High Court Procedure

Question 1

In Simple summons procedure, You defended the matter on instruction of client, PL failed to delver declaration in time, What is the next step client should take?

Answer 1

Deliver A notice of Bar ito rule 26 dealing with failure to deliver pleadings. It states that if any party fails to deliver any pleading (other than replication or subsequent pleading) within the time stated in the rule for such pleading, Party will have 5 days to serve pleading after receiving notice of bar.

rule 26 must be read together with rule 20 which deals with declarations. it states party must deliver declaration within 15 days of delivery of DF’s N.O.I.D

Question 2

What is the time period allowed to defend a matter by DF living more than 150km from court where summons is issued?

Answer 2

Section 24 of Superior Courts Act provides a period of one month to defend such a matter and the period prescribed in Rule 19(1) does not apply.

Question 3

Can order for leave to defend in SJ proceedings be appealed?

Answer 3

No, a decision refusing summary judgement is an interlocutory ruling and cannot be appealed against.

Question 4

List six matter that must be discussed at a Pre-Trial conference. (PSMTSABPE)

Answer 4

• If a party feels that he is prejudiced due to non compliance of rules of court, the nature of such non-compliance and prejudice must be stated.
• every party claiming relief has requested his opponent to make a settlement proposal and that such opponent has acted accordingly
• Whether any issue has been referred to mediation, arbitration or decision by 3rd party, and on what basis it has been referred.
• Whether case should be transferred to another court
• what issues should be decided seperately ito rule 33(4)
• admissions made by each party
• any dispute regarding the duty to begin and onus of proof.
• any agreement regarding the production of proof by way of affidavit ito rule 38(2)
• which party will be responsible for copying and prepare court bundles
• which documents and extracts thereof will serve as evidence.

Question 5

List the documents included in councils brief in opposed provisional sentence proceedings.

Answer 5

• Original document on which claim is founded
• copy of summons
• copy of sheriff return
• copy of notice of set-down
• copy of DF’s opposing affidavit
• copy of PL’s replying affidavit
• memorandum of instruction to council

Question 6

What is an interlocutory application?

Answer 6

Its an application which seeks interlocutory relief or intermediate relief. It does not concern itself witht the merits of the case but with the procedural matter relating thereto. It is incidental to pending proceedings.

Question 7

In what form would a NOM in interlocutory application be?

Answer 7

In short form (Form 2A)

Question 8

what will the relief sought be in app. to compel?

Answer 8

• An order to compel furnishing of further particulars (depends on the facts of the question given) for preperation of trial, as requested on ____ day of ____ 2023 within 10 days of receipt of this order.
• Leave to approach the court on the same papers in the event of non-compliance with the order in paragraph 1 above.
• Cost of the application.

Question 9

DF fails to comply with interloc app. order compeling delivery of furhter particulars. What subsequent relief may you seek?

Answer 9

• That DF’s defence be struck down and judgment in favour of the PL be granted with costs of the application and costs of the application/suit

Question 10

Draft notice of Appeal? Omit headings

Answer 10

BE PLEASED TO TAKE NOTICE that the Appellant hereby notes an appeal to the Honourable court against the whole judgment and order handed down by the Honourable Judge on ________ 2023. In the High Court of Pretoria Gauteng Division under case number ________.

Question 11

When may proceedings in any inferior court be brought under review in the HC?

Answer 11

Ito Sec 22 of SCA grounds for review are the following:
- Absence of jurisdiction on part of the court.
- preciding officer has interest in the case, is biased, malicious, or commission of an offence referred to in Sec 22 of SCA.
- Gross irregularity in proceedings.
- Admission of inadmissable or incompetent evidence or rejection of admissable or competent evidence.

Question 12

Which court will have jurisdiction if cause of action arose in JHB, Gauteng and DF is residing in Durban, Kzn. And by when must NOID be filed?

Answer 12

• In the High Court of Gauteng, Division Johannesburg or Gauteng, Division Pretoria

or

• In the High Court of Kwa-Zulu Natal, Pietermaritzburg Division or Kwa-Zulu Natal, Durban Division.
• The NOID must be filed within 30days if matter issued in Gauteng courts; and not less than 10days if matter issued in Kzn Division.

Question 13

ito instituting legal proceedings against organs of state, prior notice must be given. Within which time must notice be given and what are the remedies after expiry of such period?

Answer 13

• Notice must be given within 6 months from date debt arose.
• Upon expiry of above period one must issue a condonation application.

Question 14

How many days must lapse before summons can be issued after notice of intention to institute legal proceedings against organs of state?

Answer 14

30 days.

Question 15

List steps to be taken ito RULE 46 of Uniform rules of the High Court in preperation for the sale in execution?

Answer 15

• A writ of execution against immovable property must contain the full description of the property including the address to enable the sheriff to trace.
• The sheriff shall make an attachment which is served in terms of the rules of court on the owner, registrar of deeds and occupier of the property if the occupier is not the owner.
• The attorney to advise the sheriff in writing whether he should proceed with the sale in execution.
• If the property is subject to the claim of any preferent creditor, the property may not be sold unless the attorney for the judgment creditor notifies such preferent creditor by registered post of the intended sale and obtain a reserve price or agree on the sale without a reserve price.
• The sheriff appoints a day and place for the sale of the property not less than one
  month after service of the notice of attachment.
• The attorney, in consultation with the sheriff, shall prepare a notice of sale and
  conditions of sale and hands same to the sheriff not less than 20 days prior to the
  sale.
• The notice of sale shall be published in the Government Gazette and a local
  newspaper.
• Not less than 10 days prior to the date of sale, the sheriff shall forward by registered
  post the notice of sale to all bondholders.
• The sheriff shall, not later than 10days prior to the sale, affix the notice of sale on the notice-board of the Magistrate’s court.

Question 16

Explain procedure to be followed to obtain DJ, and who would consider the application?

Answer 16

The DF is in default of entering an appearance to defend and PL is entitled to apply for DJ ito Rule 31.
PL must file application in duplicate accompanying Order to be granted by the Registrar of the court.

Question 17

Must a DF be notified when applying for DJ? Will answer differ if DF entered appearance (NOID) but failed to delvier plea?

Answer 17

No, the DF is in default and not obligated to inform the DF of such intention to apply for DJ.

Ito Rule 31(5) where a DF is in default to deliver a plea within prescribed time allowed, PL shall give DF not less than 5days notice of his intention to apply for DJ.

Question 18

What is rule nisi and when is it most effective?

Answer 18

A Rule Nisi is a form of relief granted in Motion Court proceedings, especially urgent applications brought ex parte where the Applicant requires interim relief, but where the Respondent must be given an opportunity of opposing the granting of the final order. Usually used in interdicts.

Question 19

What is an appeal?

Answer 19

An appeal is a rehearing on the merits by a higher court , and is limited to the evidence or information on which the original decision was given.
New evidence may only be adduced with the leave of the court

Question 20

What is a review?

Answer 20

A review is a procedure whereby decisions of a lower court or tribunal or administrative body are brought into question in higher courts where grave irregularities are found to be occurring or have occurred in the lower court.

Question 21

What is the main distinction between an appeal and a review?

Answer 21

APPEALS
- Must be noted within a specific time period in accordance with statutory provisions or rules of court
- Appelant is bound by the record
- Appeal contends that preciding officer arrived at the wrong conclusion on the facts or the law.

REVIEW
- Review brought by way of application and need not be within a specific time period only within reasonable time
- Applicant is not bound by the record, Applicant’s objection concerns the actions or remiss of decision maker which does not appear on the record.
- Grounds for review relates to, absence of jurisdicition of court, gross irregularities in proceedings, the admission of inadmissable or incompentent evidence, the rejection of compentent or admissable evidence.

Question 22

What are the requrements ito RULE 18(10) which POC must comply with in PIC?

Answer 22

• If PL sues for damages, same will be set out in a manner which enbales DF to reasonably assess quantum.
• PL shall specify:
  - Date of birth
  - Nature/Extent of injuries
  - Nature/effect and duration of disability alleged to have caused such damages.
• PL shall seperately state what amount, if any, he has claimed for:
  - Medical/Hosp Exp and how they are made up
  - Pain and suffering, stating whether temp. or permanent and which inj. caused it.
  - Disbility iro, earning income, enjoyment of amenities of life (Temp/Perm.)
  - Disfigurement, with full discription thereof (Temp./Perm)

Question 23

What remedy is available to DF if PL did not comply with RULE 18(10)?

Answer 23

If party fails to comply with provisions in rule, it would be deemed an irregular step and the opposing party may rely on Rule 30 which deals with such proceedings.

Question 24

Name the three different summonses availbale and when they can be used.

Answer 24

• Combined summons
  used in all cases where action procedure is appropriate. Does not have to distinguish between liquidated and liquidated claims. Used in inter alia damages claims or divorce proceedings.
• Simple Summons
  a.) Claims for payment of a debt (liquidated demand i.e payment of goods, moneylent)
  b.) claim for delivery of a specified movable asset or for delivery for an account
  c.) A claim for the registration of transfer of immovable property.
  d.) A claim for eviction of a person from a specific property
  e.) Claims for the cancellation of a contract
• Provisional Sentence Summons
  a.) only used where the cause of action is based on a liquid document.

Question 25

What is an Ex-Parte Application? When is it used?

Answer 25

a.) It is an application which does not directly affect the right of others. Short form is used.

b.)
* Where an order is sought that doesn’t affect another, applicant is the only interested party to the proceedings.
* Where notice of the application to the other party will frustrate the requested relief.
* Where a nulla bona return is relied upon in the case of an application for sequestration and no notice of the application is given to the respondent.
* Where preliminary relief is essential and there is no time to give notice and where the Respondent will be given notice once the urgent relief is granted before any final relief is granted.
* In certain very specific circumstances, where it is not possible to give notice to the
other side and /or for a preliminary step in proceedings, for example leave to sue by
way of edictal citation

Question 26

Name Procedural steps to be taken to appeal a MC decision, in a civil matter, in the HC.

Answer 26

a.) Within fifteen (15) days of the judgment in the Magistrate’s Court hand to the Registrar or Clerk of the Court a request that a judgment in writing must be delivered showing:
- facts Magistrate found to be proved; and
- Reasons for judgment.
- appeal may be noted within twenty (20) days after date judgment appealed against or within ten (10) days after Registrar or Clerk supplied copy of judgment to party applying therefor which ever period is longer.
- appeal is noted by the delivery of a notice of appeal served and filed in the Magistrate’s Court.
- Unless the Court otherwise order by giving security for the Respondent’s costs of appeal to the amount of R1 000.00.
- An appeal shall be prosecuted within sixty (60) days after the noting of such appeal by:
- appellant shall within (40) days of noting the appeal apply to Registrar in writing and with notice to all parties for the assignment of a date for the hearing. Upon receipt of such an application the appeal shall be deemed to have been duly prosecuted.
- Upon receipt of application Registrar shall forthwith assign a date of hearing which will be at least forty (40) days after receipt application.
- The applicant shall simultaneously with the lodging of the application for a date for the hearing of the appeal lodge with the Registrar two copies of the record.
- File a notice of set down in terms of the notice from the Registrar assigning a trial date.

Question 27

Does a wife being married in community of property, need the consent of her husband to institute legal proceedings?

Answer 27

No Ito Section 17(1) of MPA , although the general rule is that a spouse married in community of property, cannot sue or defend legal proceedings without the written consent of the other spouse.

Written permission is not necessary in certain circumstances:
* Actions between spouses.
* The spouse’s separate property.
* The recovery of damages due to the commission of a delict against the spouse.
* Any matter relating to the trade, profession or business of the spouse.