Civil Procedure

High Court Rules, Magistrates' Court Rules, summons, pleadings, discovery, urgent applications.

Dominant casebooks

Erasmus · Superior Court Practice

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March 2027 Board mock papers

Mock questions modelled on the new Board exam structure (LSSA LEAD + public Board syllabus). Model answers AI-generated and clearly labelled.

Paper 2027 · Q1
Your client wishes to evict an occupier from rural agricultural land under ESTA. Set out the steps you must follow under the Extension of Security of Tenure Act 62 of 1997 and the Uniform Rules of Court before applying for an eviction order.
Marking scheme
```
- Identify ESTA s 9–10 procedural requirements (5 marks)
- Notice in terms of s 8/9 ESTA + reasonable time (5 marks)
- Probation officer's report under s 9(3) (5 marks)
- Application to Land Claims Court / Magistrates' Court — jurisdiction (5 marks)
- Service in compliance with Rule 4 + ESTA Regulations (5 marks)
```
Model answer (AI-assisted)
# Model Answer: Eviction Procedure under ESTA ## 1. Issue Identification The question requires a comprehensive account of the procedural steps mandated by the Extension of Security of Tenure Act 62 of 1997 ("ESTA") and the Uniform Rules of Court before an applicant may obtain an eviction order against an occupier of rural agricultural land. The procedural framework is designed to balance the rights of landowners with the constitutional protection of occupiers against arbitrary eviction, as established in *Port Elizabeth Municipality v Various Occupiers* 2005 (1) SA 217 (CC). ## 2. Applicable Rules, Statutes and Case Authority ### 2.1 ESTA Sections 9–10: Procedural Requirements Section 9 of ESTA governs the termination of the right of residence of occupiers, while section 10 prescribes the process for obtaining eviction orders. Before applying for eviction, several mandatory steps must be satisfied: **Section 9(2)** requires that an owner or person in charge may apply to a court for an order terminating the right of residence of an occupier only on specified grounds, including: - Breach of a material and fair term of the agreement (s 9(2)(a)) - Fundamental and unreasonable breach of the relationship (s 9(2)(b)) - Where the occupier has committed certain serious offences (s 9(2)(c)–(d)) - Where land use has changed or subdivision has occurred (s 9(2)(e)–(f)) **Section 10(1)** provides that no person may apply for an eviction order unless the relevant procedures in section 9 have been complied with and the court is satisfied that suitable alternative accommodation is available or that special circumstances exist. The Constitutional Court in *Daniels v Scribante* 2017 (4) SA 341 (CC) confirmed that ESTA's procedural protections must be strictly observed and are informed by the constitutional right to adequate housing in section 26 of the Constitution. ### 2.2 Notice Requirements: Section 8/9 and Reasonable Time **Section 8(4)** requires written notice to an occupier before terminating rights of residence. The notice must: - Be in writing and in a language the occupier understands - Set out grounds for termination - Inform the occupier of the right to make representations **Section 9(1)** mandates that before instituting proceedings, the owner must give the occupier not less than one month's written notice of intention to institute proceedings. This notice must: - State the grounds on which proceedings will be instituted - Inform the occupier of the right to make representations to the owner The courts have emphasized that "reasonable time" depends on circumstances, considering factors such as the occupier's vulnerability, length of occupation, and availability of alternative accommodation (*Joubert v Van Rensburg* 2001 (1) SA 753 (W)). ### 2.3 Probation Officer's Report: Section 9(3) **Section 9(3)** requires that before instituting proceedings, the owner must request the Department of Land Affairs (now the Department of Agriculture, Land Reform and Rural Development) to conduct an investigation and submit a report within 30 days. The probation officer or designated official must: - Investigate circumstances of the occupier - Assess the availability of alternative accommodation - Attempt mediation between parties - Submit a written report to the court Regulation 4 of the Regulations under ESTA (GN R2449, GG 19010 of 31 July 1998) prescribes the content and format of this report. The court cannot grant an eviction order without considering this report (*Schutte v Van der Westhuizen* 2001 (4) SA 105 (LCC)). ### 2.4 Jurisdiction: Land Claims Court and Magistrates' Court **Section 17** of ESTA confers jurisdiction on both the Land Claims Court and the Magistrate's Court. **Land Claims Court**: Section 23 of the Restitution of Land Rights Act 22 of 1994 grants the Land Claims Court exclusive jurisdiction over ESTA matters when exercised concurrently with its restitution functions. **Magistrate's Court**: Section 17(1) provides that the Magistrate's Court has jurisdiction within its area of jurisdiction, regardless of the value of the land or relief claimed. The appropriate court is the Magistrate's Court for the district where the land is situated. The applicant must carefully select the appropriate forum, noting that the Land Claims Court may be preferable for complex matters or where constitutional issues arise. ### 2.5 Service Requirements: Rule 4 and ESTA Regulations **Uniform Rule 4** governs service of court documents. Service must be effected: - Personally on the occupier, or - By leaving a copy at the occupier's dwelling with a person apparently over 16 years, or - By affixing to the door of the dwelling if no person is present **Regulation 3** of the ESTA Regulations requires that all notices and documents must be: - In a language the occupier understands - Explained to the occupier if illiterate - Served sufficiently in advance to allow meaningful response Non-compliance with service requirements renders subsequent proceedings invalid (*Pitje v Shibambo* 2016 (6) SA 1 (CC)). ## 3. Conclusion Before applying for an eviction order under ESTA, the client must: (1) provide written notice under sections 8(4) and 9(1) allowing reasonable time for representations; (2) request and obtain a probation officer's report under section 9(3); (3) establish grounds under section 9(2); (4) institute proceedings in the appropriate court with jurisdiction; and (5) ensure strict compliance with service requirements under Rule 4 and the ESTA Regulations. Only upon satisfying these procedural prerequisites may the court consider granting an eviction order, subject to proof of alternative accommodation or special circumstances under section 10(1).

Paper 2027 · Q2

Distinguish between an interdict pendente lite, an interim interdict and a final interdict under SA law. Apply the principles to a scenario where a manufacturing client seeks to restrain a competitor from publishing a confidential product specification.

Marking scheme

- Definitions of each interdict type (4 marks)
- Setlogelo requirements: clear right; injury; no alternative remedy; balance of convenience (8 marks)
- Setlogelo applied to confidentiality scenario (8 marks)
- Urgency under Rule 6(12) (5 marks)

Model answer (AI-assisted)

# Model Answer: Types of Interdicts and Application to Confidential Product Specification ## 1. Issue Identification The question requires identification and distinction between three types of interdicts available under South African law: interdict pendente lite, interim interdict, and final interdict. The principles governing the granting of interdicts must then be applied to a scenario involving the restraint of a competitor from publishing confidential product specifications. ## 2. Applicable Rules, Statutes and Case Authority ### 2.1 Definitions of Interdict Types (4 marks) **Final interdict** is a permanent order granted after a full hearing on the merits, following normal procedure where both parties have presented evidence and argument. It constitutes the substantive relief sought in the main application or action. **Interim interdict** is a temporary order granted at the commencement of proceedings, pending the return day when the application for a final interdict will be heard. It preserves the status quo until the court can properly adjudicate the matter. The interim interdict falls away when the court decides the main application. **Interdict pendente lite** is an order granted after the return day but before final determination of the matter, typically where the matter is postponed or referred to trial. It maintains the position pending final adjudication and bridges the gap between the interim relief and final determination. ### 2.2 The Setlogelo Requirements (8 marks) The requirements for obtaining an interdict were established in *Setlogelo v Setlogelo* 1914 AD 221. The applicant must establish on a balance of probabilities: **Prima facie right (clear right):** The applicant must demonstrate a right, though not necessarily established beyond doubt. For interim relief, the applicant need only show a *prima facie* right or reasonable prospect of success at trial. The right must be one that is worthy of protection. **Injury actually committed or reasonably apprehended:** The applicant must show that injury has occurred or that there is a reasonable apprehension of injury if the interdict is not granted. The threatened injury must be imminent and not speculative. In *Webster v Mitchell* 1948 (1) SA 1186 (W), the court held that a reasonable apprehension of irreparable harm suffices. **No alternative remedy:** The applicant must demonstrate that ordinary remedies (such as damages) would not provide adequate relief. This does not mean there must be no other remedy whatsoever, but that alternative remedies are not practical or adequate in the circumstances. **Balance of convenience:** The court must consider whether the harm to the applicant if the interdict is refused outweighs the harm to the respondent if it is granted. This involves weighing the competing interests of the parties and assessing where the greater injustice would lie. As confirmed in *Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton* 1973 (3) SA 685 (A), the balance of convenience is a critical factor. ### 2.3 Urgency under Uniform Rule 6(12) Where the applicant seeks an interim interdict on an urgent basis, compliance with Uniform Rule 6(12) of the Uniform Rules of Court is required. The applicant must set out explicitly the circumstances establishing urgency and why ordinary procedures cannot be followed. The applicant must explain why it cannot be afforded substantial redress at a hearing in due course (*Luna Meubel Vervaardigers (Edms) Bpk v Makin* (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W)). Urgency is assessed objectively, not by the applicant's failure to act timeously. ## 3. Application to the Facts ### 3.1 Setlogelo Applied to Confidentiality Scenario (8 marks) **Clear right:** The manufacturing client must establish a *prima facie* right to confidentiality in the product specification. This may arise from common law protection of trade secrets, contractual obligations (if the competitor obtained the information through employment or contract), or breach of confidence principles established in *Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd* 1968 (1) SA 209 (C). The client must show the information is genuinely confidential and not in the public domain. **Injury:** Publication of confidential specifications would likely cause immediate and irreparable harm. Unlike financial loss, the disclosure of trade secrets cannot be undone – once published, confidentiality is destroyed. This constitutes the type of irreparable injury contemplated in *Giddey NO v JC Barnard and Partners* 2007 (2) BCLR 125 (CC). The client should provide evidence of competitive harm and potential loss of market advantage. **No alternative remedy:** Damages would be inadequate because: (a) calculating the financial harm from disclosure of trade secrets is difficult; (b) monetary compensation cannot restore confidentiality once lost; and (c) the harm to competitive position may be impossible to quantify. **Balance of convenience:** The balance favours the client. Publication would cause permanent harm to the client's proprietary information and competitive position. By contrast, restraining publication merely maintains the status quo and does not prevent the competitor from developing its own specifications independently. The public interest in protecting confidential commercial information generally supports granting relief. ### 3.2 Urgency Analysis (5 marks) The matter is urgent because publication would cause immediate and irreparable harm. Once the specification is published, the confidential information enters the public domain permanently. The client must establish in its Rule 6(12) affidavit when it learned of the threatened publication and why immediate relief is necessary. Any delay in bringing the application may undermine the urgency. The client should seek an interim interdict on an urgent basis, with the matter to be heard on the return day for a final interdict. ## 4. Conclusion The manufacturing client should apply urgently under Rule 6(12) for an interim interdict restraining publication pending the return day. If the matter is postponed after the return day, an interdict pendente lite may be sought. Ultimately, a final interdict should be pursued if all Setlogelo requirements are satisfied. The confidentiality scenario appears suitable for interdict relief given the irreparable nature of disclosure and inadequacy of alternative remedies.

Source: Erasmus Superior Court Practice + Setlogelo principles.

Paper 2027 · Q3

Your firm has obtained default judgment in the High Court for R1.5m. The defendant now applies for rescission. Set out the bases on which a rescission application may succeed and the procedural requirements.

Marking scheme

- Rule 31(2)(b) — within 20 days, good cause (5 marks)
- Rule 42(1) — common-law rescission (5 marks)
- Common-law fraud / iustus error (5 marks)
- Bona fide defence required (5 marks)
- Costs against applicant unless cause shown (5 marks)

Model answer (AI-assisted)

# Model Answer: Rescission of Default Judgment ## 1. Issue Identification The defendant seeks rescission of a default judgment granted in the High Court for R1.5 million. The legal issues are: - What are the available bases for rescission of default judgment? - What are the procedural requirements for each basis? - What substantive requirements must be satisfied? - What are the costs consequences? ## 2. Applicable Rules, Statutes and Case Authority ### 2.1 Rule 31(2)(b) of the Uniform Rules of Court Rule 31(2)(b) provides that a defendant against whom default judgment has been granted may apply to court "upon good cause shown and within twenty days after he has knowledge of the judgment, to set the judgment aside". This is a self-standing right to rescission available to defendants who act timeously. The requirements are: - Application within 20 days of knowledge of judgment - Good cause shown - Bona fide defence on the merits In *Chetty v Law Society, Transvaal* 1985 (2) SA 756 (A), the Appellate Division held that "good cause" is a matter of discretion involving consideration of the degree of lateness, the reasonableness of the explanation, the bona fides of the application, the bona fides of the defence on the merits, and the absence of prejudice to the plaintiff. ### 2.2 Rule 42(1) — Common Law Rescission Rule 42(1) provides that the court may, in addition to any other powers it may have, mend any defect or error in any proceedings and make any order which is just. This preserves the common law jurisdiction to grant rescission. Common law rescission is available where: - The defendant can show good and sufficient cause - The defendant has a bona fide defence - There is a reasonable explanation for the default This remedy is typically invoked where the Rule 31(2)(b) period has expired. The test is more stringent than under Rule 31(2)(b), requiring a fuller and more convincing explanation. ### 2.3 Common Law — Fraud and Iustus Error The court retains inherent jurisdiction to set aside judgments obtained through fraud or based on iustus error (material and genuine mistake). **Fraud:** A judgment obtained through fraud may be set aside at common law. The applicant must prove: - Actual fraud (deliberate misrepresentation or concealment) - Materiality — the fraud affected the outcome - The applicant was not party to or aware of the fraud **Iustus error:** A material mistake of fact by the court justifies rescission. This includes cases where: - The court was misled as to a material fact - The judgment was granted in circumstances where it should not have been - The error was not due to the applicant's fault These common law grounds are not subject to time limits but delay may affect the exercise of discretion. ### 2.4 Bona Fide Defence Requirement All rescission applications require demonstration of a bona fide (prima facie) defence on the merits. In *Chetty*, the court confirmed that the applicant must disclose a defence that is arguable and not simply frivolous or vexatious. The defence need not be conclusively established but must show reasonable prospects of success. Without a bona fide defence, rescission will be refused regardless of the explanation for default. ### 2.5 Costs Consequences Rule 31(2)(c) provides that when default judgment is set aside, the defendant must pay the costs unless the court otherwise orders. The general principle is that the party in default is responsible for wasted costs. Rule 42(1A) similarly provides that costs occasioned by amendment or rescission shall be borne by the party applying unless the court orders otherwise. An applicant for rescission must demonstrate cause why costs should not follow this general rule. Relevant factors include whether the default was excusable, whether the plaintiff contributed to the default, and the overall interests of justice. ## 3. Application to Facts The defendant must choose the appropriate basis for rescission: **Rule 31(2)(b):** If within 20 days of knowledge of the R1.5 million judgment, the defendant should apply under this rule, showing good cause per *Chetty* factors and disclosing a bona fide defence to the claim. **Rule 42(1):** If the 20-day period has expired, common law rescission under Rule 42(1) remains available but requires a more compelling explanation for the delay and default. **Fraud/iustus error:** If the judgment was obtained through fraudulent misrepresentation or material mistake, these common law grounds may be invoked regardless of delay. In all cases, the defendant must establish a prima facie defence on the merits and should anticipate paying costs unless exceptional circumstances justify otherwise. ## 4. Conclusion Rescission may be sought under: (1) Rule 31(2)(b) within 20 days on good cause shown; (2) Rule 42(1) preserving common law rescission; or (3) common law fraud or iustus error. All require demonstration of a bona fide defence. Costs ordinarily follow against the applicant unless cause shown otherwise. The defendant should apply promptly under the most favourable available ground with full explanation and disclosure of the defence.

Source: Chetty v Law Society of the Transvaal + Rule 31/42.

Paper 2027 · Q4

Explain the Rule 34 offer-to-settle procedure and analyse the consequences of accepting / rejecting such an offer in High Court litigation.

Marking scheme

- Rule 34 "without prejudice" framework (5 marks)
- Cost consequences of refusal of equal-or-better offer (8 marks)
- Form + service requirements (5 marks)
- Strategic uses (4 marks)

Model answer (AI-assisted)

# Model Answer: Rule 34 Offer-to-Settle Procedure ## 1. Issue Identification The question requires an explanation of the Rule 34 offer-to-settle mechanism under the Uniform Rules of Court, including its procedural framework, formal requirements, and the cost consequences flowing from acceptance or rejection of such offers in High Court litigation. ## 2. Applicable Rules, Statutes and Case Authority ### 2.1 Rule 34 "Without Prejudice" Framework Rule 34 of the Uniform Rules of Court establishes a formal mechanism enabling parties to make offers of settlement on a "without prejudice save as to costs" basis. The foundational principle is that such offers remain inadmissible during the trial proper but become relevant when the court determines costs after judgment. The Supreme Court of Appeal in *Hulley & Associated v CSARS* 2016 (4) SA 109 (SCA) at para 23 confirmed that Rule 34 offers create a privileged communication that cannot be disclosed to the trial judge until after determination of the merits. This ensures that settlement negotiations do not prejudice either party's substantive case. The "without prejudice" protection serves dual objectives: encouraging frank settlement discussions while creating cost consequences that incentivise reasonable settlement behaviour. As stated in *Mkhize v Umvoti Municipality* 2012 (1) SA 1 (KZP), the rule promotes judicial economy by encouraging early resolution of disputes. ### 2.2 Cost Consequences of Refusal The primary cost consequences are governed by Rule 34(6), which provides that where a party rejects an offer and subsequently fails to obtain a judgment more favourable than the offer, adverse cost orders may follow. In *Erasmus Superior Court Practice* (2nd ed, 2022) at D1-336, the learned author explains that three cost scenarios arise: **First**, if the offeree rejects the offer and fails to better it at trial, the offeree becomes liable for the offeror's costs from the date of the offer, ordinarily on the party-and-party scale. This was confirmed in *Moolman v Builders & Developers (Pty) Ltd* 1990 (1) SA 629 (A) at 632H-633A. **Second**, where the offeree obtains judgment equal to or marginally below the offer, the court retains discretion under Rule 34(8) to determine whether the offer was genuinely reasonable. In *Siqala v Seetal* 2012 (1) SA 160 (GSJ) at para 18, the court held that an offer must be sufficiently better than the eventual judgment before adverse costs follow. **Third**, the cost consequences may be elevated to attorney-and-client or attorney-and-own-client scale where the rejection was wholly unreasonable. The court in *National Director of Public Prosecutions v Papadakis* 2008 (3) SA 374 (W) at para 12 confirmed this punitive approach applies where rejection demonstrates obstinacy rather than legitimate litigation strategy. Importantly, cost consequences run from the date the offer should reasonably have been accepted, not necessarily the date of service. The court retains ultimate discretion under Rule 34(10) to deviate where justice requires, as held in *Germishuys v Victoria* 2000 (2) SA 561 (O) at 565C-E. ### 2.3 Form and Service Requirements Rule 34(2) mandates that offers must be in writing and should specify: - The precise relief offered or demanded; - Whether the offer includes costs to date; - The period within which acceptance must occur (ordinarily not less than 10 days from service). Service must comply with Rule 34(3), requiring service upon the opposing party's legal representative or, if unrepresented, upon the party personally. In *Nkosi v Premier of Gauteng* 2011 (4) SA 273 (SCA) at para 9, defective service rendered the purported offer invalid for cost purposes. The offer must remain open for reasonable time. While Rule 34(4) permits withdrawal, an offer cannot be withdrawn within the stated acceptance period unless by agreement. The court in *Sackstein v Proudly SA* 2005 (3) SA 437 (SCA) at para 15 held that premature withdrawal negates cost consequences. Acceptance must be unconditional and in writing per Rule 34(5). Qualified acceptance constitutes a counter-offer rather than valid acceptance: *Eke v Parsons* 2016 (3) SA 37 (CC) at para 44. ### 2.4 Strategic Uses Rule 34 serves several strategic functions in litigation management: **First**, it creates settlement leverage by forcing realistic case evaluation. A party facing a reasonable offer must weigh litigation risk against certain resolution. **Second**, it protects against cost exposure by "capping" potential adverse costs at the offer date, incentivising early settlement overtures as held in *MV Ais Mamas, The* 2013 (4) SA 1 (SCA) at para 28. **Third**, it enables tactical positioning where liability is admitted but quantum disputed, permitting defendants to make calculated offers that limit exposure while demonstrating reasonableness to the court. **Fourth**, it functions as a costs management tool in multi-party litigation, enabling selective settlement with individual parties. ## 3. Conclusion Rule 34 constitutes a sophisticated settlement mechanism balancing access to justice against efficient dispute resolution. Compliance with formal requirements is essential to trigger cost consequences, and practitioners must carefully evaluate offers against litigation risk to avoid punitive cost orders while advancing clients' interests responsibly.

Source: Uniform Rules + Erasmus on costs.