NATIONAL BAR EXAMINATION. Preparation for and Conduct of Civil Trials Curriculum
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1 UPDATED NOVEMBER 2015 NATIONAL BAR EXAMINATION Preparation for and Conduct of Civil Trials Curriculum A knowledge of the legal principles relating to the following topics is required. Although candidates are expected to be familiar with the issues discussed in the commentaries which are indicated below, the citation of cases will not be required. Save where otherwise stated, all references to Rules are to the Uniform Rules of the High Court. Bibliography Van Loggerenberg et al, Erasmus: Superior Court Practice [ Erasmus ] Harms, Civil Procedure in the Superior Courts [ Harms ] Van Loggerenberg, Jones & Buckle: The Civil Practice of the Magistrates Courts in South Africa, 10 th Ed [ Jones & Buckle ] AC Cilliers et al Herbstein & Van Winsen: Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5 th ed [ Herbstein & Van Winsen] Zeffert & Paizes, The South African Law of Evidence, 2 nd Ed (2009) [ Zeffertt & Paizes ] Schwikkard & Van der Merwe, Principles of Evidence, 3 rd Ed (2009) [ Schwikkard & Van der Merwe ] Schmidt & Rademeyer, Law of Evidence [ Schmidt & Rademeyer ] Mullins & Da Silva, Morris Technique in Litigation [ Morris ] Joubert (ed), The Law of South Africa [ LAWSA ]
2 2 A. JURISDICTION High Court - Superior Courts Act, 10 of 2013, 21 - Supreme Court Act, 59 of 1959, 19 - Commentary on 19 in Erasmus, A1-21 to 38B - Harms chapter A4 Jurisdiction of the High Court Magistrates Courts - Sections 26, 28, 29, 30, 45, 46(2) and 110 of the Magistrates Courts Act, 32 of Comment thereon in Jones & Buckle Vol 1. B. PARTIES 1. Joinder of parties and causes of action - Rule 10 - Commentary on Rule 10 in Erasmus. 2. Consolidation of actions - Rule 11 - Commentary on Rule 11 in Erasmus. 3. Intervention of persons as plaintiffs or defendants - Rule 12 - Commentary on Rule 12 in Erasmus. 4. Third party procedure - Rule 13 - Commentary on Rule 13 in Erasmus. 5. Proceedings by and against partnerships - Rule 14 - Commentary on Rule 14 in Erasmus.
3 3 6. Change of parties - Rule 15 - Commentary on Rule 15 in Erasmus. 7. Representation of parties - Rule 16 - Commentary on Rule 16 in Erasmus. C. PLEADINGS 1. The summons - Rule 17 - Commentary on Rule 17 in Erasmus. 2. Rules relating to pleading generally - Rule 18 - Commentary on Rule... in Erasmus. 3. Declaration - Rule 20 - Commentary on Rule 20 in Erasmus. 4. Plea - Rule 22 - Commentary on Rule 22 in Erasmus. 5. Claim in reconvention, replication and plea in convention - Rules 24 and 25 - Commentary on Rules 24 and 25 in Erasmus. 6. Barring - Rule 26 - Commentary on Rule 26 in Erasmus.
4 4 D. CLOSE OF PLEADINGS - Rule 29 - Commentary on Rule 29 in Erasmus. E. AMENDMENTS TO PLEADINGS AND DOCUMENTS - Rule 28 - Commentary on Rule 28 in Erasmus. F. EXCEPTIONS - Rule 23 - Commentary on Rule 23 in Erasmus. G. PREPARATION FOR TRIAL 1. Further particulars for trial - Rule 21 - Commentary on Rule 21 in Erasmus - Morris pp Discovery, inspection and examination of documents - Rule 35 - Commentary on Rule 35 in Erasmus - Morris pp Inspection, examination and expert evidence - Rule 36 - Commentary on Rule 36 in Erasmus - Morris pp Pre-trial conference - Rule 37 - Commentary on Rule 37 in Erasmus - Morris pp
5 5 5. Procuring evidence for trial - Rule 38 - Commentary on Rule 38 in Erasmus. 6. Advice on evidence - Morris chapter 7. H. SPECIAL PRE-TRIAL PROCEDURES 1. Special cases and adjudication upon points of law - Rule 33 - Commentary on Rule 33 in Erasmus. 2. Offers to settle - Rule 34 - Commentary on Rule 34 in Erasmus. 3. Interim payments - Rule 34A - Commentary on Rule 34A in Erasmus. 4. Withdrawal, settlement, discontinuance, postponement and abandonment - Rule 41 - Commentary on Rule 41 in Erasmus. I. CONDUCT OF CIVIL TRIALS 1. Trial procedure - Rule 39 - Commentary on Rule 39 in Erasmus - Harms chapter B39 - Morris chapters 8-16.
6 6 2. Judgments and orders - Harms chapter C1.16-C1.19. J. RESCISSION OF JUDGMENT High Court - Rule 31(2)(b) - Commentary on Rule 31(2)(b) in Erasmus - Rule 42 - Commentary on Rule 42 in Erasmus. Magistrates Courts - Section 36 of the Magistrates Courts Act - Commentary thereon in Jones & Buckle Vol 1 - Magistrate s Court Rule 49 - Commentary thereon in Jones & Buckle Vol 2. K. APPEALS High Court - Superior Courts Act, Supreme Court Act, Rule 49 - Commentary on and Rule 49 in Erasmus - Harms chapters C1.7-C1.40 Magistrates Courts - Sections 83 and 84 of the Magistrates Courts Act - Commentary thereon in Jones & Buckle Vol 1 - Magistrate s Court Rule 51 - Commentary thereon in Jones & Buckle Vol 2 - Uniform Rule (High Court) 50 - Commentary thereon in Erasmus
7 7 Argument - Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) - Morris chapters 16 and 18 L. COSTS 1. Fundamental rules - LAWSA Vol 3 paras Exceptions to fundamental rules - LAWSA Vol 3 paras M. INTEREST - Sections 1, 2, 2A and 4 of the Prescribed Rate of Interest Act, 55 of The MV Sea Joy : Owners of the cargo lately laden on board the MV Sea Joy v The MV Sea Joy 1998 (1) SA 487 (C) at 504J-508I - Nedbank Ltd and Others v National Credit Regulator and Another 2011 (3) SA 581 (SCA) paras (on the statutory in duplum rule applicable wherever the cause of action arises from a credit agreement as defined in the National Credit Act, 34 of 2005) N. REVIEWS OF DECISIONS OF REGIONAL- AND OTHER MAGISTRATES COURTS - Section 22 of the Superior Courts Act - Section 24 of the Supreme Court Act - Commentary thereon in Erasmus - Uniform Rule (High Court) 53.
8 8 O. LAW OF EVIDENCE 1. The burden of proof and duty to begin (in civil cases only) - Zeffertt & Paizes chapters 3 and Schwikkard & Van der Merwe chapter 32 - Schmidt & Rademeyer chapter 2 (excluding criminal proceedings) and (pp. 9-5 to 9-7) 2. The assessment/weight of evidence - Zeffertt & Paizes chapter 5 - Schwikkard & Van der Merwe chapter 30 (excluding criminal proceedings) - Schmidt & Rademeyer chapter 3 3. Real evidence and documentary evidence - Zeffertt & Paizes chapters and 21 - Schwikkard & Van der Merwe chapters 19, 20 and 21 - Schmidt & Rademeyr chapters 10, 11 and Oral evidence - Zeffertt & Paizes chapter - Morris chapters 10 and 13 - Schwikkard & Van der Merwe chapter 18 - Schmidt & Rademeyer chapters 8 and 9 5. Relevance and admissibility - Zeffertt & Paizes chapter 7 - Schwikkard & Van der Merwe chapter 5 - Schmidt & Rademeyer chapter 13
9 9 6. Hearsay evidence - The Law of Evidence Amendment Act, 45 of 1988, 3 - Zeffertt & Paizes chapter 13 - Schwikkard & Van der Merwe chapter 13 - Schmidt & Rademeyer chapter Admissions (civil cases only) - Zeffertt & Paizes pp Schwikkard & Van der Merwe chapter 26 - Schmidt & Rademeyer chapter pp to Opinion evidence - Zeffertt & Paizes chapter 10 - Schwikkard & Van der Merwe chapter 8 - Schmidt & Rademeyer chapter Similar fact evidence (civil cases only) - Zeffertt & Paizes chapter 9 - Schwikkard & Van der Merwe chapter 7 - Schmidt & Rademeyer chapter Character evidence (civil cases only) - Zeffertt & Paizes chapter 8 parts C and D - Schwikkard & Van der Merwe chapter 6 - Schmidt & Rademeyer chapter Privilege - Zeffertt & Paizes chapter 17 - Schwikkard & Van der Merwe chapter 10 - Schmidt & Rademeyer chapter 20
10 Parol evidence - Zeffertt & Paizes chapter 11 - Schwikkard & Van der Merwe pp Schmidt & Rademeyer chapter The leading of witnesses - Schmidt & Rademeyer para Morris chapter Cross-examination - Schmidt & Rademeyer para Morris chapter Re-examination - Schmidt & Rademeyer para Morris chapter Examination by the court - Schmidt & Rademeyer para
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