to comply with any
provisions of Rule 18 and the defendant is entitled to act in accordance with Rule 30:
• Provided that the defendant has not themselves taken any further step in the
cause with knowledge of the irregularity;
• The defendant has within 10 days of becoming aware of the step, by written
notice afforded the plaintiff the opportunity of removing the cause of the
complaint within 10 days;
• If the plaintiff fails to remove the cause of the complaint within 15 days
thereafter deliver their application to set aside the irregular step.
RULE 21 – FURTHER PARTICULARS

1. What procedural remedy is available to the client in the event of the opposing
party failing or refusing to respond to a timeously delivered request for further
 particulars?28
In terms of Rule 21(4) if the party requested to furnish any particulars as aforesaid
fails to deliver them timeously or sufficiently, the party requesting the same may
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apply to court for an order for their delivery or for the dismissal of the action or the
striking out of the defence, whereupon the court may make such order as to it seems
meet.

2. Are you allowed to request further particulars in a High Court action? If so,
what further particulars may be requested?
Yes. Such further particulars as are strictly necessary to enable you to prepare for
trial may be requested in terms of Rule 21(2), after the close of pleadings and at least
20 days before trial. Such request shall be complied with within 10 days after receipt
thereof.
RULE 23 - EXCEPTIONS AND APPLICATIONS TO STRIKE-OUT

1. Name two grounds on which an exception may be noted in terms of Rule 23.29
Where any pleading:
a) is vague and embarrassing; or
b) lacks averments which are necessary to sustain an action

2. What steps must you take if the defendant wants to proceed only with an
exception to the summons on the grounds that it does not disclose a cause of
action?30
Rule 23(1) - The Defendant must deliver an exception within the time period of
delivering his plea on the grounds that it does not disclose a cause of action.
The Defendant must in its exception state a clearly and concisely the grounds upon
which the exception is founded.

3. What steps must you take if the defendant wants to proceed only with an
exception to the summons on the grounds that it does not disclose a cause of
action?31

The Defendant must first, within the time period allowed for filing its plea (20 days)
deliver a Notice in terms of Rule 23(1), affording his opponent an opportunity of
 removing the cause of complaint within 15 days of receipt of the notice.

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The Defendant shall then within 10 days from the date on which a reply to such
notice is received or from the date on which such reply is due, deliver his exception.

The grounds upon which the exception is founded shall be clearly and concisely
stated in the exception

4. Is the Defendant entitled to proceed with an exception after the Notice to Bar
has been served on his attorney?32

Yes, according to Rule 26 provided that the Defendant does so within 5 days,
otherwise he will be barred from proceeding with the exception.

5. Is the Plaintiff entitled to apply for a Court date for the hearing of the exception
after it has been delivered by the defendant?33

Yes. Rule 23(1) states that a party after delivering an exception may set it down for
hearing in terms of Rule 6(5)(f). If the Applicant / Excipient fails to do so the
Respondent may set the matter down immediately upon expiry of the 5 day period.

6. May the Defendant except to the summons after the plea has been delivered?34
No you can’t since the plea constitutes a further step that prevents you from
excepting to the summons.
RULE 25 - REPLICATION

1. Furnish examples of instances where a replication would be necessary in civil

proceedings in the High Court.35
a) Wants to respond to the Defendant’s special pleas; or
b) here the Plaintiff wants to raise estoppel.
 c) The Defendant raised new averments in his plea which the Plaintiff cannot allow to
go unchallenged.

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RULE 28 – AMENDMETS TO PLEADINGS

1. The Plaintiff cited the wrong entity, Big Mack Traders (the Defendant) which is the
trading name of a division of Big Mack Investments (Pty) Ltd, in the particulars
of claim, he should have cited the defendant as Big Mack Investments (Pty) Ltd.
What steps should the Plaintiff take to ensure that (a) the trial is not postponed
and (b) that, if the plaintiff is successful in the claim, that the judgement would
executable against Big Mack Investments (Pty) Ltd?36
The mis-description of the Defendant will have to be corrected by way of an
amendment in terms of Rule 28. An Amendment in terms of Rule 28 can either be
done with the consent of the opposing party or if there is an objection by order of a
court.
Should the Plaintiff proceed by delivering a formal Notice of Amendment in terms of
Rule 28(1) the Defendant will be entitled to deliver an objection within 10 days of
receipt of the Notice to Amend. If an objection is delivered to the proposed
amendment then the Plaintiff will have to launch a formal application for amendment
to court. This will inevitably result in the trial to be postponed as the application for
amendment will not be heard within a month’s time i.e before the trial date.
Since the Plaintiff is merely seeking an amendment to correct the description of the
Defendant which amendment will not introduce a new party to the litigation I would
advise the Plaintiff to amend the description in terms of Rule 28(10).
It is also clear that the Defendant will not suffer prejudice since the correct parties are
before court. It is merely the description of the Defendant that stand to be corrected.
Rule 28(10) provides that the court may at any stage before judgment grant leave to
amend any pleading or document on such other terms as to cost or other matters as
it deems fit.
Rule 28(10) therefore allows you to effect an amendment during the course of trial
without running the risk that the trial will be postponed if the Defendant enters an
objection merely for the purpose to delay the matter.

2. Explain the procedure that must be followed to amend a pleading in terms of

 Rule 28.37
a) Deliver a Notice of Intention to Amend in terms of Rule 28 to all parties informing
them of the proposed amendments to pleading, and that unless written
objection to the proposed amendment is delivered to the amending party within
10 days of delivery of the notice, the amendment will be effected.

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b) If any party objects within 10 days of receipt of the Notice, then the amending
party must within 10 days of receipt of such objection apply to court for leave to
amend to pleading.
• Where the application is granted, the amending party must within 10 days of
the order being granted, deliver the amended pages to all other parties.
c) If no objects is delivered within 10 days of receipt of the Notice, then each party
who received the notice is deemed to have consented to the amendment
whereafter the amending party is required to deliver his amended pages within
10 days after expiration of the period allowed for objection.
d) Any party affected by an amendment may, within 15 days after the amendment
has been effected or within such other period as the court may determine, make
any consequential adjustment to the documents filed by it.

3. May an application for the amendment of a pleading be granted in the following

instances?38
3.1. During the hearing of an application for absolution from the instance.
Motivate briefly.
Yes. In terms of Rule 28(10), the court may, at any stage before judgment grant
leave to amend any pleading.

3.2. After the parties have closed their cases. Motivate briefly.
Yes. In terms of Rule 28(10), the court may, at any stage before judgment grant
leave to amend any pleading, however an amendment at the trial raising an
entirely new issue after both parties had closed their case was not allowed.

3.3. After the parties have concluded their closing arguments. Motivate briefly.
Yes. In terms of Rule 28(10), the court may, at any stage before judgment grant
leave to amend any pleading, however an amendment at the trial raising an
 entirely new issue after both parties had closed their case was not allowed.
RULE 29 – CLOSE OF PLEADINGS AND NOTICE OF SET DOWN OF TRIALS

5. When are the pleadings considered closed in civil proceedings in the High
Court?39
In terms of Rule 29 pleadings are considered closed if:

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a) When parties consent to close;
b) If upon application to court, court determines it closed;
c) If the last day to file a subsequent pleading has lapsed and no pleading has
been filed; and
d) Either party has joined issue without alleging new matter or adding further
pleadings.
RULE 30 – IRREGULAR PROCEEDINGS

1. List three examples that would constitute an irregular step in terms of the High
Court Rule 30.40
a) Improper service;
b) Pre-mature set down;
c) Failure to comply Rule 18;
d) Failure to comply Rule 22;
e) Use of simple summons where combined summons needed;
f) Failure to disclose/discuss urgency in urgent application.
RULE 31 – JUDGMENT ON CONFESSION AND BY DEFAULT AND RESCISSION

1. You are brief to bring an application for rescission of a judgement given in the
High Court against the client. In consultation you are told by your client that
the judgement was granted six months ago. Your client further tells you that
the summons was served on him personally but he completely forgot about it
and took no steps to defend the action. The client also tells you to the sheriff
served the warrant of Execution issued in terms of the judgement on him
personally two months ago. Your client denies liability to the Plaintiff. What
should your client do to satisfy the Court that it should Grant rescission of the
 judgement?41
A rescission of judgment may be obtained under Rule 31(2)(b), Rule 42 or the
common law.
In terms of Rule 31(2)(b), a defendant may within 20 days after he has knowledge of
a judgment, apply to court, upon notice to the plaintiff, to set aside such judgment
and the court may, upon good cause shown, set aside the default judgment on such
terms as to it seems meet.

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In this case the time period has already expired and the application cannot be
brought in terms of this rule.
The application can only be brought in terms of the common law. Client will have to
show good cause which entails showing the existence of a bona fide defence which
prima facie carries some prospect of success, that the application is made bona fide
and an acceptable explanation for his default.

2. Will the respondent in the application for rescission be entitled to insist that
your client put up security for costs? If so, for what costs?42
Yes, the respondent’s costs in opposing the application should the defendant not be
successful.
RULE 33(1) – WRITTEN STATEMENTS

6. What is a “written statement of facts in the form of a special case for

adjudication” as contemplated in sub-rule 33(1)?43
It is a written Statement of facts agreed upon by the parties, which may be furnished
to court to determine a question of law.

7. Explain what such “written statement” must contain.44

a) The facts agreed upon;
b) The dispute between the parties based on facts;
c) The questions of law in dispute;
d) The Parties contentions on those questions.
e) all copies of relevant documents needed by judge to make decision f)
Relief sought by parties; and
g) Statement must be signed by Counsel and Attorney on behalf of each party.
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RULE 33(4) – SEPERATION OF ISSUES

1. Advise your attorney whether there are any questions of law or fact that can be
conveniently considered separately? If so, what are they and what procedure, if
any, should be followed to have them decided separately?45
In terms of Rule 33(4), the merits and the quantum may be separated and the court
shall on the application of any party make such order unless it appears that the
question cannot be adequately decided separately.
RULE 34

1. Explain fully the difference between an offer made “unconditionally” and one
made “without prejudice” in terms of High Court Rule 34(1).46
An unconditional offer is an admission of liability to the whole or part of the offeree’s
claim.
• Once such offer is made it amounts to an acknowledgement of debt in respect of
the whole or part of the claim to which it refers.
• Where only part of the claim is unconditionally offered, the Plaintiff may accept the
partial offer an thereafter proceed to claim the balance at trial.
• Can be disclosed to the court

A without prejudice offer is a denial of liability by the offeror, to the whole or part of
the offeree’s claim but where the offeror is nevertheless prepared to make an offer in
order to settle the matter. Such an offer cannot be disclosed to the court.

2. The defendant admits that he owes the sum of R399 000 and instructs you and
his attorney to avoid the increase cost of defending that part of the claim. Explain
 the steps you would advise the defendant so as to achieve this.47
Such tender can be made unconditional and without prejudice but must:
• Be written and signed personally by the defendant or by his attorney (if
authorized in writing);
• Record whether the offer is unconditional or without prejudice, whether the offer
includes the cost of the plaintiff and any conditions to which the tender may be
subject.

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3. Advise your attorney whether the defendants, in a desire to save costs, can
tender to pay an amount to the plaintiff in full and final settlement of plaintiffs
claim and if so, what procedure the defendant should follow to achieve this?48
In terms of rule 34 in any action in which a sum of money is claimed, either alone or
with any other relief, the defendant, may, at any time unconditionally or without
prejudice make a written offer to settle the plaintiff claim. Such offer shall be signed
by the defendant himself or by his attorney if the latter has been authorized thereto.

4. After a summons has been issued, the Defendant makes an offer in terms of the
rules. The offer is accepted by the attorney on behalf of the Plaintiff within the
time frames set out in the rules of court. 20 days after acceptance of the offer,
the Plaintiff's attorney realises the payment has not been made by the
Defendant in terms of the offer.49
4.1. What will you advise the Plaintiff's attorney to do upon the realisation that
the Defendant has not made payment despite the acceptance of the
offer?50
In terms of Rule 34(7) in the event of a failure to effect payment within 10 days
after delivery of the notice of acceptance of the offer, the Plaintiff may, on 5
days written notice to the Dfendant, apply through the registrar to a judge for
judgment in accordance with the offer as well as for the costs of the application.

4.2. Can you address the Court during the trial on the offer if the offer was
rejected by the Plaintiff? Explain briefly.51
No offer made without prejudice may be disclosed to the court at any time
before judgment but if the offer was an unconditional offer then the Court may
be informed about it (Rule 34(10).
 4.3. Will a Plaintiff be entitled to costs of an action if a Defendant made an
offer without prejudice in terms of Rule 34 to the Plaintiff 14 days prior to
the hearing of the action but was rejected by the Plaintiff? Explain
briefly.52
The court has a discretion in awarding costs. Usually where the offer was more
than the judgment amount the defendant will be ordered to pay the plaintiff’s

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costs up to the date of the offer and the plaintiff to pay the defendant’s costs
thereafter.
A without prejudice offer will not protect a defendant against costs if the
judgment is in excess of the offer and the defendant will then usually be ordered
to pay the costs of the plaintiff.
RULE 34A – INTERIM PAYMENT

1. Advise your attorney whether the plaintiff would be entitled to an interim payment
from the defendants and if so, which factors would the Court consider before
granting an order for an interim payment?53
Rule 34A(1) provides that in an action for damages for personal injuries or a death of
a person the plaintiff, may at any time after the expiry of the period of the delivery of
a notice of intention to defend, apply to the court for an order requiring the defendant
to make interim payment in relation to his claim for medical costs and loss of income
arising from his physical disability or the death of a person.
No order in terms of sub rule 4 shall be made unless it appears to the court that the
defendant is insured in relation to the plaintiffs claim or has means at his disposal to
make such payment.

2. Under what circumstances can a Plaintiff request an interim payment?54

Rule 34A(1) provides that in an action for damages for personal injuries or the death
of a person, the plaintiff may, at any time after the expiry of the period for the delivery
of the notice of intention to defend, apply to the court for an order requiring the
defendant to make an interim payment in respect of his claim for medical costs and
loss of income arising from his physical disability or the death of a person.
3. What should the Plaintiff do if he wants to withdraw his claim in an action
where an interim payment or an order for an interim payment has been
made?55
The Plaintiff will have to make application in terms of Rule 34A(9) to the Court for
consent to withdraw its claim, upon which the Court may make an order with respect
to the interim payment which the Court may consider just and the Court may in
particular order that the plaintiff repay all or part of the interim payment.

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RULE 35 - DISCOVERY, INSPECTION AND PRODUCTION OF DOCUMENTS

1. Explain with reference to the relevant rules of court, the steps, if any, you would
take to have documents handed in as exhibits and received in evidence at
trial without the need to call a witness.56
In order to prove the contents of a document you would have to produce the original
(Best Evidence Rule).
In order to have the original at court a notice in terms of rule 35(10) must be
delivered to the opposing party requiring them to produce the originals of the
discovered documents at the hearing.
a) Such notice shall be given not less than five days before the hearing but may, if
the court so allows, be given during the course of the hearing.
b) By following this procedure, a party is entitled to hand in the documents in
support of his own case without calling any witnesses. The documents will be
received into evidence as if it had been produced in evidence by the person to
whom the Rule 35(10) notice was given.

In terms of Rule 35(11) the court can also order the production by any party thereto
under oath of such documents or tape recordings in his power or control relating to
any matter in question in such proceeding as the court may think meet, and the court
may deal with such documents or tape recordings, when produced, as it thinks meet.

Where your opponent fails to produce the original after having been given notice to
do so, you will be entitled to adduce secondary evidence of the contents of the
 document. Thus you may prove the document by copies of any kind.

2. Your attorney and the defendant instruct you to obtain copies of an invoice
mentioned in the plaintiff’s declaration, before pleading to the declaration.
Explain the procedural steps that you would advise the defendant to take to
obtain the copies and all the steps you would advise the defendant to take
should the plaintiff fail to supply those copies.57
Deliver a Notice In terms of Rule 35(12) to the plaintiff, requesting to inspect and
make copies of the document. Should the plaintiff fail to comply with the notice he
may not use that document in such proceedings without the leave of the court.
If the plaintiff fails to comply with the Notice then the Defendant must proceed in
terms of Rule 30A as follows:

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• Defendant must notify the Plaintiff that he intends after the lapse of 10 days to
apply to court for an order that such rule or notice be complied with or that the
claim be struck out;
• If the Plaintiff fails to comply within 10 days, application on notice may be made to
the court and the court may make such order it seems meet.

3. During preparation for trial it appears that the opposing party has failed to
discover fully all documents and tape recordings in terms of Rule 35. What
steps, if any, would you take to achieve proper discovery and what would you
do if the opposing party does not react the steps taken by you?58
Deliver a written Notice in terms of Rule 35(3) to the opposing party in which that
party is required to:

• to make the undiscovered documents, or tape recordings available for

inspection; or
• to state on oath within 10 days that such documents are not in his possession, in
which case he shall state their whereabouts if known to them.
Rule 35(7) provides that should party fail to give notice of time to inspect or fails to
give inspection the opponent may make application to court under Rule 35(7) to
compel compliance.
The undiscovered documents must be described with sufficient accuracy to enable
them to be identified and it must be relevant to the proceedings.
 RULE 36 - INSPECTIONS, EXAMINATIONS AND EXPERT TESTIMONY

1. The defendant instruct that the allegation about the dysfunctional blender is
factually incorrect. He inform you during the consultation (before preparing the
plea) that the blender is still in perfect working order and that the plaintiff uses
daily. He also informs you that he heard from an erstwhile staff member of the
plaintiff that the blender has been sold at a profit and will be removed from the
plaintiff’s premises on 1 October and instructs you and the defendant's
attorney to ensure that the evidence is presented at trial about the present
condition of the blender.
Explain what steps you would advise the defendant's attorney to take, if any, to
do as instructed.59
The defendant can in terms of the provisions of Rule 36(6):

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• provided they can show that the state or condition of the blender is relevant to the
matter;
• give notice to the plaintiff (or anyone in whose possession the blender is) to
make it available for inspection; and
• request that the blender remain available for inspection for the period of not
more than 10 days from the date of receipt of the notice.
If the defendants are however concerned that evidence regarding the state and
condition of the blender will be impossible as a result of the sale and delivery thereof
to the purchaser, the defendant can launch an urgent ex parte application in which
they can seek and Anton Pillar type order for the preservation of the blender.

2. Advise your attorney on steps to be taken so as to lead expert evidence at the

trial to prove negligence on the part of the defendants.60
In terms of Rule 36(9), deliver a Notice informing the defendant that the plaintiff
intends to call an expert, at least 15 days before the hearing, and at least 10 days
before the trial deliver a summary of such expert reasons thereof.

3. Advise your attorney on steps to be taken so as to lead evidence consisting of

X-rays, MRI-Scans, EEG results and photographs of the hospital and theatre
that are in your brief.61
The plaintiff shall not less than 15 days before the hearing, deliver a notice stating,
his intention to tender into evidence the X-rays, MRI Scans, ECG Results and
 photographs, offering inspection thereof and requiring the defendant to admit the
same within 10 days after receipt of the notice in terms of Rule 36, fail which it shall
be received in evidence upon its mere production and without further proof thereof.

4. You a brief to appear on behalf of the Plaintiff in a civil trial due to start in 8
weeks. During consultation with the Plaintiff you are told that the Plaintiff sold
the delivered goods to the Defendant. It is pleaded by the defendant that the
goods were of inferior quality and that they could not be used for the purpose
for which they were bought. The defendant tenders return the goods to the
Plaintiff.62
4.1. Is the Plaintiff entitled to inspect the goods before the day of the hearing
explain the procedure?63
Yes. The procedure is governed by Rule 36(6)(7) & (8).

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a) The Plaintiff mat at any stage before the hearing give notice to the
Defendant to make the goods available for inspection or examination;
b) The Plaintiff may require that the hoods remain available for a period of
not more than 10 days from the date of receipt of the notice;
c) A dispute over whether the goods should be submitted for examination
must be referred to a judge on notice by either party.

4.2. Is the Plaintiff entitled to have an expert witness inspect the goods?64
Yes. Provided that the Plaintiff not less than 15 days before the hearing deliver
notice of his intention to do so and not less than 10 days before the trial deliver
a summary of the expert’s opinions and his reasons for them.
RULE 37 – PRE-TRIAL CONFERENCE

1. What will your advice be to your attorney if no agreement can be reached in

regards to the time, date and place of the pre-trial conference?65
Rule 37(3)((b) provides that if the parties do not agree to a time date and place for
the pre-trial conference the matter shall be submitted to the Registrar for a decision.

2. Is your opponent obliged to attend the pre-trial conference on behalf of his

 client?66
No, it is not necessary for counsel to be there, although if his attorney fails to attend
pre-trial conference, the Court may order costs against a party-Rule 37(9)(a)(i).

3. What will you advise your attorney regarding your opponents refusal to answer
your questions at a pre-trial conference?67
The refusal should be minuted in the Rule 37 conference minutes in order that the
judge may take cognizance of the fact and take it into account when making a special
order as to costs because the other side failed to a material degree to promote the
effective disposal of the litigation (rule 37(9)(a)(ii).
Furthermore, Rule 37(8) (a) makes provision for a judge, at the request of one of the
parties, to call upon the attorneys or advocates in an action to continue with a
conference before a judge in chambers. This is especially done when a party is
confronted at a pre-trial conference by an uncooperative opponent.

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4. Will your attorney, on behalf of your client ultimately be entitled to tax your
fees for your attendance at the pre-trial conference?68
Rule 37(9) provides that no advocates fees may be allowed on a party-and-party
basis for attendance at a pre-trial conference held more than 10 days prior to the
hearing except in respect of an attendance before a judge in chambers.
RULE 38 – PROCURING EVIDENCE FOR TRIAL

1. If the Defendant is obstructive and refuses to cooperate in having documents

produced in evidence without the need to call a witness. What would you do to
prove the documents and their contents?69
Serve a subpoena duces tecum in terms of High Court Uniform rule 38(1) on the
witness, ordering him/her to produce the documents to court and give evidence
relating to the documents.

2. May a Judge at the trial of a civil action in the High Court, order that any of the
evidence to be adduced be given on affidavit? Motivate your answer fully.70
Yes. In terms of Rule 38(2) a witness at the trial of any action shall be orally
examined, but a court may at any time, for sufficient reason, order that all or any of
the evidence to be adduced at any trial be given on affidavit or that the affidavit of
 any witness be read at the hearing, on such terms and conditions as to it may seem
meet: Provided that where it appears to the court that any other party reasonably
requires the attendance of a witness for cross-examination, and such witness can be
produced, the evidence of such witness shall not be given on affidavit.
RULE 41 - WITHDRAWAL, SETTLEMENT, POSTPONEMENT AND ABANDONMENT

1. May the Plaintiff withdraw his claim before the defendant has pleaded to the
Particulars of claim?71
Yes. In terms of Rule 41(1)(a) the Plaintiff may at any time before the matter has
been set down, withdraw his claim.
After the matter has been set down, the plaintiff can withdraw the action only with the
consent of the defendant or leave of the court.

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In either case, the Plaintiff must deliver a notice of withdrawal and may embody in
such notice a consent to pay cost, which shall have the effect of an order of the court
for such cost.

2. Until what stage of proceedings and under what circumstances may a party
withdraw an action?72
According to Rule 41 a party may withdraw a matter any time before it has been set
down and thereafter by consent of the parties or leave of the court.

3. How is an action withdrawn?73

Rule 41(1)(a) - A party must deliver a Notice of Withdrawal of the Action, i.e service
on all parties and file the original with the Registrar, which may include a Notice to
Consent to pay costs.

4. What effect does the withdrawal of an action have on the costs?74

Notice may contain consent to pay costs, which will then have the effect of an order
of court. If notice contains no consent to pay costs, other party may apply to court on
notice for an order as to costs.
RULE 42 – VARIATION AND RESCISSION OF ORDERS
1. May a magistrate vary you rescind a judgement suo motu, motivate your
answer.75
Yes. A magistrate may vary or a judgement by correcting patent errors in any
judgement in respect of which no appeal is pending.
A payment error is one where on the record of proceedings it is clear that the order
made by the court does not express its real intention.

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RULE 57 - CURATOR

1. You are acting on behalf of a plaintiff (the widow) in an action in the High Court.
The plaintiff’s husband, is deceased. The widow has instituted an action based
on the medical negligence against a Specialist Surgeon, who is cited as the
first defendant and the Hospital which is cited as the second defendant.
The widow is claiming damages suffered both in her personal capacity as well
as in her capacity as biological mother of their minor son (aged 9).
Your attorney instructs you that the widow died in a motor vehicle accident a
week ago and that the minor child suffered brain injuries in that same
accident.76
Advise your attorney on the steps to be taken concerning the following:
1.1. Accepting that the Master of the High Court has already appointed an
executor to the estate of the widow what would your advice be to ensure
that the trial can proceed on the allocated date and also to ensure that
there will be a plaintiff who has locus standi and is able to proceed to trial
on behalf of the now deceased widow?
Rule 15(2) provides that by notice to the Registrar, an executor may be
substituted as a party to the proceedings, and the proceedings shall continue as
if the executor was a party to those proceedings from the commencement of the
 proceedings.

1.2. Discuss fully what steps, if any, should be taken to ensure that the
interests of the minor child are adequately protected in the upcoming trial
and how any award made to the minor child may be adequately protected
and managed in the future.
a) Make an Application for appointment of curator ad litem in terms of Rule 57
– this will be the person giving instructions at the trial, such application
under Rule 57 is brought ex parte.
b) Then a Notice in terms of Rule 15(3) for the substitution of the curator with
the Plaintiff on behalf of the minor child. Curator must by notice to all other
parties and to the registrar intimate that he desires, in his capacity as
curator at litem, to substitute the guardian, in the case the deceased
mother to conduct the litigation on behalf of the minor child.
c) In this instance the executor of the estate will be substituted with the
mother and the curator with the child, and The curator ad litem’s
appointment will be for a limited and specified period (i.e duration of trial);
d) Appointment of curator bonis – to manage any award given to the minor
child.

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HEARSAY EVIDENCE

1. Under what circumstances would hearsay evidence be admissible in a civil

trial?77
In terms of section 3(1) of the Law of Evidence Amendment Act hearsay evidence
shall not be admitted as evidence at criminal or civil proceedings, unless
a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
b) the person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
c) the court is of the opinion that such evidence should be admitted in the interests of
justice, taking into account:
• Nature of proceedings;
• Nature of the evidence;
• Purpose for which evidence is tendered;
• Probative value of the evidence;
 • Reason why evidence is not given by person on whose credibility the
probative value depends;
• Any prejudice to a party which admission of the evidence might entail; and •
Any other factor.

2. What would be the evidentiary value of hearsay evidence which has not been
objected to?78
If not object to, then the witness testimony would be uncontested and considered to
be the truth, and formal admissions made in court is considered to be conclusive
proof of the fact admitted.

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LIQUIDATION

1. The Defendant was liquidated yesterday. Can the Plaintiff proceed with
litigation against the defendant? Motivate your answer.79
No, in terms of S359 of the Companies Act, when a company is liquidated, all civil
proceedings by or against the company concerned shall be suspended until the
appointment of a liquidator.
Should the plaintiff proceed with the action, he must within 4 week after the
appointment of the liquidator, give the liquidator not less than 3 weeks written notice
before continuing with the proceedings, failing which, proceedings shall be
considered to be abandoned, unless the court directs otherwise.
NATIONAL CREDIT ACT

1. Does the in Duplum rule apply to a cause of action when the cause of action
arises from a credit agreement as defined by the National Credit Act? Motivate
 your answer.80
No. S103(5) of NCA removes the in duplum rule. In NCA matters, interest will run, but
will never exceed the maximum amount loaned. When interest builds up and you pay
it off, it won’t continue to build. The interest can never equal more than what the
loaned amount was.
WITNESSES

1. May a magistrate recall a witness who has already testified at the hearing
during the trial before her?81
Yes, in terms of Rule 29(12) of the Magistrate's Courts Rules, the Court may at any
time before judgment, on the application of any party or of its own motion, recall any
witness for further examination.

2. May a magistrate call a witness after all the parties have closed their cases if
that Witness is under subpoena but has not testified?82
No, It is a gross irregularity for a Magistrate to call a witness of its own motion.

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3. Upon calling a witness and leading his evidence, he denies on oath in open
court and contrary to your instructions, details which he previously admitted
during consultation. What would you do as counsel?83
a) The Plaintiff will have to declare the witness as a hostile witness in order to
cross-examine him on the veracity of his statements.
b) A witness is hostile “if he’s not desirous of telling the truth to the court at the
instance of the party calling him.”
c) A party may ask about the previous inconsistent statement and may prove its
terms, but may not cross-examine on it until the witness is declared hostile.
d) Only if a witness is declared “hostile” by the judicial officer, may the party who
called him cross-examine him.
e) If a witness called by a party gives evidence which is unfavourable to that party,
he can be contradicted with other relevant evidence (not evidence merely to
show his is un-creditworthy).
f) He can also be asked whether he made a previous inconsistent statement and, if
he denies it, the statement may be proved against him. In this instance the
 Plaintiff can prove the detailed statement the witness previously made to the
attorney.
REVIEWS

1. Is the judgement of a High Court in a civil trial reviewable? Motivate your

answer briefly.84
No. Section 22 of the Superior Courts Act only provides for review of Magistrate
court.

2. Name the four grounds upon which the proceedings of any Magistrate’s Court
may be brought under review before a Division of the High Court?85
a) Absence of jurisdiction on the part of the Court;
b) Interest in the cause, bias, malice or corruption on the part of the presiding
judicial officer;
c) Gross irregularity in the proceedings; and

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d) The admission of inadmissible or incompetent evidence, or the rejection of
admissible or competent evidence.
PAROL EVIDENCE

1. Describe briefly the effect of the parol evidence rule upon the admissibility of
evidence.86
Parol evidence forces the Court to only consider the contract itself without having
regard to extrinsic evidence, extrinsic evidence is therefore inadmissible.
Parol evidence applies when it is clear that the contract embodies the parties’
intention. The only real (extrinsic) evidence you could rely on is other documents or
evidence which shows the intention of the parties in entering the contract (i.e. if it
reveals there was no common intention).
There are exceptional cases in which regard may be had to extrinsic evidence
(Johnson v Leal):
1. Can refer to other documents if the contract makes provision for it
2. Can acknowledge certain facts or identify evidence at trial.
 3. Can raise evidence regarding the validity of the contract itself and
4. Can raise evidence regarding possible variations to contract.
EVIDENCE

1. In a previous matter the same action was instituted by the Plaintiff and the
Defendant was granted absolution from the instance after the Court heard
certain evidence. The Plaintiff instructs you with a new summons for the same
debt.
1.1. Will the record of evidence which was led at the first trial be admissible at
the second trial? Explain fully.87
Yes. Evidence adduced at a previous trial is at common law admissible at a
subsequent trial only in the following circumstances:
a) The previous action was between the same parties or their privies; b)
The evidence is substantially the same;
c) There was an opportunity to cross-examine the witness properly; and d)
The witness is no longer available to give evidence again.

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1.2. Is the Defendant obliged to file a discovery affidavit in the second trial?
Explain briefly.88
Yes, this is a new proceeding and all the same rules would apply as though it
was the first. In addition, new material may have come to light eg record of first
trial.

1.3. Can the Defendant in the second trial withdraw admissions made in his
plea in the first action?89
No, the Defendant is not bound to his first plea as this is a new trial and a new
plea would have to be filed.
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