CIVIL PRACTICE &

PROCEDURE

In the Magistrate’s Court, Costs and

Prescription

S
S Lecturer: Ms. Carli Schickerling
Etzold-Duvenhage
33 Feld Street
061 – 229 337 (Tel.)
061 – 229 343 (Fax)
[email protected]

S Course Outline: Civil Practice and Procedures in the

Magistrate’s Court; Costs and Prescription.
S Candidates should have a thorough practical understanding of civil
procedure, with regards to various causes of action in the Magistrate’s
Court, from the stage of taking instructions through to appeal and review,
to be able to litigate effectively and successfully.

S In particular:
S Understand functioning of courts with reference to various officials
S Form a complete view of the rules in practical application
S Understand relationship between profession and court, and between attorney
and client
S Responsibility of practitioner as an officer of the court
S Appraise factual and legal implications of case re prospects of success and costs
 The purpose of the course is to provide a practical overview of the subject

 Lectures will cover only those aspects most likely to be encountered by

candidate legal practitioners

 The remainder of the course constitutes SELF – STUDY!

 Study the sections, rules and parts of textbooks indicated in the material
 References

• The Magistrate’s Court Act, 32 of 1944 (hereinafter called the Act)

• The Magistrate’s Court Rules, as promulgated in terms of Section 25 of the Act
(hereinafter called the Rules)
• Jones and Buckle, The Civil Practice of the Magistrate’s Courts in South Africa (8th
Edition 1988, Vol. I, and 1991, Vol. II)
Erasmus and Von Loggerenberg
• Eckhard’s Principles of Civil Procedure in the Magistrate’s Courts,
(3rd Edition 1996)
 B. LECTURES

LECTURE 1
S Duties of the Clerk of Court

S Debt Collecting
 Rule 3 & 4
 Summons / first document filed:
 Numbering
 Documents filed thereafter
 Filed of record
 Issueing of all such process (also reissue)
 Notification of Plaintiff
 Not exhaustive, may be expounded on
 Taxation of Bill of Costs (eg. Single judicial officer)
 [If Magistrate – acts as CC]
Debt Collecting

• Letter of Demand
– If Debtor pays, Creditor is entitled to recover fees and costs of LOD, provided that they
were stated in the LOD [Section 56]
– Particulars about nature of claim and amount
– Not obliged to use S56, but advantages – can obtain judgement and/or order for payment
in instalments on strength of LOD
– Not always necessary to send LOD before Summons, but sometimes it must be done to
place Defendant in mora / or for cancellation
– Section 57 & 58 – only for liquidated sum of money

• Liquidated Sum of Money

– Amount agreed upon, or capable of speedy and prompt ascertainment
• Ito contract
• Calculation from figures in books
• Cost for work done and materials and parts supplied – liquidated
– List: Jones and Buckle, Vol II, 8th Edition, at 89-90
 SUMMONS

S Issuing of Summons
S Clerk of the Court, or to reissue
S Rule 5
S Set outs claim and calls upon Defendant to indicate whether he/she intents defending the
action, within required dies induciae
S Failure to do so – Default Judgement
S Steps to be taken before DJ
S N$ 25.00 revenue stamp
S Signed by Plaintiff or attorney
S Amendments thereon must be initialled by CC and Plaintiff before service (validity) and
dated (not provided)
S Address for Plaintiff –within 15km from court house
S Exception: Less than 3 practising attorneys independently – see Rule 6(2)(b)
S Dies induciae: Rule 5(1)
S Only 2 grounds for refusal to issue summons :
S Excessive amounts claimed for costs – see Rule 6(4)(a),
S Plaintiff ’s address does not comply with requirements of Rule 6(2)(b) and 6(2)(c)
 Summons (Continued)

S Rule 5(5) as amended

S Show surname of Defendant by which he/she is known to Plaintiff
S Defendant’s sex, and residential or place of business address
S Where known, also first name, initials, occupation, and if sued in
representative capacity, then such capacity

S CC satisfied that everything is correct

S Allocate number to summons
S Deface revenue stamp
S Sign summons and stamp with official stamp

S Summons then forwarded to Messenger

 Service of Summons

S Deliver to Messenger the original, plus as many copies as there are

persons to be served [Rule 9(1)]

S Except for interdicts, warrant of arrest or attachment under section

30bis, directed by court or served by post, may not be done on
Sundays or public holidays [Rule 9(2)]

S Service is effected by delivery of a copy of the process to the person

to be served [Rule 9(3)]

S 28 possible ways of service of processes or documents

[Rules 9(3), 9(5) to 9(6)]
 B. LECTURES (cont.)

LECTURE 2

Introduction
 Synopsis – Schematic presentation of process
 Administration
 Ethics
 Courts
Pre-Litigation
 Taking Instructions
 Jurisdiction
 Parties
 Demand
ACTION PROCEEDINGS

 Summons
• Rules 5, 6 and 7
• Requirements
• Citation
• Signature thereof, issuing thereof, stamp duty
• Service and Returns of Service
• Amendment of summons
• Rule 54 Notice

 Particulars of Claim
• General rules of drafting
• Different causes of action (ex delicto, ex contractus, ex various)
• Specific causes of action
 B. LECTURES (cont.)

LECTURE 3

 Undefended Actions

• Agreement with Debtor (Sec. 57)

• Consent to judgment (Sec. 58)
• Default Judgment

• Default Judgment
 Big problem areas in Magistrate’s Court – informal rules that have been
created and interpretation by various magistrates
 Definition: Rule 2(1)(b):
 “A judgment given in the absence of the party against whom it is given”
 Both Defendant and his/ legal representative must be absent at the
time of granting of judgment
 When can DJ be granted?

• No entry of Appearance/ Notice to Defend - Rule 12(1)(a)

 What if Notice is delivered after expiry of dies induciae, but before the
request of DJ is lodged?
 Epol v Landros Vryburg 1987 (1) 821 NKA

• Notice to Defend filed, but no plea filed within 3 days after filing Notice of
Bar – Rule 12(1)(b)

• Defective Notice to Defend, and fails to file proper one within 3 days after
having been given notice to do so – Rule 12(2)(a) – (c)

• Defendant consented to judgment – Sec. 57 & 58 / Consent in summons

• No appearance by Defendant or on his behalf at court on trial date /

hearing of Summary Judgment / Rule 32(2);
• Fail to comply with Order to Compel - Rule 60(3) application
 What if it is an unliquidated claim?
• General principle: Must first be liquidated
• Court must hear evidence / receive damages affidavit

 Requirements for granting DJ

• Particulars of claim must disclose a cause of action
• Court must have jurisdiction ito Section 28 or Section 29 OR parties must
have consented to jurisdiction ito Section 45 read with Section 46
• Summons must have been served properly
• Dies induciae must have expired (expiry of 3 days after service)
• Prayer for interest must be correct (if calculation, correct as well)
• Citation of Plaintiff must be correct and in accordance with requirements
of Rule 6

 Documents that must accompany DJ application

• Original summons and return of summons
• DJ request in duplicate (Form 5)
• Damages Affidavit – in case of unliquidated claim
Briel v Van Zyl 1985 (4) 163 T
 o Test: Is the claim amount easily determinable?
Kleynhans v Van der Westhuizen 1970 (2) 742 A and Rule 12(4)

• In case of liquid claim, the liquid document must be attached (if necessary it
must be duly stamped)
• Action based on a credit agreement falling under the Credit Agreement Act,
agreement and affidavit must be lodged – Rule 12(5)
• If based on any written agreement, the agreement need not be attached

 Consent to Judgment (Rule 11)

• Rarely required
• If Defendant admits whole claim, he can merely pay same or make
arrangement for settlement without signing a Rule 11 consent
 Revenue Stamps
• Documents lodged with CC for DJ should be properly stamped

• Lease Agreement (Stamps Duties Act No. 15 of 1993)

 Stamp duty varies according to period of lease
 Basic charge: N$ 5-00 per N$ 1 000.00 of gross rental for leases up to
5 years
 Increases to N$ 8-00 for periods up to 10 years
 N$10-00 for long term leases
 Unlimited period with one month termination notice period, must be
stamped for period of 2 years.
Eg. 12 month period, thereafter for indefinite period with 1 months
termination notice - Question?

• Credit Agreements – N$ 5-00

• Suretyship or Indemnification – N$1-00 per N$ 1 000
• Stamps must be cancelled within 21 days of signature
(How?)
 Defended Actions

• Notice of Intention to Defend (Rule 13)

 To be filed within the period limited by the summons
 Delivery ito Rule 2(1)(b) – filing notice with CC and serving a copy on
the Plaintiff

• Summary Judgment (Rule 14)

 On one or more of following claims:
(a) On a liquid document
(b) For a liquidated amount of money
(c) For delivery of specified movable property
(d) For ejectment

In addition to costs

 Must be made on not less than 7 days notice, and not more than 7
days after Appearance to Defend was filed
  If the claim is a claim referred to in Rule 14(1)(b) to (d), affidavit by
Plaintiff or anyone that can swear positively to the facts, verifying:
 Cause of action,
 Amount claimed
 Stating that it is his belief that there is no bona fide defense
 Appearance has been entered solely for purpose of delay

 If in terms of Rule 14(1)(a) – copy of document

• The Defendant may do the following i.t.o Rule 14(3)

 Pay into court the amount sued for as well as costs (determined by
court/ satisfaction of Plaintiff) and abide by result
 Give security to satisfy judgment that may be given against him
(for claim sounding in money)
 Satisfy court by affidavit, delivered no later than noon of the day
preceding the hearing of the application, that:
 He has a bona fide defense or counterclaim
 Affidavit must disclose the grounds of such defense or
counterclaim
• Security for costs by the Plaintiff - Rule 62
 Grounds – Rule 62(1) [not resident in Namibia, unrehabilitated
insolvent, registered/ incorporated Company, no substantial interest in
cause of action, under administration ito S74, assisted ito Agricultural
Act, 28 of 1966]
 Must be complied with within 7 days
 Court may on application ito Rule 55(1) and (2)
 Stay proceedings until request is complied with; or
 Dismiss action
 Rule 62(2)
 Give security to satisfy judgment that may be given against him
(for claim sounding in money)
 Satisfy court by affidavit, delivered no later than noon of the day
preceding the hearing of the application, that:
 He has a bona fide defense or counterclaim
 Affidavit must disclose the grounds of such defense or
counterclaim
• Further Particulars (Rule 15)
1. At any time after entering appearance to defend, but before notice of
bar ito Rule 12(1)(b), apply to Plaintiff for:
 Copies of documentation on which claim is based
- Must be delivered within 7 days
2. Plaintiff shall allow Defendant to inspect documents
3. If Plaintiff wrongfully refuses, action may on application be
dismissed with costs.

• Further Particulars (Rule 16)

1. Further particulars requested within 7 days from Appearance to
defend
2. Must be delivered within 7 days

To enable party to plead:

Reasonably necessary to enable him to plead
 B. LECTURES (cont.)

LECTURE 4
• Exceptions (Rule 16)

 Particulars of exceptions must be delivered within 7 days from

delivery of Notice to Defend.

 If a Notice ito Rules 15 and 16 has been filed, particulars of

exceptions may be delivered within 7 days from of delivery of such
documents or further particulars.

 OR within 7 days after the expiration of period of 7 days after delivery

of a notice ito Rule 17(5)(c), if the cause of complaint has not been
removed.

 If Defendant fails to file exception within such period, may not raise
same without leave of court granted on application, after notice to
Plaintiff.
 Grounds for Exceptions:
 Summons does not disclose cause of action
 Summons is vague and embarrassing
 Summons does not comply with requirements of Rule 5 and 6
 Summons has not been properly served
 Copy of summons served on Defendant differs materially from
the original summons

 Court will not uphold exception, unless it is satisfied that

Defendant would be prejudiced in conducting his defence, should
summons stand.

 Defendant raising an exception to summons shall clearly and

concisely state grounds upon which an exception is found.

 When exception is based on vague and embarrassing summons,

Defendant must prior to taking exception give Plaintiff an
opportunity to remove cause of complaint, or court will not uphold
exception – Rule 17(5)(c).
 Exceptions to a plea by Plaintiff – Rule 19(4):

 Plea does not disclose defense to Plaintiff ’s claim

 Plea is vague and embarrassing
 Plea does not comply with requirements of Rule 19

 Any exception is a legal objection to opponent’s pleading.

 Defect inherent in pleading: Even if all facts or averments in

summons or plea is correct, still may not disclose cause of action or
defence.

 Court must take a look at pleading as it stands, no facts outside those

stated in the pleading can be brought into issue, nor any other
document.
 Procedure of exception:

 Notice of Exception in case where it is alleged the summons is

vague and embarresing must be preceded with Notice setting
out complaint and affording Plaintiff opportunity to remove
cause of complaint
 Other grounds – Notice of Exception

 Set down by way of Notice of Set Down

 At hearing, court will only hear arguments, and no evidence

• Plea (Rule 19)

 Defendant in plea shall either admit/ deny/ confess and avoid all
material facts in particulars to summons.

 Shall clearly and concisely state nature of defense and all material
facts on which it is based.

 Bare denial of liability or defense of general issue shall not be

admissible, but Defendant may as sole defense or in combination with
other defense not inconsistent therewith, deny specifically any of the
allegations in the summons.

 Every allegation of fact by Plaintiff which is inconsistent with plea

shall be presumed denied, every other allegation shall be taken to be
admitted.
 Purpose of pleadings is to outline disputes between parties.

 Purpose of plea? To inform Plaintiff of Defendant’s defense.

 Plaintiff must be informed of the facts admitted and denied by

Defendant and any new facts alleged.

 Plead as follows:

 Admit; or
 Deny; or
 Confess and avoid ; or
 State that he has no knowledge, therefore cannot admit or deny
same, and put Plaintiff to proof thereof;
 Not respond to an allegation.
 Fact admitted – no evidence required.

 Plea cannot be amended by ordinary notice – substantive application

to court required.
 Must show on oath that admission was made in error
 And that Plaintiff will not suffer material prejudice if amendment
is allowed

 Denials must be unambiguous and need not be particularized unless

onus rest on Defendant.

 Must explain denial! If explanation or qualification is required, it must

be pleaded. Purpose of plea? To inform Plaintiff of Defendant’s
defense.

 Facts not unambiguously denied is deemed admitted.

  Bare denials or defense of general issued is not permissible.

Hillman Bros Ltd v Kelly & Hingle 1926 WLD 153

Lubbe v Bosman 1948 (3) SA 909 A
Williams v Williams 1971 (2) SA 620 O

 No specific provision for Special Plea – must thus form part of plea.

 May be in separate documents on separate page, entitled special plea,

but entire case must be pleaded to.

• Special Plea (Rule 19)

 Apart from merits, raising a special defense not apparent from

particulars of claim
  Some defenses that can be raised by means of Special Plea:

 Prescription
 Lack of jurisdiction
 Lack of locus standi
 Res Judicata
 Lis Pendens
 Arbitration
 Non-joiner / Splitting of claims

• Payment into Court (Rule 18)

 Whole amount of claim unconditionally. Effect?

 Any amount in full settlement of claim – offer of compromise.
 Plaintiff may accept or refuse.
 Plead a tender – pay amount tendered into court on delivery of plea.
  Advantages of Rule 18(2):

 Plaintiff may not know how amount is calculated – will be at a

disadvantage when preparing for trial.
 If Plaintiff does not accept, and is unable to prove at trial
entitlement to amount paid into court – only receives amount
proved – balance paid to Defendant.
 Ito Rule 18(7) – Plaintiff is entitled to entire amount, irrespective
of whether he proves full amount.
 Defendant may include costs in the amount paid in as offer.

• Payment into Court (Rule 18)

 Whole amount of claim unconditionally. Effect?

 Any amount in full settlement of claim – offer of compromise.
 Plaintiff may accept or refuse.
 Plead a tender – pay amount tendered into court on delivery of plea.
• Counterclaim / Claims in Reconvention (Rule 20)

 Made by delivery within time limit provided by Rule 19 read with

Rule 12 (1)(b), for delivery of plea.
 Defendant delivering counterclaim may deliver therewith or within 3
days thereafter, apply to court to pronounce claim in reconvention
exceeds jurisdiction.
 If court finds jurisdiction is exceeded, Defendant may within 3 days
after such finding apply for stay of action under Section 47.
 If Defendant fails to do so – Plaintiff may apply or court may of own
motion dismiss counterclaim, unless Defendant abandons part of
claim under Section 38.
 If action is dismissed/ withdrawn/ stayed/ discontinued or dismissed
– what happens to counterclaim?

• Reply (Rule 21)

 Plaintiff ’s answer to plea.
 Only necessary if Plaintiff wishes to plead fresh facts.
 Restricted to answering allegations made in plea.
• Close of Pleadings - Rule 21(4)

 Upon delivery of reply, or where no reply is filed upon expiration of

the 7 days time limit – pleadings shall be deemed closed.

 Only at this stage may parties proceed to ask for discovery and set
matter down for trial.

• Set down of Trial (Rule 22)

 Plaintiff must, after pleadings have been closed, deliver a notice of trial
for day/days approved by Clerk of Court.
 If Plaintiff fails to do so within 14 days after pleadings have closed,
Defendant may do so.
 Defendant may wish not to do so, or can apply for dismissal of claim /
action ito Rule 27(5).
• Discovery of Documents (Rule 23)

 Only done after pleadings have closed – differs from Rule 15, as it only
applies to documents on which Plaintiff ’s case is founded.
 Rule 23 goes further, requires a party to disclose every document that
has bearing on the case.
 Must file Notice to Discover no later than 14 days prior to trial date.
 Upon receiving request – must within 7 days file an affidavit and
schedules annexed thereto.
 First schedule: Documents iro which no privilege is claimed.
 Second Schedule: Privilege is claimed. What is this?
 All documents listed must be described, the date of the document
must be stated and whether they are originals or copies.
 BST Kombuise v Abrams 1978 (4) 182 T
 Venter v Du Plessis 1980 (3) 151 T
 Smit v Shongwe 1982 (4) 699 T
 Requirements: (1) Identification of documents and (2) setting out
grounds of privilege.
 Inspect and copy such documentation – Rule 23(3)
• Medical Examinations, Inspection of Things, Expert Evidence, Tending in
evidence of any plan, diagram, model or photograph (Rule 24)

 SELF-STUDY
 Notice – 14 days before trial.
 Medical Examinations – Rule 24(1) to (5).
 Expert Notices: Must file 2 notices, may be combined.
 1st notice: 14 days prior to trial date
 Name of expert
 2nd notice: 7 days prior to trial date
 Summary of opinions of expert and his reasons for holding such
opinions
Coopers (SA) v Deutsche Gesellschaft 1976 (3) 352 A
(see other cases referred to in reader)
 Rule 24(10) – using plans, diagrams, sketches, models or photographs.
 Within 7 days notice prior to trial
 No objection? May be used without further proof thereof.
• Subpoenas (Rule 26)

 Compelling attendance of person to give evidence or to produce

documentation.
 Subpoena issued by Clerk of Court.
 Sued out by person desiring attendance of witness.
 Must be issued and served on witnesses timeously.

• Pre-trial Proceedings (Rule 25)

 Read Section 54 with Rule 25

 Not used as often as it should be.
• Settlement Negotiations and Agreements (Rule 27)

 On application to court, anytime after entry of appearance and before

judgment.

 Agreement should be worded clearly and in understandable language.

 Record terms, without or with making same an order of court.

 If made an order of court, it is a judgment and can be executed

immediately .

 If only recorded, will have to apply for judgment at a later stage, but
within 12 months.
 B. LECTURES (cont.)

LECTURE 5

• APPLICATIONS

 Procedures by way of application in Magistrate’s Court is limited to

cases specifically authorized by Act and Rules:
 See pg. 96 and 97 of reader for different orders to be sought.

 Ex parte applications provided for ito act and rules:

 Section 32(1) – Attachment of property as security for rent
 Section 72(1) – Attachment for debts (Garnishee orders)
 Rule 56 – Arrests, attachments, interdicts and spoliation orders
• Forms of the Applications

 First Annexure – Form 1, form designed for application ito which

notice is given.
 No specific form for ex part application, can use Form 1, with
appropriate variations in each case. (See Rules)
 Rule 55(2) requires Applicant to state in the Notice the terms of the
order applied for.
 Also incumbent upon Applicant to state, by appropriate notice to
respondent, and to court, exactly what he proposes to claim in the
main action.
 Form 1 – signature of Applicant/ attorney on Notice. Affidavit, must
be signed by Applicant, only in unusual circumstances may it be
made by attorney.
 Good faith = sine qua non in ex parte applications.
 Failure to set out all facts that might influence court, whether
favorable or not for Applicant, will justify setting aside of rule nisi
on return date.
 Rule 55(9): ex parte applications may also be brought on notice
(election of the Applicant).
 May also proceed with action proceedings.
 High Court General rule of practice: Where the material facts are in
dispute, a final interdict should be sought by way of action.
 Magistrate’s Court: Rules 55(2)(a) and (b), and rule 56(8) for the
hearing of oral evidence in order to resolve factual disputes.
 Rule 56 empowers Magistrate’s Courts to grant ex parte orders
affecting other parties’ interests, does not do away with common law
principle that courts are extremely loathe to grant such orders on ex
parte application.
 Only upon good reason – eg. Urgency or that notice will defeat
object of the application.
 Must be set out in affidavit, not tendered from the bar by attorney.
 Applications of motion – 7 days notice (State = 21 days)
  Many applications in Magistrate’s Courts are of a formal nature.
 In such cases, no need to be supported by affidavit.
 But when an affidavit is called for in support, it must setout facts
upon which Applicant relies, as well as the following:
 Applicant’s right to apply (locus standi);
 Facts indicating the court has jurisdiction;
 Cause of action on which Applicant relies;
 Evidence in support of application.

• Forms of the Applications

 Review of Judgments – Rule 49

 Where Default Judgment has been granted, any party may apply for
variation or rescinding thereof.
 Shall be set down for hearing on a date within 6 weeks after judgment has
come to his knowledge – Rule 49(1).
 On affidavit setting out reasons for default or absence, as well as grounds
of defense / objection to claim – Rule 49(2)
 Only set down after Applicant has paid security into court or secured to
satisfaction of Plaintiff, the amount of costs awarded against him, the
amount of 20% of the principal debt to a maximum amount of N$ 3
000.00 as security for the costs of the application.
(But the judgment creditor may, by consent in writing lodged with the
Clerk of the Court, waive compliance with this requirement.) – Rule 49(3)
 Costs not yet taxed shall be assessed appropriate amount of costs.
 Unless proved otherwise – presumption that had knowledge within 2 days
from date of judgment.
 Requirements:
o Applicant not in willful default; AND
o Upon good cause shown.

 Outcome?
 Rule 49(11) – application for variation or rescinding same on basis that
order is void ab initio or obtained by fraud or mistake – must be brought
within 1 year after knowledge of voidness, fraud or mistake.
 Any judgment, on application by affected person who is not a party –
within 1 months after gaining knowledge,
 Amendment of Pleadings – Rule 55A

 Amendment of any pleading – must give notice of intention to amend to

other party and furnish them with particulars of amendment.
 Objection to be made within 7 days after delivery of notice.
 If not – deemed to be amended.
 Objection made? Then party pursuing same shall follow procedure in Rule
55.
 Once amended – other party may file new plea or amend original plea
within 14 days after receiving notice of amendment.
 A party giving notice of amendment shall be liable for costs thereby
occasioned (unless otherwise directed by court).

 Rule aims at facilitating unopposed amendments.

 If opposed, court will hear matter ito Rule 55 application and may grant or
refuse it.
 Primary object of allowing amendment is to obtain a proper ventilation of
the dispute between the parties
 Determine the real issues.
 Will not be allowed if other party is prejudiced in a way that cannot be
cured by way of a costs order or postponement.
Moolman v Estate Moolman 1927 CPD 27 at 29.
 Non-Compliance with Rules – Rule 60

 A party to a cause in which an irregular or improper step or proceeding has

been taken by any other party may, within 7 days after becoming aware of
the irregularity, apply to court to the court to set aside the step or
proceeding
 A party who has taken any further steps in the cause with knowledge of
the irregularity or impropriety is not entitled to make such application.
Rule 60(9)(a)
 Application shall be on notice to all parties, specifying particulars of the
irregularity or impropriety alleged.
 If at the hearing the court is of opinion that the step or proceeding is
irregular or improper, it may set it aside the step or proceeding in whole or
in part, either as against all the parties or as against some of them, and
grant leave to amend or make any such other as to it considers fit.
 Unless specifically provided for in these rules, failure to comply with these
rules or with any request made in pursuance thereof shall not be ground
for the giving of judgment against the party in default.
 If not – deemed to be amended.
 Where order is not fully complied with within the time so stated, the court
may on application give judgment against the party in default or grant an
extension of time for compliance, with costs and otherwise as may be just.
• EXECUTIONS

 The process for the execution of any judgment for:

 the payment of money;
 for the delivery of property whether movable or immovable; or
 for ejectment;
shall be by warrant issued and signed by the clerk of the court and
addressed to the messenger.

 Important types of warrants:

 Warrant of Execution – Form 32;
 Warrant of Ejectment – Form 30;
 Warrant of Delivery of Goods – Form 31.
 Warrant of Execution:
 For either movable or immovable property;
 May be attached and sold in execution.
See: Sections 66, 65E(1)(a), 68, 73, 78 and Rules 36-44

 General rule: First movables, if insufficient, then for immovable

property.
 Sometimes directly for immovable property, such as good cause
shown, or sued ito mortgage & property executable ito judgment.
 Amounts to be reflected in Writ: (MUST BE CORRECT!)
o Capital amount or balance;
o Judgment costs (to be taxed);
o Interest (rate and date, if compound etc.)
o Costs of warrant and any payments made by Debtor.
 Warrant of Execution (cont.):
 Arrear rental claims – may request immediate attachment;
 Messenger must serve writs and demand payment, or debtor
must point out movables to satisfy writ.
 If not pointed out, may attach what he can find. – Rule 41 (1)
 Rule 41(2) – authority of Messenger (also to use force).
 Return of service (& inventory) to be provided.
 Upon application ito R41(7) by Creditor – remove goods to place
of safety/security.
o Requires security by creditor ito Rule 38 for costs of removal
and storage.
o Notice of Sale – serve on Messenger in duplicate at least 7
days prior to date of sale (also advertising).
 Messenger will recover capital with costs and interest (where sale
is sufficient).
 Steps to be taken iro Warrant of Execution (immovable property):
 A deeds office search – full description of property, bonds and
interdicts, full details of debtor;
 Return of Service – reflecting insufficient movable property.
 Writ re-issued with full property description attached, and 6
copies for service upon:
o Debtor;
o Occupant (if not Debtor);
o Local Authority which has jurisdiction;
o All bond holders;
o Registrar of Deeds.
 Section 66(2) very NB!! – Preferrent creditors.
 Steps to be taken iro Warrant of Execution (immovable property):
 Notice of sale including description of property – Rule 43(6)(b)
 Conditions of sale – handed to Messenger at least 28 days prior
to sale, and served on all interested parties;
 Proceeds of sale sufficient to satisfy claims of preferrent creditor
in full; OR
 Preferrent Creditor confirms the sale in writing, then deemed to
have agreed to accept proceeds in full settlement of claim.

 Section 65 Proceedings:
 Bringing Debtor before court for financial enquiry.
 Features:
o Debtor personally / director or official must appear;
o Jurisdiction;
o Questioned / cross-examined;
o Required to bring documentation (specified).
 Court may order payment in instalments, or if appears Debtor
owns assets, authorize warrant of execution.
 May also authorize emolument attachment order.
 Only other remedies:
o Garnishee orders; or
o Sequestration of debtor.

 Procedure:
o After judgment, send registered letter ito Section 65A(2) to
debtor, requiring payment within 10 days.
o If not payment within 10 days after posting of letter, Notice
ito Section 65A(1), to be served on Debtor.
 Transfer of High Court judgment to Magistrate’s Court ito
Section 65M.
• APPEALS

 Section 83 (From MC to HC): Party in a civil suit may appeal

against:
 Any judgment of the nature described in Section 48;
 Any rule or order having the effect of a final judgment, including
orders for costs;
 Any decision overruling an exception, where (1) parties consent
to appeal before proceeding; (2) appealed in conjunction with
principle case; or (3) includes a costs order.
 Rule 57:
 Request in writing within 7 days after judgment, before noting of
appeal, a written judgment;
 To be delivered within 21 days after receiving a typed record;
 Show: Facts found to be proven and reasons for judgment.
 Appeal must be noted within 21 days from date of judgment OR
 14 days after written judgment has been delivered;
whichever period is longer.
 Appeal is delivered by Notice and by giving security for
Respondent’s costs.(N$ 5000).
 Appellant’s duty to prepare the record, and must comply with High
Court rules and provisions.
 Requirements:
 Typewritten part – double spaced on A4 paper;
 Exhibits which are not in such form, also typed, and both typed
and original document to be included;
 Every 10th line numbered, pages paginated and an index
prepared.
 Attorney must certify correctness of record.
 Must be prosecuted within 40 days after notice of appeal was
filed.
  Prosecuted? Requesting a date from Registrar.
 Simultaneously file copy of record and serve 2 copies on each
respondent.
 Once a date is allocated – file Notice of Set Down
 Also on Clerk of Court.

• INTERPLEADER PROCEEDINGS

 Section 69 – 2 cases for interpleader relief:

(1) Person other than creditor makes claim iro attached property
(attached or proceeds if sold); and
(2) Two or more persons make adverse claim to any property in
custody or possession of 3rd party.

 Rule 44 – procedure
 Messenger issues Interpleader summons, affidavit by claimant
Bloemfontein Municipality v Jacksons 1929 AS 271
(landlord’s tacit hypothec)
• APPORTIONMENT OF DAMAGES

 Act 34 of 1956
 Where both Plaintiff and Defendant is partly to blame.
 Court must find just and equitable apportionment.
 Effect on counterclaim?
 What happens in case of joint wrongdoers where only 1 is sued?

 Joinder application.