Legal Practice Act — LPC Practical Vocational Training Guide: LPC Guide for Magistrates' Court Practice (Regulation 6(10)(e)) (source: https://lpc.org.za/wp-content/uploads/2026/03/e-LPC-Guide-for-Magistrates-Court-Practice-ito-Regulation-610e.pdf) PRACTICAL VOCATIONAL TRAINING (PVT) STRUCTURED COURSEWORK PROGRAMME FOR CANDIDATE LEGAL PRACTITIONERS (CANDIDATE ATTORNEYS) Magistrates' court practice, in terms of Regulation 6(10)(e) Author acknowledgement Adv. Nicholas J. Tee 2026/2027 PVT Structured Coursework Programme Publication and Copyright information © 2026/2027 The South African Legal Practice Council. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the South African Legal Practice Council. This intellectual property is strictly for the education and training of candidate legal practitioners as mandated by the Legal Practice Act 28 of 2014 and are not for commercial resale Acknowledgements The Legal Practice Council extends its gratitude to the Evaluator for his/her rigorous review, quality assurance, and contributions to the pedagogical effectiveness of this study guide: Reviewer: Adv Ahmed Iqbal Cajee Published by: The South African Legal Practice Council National Office, Building 10, Riverview Office Park 100 River View Park Street, Halfway Gardens Midrand, 1686 GUIDE FOR MAGISTRATE’S COURT PRACTICE Regulation 6 (10)(e) FIFTEEN GUIDES There are fifteen guides for practical vocational training of candidate attorneys. This guide deals with the Magistrate’s Court Practice module in regulation 6(10)(e). OVERVIEW On 20 September 2014 Parliament assented to the Legal Practice Act 28 of 2014 (LPA). In terms of section 4 of the LPA, the Legal Practice Council (LPC) was established on 31 October 2018. The following day, on 1 November 2018 the bulk of the rest of the LPA came into effect. The Legal Practice Act regulates all legal practitioners whether on the practising roll or the non-practising roll. There are three forms of legal practice. They are an attorney, an advocate and an advocate with a Fidelity Fund certificate: see section 34 of the LPA. Under section 109(1)(a) of the LPA, the LPC published GN R921 in GG 41879 of 31 August 2018, as amended by GN R3779 in GG 49104 of 11 August 2023. The compulsory course work required in the regulations for candidate attorneys was standardised by the LPC in terms of the Norms and Standards. Regulation 6(10) reads: “(10) The programme of structured course work referred to in sub-regulation (1)(a) and (b) must be standardised and uniform throughout the Republic and comprise the following modules: (a) constitutional practice; (b) professional legal ethics; (c) personal injury claims; (d) high court practice; (e) magistrate’s court practice; (f) criminal court practice; (g) labour dispute resolution; (h) alternative dispute resolution; (i) attorneys’ bookkeeping; (j) wills and estates; (k) matrimonial law; (l) legal costs; (m) drafting of contracts; (n) information and communication technology for practice, and associated aspects of cyber law; and (o) introduction to practice management.” On 11 December 2020 the LPC published the Norms and Standards in Government Gazette 43981 under section 3 (g)(i) read with section 6(1)(b)(i) and section 95(1)(n) of the LPA. Regulation 6(10) requires candidate attorneys to be trained in the modules listed above. The similarity between regulation 6(10) for candidate attorneys and regulation 7(9) for pupils is not an accident. Section 32 of the LPA permits legal practitioners at any time, as determined in the rules and upon payment of the fee determined by the LPC, to apply to the LPC to convert their enrolment as attorneys to that of advocates and vice versa. Consequently, the training of candidate legal practitioners must allow for seamless section 32 conversions. Each guide per module deals with the requirements in regulation 6(10). Examiners set questions derived only from the latest LPC candidate attorneys’ curriculum and reading list. The combined curriculum and reading list is referred to as the “syllabus”. Each of the fifteen guides will assist training supervisors, mentors, busy legal practitioners and candidate attorneys to navigate the syllabus. The focus is on practical vocational training. INTRODUCTION TO EACH GUIDE Each guide per module in Regulation 6(10) is designed to assist candidate attorneys to understand, in real time, the minimum that is required under practical vocational training to become effective attorneys in practice. The essence of effective legal practitioners is the ability to read, to assimilate legal principles from that reading and to apply those principles in practice to the facts of your client’s case and in argument before courts, tribunals, disciplinary bodies, and any other forms of formal gatherings and meetings. The guides avoid prolixity. However each guide requires dedicated concentration. For the examinations, candidate legal practitioners (candidate attorneys and pupils) must be up to date with the latest Constitutional Court and Supreme Court of Appeal cases to within one week before the date of each exam. The guides do not rehash what you studied at University. Your LLB proves your capability. This guide will assist you to prepare for the LPC admission examinations. More importantly, this guide will also equip you to be an effective, competent, calm and (reasonably) confident attorney when you enter the legal profession. REQUEST TO CANDIDATE ATTORNEYS FOR DUE DILIGENCE Please read this guide attentively. Please carry out all recommended court attendances. Please carry out all the recommended practical exercises. Please complete reading all the material in the LPC reading list. Please note the notional hours to complete all 15 guides are 400 hours. Please note this guide, like the other fourteen guides, is sufficient for self-study. Please remember, the exams are based on the LPC’s most up to date reading list. • Currently the most up to date reading list is from 28 March 2025 of Notice 3086 of 2025 published in Government Gazette 52388. • Matters omitted from the LPC reading list will not be in the examinations unless the statute, case or article is included in your exam paper and allows you extra reading time to consider that statute, case or article. • Matters mentioned in the LPC reading list will be the subject of exam questions. • You will be required to answer the exam questions from the perspective of: o Facts first o Law later • The LPC exams, also referred to as assessments, are practical in nature. • The questions will proceed from the following perspective: – o What would you, as attorney of record, advise your client to consider? o What would you, as attorney of record, advise your client to do? o When and why would you refer a matter to another attorney or to counsel? o And similar practical questions. REFERENCES One of the products of Juta & Co Ltd is Jutastat. Many of the notes to this guide are downloaded from Jutastat. Please read the notes with care and diligence. This guide also relies on the Southern African Legal Information Institute (SAFLII). SAFLII is free and open access on the Internet. NOTE WELL The sequence of this guide follows the sequence in the most recent LPC syllabus of 28 March 2025 for candidate attorneys. The fifteen guides are designed to be updated when the LPC so requires. Bullet points below are drafted to assist you to grasp the material in the reading list. You must decide whether to accept or to amend the bullet points to suit your understanding. When there are no bullet points, you need nonetheless to read the rule or case or article to prepare for your exams. LPC SYLLABUS AND THE OFFICIAL SOURCE FOR ALL EXAMINATION QUESTIONS AT THE LPC ATTORNEYS’ ADMISSION EXAMS CURRICULUM READING LISTS AND COURSE CONTENT Introduction to the PRINCIPAL WORKS: Magistrates’ Courts • Hussain: Practical Drafting Skills and jurisdiction • Hussain: Trial Advocacy: The Art of Persuasion • Jones & Buckle: Civil Practice of the Magistrates’ Court in South Africa Vol 1 and 2 This column is • Marnewick: Litigation Skills for South African Lawyers sourced from the • Schmidt & Others: Law of Evidence Norms and • Zeffertt & Paizes: The South African Law of Evidence Standards the LPC published on 11 COMPULSORY READING MATERIAL December 2020 in “The ethics of the hopeless case”, by Owen Rogers, in the Advocate magazine, Government December 2017 especially the summary at pages 50 and 51. Gazette 43981 1. GENERAL Candidates must 1.1. Character of Action Proceedings have knowledge of - When to bring an action the rules in the - Difference from application proceedings Magistrates’ Courts - Matters that must be brought by way of action and how the rules - Requirements of pleadings are the same in some instances and how 1.2 Onus the rules differ in 1.3 Jurisdiction other instances from Magistrates’ Courts the powers and Sections 26, 28, 29, 30, 45, 46(2) and 110 of the Magistrates’ Courts Act 32 of 1944 functions in the High South African Human Rights Commission v Standard Bank of South Africa Ltd and Court. Others 2023 (3) SA 36 (CC) at paras [1] and [31] and paras [42] to [45]. Pleadings, motions, The Constitutional Court dismissed the appeal against, explained the decision in, and discovery Standard Bank of South Africa Ltd v Mpongo 2021 (6) SA 403 (SCA). Trial practice and 2. THE PLEADING PHASE OF ACTIONS courtroom advocacy 2.1. Instituting Actions Appellate practice - Rule 5 – Summons and procedure - Rule 6 – Pleadings: Commentary on Rule in Jones & Buckle Enforcement of - Rule 7 – Amendment of summons: Commentary in Jones & Buckle judgments and - Rule 15 – Declaration: Commentary in Jones & Buckle orders 2.2. Parties 2.2.1. Intervention, joinder, and consolidation of actions - Rule 28 – Commentary on Rule 28 in Jones & Buckle. 2.2.2. Third party procedure - Rule 28A - Commentary in Jones & Buckle. 2.2.3. Proceedings against non-juristic persons as a matter of procedural convenience - Rule 52 – Representation and substitution of parties Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated Attorneys and Others [2023] ZASCA 112 at paras [20] to [23] - Rule 54 – Commentary in Jones & Buckle. 2.3. Competent Responses to Particulars of Claim - Notice of intention to defend - Calling for pre-pleading discovery - Objections that pleadings are irregular: Rule 60A - Exceptions: Rule 19 Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (SA) Ltd 2018 (3) SA 405 (SCA) at paras [9] and [10]. - Pleas and special pleas: Rule 17 and the common law (case law) Fairvest Property Holdings v Valdimax CC t/a Fish & Chips Co and Others 2020 (3) SA 202 (GJ) paras [21] to [26] Crompton Street Motors CC t/a Wallers Garage Service Station v Bright Idea Projects 66 (Pty) Ltd t/a All Fuels 2022 (1) SA 317 (CC) at para [33] Commentary in Jones & Buckle - Claims-in-reconvention: Rule 20 - Commentary on Rules 21 to 22 in Jones & Buckle - Failure to respond, barring and default judgment: Rule 21B - Commentary in Jones & Buckle 2.4. Note on pleadings in general - Remember: generally the principles of pleadings in the High Court apply to the Magistrates’ Courts: 2.5. Close of Pleadings and Set Down 2.6. Changes to Pleadings/amendments 2.7 THE FOLLOWING RULES REQUIRE ATTENTION: note this is the introduction to case management in the Magistrates’ Courts 2.7.1 Rule 22A – Meeting between parties to prepare for pre-trial conference or trial 2.7.2 Rule 25 – Judicial Case Management and pre-trial Conference 2.7.3 Rule 38 – Security by execution creditor 2.7.4 Rule 54 – Proceedings against non-juristic persons as a matter of procedural convenience (mentioned above) 2.7.5 Rule 60 – Non-compliance with rules and court orders, including time limits and errors 3. PREPARATION FOR TRIAL 3.1. Further particulars - Rule 16 – Commentary in Jones & Buckle 3.2. Discovery - Notice to discover and discovery affidavits: Rule 35 - Rule 23 – Commentary in Jones & Buckle - Different kinds of discovery - Consequences of a failure to discover - Applications to compel 3.3. Inspection, Examination and Experts - Rule 24 – Commentary in Jones & Buckle 4. SPECIAL PRE-TRIAL PROCEDURES 4.1. Meeting between parties to prepare for pre-trial conference or trial - Rule 22A - Commentary in Jones & Buckle 4.2. Offer to Settle - Rule 18 - Commentary in Jones & Buckle 5. CONDUCT OF CIVIL TRIALS 5.1. Trial Procedure Rule 29 - Commentary in Jones & Buckle 5.2. Discontinuing a Trial - Withdrawal, dismissal and settlement - Rule 27 - Commentary in Jones & Buckle - Postponements and other mid-trial applications 5.3. Costs - Rule 33 - Commentary in Jones & Buckle 5.4. Interest - Sections 1, 1, 2A and 4 of the Prescribed Rate of Interest Act No 55 of 1975: Cf Da Cruz v Bernardo 2022 (2) SA 185 (GJ) at paras [17] to [62] 5.5. Judgments and orders 6. AFTER JUDGMENT 6.1. Rescission and variation of judgments - Rule 49 - Commentary in Jones & Buckle 6.2 Sections 58A, 65, 65A to 65M, 66 Candidate attorneys need to know how these rules operate. NOTE WELL: Any questions posed in exams concerning any rules will be accompanied by a copy of the relevant rule. 6.3. Appeals - Rules 50 and 51 - Commentary in Jones & Buckle - Sections 83 and 84 of the Magistrates’ Courts Act - Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at paras [36] to [38]. Harms, LTC Heads of argument in courts of appeal, Advocate 2009 7. LAW OF EVIDENCE 7.1. The burden of proof and duty to begin (in civil cases only) - Schmidt & others Chapters 2 and 9 - Zeffertt & Paizes chapters 3 and 5.1-5.3 7.2. The assessment/weight of evidence - Schmidt & others Chapter 3.1 - Zeffertt & Paizes chapter 5 7.3. Real evidence and documentary evidence - Schmidt & others Chapters 10 and 11 - Zeffertt & Paizes chapters 19, 20 and 21 7.4. Oral evidence - Schmidt & others Chapter 9 - Zeffertt & Paizes chapter 7.5. Relevance and admissibility - Schmidt & others Chapter 13 - Zeffertt & Paizes chapter 7 7.6. Hearsay evidence - The Law of Evidence Amendment Act 45 of 1988, § 3 - Schmidt & others Chapter 18 - Zeffertt & Paizes chapter 13 7.7. Admissions (civil cases only) - Schmidt & others Chapter 7 - Zeffertt & Paizes pp. 475-499 7.8. Opinion evidence - Schmidt & others Chapter 17 - Zeffertt & Paizes chapter 10 Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC) at 211J – 212B 7.9. Similar fact evidence (civil cases only) - Schmidt & others Chapter 15 - Zeffertt & Paizes chapter 9 7.10. Character evidence (civil cases only) - Schmidt & others Chapter 16 - Zeffertt & Paizes chapter 8 parts C and D 7.11. Privilege - Schmidt & others Chapter 20 - Zeffertt & Paizes chapter 17 7.12. Parol evidence - Schmidt & others Chapter 1 - Zeffertt & Paizes chapter 11 KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) ([2009] 2 All SA 523) at para [39]. 7.13. The leading of witnesses - Schmidt & others Chapter 9.2.4.1 - Zeffertt & Paizes chapter 24 7.14. Cross-examination - Schmidt & others Chapter 9.2.4.2 - Zeffertt & Paizes chapter 24 7.15. Re-examination - Schmidt & others Chapter 9.2.4.3 - Zeffertt & Paizes chapter 24 7.16. Examination by the court - Schmidt & others Chapter 9.2.4.4 - Zeffertt & Paizes chapter 24 PRINCIPAL WORKS: • Hussain: Practical Drafting Skills • Hussain: Trial Advocacy: The Art of Persuasion • Jones & Buckle: Civil Practice of the Magistrates’ Court in South Africa Vol 1 and 2 • Marnewick: Litigation Skills for South African Lawyers • Schmidt & Others: Law of Evidence • Zeffertt & Paizes: The South African Law of Evidence INDEX FOR MAGISTRATE’S COURT PRACTICE GUIDE OVERVIEW Pages 1 - 3 LPC SYLLABUS Pages 4 - 6 INDEX Page 7 HOW TO USE THE READING LIST Page 8 A. GENERAL Page 8 B. INTRODUCTION Page 9 C. PRACTICAL MESSAGE FOR CANDIDATES Page 10 D. READING LIST Page 10 COMPULSORY READING Page 11 1. GENERAL – recapitulation of what you already know Page 12 2. THE PLEADING PHASE OF ACTIONS Pages 14 - 23 3. PREPARATION FOR TRIAL Page 23 4. SPECIAL PRE-TRIAL PROCEDURES Page 23 5. CONDUCT OF TRIALS Pages 23 - 24 6. AFTER JUDGMENT Pages 24 - 25 7. THE LAW OF EVIDENCE Pages 26 - 33 7.1. The burden of proof and duty to begin (in civil cases only) Page 26 7.2. The assessment/weight of evidence Page 27 7.3. Real evidence and documentary evidence Pages 27 - 28 7.4. Oral evidence Page 28 7.5. Relevance and admissibility Page 28 7.6. Hearsay evidence Page 29 7.7. Admissions (civil cases only) Page 29 7.8. Opinion evidence Pages 29 - 30 7.9. Similar fact evidence (civil cases only) Page 31 7.10. Character evidence (civil cases only) Page 31 7.11. Privilege Pages 31 - 32 7.12. Parol evidence Page 32 7.13. The leading of witnesses Pages 32 - 33 7.14. Cross-examination Page 33 7.15. Re-examination Page 33 7.16. Examination by the court Page 33 APPENDIX to the Guide for Magistrate’s Court Practice Page 35 APPENDIX TO THE GUIDE FOR HIGH COURT PRACTICE Pages 36 - 41 Magistrate’s Court Practice – HOW TO USE THE READING LIST A. GENERAL This module prepares you to understand the basic but essential principles, concepts and procedures of Magistrate’s Court Practice. Candidates must read the sections of the Act, the rules and the case law indicated in the reading list. Some of the salient issues are set out in bullet points below. The reason to read the references in the reading list is to prepare for your attorneys’ admission exams. The examiners draft exam questions from the syllabus. The syllabus includes the column Curriculum and Course Content and the column Reading List in the table above. Questions based on matters not in the syllabus are allowed only where the statute, case or article being examined is added into the examination paper. In that event, you will be given an extra fifteen minutes to read and consider the question before writing your exam. This principle applies to all the modules in regulation 6(10) and for all your admission exams. The reading list is repeated below with bullet points to focus your grasp of the material. For SAFLII references to the case law, see the Appendix to this Guide. You will be able to download the case law from SAFLII onto your mobile devices at any time, and while in court. Remember: the bullet points are designed to help you understand salient issues. The phrase: Subject to your reading, the following points may be drawn from the case cited above requires you to check whether the bullet points are indeed an accurate reflection of the case. Be proactive: you can develop your own bullet points for exam preparation and for use later in practice. Note well: many candidate attorneys do not have access to the South African Law Reports nor the All South Africa reports published by LexisNexis. In this guide some references to the URLs of SAFLII are included. This will assist all candidates to access the relevant document, even when you are in court – of course – if the court has internet access and accessible WiFi. Furthermore, many candidates do not have access to text book commentary on the rules. If you read the rules carefully you may not need the commentary. The rules are remarkably similar in their effect and application to the rules of the High Court. The Department of Justice website also has up to date legislation and subordinate legislation. See the following URLs: https://www.justice.gov.za/ https://www.justice.gov.za/constitution/index.html https://www.justice.gov.za/legislation/acts/acts_full.html https://www.justice.gov.za/legislation/rules/rules.htm B. INTRODUCTION The main purpose of the Norms and Standards is to provide a national approach to standardise and implement practical vocation training of candidate attorneys in terms of regulation 6(10). Five years of deliberation including two colloquiums and frequent publications of the syllabus have preceded the gazetting of the LPC syllabus on 28 March 2025. In future, the LPC syllabus will be updated and amended as required by circumstances in the legal profession. The topics dealt with below are part of the syllabus for Magistrate’s Court Practice. After the topics, the reading list is dealt with in detail. It is important to understand that the topics underlined below form part of the syllabus from which examiners may set exam questions. Legislation and rules As a candidate attorney you need a working knowledge of the Magistrates’ Courts Act 32 of 1944 and the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa (the MCR or rules). However, you do not need to know the Magistrates’ Courts Act and the rules by heart. In practice you will always read the legislation and the rules applicable to your case while drafting pleadings and consulting with your clients. Examiners’ obligations There will be an emphasis on rules in regular use in practice; see the reading list. In your admission exams any question posed on the interpretation of an Act of Parliament or a rule requires the examiners to include that text in the question paper itself. To reiterate: you do not need to know the legislation and rules by heart. The following topics may be examined. In any event, you need to know these topics for practice when you qualify as an attorney. Candidates must have knowledge of the rules in the Magistrates’ Courts and how the rules are the same in some instances and how the rules differ in other instances from the powers and functions in the High Court. • Pleadings, motions, and discovery • Trial practice and courtroom advocacy • Appellate practice and procedure • Enforcement of judgments and orders C. PRACTICAL MESSAGE FOR CANDIDATE LEGAL PRACTITIONERS • To avoid an unnecessary repetition on how you as candidates need to learn the skills to advise your clients and to take instructions in practice, please read pages 16 to 24 of the Guide for Constitutional Practice, and apply the necessary changes for matters that are not constitutional issues. • Then, from the Norms and Standards column at pages 4 and 5 in this module: o the following topics are best grasped by reading Practical Drafting Skills, Ismail Hussian SC, LexisNexis (reprinted 2020) using the Contents to find: ▪ drafting skills ▪ drafting pleadings ▪ drafting notices of motion ▪ drafting affidavits ▪ drafting heads of argument o and these topics are best grasped by perusing Trial Advocacy, The Art of Persuasion, Ismail Hussain SC, LexisNexis (2022) using the Contents to find: ▪ case analysis ▪ managing fact ▪ analysing fact ▪ working out the case concept ▪ eDiscovery ▪ trials and hearings ▪ heads of argument D. READING LIST The reading list is to the point. Please read the following: Parol evidence rule: KPMG Chartered Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA) at para [39] Subject to your reading, the following points may be drawn from the case cited above. • First, the integration (or parol evidence) rule remains part of our law o Parol evidence rule arises with boiler plate clauses where if a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or modify its meaning • Second, interpretation is a matter of law and not of fact o Accordingly, interpretation is a matter for the court and not for witnesses • Third, the rules about admissibility of evidence in this regard do not depend on the nature of the document, whether statute, contract or patent • Fourth, to the extent that evidence may be admissible to contextualise the document to establish its factual matrix or purpose or for purposes of identification, ‘one must use it as conservatively as possible’ • The time has arrived for us to accept that there is no merit in trying to distinguish between ‘background circumstances’ and ‘surrounding circumstances’. o The distinction is artificial and, in addition, both terms are vague and confusing. o Consequently, everything tends to be admitted. o The terms ‘context’ or ‘factual matrix’ ought to suffice. COMPULSORY READING Owen Rogers ‘The ethics of the hopeless case’ 2017 (Dec) Advocate 46 (especially the summary at pages 50 and 51). https://gcbsa.co.za/law-journals/2017/december/2017-december-vol030-no3-pp46-51.pdf Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 (2) SA 213 (SCA) at para [35] concerning the two aspects of a hopeless case. Subject to your reading, the following points may be drawn from the case cited above. • Whether a case is hopeless has two aspects. o It is hopeless if it is advanced on a basis that is legally untenable. o It is also hopeless if it is advanced in the absence of any credible evidence to support it. o A case is legally hopeless if it could be the subject of a successful exception. o It is factually hopeless if the evidence available and potentially available after discovery and other steps directed at procuring evidence will not sustain the cause of action on which the claim is based. o In other words, if there is no prima facie case then it is factually hopeless. Magistrates’ Courts Act 32 of 1944: https://www.saflii.org/za/legis/consol_act/mca32o1944251/ Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa – GN R740 of 2010 as amended: https://www.saflii.org/images/magistratescourts/MCR%20[R].pdf Access to the LPC Library After your PVT contract is registered with your LPC Provincial Office, you will have access to the LPC Library online. 1. GENERAL 1.1. Character of Action Proceedings - When to bring an action - Difference from application proceedings - Matters that must be brought by way of action - Requirements of pleadings Brief recapitulation of what you already know: • Motion proceedings differ from action proceedings or disciplinary proceedings, where oral evidence is heard and the opportunity to cross-examine witnesses is afforded. • With motion proceedings, also known as application proceedings, evidence is placed before the court in the form of affidavits sworn to by witnesses. • Motion proceedings commence by way of a notice of motion accompanied by a founding affidavit setting out the facts and law on which a claim is based, with all the supporting documentation annexed to the affidavits. • Motion proceedings are appropriate when the issue or issues to be resolved are purely a dispute of law, and there is no material dispute of fact. o One cannot proceed by way of motion proceedings where there is a material dispute of fact ▪ Except in circumstances where motion proceedings are obligatory: see the Guide for High Court Practice at page 22, footnote 2. o A party who is sued by way of motion proceedings can only complain if there are material issues which cannot be resolved on affidavit. o When that happens, the court is better placed to decide whether there is a real dispute of fact that cannot be resolved on affidavit. o In the event of a dispute of fact that cannot be resolved on the papers, ▪ the court may either dismiss the application, ▪ or refer specific issues for oral evidence ▪ or to trial. • The risk is on the party who elected to proceed by way of motion proceedings. Paraphrased from General Council of the Bar of SA v Jiba 2017 (2) SA 122 (GP) at para [26] Similarity of rules • When considering whether a referral to evidence is appropriate in the High Court, the starting point is rule 6(5)(g). Please read the rule. • In the Magistrate’s Court the starting point is rule 55(1)(k)(i) and (ii). Please read the rule. • For all intents and purposes, the rules are the same. Important difference between motion and action proceedings • In action proceedings, save in narrowly specified circumstances, an appeal court defers to the factual findings of the lower court. • By contrast, in motion proceedings decided on the papers, the lower courts enjoy no such advantage and an appeal court owes no deference to the lower court’s factual findings Paraphrased from CSAAWU v Oak Valley Estates (Pty) Ltd 2022 (5) SA 18 (CC) at para [47] 1.2 Onus See 7.1 Evidence below • As in action proceedings, the onus of proving the Court has jurisdiction rests on an applicant in motion proceedings. • An applicant must set out sufficient facts in the founding affidavit to justify that the Court has jurisdiction. 1.3 Jurisdiction Magistrates’ Courts Sections 26, 28, 29, 30, 45, 46(2) and 110 of the Magistrates’ Courts Act 32 of 1944 • Section 28 requires reading carefully • Section 29 also requires careful reading • Note the current values in section 29(1)(a) are: o District court: R200 000 - GN 217 in GG 37477 of 27 March 2014; o Regional divisions: above R200 000 up to R400 000 - GN 216 in GG 37477 of 27 March 2014 • Section 45 permits consent in writing to jurisdiction of a district or regional court except for the matters beyond jurisdiction set out in section 46 South African Human Rights Commission v Standard Bank of South Africa Ltd and Others 2023 (3) SA 36 (CC) at paras [1] and [31] and paras [42] to [45]. Subject to your reading, the following points may be drawn from the case cited above • The SAHRC was an amicus curiae in the 13 matters before the High Court and SCA • The SAHRC appealed against the decision of the SCA in Standard Bank of SA Ltd v Mpongo • The appeal failed • The Constitutional Court upheld the decision in Standard Bank of SA Ltd v Mpongo 2021 (6) SA 403 (SCA) See: Standard Bank of South Africa Ltd v Mpongo 2021 (6) SA 403 (SCA) Subject to your reading, the following points may be drawn from the case cited above • A High Court is obliged to hear a matter brought before it, even where the matter falls within the jurisdiction of a magistrates’ court; and • Likewise a main seat (Division) had a duty to hear a matter brought before it, even where the matter fell within the jurisdiction of a local seat (Division) • A financial institution is not obliged to consider a litigant’s costs and access to justice when it chooses the court in which to proceed o The ruling that it was an abuse of process to bring a matter within a magistrates’ court’s jurisdiction in a High Court was unsupportable: ▪ case law was against it and ▪ the reasons the banks supplied for the practice were entirely legitimate. • These included greater efficiency and • the associated saving of costs, and • the benefits of having judges rather than magistrates making decisions on special execution. o Moreover, where the law gave a litigant a choice of forum, exercise of that choice could hardly be characterised as an abuse of process. • The determination of the Eastern Cape bench that a High Court’s jurisdiction is ousted in any National Credit Act matter is erroneous: it is unsupported by the National Credit Act or Magistrates’ Courts Act and ran counter to established authority. o See Nedbank Ltd v Mateman; Nedbank Ltd v Stringer 2008 (4) SA 276 (T) 2. THE PLEADING PHASE OF ACTIONS Please read the rules below and compare MC rule 6 with rule 18 of the Uniform Rules of Court. 2.1. Instituting Actions - Rule 5 – Summons - Rule 6 – Pleadings: Commentary on Rule in Jones & Buckle - Rule 7 – Amendment of summons: Commentary in Jones & Buckle - Rule 14 – Summary judgment: omitted in error from the reading list - Rule 15 – Declaration: Commentary in Jones & Buckle 2.2. Parties 2.2.1. Intervention, joinder, and consolidation of actions - Rule 28 – Commentary on Rule 28 in Jones & Buckle. 2.2.2. Third party procedure - Rule 28A - Commentary in Jones & Buckle. 2.2.3. Proceedings against non-juristic persons as a matter of procedural convenience - Rule 52 – Representation and substitution of parties. Please read the rule. Rule 52 (2)(a) states it is not be necessary for any person to file a power of attorney to act, but the authority of any person acting for a party may be challenged on notice by the other party within 10 days. Consider a similar High Court case: Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated Attorneys and Others [2023] ZASCA 112 at paras [20] to [23] https://www.saflii.org/za/cases/ZASCA/2023/112.html Subject to your reading, the following points may be drawn from the case cited above • The authority of the LPC to act was not accepted in limine in the Limpopo High Court • However, the SCA overturned that decision • The LPC had proved its authority in the replying affidavit. That was sufficient. - Rule 54 – Commentary in Jones & Buckle. Please read the rule. 2.3. Competent Responses to Particulars of Claim - Notice of intention to defend - Calling for pre-pleading discovery - Objections that pleadings are irregular: Rule 60A - Exceptions: Rule 19 Please read the rule. Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (SA) Ltd 2018 (3) SA 405 (SCA) at paras [9] and [10]. Subject to your reading, the following points may be drawn from the case cited above • When proceedings are on exception, the excipient has the duty to persuade the court that upon every interpretation which the plea can reasonably bear, no defence is disclosed. • The main purpose of an exception is to avoid leading unnecessary evidence. • By the nature of exception proceedings the correctness of the facts averred in the plea must be assumed. • Because Old Mutual chose the exception procedure — instead of having the matter decided after the hearing of evidence at the trial — it had to show that the plea is (not may be) bad in law. • The court a quo may have been justified in declining to decide the matter on exception. • In my view the plea, although elliptic is reasonably capable of an interpretation that sustains a defence. Note for candidates: Elliptic is a style that is concise, economical, and often deliberately ambiguous, leaving out words or information for the reader to infer. Rather plead over in more detail than run the risk of having a successful exception taken against your client’s plea. - Pleas and special pleas: Rule 17 and the common law (case law) Note to Candidates: An omission from the reading list is Rule 14 on summary judgment which applies after Rule 17 on the Plea. No doubt, the omission will be corrected in the next curriculum published by the LPC. Since we are aware of the omission, the tables below and the references to case law are added for your consideration. There is no doubt that summary judgment and please are fruitful fodder for your attorneys’ admission exams. In any event, if questions are posed on these matters, the rules will be quoted in your examination papers together with any relevant case law on which questions may be based or posed. • There is a notable similarity between the substance of the Magistrates’ Courts rules on summary judgment and the plea with those of the Uniform Rules of Court. • For your convenience, both rules are juxtaposed in the tables below. o However, please also refer to the Guide for High Court Practice. o Indeed, this guide and the High Court guide need to be read together. The amendment to the Uniform Rules of Court led the way on 31 May 2019. The amendment came into effect on 1 July 2019. The rules of the Magistrates’ Courts followed on 7 February 2020. They came into effect on 9 March 2020, some 16 days before the Covid-19 lockdown. The tables on the Plea are listed first, followed by the tables on summary judgment. They are up to date to 27 February 2026. Plea Magistrate’s Court rules Uniform Rules of Court 17 Plea 22 Plea (1) Where a defendant has delivered notice of (1) Where a defendant has delivered notice of intention to defend, the defendant shall within 20 intention to defend, he shall within twenty days days after the service upon him or her of a after the service upon him of a declaration or declaration or within 20 days after delivery of such within twenty days after delivery of such notice in notice in respect of a combined summons, deliver a respect of a combined summons, deliver a plea plea with or without a claim in reconvention, or an with or without a claim in reconvention, or an exception with or without application to strike out. exception with or without application to strike out. (2) The defendant shall in [the] defendant’s plea (2) The defendant shall in his plea either admit or either admit or deny or confess and avoid all the deny or confess and avoid all the material facts material facts alleged in the combined summons or alleged in the combined summons or declaration or declaration or state which of the said facts are not state which of the said facts are not admitted and to admitted and to what extent, and shall clearly and what extent, and shall clearly and concisely state all concisely state all material facts upon which material facts upon which he relies. defendant relies. (3)(a) Every allegation of fact in the combined (3) Every allegation of fact in the combined summons or declaration which is not stated in the summons or declaration which is not stated in the plea to be denied or to be admitted, shall be plea to be denied or to be admitted, shall be deemed to be admitted. deemed to be admitted. If any explanation or (b) If any explanation or qualification of any denial qualification of any denial is necessary, it shall be is necessary, it shall be stated in the plea. stated in the plea. (4)(a) If by reason of any claim in reconvention, (4) If by reason of any claim in reconvention, the the defendant claims that on the giving of judgment defendant claims that on the giving of judgment on on such claim, the plaintiffs claim will be such claim, the plaintiff’s claim will be extinguished either in whole or in part, the extinguished either in whole or in part, the defendant may in the plea refer to the fact of such defendant may in his plea refer to the fact of such claim in reconvention and request that judgment in claim in reconvention and request that judgment in respect of the claim or any portion thereof which respect of the claim or any portion thereof which would be extinguished by such claim in would be extinguished by such claim in reconvention, be postponed until judgment on the reconvention, be postponed until judgment on the claim in reconvention. claim in reconvention. Judgment on the claim shall, (b) In the event of a request for postponement as either in whole or in part, thereupon be so provided for in paragraph (a) judgment on the postponed unless the court, upon the application of claim shall, either in whole or in part, be so any person interested, otherwise orders, but the postponed unless the court, upon the application of court, if no other defence has been raised, may give any person interested, otherwise orders, but the judgment for such part of the claim as would not be court, if no other defence has been raised, may give extinguished, as if the defendant were in default of judgment for such part of the claim as would not be filing a plea in respect thereof, or may, on the extinguished, as if the defendant were in default of application of either party, make such order as to it filing a plea in respect thereof, or may, on the seems meet. application of either party, make such order as it deems fit. (5) If the defendant fails to comply with any of the provisions of subrules (2) and (3), such plea shall (5)(a) Where a tender is pleaded as to part of the be deemed to be an irregular step and the other amount claimed, the plea shall specify the items of party shall be entitled to act in accordance with rule the plaintiff's claim to which the tender relates. 30. (b) A plea of tender shall not be admissible unless the amount of the alleged tender is secured to the satisfaction of the plaintiff on the delivery of the plea, if not already paid or secured to the plaintiff and the amount so secured shall be paid out to the plaintiff only on the order of the court or upon an agreement in writing of the parties. (c) A tender after action brought shall imply an undertaking to pay the plaintiff’s costs up to the date of the tender, unless such an undertaking is expressly disavowed at the time of such tender, and shall be valid without a securement of the amount at which such costs may be taxed. (6) If the defendant fails to comply with any of the provisions of subrules (2), (3) and (5), the plea shall be deemed to be an irregular step and the other party shall be entitled to act in accordance with rule 60A. (7) Any defence which can be adjudicated upon without the necessity of going into the main case may be set down by either party for a separate hearing upon 10 days’ notice at any time after such defence has been raised. Summary judgment comparison Uniform Rules Magistrate’s Court Rules 32 Summary Judgment 14 Summary judgment (1) The plaintiff may, after the defendant has (1) The plaintiff may, after the defendant has served delivered a plea, apply to court for summary a plea, apply to court for summary judgment on judgment on each of such claims in the summons each of such claims in the summons as is only- as is only- (a) on a liquid document; (a) on a liquid document; (b) for a liquidated amount in money; (b) for a liquidated amount in money; (c) for delivery of specified movable property; (c) for delivery of specified movable property; or or (d) for ejectment, (d) for ejectment; together with any claim for interest and costs. together with any claim for interest and costs. [Subrule (1) substituted by GN R842 of 31 May 2019 (wef 1 July [Subrule (1) substituted by GN R318 of 17 April 2015 (wef 22 May 2019).] 2015) and amended by GN R107 of 7 February 2020 (wef 9 March 2020).] (2)(a) Within 15 days after the date of delivery of (2)(a) Within 15 days after the date of service of the the plea, the plaintiff shall deliver a notice of plea, the plaintiff shall deliver a notice of application for summary judgment, together with application for summary judgment, together with an affidavit made by the plaintiff or by any other an affidavit made by the plaintiff, or by any other person who can swear positively to the facts. person who can swear positively to the facts. (b) The plaintiff shall, in the affidavit referred to in (b) The plaintiff shall, in the affidavit referred to in subrule (2)(a). verify the cause of action and the subrule 2(a), verify the cause of action, the amount amount, if any, claimed, and identify any point of claimed, if any, identify any point of law relied law relied upon and the facts upon which the upon, state the facts upon which the plaintiff's plaintiff's claim is based, and explain briefly why claim is based, and explain briefly why the defence the defence as pleaded does not raise any issue for as pleaded, does not raise any issue for trial. trial. (c) If the claim is founded on a liquid document a (c) If the claim is founded on a liquid document, a copy of the document shall be annexed to such copy of the document shall be annexed to such affidavit and the notice of application for summary affidavit, and the notice of application for summary judgment shall state that the application will be set judgment shall state that the application will be set down for hearing on a stated day not being less down for hearing on a stated day, not being less than 15 days from the date of the delivery thereof. than 15 days from the date of the delivery thereof. [Subrule (2) substituted by GN R1262 of 30 May 1991 (wef 1 July [Subrule (2) substituted by GN R507 of 27 June 2014 (wef 28 July 1991) and by GN R842 of 31 May 2019 (wef 1 July 2019).] 2014), by GN R318 of 17 April 2015 (wef 22 May 2015) and by GN R107 of 7 February 2020 (wef 9 March 2020).] (3) The defendant may- (3) The defendant may- (a) give security to the plaintiff to the (a) give security to the plaintiff to the satisfaction of the court for any judgment including satisfaction of the court for any judgment, costs which may be given; or including costs, which may be given; or (b) satisfy the court by affidavit (which shall (b) satisfy the court by affidavit (which shall be delivered five days before the day on which the be delivered five days before the day on which the application is to be heard), or with the leave of the application is to be heard), or, with the leave of the court by oral evidence of such defendant or of any court, by oral evidence of such defendant, or of any other person who can swear positively to the fact other person who can swear positively to the fact that the defendant has a bona fide defence to the that the defendant has a bona fide defence to the action; such affidavit or evidence shall disclose action, and such affidavit or evidence shall fully fully the nature and grounds of the defence and the disclose the nature, grounds of defence and the material facts relied upon therefor. material facts relied upon therefor. [Subrule (3) substituted by GN R842 of 31 May 2019 (wef 1 July [Subrule (3) substituted by GN R107 of 7 February 2020 (wef 9 March 2019).] 2020).] (4) No evidence may be adduced by the plaintiff (4) No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in otherwise than by the affidavit referred to in subrule (2), nor may either party cross-examine any subrule (2), nor may either party cross-examine any person who gives evidence orally or on affidavit: person who gives evidence orally or on affidavit: Provided that the court may put to any person who Provided that the court may put to any person who gives oral evidence such questions as it considers gives oral evidence such questions as it considers may elucidate the matter. may elucidate the matter. [Subrule (4) substituted by GN R842 of 31 May 2019 (wef 1 July [Subrule (4) substituted by GN R107 of 7 February 2020 (wef 9 March 2019).] 2020).] (5) If the defendant does not find security or satisfy (5) If the defendant does not find security or satisfy the court as provided in paragraph (b) of subrule the court as provided in subrule (3), the court may (3), the court may enter summary judgment for the enter summary judgment for the plaintiff. plaintiff. [Subrule (5) substituted by GN R107 of 7 February 2020 (wef 9 March 2020).] (6) If on the hearing of an application made under (6) If on the hearing of an application made under this rule it appears- this rule it appears- (a) that any defendant is entitled to defend and (a) that any defendant is entitled to defend and any other defendant is not so entitled; or any other defendant is not so entitled; or (b) that the defendant is entitled to defend as to (b) that the defendant is entitled to defend as to part of the claim, part of the claim, the court shall- the court shall- (i) give leave to defend to a defendant so (i) give leave to defend to a defendant so entitled thereto and give judgment against the entitled thereto and give judgment against the defendant not so entitled; or defendant not so entitled; or (ii) give leave to defend to the defendant as to (ii) give leave to defend to the defendant as to part of the claim and enter judgment against [him part of the claim and enter judgment against such or her] the defendant, as to the balance of the defendant as to the balance of the claim, unless claim, unless such balance has been paid to the such balance has been paid to the plaintiff; or plaintiff; or [Subpara. (ii) substituted by GN R1883 of 3 July 1992 (wef 3 August [Subpara. (ii) substituted by GN R107 of 7 February 2020 (wef 9 1992) and by GN R842 of 31 May 2019 (wef 1 July 2019).] March 2020).] (iii) make both orders mentioned in sub- (iii) make both orders provided for in paragraphs (i) and (ii). subparagraphs (i) and (ii). (7) If the defendant finds security or satisfies the (7) If the defendant finds security or satisfies the court as provided in subrule (3), the court shall give court as provided in subrule (3), the court shall give leave to defend, and the action shall proceed as if leave to defend, and the action shall proceed as if no application for summary judgment had been no application for summary judgment had been made. made. (8) Leave to defend may be given unconditionally (8) Leave to defend may be given unconditionally or subject to such terms as to security, time for or subject to such terms as to security, time for delivery of pleadings, or otherwise, as the court delivery of pleadings, or otherwise, as the court deems fit. deems fit. (8A) …… (9) …… [Subrule (8A), previously subrule (8) bis, inserted by GN R2004 of [Subrule (9) deleted by GN R107 of 7 February 2020 (wef 9 March 1967, amended by GN R1262 of 30 May 1991 (wef 1 July 1991), 2020).] renumbered GN R2410 of 30 September 1991 (wef 1 November 1991) and deleted by GN R842 of 31 May 2019 (wef 1 July 2019).] (9) The court may at the hearing of such (10) The court may at the hearing of an application application make such order as to costs as to it may for summary judgment, make such order as to costs seem just: Provided that if- as it may seem just: Provided that if- (a) the plaintiff makes an application under (a) the plaintiff makes an application under this rule, where the case is not within the terms of this rule, where the case is not within the terms of subrule (1) or where the plaintiff, in the opinion of subrule (1) or where the plaintiff, in the opinion of the court, knew that the defendant relied on a the court, knew that the defendant relied on a contention which would entitle such defendant to contention which would entitle the defendant leave leave to defend, the court may order that the action to defend, the court may order that the action be be stayed until the plaintiff has paid the defendant's stayed until the plaintiff has paid the defendant's costs; and may further order that such costs be costs, and may further order that such costs be taxed as between attorney and client; and taxed as between attorney and client; and [Para. (a) substituted by GN R842 of 31 May 2019 (wef 1 July 2019).] [Para. (a) substituted by GN R107 of 7 February 2020 (wef 9 March 2020).] (b) in any case in which summary judgment (b) in any case in which summary judgment was refused and in which the court after trial gives was refused and in which the court after trial gives judgment for the plaintiff substantially as prayed, judgment for the plaintiff substantially as prayed, and the court finds that summary judgment should and the court finds that summary judgment should have been granted had the defendant not raised a have been granted had the defendant not raised a defence which in its opinion was unreasonable, the defence which in its opinion was unreasonable, the court may order the plaintiff's costs of the action to court may order the plaintiff's costs of the action to be taxed as between attorney and client. be taxed as between attorney and client. [Subrule (10) amended by GN R107 of 7 February 2020 (wef 9 March 2020).] Downloaded from Jutastat Consider the following Extract from the Guide for High Court Practice 12.3. Summary judgment Rule 32 (as amended) – for your own reading, please. FirstRand Bank Ltd t/a First National Bank v Moonsammy t/a Synka Liquors 2021 (1) SA 225 (GJ): • To obtain summary judgment a plaintiff must plead a full cause of action: o Here the plaintiff omitted to give notice of breach as required in the written contract. o The debt had accordingly not become due. o The s 129 notice did not cure the failure to abide by the contract’s breach clause. • Failure to serve an s 129 notice before commencing action, cannot be cured by attaching the notice to the particulars of claim. • Delivery of the s 129 notice is a prior step before issuing summons. • Delivery of the s 129 notice to the wrong address is not proper delivery. • The court must adjourn an application for summary judgment pending adequate delivery. Ingenuity Property Investments (Pty) Ltd v Ignite Fitness (Pty) Ltd 2023 (5) SA 439 (WCC) − Headnote: • Under the new rule 32, an application for summary judgment may be brought together with, or even after, delivery of a replication. • Rule 32(2)(b) requires a plaintiff, in the affidavit in support of its application for summary judgment, to explain briefly why the defence as pleaded does not raise any issue for trial. • A replication, serves as a response to defences raised in the plea. • As such, a replication serves to explain why the defences do not raise triable issues. • A replication performs a similar function to the summary judgment affidavit. • Accordingly, a plaintiff should be allowed to deliver its replication simultaneously with its application for summary judgment and to incorporate by reference the allegations in the replication. Absa Bank Ltd v Meiring 2022 (3) SA 449 (WCC): The whole of this case is important for all lawyers in South Africa. Vital to understand is the concept of pleading over despite the temporary advantage a litigant may gain by a special plea or point in limine. You should read this case: https://www.saflii.org/za/cases/ZAWCHC/2022/31.html • A general practice had developed in the Cape to the effect that it was unnecessary for a defendant to ‘plead over’ when filing a special plea. • The amended Uniform Rule 32(2)(b) requires the plaintiff in its affidavit accompanying its application for summary judgment, inter alia, to explain briefly why the defence as pleaded did not raise any issue for trial. • In future, defendants who raise a special plea, must nevertheless plead over. Consider the nuance here: City Square Trading 522 (Pty) Ltd v Gunzenhauser Attorneys (Pty) Ltd 2022 (3) SA 458 (GJ) at para [29] − • rule 32(4) should not deprive the plaintiff of its rights under rule 28(8) but rather as a prohibition against introducing factual matter which is a reply or rejoinder to the defendant’s case; and • which is not consequential on the amendment of the plea. Hennie Ehlers Boerdery CC v APL Cartons (Pty) Ltd 2024 (1) SA 149 (ECGq) • Rule 32 – summary judgment – was recently amended o (i) to prevent a plaintiff from applying for summary judgment before the defendant delivered a plea; and o (ii) to require the plaintiff to deliver a more detailed affidavit than the formulaic one previously allowed. • Rule 32(2)(b) requires the affidavit: o to verify the cause of action and the amount, if any, claimed and o to identify any point of law relied upon and the facts upon which the plaintiff's claim is based, and o to explain briefly why the defence as pleaded does not raise any issue for trial • While the amended rule 32 was not a model of clarity and would likely increase the judges’ workload and parties’ costs, it was clear that the requirements for a rule 32(2) affidavit were substantive rather than formal in nature • Accordingly, rule 30 was not the appropriate procedural mechanism to address complaints that rule 32 affidavits exceeded the ambit of what was permissible • Whether the plaintiff’s supporting affidavit met the substantive requirements of subrule 32(2)(b) and the merits of the defendant’s complaints were therefore matters for the court hearing the summary judgment application End of extract Fairvest Property Holdings v Valdimax CC t/a Fish & Chips Co and Others 2020 (3) SA 202 (GJ) paras [21] to [26] Subject to your reading, the following points may be drawn from the case cited above • In magistrates’ court proceedings, a special plea of lack of jurisdiction must, in general, be raised before litis contestatio, except: o where the sum claimed exceeds the court’s money jurisdiction, o and there was no written consent to jurisdiction, o then the defendant may raise lack of jurisdiction even after litis contestatio. Crompton Street Motors CC t/a Wallers Garage Service Station v Bright Idea Projects 66 (Pty) Ltd t/a All Fuels 2022 (1) SA 317 (CC) at para [33] Subject to your reading, the following points may be drawn from the case cited above • A special plea is one of several dilatory pleas and can be included in pleadings. Like: o Prescription o Jurisdiction (lack of) o Non-joinder or misjoinder o Lis pendens o Res judicata ▪ Settlement renders litigious matters res judicata ▪ Issue estoppel is analogous to res judicata on the issue in dispute o Arbitration (a species of the lack of jurisdiction, being a dilatory plea) o Foreign-act-of-state doctrine o Unclean hands (ex turpi causa non oritur actio) • Generally, when a special plea is raised, all the defences on which the defendant intends to rely must be raised at the same time. • This is so because, should the special plea fail, there would be no further opportunity to plead over on the merits. • There is no objection to pleading a special defence in the course of the plea, with or without a special heading. Remember: The essential difference between a special plea and an exception is that in an exception the excipient is confined to the four corners of the pleading. Special pleas, on the other hand, do not always appear ex facie the pleadings. Paraphrased from: Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South Africa, 5 ed at 599 and 600 Commentary in Jones & Buckle - Claims-in-reconvention: Rule 20 Please read the rule. - Commentary on Rules 21 to 22 in Jones & Buckle - Failure to respond, barring and default judgment: Rule 21B Please read the rule. - Commentary in Jones & Buckle 2.4. Note on pleadings in general Remember: generally the principles of pleadings in the High Court apply to the Magistrates’ Courts: Remember: the essence of MC Rule 6 on pleadings: • Every pleading must contain a clear and concise statement of the material facts upon which the pleader relies for his or her o claim, o defence or o answer to any pleading o with sufficient particularity to enable the opposite party to reply thereto. • When in any pleading a party denies an allegation of fact in the previous pleading of the opposite party o he or she shall not do so evasively, o but shall answer the point of substance. 2.5. Close of Pleadings and Set Down Please read Rule 21A on close of pleadings Please read Rule 22 on set-down of trial 2.6. Changes to Pleadings/amendments Read section 111 of Act 32 of 1944 Read MC Rule 7 and compare it to MC Rule 55A. 2.7 THE FOLLOWING RULES REQUIRE ATTENTION Note this is the introduction to case management in the Magistrates’ Courts 2.7.1 Rule 22A – Meeting between parties to prepare for pre-trial conference or trial 2.7.2 Rule 25 – Judicial Case Management and pre-trial Conference 2.7.3 Rule 38 – Security by execution creditor 2.7.4 Rule 54 – Proceedings against non-juristic persons as a matter of procedural convenience (mentioned above) 2.7.5 Rule 60 – Non-compliance with rules and court orders, including time limits and errors 3. PREPARATION FOR TRIAL 3.1. Further particulars - Rule 16 – Commentary in Jones & Buckle 3.2. Discovery - Notice to discover and discovery affidavits: Rule 35 - Rule 23 – Commentary in Jones & Buckle - Different kinds of discovery - Consequences of a failure to discover - Applications to compel 3.3. Inspection, Examination and Experts - Rule 24 – Commentary in Jones & Buckle 4. SPECIAL PRE-TRIAL PROCEDURES 4.1. Meeting between parties to prepare for pre-trial conference or trial - Rule 22A - Commentary in Jones & Buckle 4.2. Offer to Settle - Rule 18 - Commentary in Jones & Buckle 5. CONDUCT OF CIVIL TRIALS 5.1. Trial Procedure Rule 29 - Commentary in Jones & Buckle 5.2. Discontinuing a Trial - Withdrawal, dismissal and settlement - Rule 27 - Commentary in Jones & Buckle - Postponements and other mid-trial applications 5.3. Costs - Rule 33 - Commentary in Jones & Buckle 5.4. Interest - Sections 1, 1, 2A and 4 of the Prescribed Rate of Interest Act No 55 of 1975: Cf Da Cruz v Bernardo 2022 (2) SA 185 (GJ) at paras [17] to [62] Subject to your reading, the following points may be drawn from the case cited above • All the cases in the old authorities in which the in duplum rule was discussed and applied involved contractual claims where the interest rate was fixed by agreement between the parties • The rule applies to arrears interest on all contracts in which a capital sum owing was subject to a stipulated exchange rate. o From Roman times, the purpose of the rule was to prevent lenders from exploiting borrowers in respect of debt agreements. • However, mora interest is fundamentally different to contractual interest. o It is not payable in terms of an agreement, o but is ex lege constituted compensation for loss or damage resulting from default. • The circumstances in which a liquidated debt giving rise to mora interest may be recoverable covered a broad territory and may cover circumstances as broad as theft, to goods sold and delivered. • Further, a court had some flexibility in determining a defendant’s liability for mora interest in terms of the Prescribed Rate of Interest Act and so, like with an unliquidated claim, the defendant’s liability for interest was not certain until the court had delivered its judgment. • Delays in litigation may run longer than it took for the interest to equal the capital at the applicable mora interest rate. o In these circumstances it was preferable, as a matter of public policy and in the interests of justice, for the court to retain a discretion on how interest should be awarded, exercised on the facts of each case. o Where the court had such a discretion, it could exercise that discretion ▪ to limit interest payable to a dilatory plaintiff or ▪ to allow that interest where the defendant was the reason for the delay. • Section 1(1) of the Prescribed Rate of Interest Act provides the court with that discretion. The ‘special circumstances’ which give a court the discretion set out in s 1(1) of the Prescribed Rate of Interest Act would include circumstances where a plaintiff had been dilatory or where delay ought not to be visited on one of the parties. • The Prescribed Rate of Interest Act did not impose a ceiling on interest liability and did not expressly incorporate an in duplum principle (where it could easily have done so). 5.5. Judgments and orders Please read MC Rules 30 and 30A 6. AFTER JUDGMENT 6.1. Rescission and variation of judgments - Rule 49 - Commentary in Jones & Buckle 6.2 Sections 58A, 65, 65A to 65M, 66 Candidate attorneys need to know how these rules operate. NOTE WELL: Any questions posed in exams concerning any rules will be accompanied by a copy of the relevant rule or section of the statute. Please also consider s 36 of the Magistrates’ Courts Act (What judgments may be rescinded) and s 86 (Respondent may abandon judgment) and rule 49 relating to rescission of judgments by consent versus abandonment of judgments, and the differences. 6.3. Appeals - Rules 50 and 51 - Commentary in Jones & Buckle - Sections 83 and 84 of the Magistrates’ Courts Act - Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at paras [36] to [38]. Subject to your reading, the following points may be drawn from the case cited above • Practitioners who will argue an appeal must indicate which parts of the record in their opinion are not relevant for the determination of the appeal. • The object of the practice note is twofold. o First, it enables the Chief Justice in settling the roll to estimate how much reading matter is to be allocated to a particular Judge. o Second, it assists Judges in preparing the appeal without wasting time and energy in reading irrelevant matter. o Unless practitioners comply with the spirit of this requirement, the objects are frustrated and this in turn leads to a longer waiting time for other matters. • There also appears to be a misconception about the function and form of heads of argument. • The Rules of this Court require the filing of main heads of argument. o The operative words are ‘main’, ‘heads’ and ‘argument’. o ‘Main’ refers to the most important part of the argument. o ‘Heads’ means ‘points’', not a dissertation. o ‘Argument’ involves a process of reasoning which must be set out in the heads. ▪ A recital of the facts and ▪ quotations from authorities ▪ do not amount to argument. Harms, LTC Heads of argument in courts of appeal, Advocate 2009 Note for Candidates: here is some terminology to intrigue you • The court of first instance: this is the court where a case commences o A case may begin in any of Magistrate’s Court ▪ For the rest of that case, no matter how many subsequent appeals, that first Magistrate’s Court will remain the court of first instance ▪ If a case begins in a High Court, that High Court is the court of first instance for the rest of the matter • The court a quo: this was the court immediately below o Below what? o The current court: how can that be? o Because the current court is a court of appeal • Now try your terminology on the following sequence for our test case o Test case starts in the Regional Magistrate’s Court o Test case is appealed to the High Court: appeal 01 o Test case is then appealed to the Supreme Court of Appeal: appeal 02 o Test case is finally appealed to the Constitutional Court: appeal 03 • In the Constitutional Court, the Regional Magistrate’s Court remains the court of first instance • And, in the Constitutional Court, the Supreme Court of Appeal would be the court a quo 7. LAW OF EVIDENCE 7.1. The burden of proof and duty to begin (in civil cases only) - Schmidt & others Chapters 2 and 9 - Zeffertt & Paizes chapters 3 and 5.1-5.3 Burden of proof • the burden of proof relates to proof of fact, not proof of law • parties may argue about the applicable law: the judge will determine the law • the burden of proof is the onus of proof: they mean the same thing • the best explanation of the burden (onus) of proof stems from Pillay v Krishna 1946 AD 946 at pages 951 to 952 as follows: o The onus is on the person who alleges something and o Not on an opponent who merely denies it. o Where the person against whom the claim is made is not content with a mere denial of that claim, ▪ but sets up a special defence ▪ then that person is regarded quoad that defence, as being the claimant ▪ for that defence to be upheld that person must satisfy the Court to be entitled to succeed on it. • The burden of proof is not the same as the evidential burden. o This distinction is very academic o It was dealt with in your LLB ▪ Just remember: the evidential burden is analogous to establishing a prima facie case while leading your evidence ▪ When the cross-examiner knocks your client off his perch by exposing a flaw in the evidence, the prima facie case is gone, but the burden of proof remains ▪ At the end of the case, if the burden of proof is on your client and the court is in doubt, your client loses the case Duty to begin • The duty to begin is an evidential burden • The duty to begin is most often with the plaintiff • However, sometimes the duty to begin is on the defendant • That is when the defendant pleads a confession and a denial or an avoidance • It may be convenient to commence the case with assessing the denial or an avoidance • Consider the following example: o The plaintiff sues the defendant on a written lease for its rental o The defendant admits the written lease o But the defendant avers an oral variation of the lease o The plaintiff denies the oral variation o The court may determine the duty to begin is on the defendant o But the onus to prove the failure to pay the rental remains on the plaintiff 7.2. The assessment/weight of evidence - Schmidt & others Chapter 3.1 - Zeffertt & Paizes chapter 5 • In civil trials the party whose version seems more probable (or plausible) succeeds • The court will assess the credibility of a witness as part of the overall probabilities • An assessment of the demeanour of a witness used to be a factor in weighing evidence: however, recent research has shown that a witness who displays good demeanour may nonetheless be mistaken: so probabilities are preferred • The civil onus in weighing evidence is on a balance of probabilities Candidates must read and be familiar with the Civil Proceedings Evidence Act 25 of 1965. The Civil Proceedings Evidence Act has 45 sections. Each section is self-explanatory. You will need knowledge of the Act in practice. Exam questions on the Act will be accompanied by the text of the Civil Proceedings Evidence Act. Section 2 in Part 1 on Admissibility of Evidence sets the tone for Act 25 of 1965. It reads: “No evidence as to any fact, matter or thing which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact in issue shall be admissible.” Relevance is the key to admissibility of evidence in our courts. 7.3. Real evidence and documentary evidence - Schmidt & others Chapters 10 and 11 - Zeffertt & Paizes chapters 19, 20 and 21 • Real evidence is typically something such as a knife or clothing identified by a witness and handed in as an exhibit. • Real evidence usually requires a witness to contextualise its significance. • Real evidence includes an inspection in loco o for example, the scene of a motor vehicle collision o or the proof of a vantage point from which an eye witness witnessed an event • Documentary evidence is a more complicated form of real evidence. • Documentary evidence includes written documents, photos, maps, plans produced on paper o Although electronic forms of documentary evidence are also real evidence, o electronic evidence is dealt with as a separate category • Section 33 of the Civil Proceedings Evidence Act defines “document” to include any book, map, plan, drawing or photograph • The Electronic Communications and Transactions Act 25 of 2002 (ECTA) provides that data produced by electronic means will comply with a requirement that a document must be in writing, provided it is in the form of a data message and is accessible in a manner usable for subsequent reference • The rules on documentary evidence require discovery of the document if a party seeks to use the document in court • If a document advances the other party’s case, it too must be discovered by the possessor • A document must be proved by a witness and then handed up • If a document is in a bundle agreed by the parties following discovery, the contents of the document must usually still be proved by a witness 7.4. Oral evidence - Schmidt & others Chapter 9 - Zeffertt & Paizes chapter 6 • Concerning interviewing witnesses before, during and after giving evidence, please read the Guide for Professional Legal Ethics • Every litigant has the right to adduce evidence and to call witnesses • Once a witness has given evidence, to recall that witness requires leave of the Magistrate in terms of rule 29(11) • Oral evidence includes evidence given in sign as long as there is an interpreter • Interpreters used to be regarded as witnesses: nowadays interpreters are sworn to translate accurately what the witness testifies 7.5. Relevance and admissibility - Schmidt & others Chapter 13 - Zeffertt & Paizes chapter 7 • If evidence is relevant for the proof of a fact, the evidence will normally be admitted o However, a court has a discretion to exclude evidence in civil matters which has been obtained in violation of the Constitution o The common law rule is inconsistent with the Constitution to the extent that the common law starts with the assumption that all evidence, however obtained, is admissible • If the evidence is irrelevant it is not admitted • A fact is relevant to another fact if the two are logically connected • Circumstantial evidence is based on such logical links: consider o Sir Arthur Conan Doyle’s short story The Adventure of Silver Blaze, in which the horse Silver Blaze disappears from its stable one night (the story is referred to in Zeffertt 2nd Edition). o Sherlock Holmes points out to the police detective: ▪ Gregory (Scotland Yard): Is there any other point to which you would wish to draw my attention? ▪ Holmes: To the curious incident of the dog in the night-time. ▪ Gregory: The dog did nothing in the night-time. ▪ Holmes: That was the curious incident. 7.6. Hearsay evidence - The Law of Evidence Amendment Act 45 of 1988, § 3: Please read section 3 of Act 45 of 1988 - Schmidt & others Chapter 18 - Zeffertt & Paizes chapter 13 • hearsay evidence means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence; • under the common law hearsay is evidence of statements made by persons not called as witnesses but which statements are tendered to prove the truth of what is contained in the statement • section 3 of Act 45 of 1988 applies to criminal and civil proceedings • matters regarded as inadmissible hearsay include: o a witness testifies that a bystander told him the traffic light was green: that is not proof it was green o a witness testifies that her manager told her the company was insolvent: that is not proof of insolvency o a witness testifies that what he saw on social media is true: the court will accept that the witness viewed a social media post: but the court will not accept that the post contained the truth without evidence aliunde (from another source) • An instructive article, which is not in the reading list, by Andrew Swarts on certain exceptions to the hearsay rule is located at: https://www.derebus.org.za/admitting-absent-witness-statements-the-law-on-hearsay- evidence/ • Please read the article. It may be the source of a few questions in your admission exams. 7.7. Admissions (civil cases only) - Schmidt & others Chapter 7 - Zeffertt & Paizes pp. 475-499 • Judicial notice and formal admissions are both ways of proving facts without evidence • An admission is the confirmation of an adverse fact • A formal admission is made by a litigant or the legal representative with the object of removing the admitted fact from the issues to be adjudicated o so that evidence about it becomes unnecessary o both time and possible expense are saved • A formal admission may be made in the pleadings or in court • Section 15 of the Civil Proceedings Evidence Act 25 of 1965 provides that: It shall not be necessary for any party in any civil proceedings to prove nor shall it be competent for any such party to disprove any fact admitted on the record of such proceedings 7.8. Opinion evidence - Schmidt & others Chapter 17 - Zeffertt & Paizes chapter 10 • Opinion evidence, which is not necessarily expert evidence but, if accepted, must be given viva voce • To accept opinion evidence the court must be satisfied that the witness or expert is sufficiently qualified to express an opinion on the fact or facts the witness seeks to explain or elucidate • The principles applicable to the admissibility of expert opinion evidence are: o the witness has to be called to give evidence on matters calling for specialised skill or knowledge, o the court’s capabilities and responsibilities are not to be undermined when receiving such evidence, o the court has to determine whether the witness has acquired the necessary skill and experience, o the facts upon which the expert opinion is based have to be proven by admissible evidence, o the guidance offered by the expert has to be sufficiently relevant to the matter in issue, and o opinion evidence should not usurp the function of the court. Remember: there is a profound difference between fact, opinion and law. • Fact is discerned by evidence whether scientific or judicially. o Accordingly fact needs to be as objectively verifiable as possible. • Opinion is subjective. o Of course expert opinion tends towards learned objectivity based on the subjective experience and knowledge of the expert. • The law is determined by the judiciary. o The law is the majority decision of the highest court on the legal issue before it. o Parliament may change the law and sometimes does to avoid a judicial decision. Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC) at 211J – 212B: to wit: 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. 2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise . . . . An expert witness should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. 5. If an expert opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report. 7.9. Similar fact evidence (civil cases only) - Schmidt & others Chapter 15 - Zeffertt & Paizes chapter 9 • Similar facts refers to facts which are indeed similar to the facts in issue in your case o Similar facts in civil matters could include a person who enters into residential leases and then repeatedly fails to pay the lessor and has to be evicted in terms of the PIE Act (the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) many times in the past • Similar facts are admitted if these is a logical connection between the current case and the previous behaviour of a litigant • Remember: correlation, coincidence and conspiracy theories do not prove causation 7.10. Character evidence (civil cases only) - Schmidt & others Chapter 16 - Zeffertt & Paizes chapter 8 parts C and D • The limits posed on evidence and questioning relating to character stem from the principle of relevance • Character evidence is normally excluded because it wastes time to consider • The principles to admit character evidence are closely related to the principles to admit similar fact evidence • Character includes at least the following assessments: o Reputation ▪ to some extent, nature ▪ and disposition (a person’s inherent qualities of mind and character) o A person’s judgment: This is the most difficult to discern ▪ because it invites criticism from people threatened by the steadfastness, courage and integrity of the character of the witness, and ▪ in the modern era, the politics of the witness • Finally, character also relates to credibility, subject to the court’s assessment of the inherent probabilities of the witness’s evidence 7.11. Privilege - Schmidt & others Chapter 20 - Zeffertt & Paizes chapter 17 • There are two broad categories of privilege o Private interests o Public interests • Private privilege can only be waived if the witness is aware of the privilege; aware means to understand the nature of the privilege • Legal privilege is the most contested issue: o Communications between attorney and client in a civil matter are sacrosanct and cannot be violated o Communications between attorney and client in criminal matters commence after the client is at risk and takes legal advice o Advice in a vacuum of legal contestation is not privileged: the magic phrase used is advice under confidential circumstances: this is our law: it is a semantic debate • Attorneys often act for both parties in matrimonial matters, like divorce o Make sure to sketch the limits of legal privilege and o The constraints of you being called as a witness before you begin your work • Salaried legal adviser as inhouse counsel are protected under legal privilege: they do not have to disclose the facts and nature of their advice to their employers 7.12. Parol evidence - Schmidt & others Chapter 1 - Zeffertt & Paizes chapter 11 KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) ([2009] 2 All SA 523) at para [39]. Subject to your reading, the following points may be drawn from the case cited above. • First, the integration (or parol evidence) rule remains part of our law o Parol evidence rule arises with boiler plate clauses where if a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or modify its meaning • Second, interpretation is a matter of law and not of fact o Accordingly, interpretation is a matter for the court and not for witnesses • Third, the rules about admissibility of evidence in this regard do not depend on the nature of the document, whether statute, contract or patent • Fourth, to the extent that evidence may be admissible to contextualise the document to establish its factual matrix or purpose or for purposes of identification, ‘one must use it as conservatively as possible’ • The time has arrived for us to accept that there is no merit in trying to distinguish between ‘background circumstances’ and ‘surrounding circumstances’. o The distinction is artificial and, in addition, both terms are vague and confusing. o Consequently, everything tends to be admitted. o The terms ‘context’ or ‘factual matrix’ ought to suffice. 7.13. The leading of witnesses - Schmidt & others Chapter 9.2.4.1 - Zeffertt & Paizes chapter 24 • A witness presents evidence orally, also known from the Latin as viva voce evidence o A witness may not read his or her evidence from a document unless both parties agree • When you lead your witness you may not ask leading questions o Leading questions are questions that suggest the answer to the witness o Do not assume facts that have not been attested to unless you have your opponent’s consent concerning matters that are basically common cause o Rather commence questions with the following words: ▪ Who ▪ What ▪ When ▪ Where ▪ Why ▪ Which ▪ Whose ▪ Where to (whither) ▪ Where from (whence – not ‘from whence’) ▪ How 7.14. Cross-examination - Schmidt & others Chapter 9.2.4.2 - Zeffertt & Paizes chapter 24 • Under cross-examination, you as the cross-examiner may ask leading questions o Leading questions well formulated often require a simple yes or no as an answer o In cross-examination you must put your client’s version to the witness at some stage 7.15. Re-examination - Schmidt & others Chapter 9.2.4.3 - Zeffertt & Paizes chapter 24 • Ideally you do not re-examine your witness o unless something extraordinary came out under cross-examination that must be clarified o re-examination is often an indication your witness did not do well under cross- examination o so, ideally do not re-examine your witness 7.16. Examination by the court - Schmidt & others Chapter 9.2.4.4 - Zeffertt & Paizes chapter 24 • In civil trials judges and magistrates generally only ask questions for clarification • In our adversarial system, judges and magistrates remain out of the arena • Judicial officers are conscious of the approach that justice must not only be done but also be seen to be done Last notes for Candidates: In the case of Narodien v Andrews 2002 (3) SA 500 (C) at page 514 E – F the Full Court said: “A magistrate’s court is a creature of statute and has no inherent jurisdiction such as is possessed by the High Court. It therefore has only those powers which have been conferred upon it expressly or by clear implication, either in terms of the statute creating it (ie the Magistrates’ Courts Act 32 of 1944) or by other statutes [like section 42 of the Children’s Act 38 of 2005].” What the judges alluded to is that: • magistrates do not have the same inherent powers when dealing with the rules of court as judges • magistrates must determine cases before them within the bounds of the rules and the law, especially with regard to jurisdiction as to quantum and the residence of a defendant • consequently when you prepare matters for litigation in the Magistrates’ Courts, get into the habit of reading the applicable law each time before putting pen to paper or typing or dictating your ideas. Nicholas J. Tee January/February 2026 APPENDIX TO THE GUIDE FOR MAGISTRATE’S COURT PRACTICE Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) https://www.saflii.org/za/cases/ZASCA/1998/44.html Crompton Street Motors CC t/a Wallers Garage Service Station v Bright Idea Projects 66 (Pty) Ltd t/a All Fuels 2022 (1) SA 317 (CC) https://www.saflii.org/za/cases/ZACC/2021/24.html Da Cruz v Bernardo 2022 (2) SA 185 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2021/493.html Fairvest Property Holdings v Valdimax CC t/a Fish & Chips Co 2020 (3) SA 202 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2019/435.html KPMG Chartered Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA) https://www.saflii.org/za/cases/ZASCA/2009/7.html Legal Practice Council v Chueu Incorporated Attorneys [2023] ZASCA 112 https://www.saflii.org/za/cases/ZASCA/2023/112.html Ocean Echo Properties 327 CC v Old Mutual Life Assurance Co (SA) Ltd 2018 (3) SA 405 (SCA) https://www.saflii.org/za/cases/ZASCA/2018/9.html SA Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC) https://www.saflii.org/za/cases/ZACC/2022/43.html Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2010/3.html Standard Bank of South Africa Ltd v Mpongo 2021 (6) SA 403 (SCA) https://www.saflii.org/za/cases/ZASCA/2021/92.html APPENDIX TO THE GUIDE FOR HIGH COURT PRACTICE Absa Bank Ltd v Meiring 2022 (3) SA 449 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2022/31.html Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd 2022 (4) SA 57 (SCA) https://www.saflii.org/za/cases/ZASCA/2022/51.html Afgri Operations Ltd v Hamba Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) https://www.saflii.org/za/cases/ZASCA/2017/24.html Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v State Information Technology Agency (SITA) SOC Ltd and Others [2023] ZACC 2; 2023 (4) BCLR 361 (CC) https://www.saflii.org/za/cases/ZACC/2023/2.html Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2016 (1) SA 473 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2015/154.html Alberts and Others v Minister of Justice and Correctional Services 2022 (6) SA 59 (SCA) https://www.saflii.org/za/cases/ZASCA/2022/25.html Arena Holdings (Pty) Ltd t/a Financial Mail v South African Revenue Service 2023 (5) SA 319 (CC) https://www.saflii.org/za/cases/ZACC/2023/13.html Arendsnes Sweefspoor CC v Botha 2013 (5) SA 399 (SCA) https://www.saflii.org/za/cases/ZASCA/2013/86.html Arntzen, Ex parte (Nedbank Ltd as Intervening Creditor) 2013 (1) SA 49 (KZP) https://www.saflii.org/za/cases/ZAKZPHC/2012/66.html Bayport Securitisation Ltd v University of Stellenbosch Law Clinic 2022 (2) SA 343 (SCA) https://www.saflii.org/za/cases/ZASCA/2021/156.html BP Southern Africa (Pty) Ltd v Mega Burst Oils & Fuels (Pty) Ltd & Similar Matter 2022 (1) SA 162 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2020/56.html Bestbier and Others NNO v Nedbank Ltd 2024 (4) SA 331 (CC) https://www.saflii.org/za/cases/ZACC/2024/2.html Borcherds v Duxbury and Others 2021 (1) SA 410 (ECP) See: https://www.saflii.org/za/cases/ZAECPEHC/2020/37.html Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) https://www.saflii.org/za/cases/ZACC/2009/14.html Camps Bay Residents and Ratepayers Association v Augoustides 2009 (6) SA 190 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2009/30.html Cape Killarney Property Investments (Pty) Ltd v Mahamba 2000 (2) SA 67 (C) No SAFLII reference Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) https://www.saflii.org/za/cases/ZASCA/2001/87.html Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA) https://www.saflii.org/za/cases/ZASCA/2012/182.html City Square Trading 522 (Pty) Ltd v Gunzenhauser Attorneys (Pty) Ltd 2022 (3) SA 458 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2022/81.html Collett v First Rand Bank 2011 (4) SA 508 (SCA) https://www.saflii.org/za/cases/ZASCA/2011/78.html Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) https://www.saflii.org/za/cases/ZASCA/2003/36.html CSARS v Hawker Air Services (Pty) Ltd; CSARS v Hawker Aviation Partnership 2006 (4) SA 292 (SCA) https://www.saflii.org/za/cases/ZASCA/2006/51.html Da Cruz v Bernardo 2022 (2) SA 185 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2021/493.html Director-General, Depart of Rural Development and Land Reform v Mwelase 2019 (2) SA 81 (SCA) https://www.saflii.org/za/cases/ZACC/2019/30.html Drift Supersand (Pty) Ltd v Mogale City Local Municipality [2017] ZASCA 118 https://www.saflii.org/za/cases/ZASCA/2017/118.html E v E 2019 (5) SA 566 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2019/180.html Economic Freedom Fighters v Manuel 2021 (3) SA 425 (SCA) https://www.saflii.org/za/cases/ZASCA/2020/172.html Eke v Parsons 2016 (3) SA 37 (CC) https://www.saflii.org/za/cases/ZACC/2015/30.html Ekurhuleni City v Rohlandt Holdings CC 2025 (1) SA 1 (CC) https://www.saflii.org/za/cases/ZACC/2024/10.html Ellis v Eden 2023 (1) SA 544 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2022/112.html Esau v Minister of Co-op Governance & Traditional Affairs 2021 (3) SA 593 (SCA) https://www.saflii.org/za/cases/ZASCA/2021/9.html Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) ([2019] ZASCA 98) https://www.saflii.org/za/cases/ZASCA/2019/98.html Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality 2023 (2) SA 31 (CC) https://www.saflii.org/za/cases/ZACC/2022/41.html Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) https://www.saflii.org/za/cases/ZASCA/2006/52.html Fischer v Ramahlele and Others 2014 (4) SA 614 (SCA) [2014] ZASCA 88 https://www.saflii.org/za/cases/ZASCA/2014/88.html FirstRand Bank Ltd t/a First National Bank v Moonsammy t/a Synka Liquors 2021 (1) SA 225 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2020/105.html Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC) https://www.saflii.org/za/cases/ZACC/2009/26.html Gold Fields Ltd v Motley Rice LLC 2015 (4) SA 299 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2015/62.html Grobler v Phillips and Others 2023 (1) SA 321 (CC) https://www.saflii.org/za/cases/ZACC/2022/32.html Gundwana v Steko Development & Others 2011 (3) SA 608 (CC) https://www.saflii.org/za/cases/ZACC/2011/14.html Havenga v Parker 1993 (3) SA 724 (T) Hennie Ehlers Boerdery CC v APL Cartons (Pty) Ltd 2024 (1) SA 149 (ECGq) https://www.saflii.org/za/cases/ZAECQBHC/2023/43.html HLB Intl (SA) v MWRK Accountants & Consultants 2022 (5) SA 373 (SCA) https://www.saflii.org/za/cases/ZASCA/2022/52.html Hlophe v Freedom Under Law, and Other Matters 2022 (2) SA 523 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2021/743.html Hotz v University of Cape Town 2017 (2) SA 485 (SCA) https://www.saflii.org/za/cases/ZASCA/2016/159.html Ingenuity Property Investments (Pty) Ltd v Ignite Fitness (Pty) Ltd 2023 (5) SA 439 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2023/211.html Ingosstrakh v Global Aviation Investments (Pty) Ltd 2021 (6) SA 352 (SCA) https://www.saflii.org/za/cases/ZASCA/2021/69.html Investec Bank Ltd v NS 2025 (1) SA 210 (GP) https://www.saflii.org/za/cases/ZAGPPHC/2024/690.html Jaftha v Schoeman & Others; van Rooyen v Stoltz & Others 2005 (2) SA 140 (CC) https://www.saflii.org/za/cases/ZACC/2004/25.html Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) https://www.saflii.org/za/cases/ZASCA/1987/156.html Kham v Electoral Commission 2016 (2) SA 338 (CC) https://www.saflii.org/za/cases/ZACC/2015/37.html KPMG Chartered Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA) https://www.saflii.org/za/cases/ZASCA/2009/7.html Kubyana v Standard Bank 2014 (3) SA 56 (CC) https://www.saflii.org/za/cases/ZACC/2014/1.html Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA 246 (SCA) https://www.saflii.org/za/cases/ZASCA/2012/211.html Luna Meubel Vervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 (W) Mahomed NO & others v NDPP 2002 (4) SA 366 (W) https://www.saflii.org/za/cases/ZACC/2003/4.html Mamadi v Premier, Limpopo 2024 (1) SA 1 (CC) https://www.saflii.org/za/cases/ZACC/2022/26.html MEC, Dept of Public Works v Ikamva Architects 2022 (6) SA 275 (ECB) https://www.saflii.org/za/cases/ZAECBHC/2022/13.html Meme-Akpta and Another v Unlawful Occupiers at 44 Nugget Street 2023 (3) SA 649 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2022/482.html Metallurgical and Commercial Consultants v Metal Sales Co 1971 (2) SA 388 (W) Mineral Sands Resources (Pty) Ltd v Reddell 2023 (2) SA 68 (CC) https://www.saflii.org/za/cases/ZACC/2022/37.html Minister of Water and Sanitation v Sembcorp Siza Water (Pty) Ltd 2023 (1) SA 1 (CC) https://www.concourt.org.za/index.php/judgement/401-minister-of-water-and-sanitation-v-sembcorp-size- water-pty-ltd-and-another-cct300-19 Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) https://www.saflii.org/za/cases/ZASCA/2018/54.html Motloung v Sheriff, Pretoria East 2020 (5) SA 123 (SCA) https://www.saflii.org/za/cases/ZASCA/2020/25.html Murray NO and Others v Humansdorp Co-Operative Ltd 2023 (3) SA 66 (SCA) https://www.saflii.org/za/cases/ZASCA/2022/187.html MV Alina II: Transnet Ltd v MV Alina II 2013 (6) SA 556 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2013/124.html Mynhardt v Mynhardt 1986 (1) SA 456 (T) Nedbank Ltd v Fraser & Four Other Cases 2011 (4) SA 363 (GSJ) https://www.saflii.org/za/cases/ZAGPJHC/2011/35.html Nedbank Ltd v National Credit Regulator 2011 (3) SA 581 (SCA), [2011] 4 All SA 131 (SCA) See: https://www.saflii.org/za/cases/ZASCA/2011/35.html Nelson Mandela MM v Greyvenouw CC 2004 (2) SA 81 (SE) https://www.saflii.org/za/cases/ZAECHC/2003/5.html Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC) https://www.saflii.org/za/cases/ZACC/2014/14.html Nkata v FRB 2016 (4) SA 257 (CC) https://www.saflii.org/za/cases/ZACC/2016/12.html NM v John Wesley School and Another 2019 (2) SA 557 (KZD) https://www.saflii.org/za/cases/ZAKZDHC/2018/64.html NPGS Protection and Security Services CC v Firstrand Bank 2020 (1) SA 494 (SCA) https://www.saflii.org/za/cases/ZASCA/2019/94.html Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) https://www.saflii.org/za/cases/ZASCA/2004/48.html PFC Properties (Pty) Ltd v Commissioner for the South African Revenue Services and Brita De Robillard NO and Another v PFC properties (Pty) Ltd and Others 2024 (1) SA 400 (SCA) https://www.saflii.org/za/cases/ZASCA/2023/111.html Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) https://www.saflii.org/za/cases/ZASCA/1984/51.html Public Investment Corporation Soc Ltd v Trencon Construction (Pty) Ltd 2024 (1) SA 66 (SCA) https://www.saflii.org/za/cases/ZASCA/2023/88.html Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) https://www.saflii.org/za/cases/ZACC/2019/29.html Public Protector of South Africa v Speaker, National Assembly and Others 2023 (4) SA 205 (WCC) https://www.saflii.org/za/cases/ZAWCHC/2022/197.html Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) Rossouw v First Rand Bank 2010 (6) SA 439 (SCA), [2011] 2 All SA 56 (SCA) https://www.saflii.org/za/cases/ZASCA/2010/130.html Saharawi Arab Democratic Republic v Owners & Charterers of The Cherry Blossom 2017 (5) SA 105 (ECP) https://www.saflii.org/za/cases/ZAECPEHC/2017/31.html Sarrahwitz v Maritz NO 2015 (4) SA 491 (CC) https://www.saflii.org/za/cases/ZACC/2015/14.html Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) https://www.saflii.org/za/cases/ZACC/2012/11.html Shaik v Minister of Justice and Constitutional Development 2004 (3) SA 599 (CC) https://www.saflii.org/za/cases/ZACC/2003/24.html Sikwe v SA Mutual Fire & General Insurance Co Ltd 1977 (3) SA 438 Skog NO v Agullus 2024 (1) SA 72 (SCA) https://www.saflii.org/za/cases/ZASCA/2023/15.html Soffiantini v Mould 1956 (4) SA 150 (E) South African Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC) https://www.saflii.org/za/cases/ZACC/2022/43.html Standard Bank of SA Ltd v Mpongo 2021 (6) SA 403 (SCA) https://www.saflii.org/za/cases/ZASCA/2021/92.html Standard Bank of South Africa Ltd v Saunderson & Others 2006 (2) SA 264 (SCA) https://www.saflii.org/za/cases/ZASCA/2005/131.html Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) 2024 (2) SA 640 (SCA); [2023] ZASCA 108 https://www.saflii.org/za/cases/ZASCA/2023/108.html Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) STT Sales (Pty) Ltd v Fourie 2010 (6) SA 272 (GSJ) https://www.saflii.org/za/cases/ZAGPJHC/2010/71.html The Fonarun Naree: Trustees, Copenship Bulkers A/S (in Liquidation) and Others v Afri Grain Marketing (Pty) Ltd and Others 2020 (4) SA 188 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2019/547.html appeal upheld https://www.saflii.org/za/cases/ZASCA/2019/67.html Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA) https://www.saflii.org/za/cases/ZASCA/2005/60.html TS v TS 2018 (3) SA 572 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2017/244.html Van Zyl v Govt of the RSA 2008 (3) SA 294 (SCA) https://www.saflii.org/za/cases/ZASCA/2007/109.html Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others 2019 (3) SA 173 (SCA) https://www.saflii.org/za/cases/ZASCA/2018/189.html Wiese and Others v Commissioner, SARS 2025 (1) SA 127 (SCA) https://www.saflii.org/za/cases/ZASCA/2024/111.html

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