TOPIC 2

2023
MATTERS WHICH MUST BE CONSIDERED BEFORE PROCEEDINGS ARE INSTITUTED

1
Is the person entitled to relief?

Look at substantive law

Law of Contract:
Law of Delict:

2
Locus Standi

Two questions:

Does the litigating party have interest in the right which is the subject matter of the litigation?
Does the litigating party have the capacity to sue or be sued?

Does the litigating party have interest in the right which is the subject matter of the
litigation?

Common Law
Direct and substantial interest in the right which forms the subject matter of the litigation

Constitution of South Africa

Litigation based on a Bill of Rights issue

Section 38 of the Constitution of South Africa

Enforcement of rights

Anyone listed in this section has the right to approach a competent court, alleging that a right in
the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.
The persons who may approach a court are -
(a) Anyone acting in their own interest;
(b) Anyone acting on behalf of another person who cannot act in their own name;
(c) Anyone acting as a member of, or in the interest of, a group or class of persons;
(d) Anyone acting in the public interest; and
(e) An association acting in the interest of its members

1
Does the litigating party have the capacity to sue or be sued?

Legal capacity to appear in court: Plaintiff / Applicant

Determined by material law: Law of persons
Summons / Notice of motion
Plaintiff / Applicant must establish own legal capacity + that of the other parties

Prima facie proof of legal capacity: Party contesting locus standi must prove lack thereof

Rules applicable to legal capacity

Minors

Infans (0-7):
Legal guardian:

Children older than 7:

No legal guardian?

Mentally disordered persons

Person lacks ability to understand legal proceedings:

Presumption in favour of sanity: Must be declared to be of unsound mind

Prodigals

Limited legal capacity

Curator bonis
Curator ad litem

Insolvents

Legal capacity limited: Insolvency Act 24 of 1936

Capacity to institute / defend legal proceedings vests in trustee of insolvent person

S23 Insolvency Act EXCEPTIONS:

Status matters, claims re own profession, occupation, employment arising after sequestration
Claims re trade carried on by insolvent with permission of trustee
Claims for damages for defamation, personal injury, Insolvent sued in own name for any delict
committed

2
 Persons with full legal capacity but subject to limitation

Judges

Permission from relevant court to sue or subpoena

Section 47 Superior Courts Act: (Section 25 of Supreme Court Act)

High Court judge:
Magistrate:

Section 5 of the Constitution Court Complementary Act

President of the Supreme Court of Appeal:
Chief Justice:

Soller v President of the Republic of South Africa 2005 (3) SA 567 (7)

N v Lukoto 2007 3 SA 569 (T)

Engelbrecht v Khumalo 2016 AA 564 (GP)

Diplomats

General rule: Enjoy immunity

Relevant laws:

Diplomatic Immunities and Privileges Act 37 of 2001

Rules of customary international law
Vienna convention on Diplomatic Relations 1961
Vienna convention on consular relations 1963
Any agreement by RSA and a foreign state
President may confer immunity on any person

Fugitives from justice

May not institute legal proceedings

May defend legal proceedings

3
 Alien enemy

Defined as:

May not institute legal proceedings

May defend legal proceedings

3
Impediments affecting the request for relief

Potential impediments:

Prescription, Arbitration, Lis pendens, Pending Criminal Proceedings etc

Prescription

Time limits imposed:

Section 11 of the Prescription Act 68 of 1969

Extinction of debt by prescription

(a) Thirty years: a debt secured by mortgage bond, a judgment debt, any debt of tax levied in
terms of any statute, any debt owing to the State regarding the prospecting for and mining of
minerals or other substances,
(b) Fifteen years: a debt owing to the State arising from a loan of money or the sale or lease of
land, unless a longer period applies under (a) above,
(c) Six years: a debt arising from a bill of exchange or any other negotiable instrument (for
example, a cheque or promissory note), or a notarial contract unless a longer period applies
under (a) or (b) above,
(d) Three years: any other debt, unless specifically provided for by statute

Special plea or Mero Motu:

• Special plea must be made, as the court will not take notice of prescription mero motu

Interruption of prescription:
• Acknowledgment by the debtor to the creditor of a liability to pay the debt
• Process is served on the debtor for payment by way of summons

Suspension of prescription:
• When the creditor is a minor, insane, or under curatorship

4
 Arbitration

Arbitration Act 42 of 1965

Section 6(1) and 6(2) of the Arbitration Act

Stay of legal proceedings where there is an arbitration agreement
(1) If any party to an arbitration agreement commences any legal proceedings in any court
(including any inferior court) against any other party to the agreement in respect of any matter
agreed to be referred to arbitration, any party to such legal proceedings may at any time after
entering appearance but before delivering any pleadings or taking any other steps in the
proceedings, apply to that court for a stay of such proceedings.
(2) If on any such application the court is satisfied that there is no sufficient reason why the
dispute should not be referred to arbitration in accordance with the agreement, the court may
make an order staying such proceedings subject to such terms and conditions as it may consider
just.

Lis pendens

Special plea

Pending criminal proceedings

Special plea

Res judicata

Special plea

Costs regarding prior proceedings

Special plea

Jurisdiction

Special plea

4
Joinder of parties

Voluntary and compulsory joinder of parties

5
 5
Joinder of causes of action

6
Legal representation

Civil litigation can be complicated

The right to be heard necessarily includes the right to legal representation
Right to legal representation is entrenched in

General Power of Attorney given to the legal representative:

Special Power of Attorney given to the legal representative:

7
Prior demand or notice

Prior demand:

Time limit:

Formalities:
No formal requirements
Need not be in writing unless:

Legislation:

Section 129 of the National Credit Act 34 of 2005

Required procedures before debt enforcement

129 (1) of the National Credit Act

If the consumer is in default under a credit agreement, the credit provider-
(a) may draw the default to the notice of the consumer in writing and propose that
the consumer refer the credit agreement to a debt counsellor, alternative
dispute resolution agent, consumer court or ombud with jurisdiction, with the
intent that the parties resolve any dispute under the agreement or develop and
agree on a plan to bring the payments under the agreement up to date; and
(b) subject to section 130(2), may not commence any legal proceedings to enforce the
agreement before -

6
 (i) first providing notice to the consumer, as contemplated in paragraph (a),
or in section 86(10), as the case may be; and
(ii) meeting any further requirements set out in section 130

Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002

Notice of intended legal proceedings to be given to organ of state

3 (1) of the Institution of Legal Proceedings Against Certain Organs of State Act

No legal proceedings for the recovery of a debt may be instituted against an organ of state
unless -
(a) the creditor has given the organ of state in question notice in writing of his or
(b) the organ of state in question has consented in writing to the institution of that
her or its intention to institute the legal proceedings in question; or
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with all the requirements
set out in subsection (2).

Contractual agreement:

Purpose of the letter of demand:

General:
Plaintiff must ensure demand / notice received
Registered post:
Not required via registered post

Costs of letter of demand:

Section 56 Magistrates’ Court Act:
Will be able to recover the costs of the letter of demand only if sent by registered post

Instances where a letter of demand would be sent:

To avoid paying for legal costs:

Defendant unaware of liability

Defendant unaware of nature and extent of liability

If no letter of demand

7
+
Debtor pays debt in full = Plaintiff pays costs in full

To complete the cause of action:

Examples:
Contract stating that an amount is payable on demand
Cause of action based on breach of contract + terms of contract requires a LOD
When no date of performance is agreed upon in terms of a contract
No performance: May issue summons only after notice is given
No notice:

Required in terms of legislation:

Examples:
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002
Organ of State sued for damages, prospective plaintiff must give notice of the intended legal
proceedings within six months from the date when the debt became due

No notice: Summons defective

Section 29 of Small Claims Court Act

Section (1) (a) of the Small Claims Court Act

The plaintiff shall deliver a summons as prescribed personally or through his authorized
representative to the clerk of the court, together with a copy of a written demand which was
on a prior occasion delivered to the defendant by the plaintiff by hand or by registered post
and in which the defendant was, notwithstanding anything to the contrary in any law contained,
allowed at least 14 days, calculated from the date of receipt of that demand by the defendant, to
satisfy the plaintiff's claim.

Section 129 of the National Credit Act

Contents of a proper demand: (Self study) If drafted by the legal representative

*See page 38-42 of prescribed text book

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 A clear reference that the attorney is acting on behalf of the client
A clear explanation of the reason for the demand, based on the client’s version of the alleged
facts (mentioning relevant dates and amounts)
A clear indication of what is expected from the person receiving the letter of demand, such as
payment of a specific amount, delivery of an item or refraining from certain conduct,
An indication of the time period (if applicable) within which to comply with the demand,
An explanation of the consequences of failure to comply with the demand (setting out any cost
implications)

8
Jurisdiction

Will be discussed in Topic 4 and 5

9
Choosing the proper procedure

Will be discussed in Topic 6