Contempt of Court (See Ethics Notes too)

 Contempt of Court is behaviour that opposes or defies the authority, justice and dignity of
the court. Four categories – Civil; Criminal, Direct; Indirect
 Civil Contempt
 Failure to perform in terms of a Court Order
 Violation of the rights of one person
 Criminal Contempt
 Behaviour that assaults the dignity of the court or impairs the court’s ability to conduct work
 Shouting at a Judge during a trial
 Offence against society
 Direct Contempt
 In the presence of the court and intended to embarrass or disrespect the court
 In the face of the court
 Refusing to answer a judge’s questions
 Indirect Contempt
 Outside the presence of the court but also the intention to mock or belittle the court and its
proceedings
 Attempt to bribe an attorney
Debt Collection
 Collection of payments from people who have failed to pay the money they
owe for goods, services etc. which they have already received
 Can you work on contingency on debt collection matters – yes. The agreement
must be in writing in the prescribed form, stating on what contingency you
become entitled to a fee. You may not recover more than 25% of amount
recovered or double your fee (whichever is lower)
 Recovering fees from debtor – as set out in the Rules (Tariff)
 If people have signed sureties, you can go after the original debtor and
person(s) who signed surety
 A partner remains liable for debts which were incurred whilst he was a
partner
 If a debtor (company) doesn’t comply with Section 34 of the Insolvency Act,
you can apply to have the sale of the business set aside.
 Methods of recovery once judgment – garnishee order, emoluments, warrant
of execution
 See ethics notes on what debt collection staff can do
Edictal Citation (Not in the Country)
 An edictal citation is necessary for such service to be effected. In terms of HCR 5, it is first necessary to obtain leave of court to serve a process
or document instituting proceedings outside the RSA.
 To obtain such leave, one would make an ex parte application to the court, constituting a notice of motion as well as a founding affidavit,
setting out the nature and extent of the claim, the grounds upon which the court has jurisdiction to entertain the claim as well as the manner of
service which the court is asked to authorize. The court will also set out the time period from the date of service within which the Defendant
must serve a notice of intention to defend.
 In this instance the nature of the claim would be the institution of divorce proceedings and the jurisdiction of the court may be founded by the
Plaintiff being domiciled within such jurisdiction.
 As to the manner of service, due to the requirement of personal service you would request that a service processor be contacted in the country
and instructed to serve the divorce summons, subsequent to receiving the papers via courier, on the Defendant at his/her specified address.
Application
 Ex Parte Notice of Motion
 Founding Affidavit
 Jurisdiction
 How service is to be affected
 Nature and extent of the claim
 Attach a copy of the summons and POC
 Addressed to the Registrar
 Obtain a date on the unopposed roll
 Order and original summons and POC gets sent to the service processor (attorney)
 Service processor serves on the defendant and provides a return of service
 Originals must be couriered back to SA
 Wait the 30 days out – from date of service
Substituted Service (In the Country, Whereabouts
not known)
 High Court Rule 4(2) provides for substituted service.
 Substituted service is used when a litigant wants to commence proceedings against a party whose physical whereabouts is unknown.
 In seeking the leave of the court to effect subsisted service, the Applicant must bring an ex parte application.
 The application will consist of a notice of motion and founding affidavit.
 The affidavit must address the nature and the extent of the claim; the grounds upon which the claim is based; the grounds of jurisdiction; the
suggested method of service and the last-known whereabouts of the defendant along with which steps were taken to determine such whereabouts.
 The court will then order a method of service that is most likely to cause the proceedings to come to the notice of the defendant.
 Ex Parte Notice of Motion
 Founding Affidavit
 Jurisdiction
 How service is to be affected
 Steps taken to confirm whereabouts of the Defendant
 Last known whereabouts
 Nature and extent of the claim
 Ground of the claim
 Attach a copy of the summons and POC
 Addressed to the Registrar
 Obtain a date on the unopposed roll
 Order and original summons and POC gets served by method of service as determined by court
 Facebook / whatsapp / email – service affidavit
 Wait out dies induciae
Question 14.1 of P1 – Nov 2020

 Your client and the defendant enter into a contract. The defendant cites … as
her domicillium address. You successfully obtain a judgment against the
defendant and now wish to proceed with a warrant of execution. You
establish that the defendant no longer resides at … but still owns the
premises. How do you go about effecting service of the warrant?
 Given that the defendant appointed … as her domicillium, you could serve the
warrant at the domicillium in terms of the Rules of Court.
 You could serve it at the domicillium, however, you may get a return of non service.
 I would rather appoint a tracer and attempt to locate her current whereabouts in order
to properly effect service of the warrant and get an attachment.
 Bear in mind that with a warrant of execution you need proper service in order to have
items attached.
 SUBSTITUTED SERVICE IS NOT APPLICABLE
Interdict /Mandamus
 Prevent someone from doing something(prohibitory interdict) or compel someone to do something
(mandatory interdict)
 Interim or final
 Cant be given against unspecified persons
 Spoliation – possessory interdict
 Two types – interim and final
 Requirements – interim (prove clear existence of a right and to enforce that right):
 Prima facie right
 Irreparable harm
 Balance of convenience must favour the applicant (prejudice)
 No alternative remedy
 Requirements – final interdict
 A clear right on the part of the applicant
 An injury actually committed or reasonably apprehended
 No other remedy
Legal Tribunals and Forums
 A claim for damages for R14 000,00 – Small Claims Court

 An order that a provision affecting R290 000,00 is unconstitutional – High Court

 A claim for reinstatement after unfair dismissal – CCMA

 Deregistration of a dormant company – CIPC

 An unfair calculation of pension benefits by a pension fund – Pension Fund Adjudicator

 The interrogation of an insolvent who hides assets – Master

 Amendment or enforcement of a High Court maintenance order – Maintenance Court

 An excessive fee charged by an attorney in a criminal trial – Fee Assessment Committee

 Trust money apparently stolen by an attorney – Fidelity Fund and LPC (SAPS)

 Loss due to professional negligence of a colleague – Sue the Attorney – may approach the LPIIF (Do not defend the proceedings on your own and refer the
matter directly to the LPIIF as it could effect your cover with them)

 Dissolution of family property in terms of customary law – Master

 Appeal against an order by a traditional leader – Magistrates’ Court

Legal Terminology
 Pro Amico - free representation by an attorney of a client who is in a particular relationship to the attorney (typically a relative or
colleague). No fees may be charged but disbursements may be recovered.
 Acting pro bono means to perform legal services for the public good to poor communities without charging fees.. Out of pocket
expenses can be recovered
 Contingency fees constitute a percentage (up to 25%) of a client's successful claim if the claim sounds in money or are fees that are
chargeable at a rate higher than normal (not more than double) if the work is successfully concluded.
 Costs de bonis propriis is the Latin phrase for "out of one's own pocket" - are awarded by our courts against attorneys, trustees or
executors. How the Court marks its displeasure with the conduct of the practitioner
 "Party and party costs are those costs that have been incurred by a party to legal proceedings and that the other party is ordered to
pay to him or her. They do not include all the costs that a party to a suit might have incurred but only costs that appear to have been
necessary for attainment of justice

Attorney and client costs, on the other hand, are those which an attorney is entitled to recover from his or her client for the
disbursements made by him or her on behalf of his or her client and the professional services rendered by him or her. These
costs are payable by the client whatever the outcome of the matter in which he or she engaged the attorney's services, and are
not dependent upon any award of costs by the court.

Attorney and own client costs are defined as the remuneration that an attorney is entitled to, in terms of an agreement or
mandate with the client. The attorney is remunerated according to a predetermined fee, for example, an hourly rate outside the
prescribed tariff
Motor Vehicle Accidents
Apportionment of Damages
 Contributory negligence occurs where the negligence of all the parties is considered, and the damages may
be apportioned (divided) by the amount each party's negligence contributed to the damages. The Apportionment of
Damages Act regulates this
 Contributory negligence / joint wrong doers (jointly and severally liable)
 Plaintiff suffers damage – R200 000 / Defendant suffers damage R80 000
 Court finds that Plaintiff was 40% liable and Defendant is 60% liable
 Plaintiff is entitled to R200 000 – 40%
 Defendant is entitled to R80 000 – 60%
 Plaintiff = 40% of R200 000 = R80 000
 Plaintiff is entitled to R200 000 – R80 000 = R120 000
 Defendant = R80 000 – 60% / 60% of R80 000 = R48 000
 Defendant is entitled to R80 000 – R48 000 = R32 000
 R120 000 – R32 000 = R88 000
 Plaintiff is entitled to R88 000
 Plaintiff 1 – R250 000
 Plaintiff 2 – R40 000
 Defendant – contributory negligence (both parties are at fault)
 Plaintiff 1 was 20% at fault with his claim
 Plaintiff 2 – 10% at fault with his claim
 Court will order compensation for the Plaintiffs by the Defendant in the amount of R250
000 (proven damages) less 20% fault for Plaintiff 1 and R40 000 (proven damages) less 10%
fault for Plaintiff 2
 Plaintiff 1 = R250 000 – 20%
 20% of R250 000 = R50 000
 R250 000 – R50 000
 =R200 000
 Defendant is ordered to pay R200 000 to Plaintiff 1
 Plaintiff 2 = R40 000 – 10%
 10% of R40 000 = R4 000
 R40 000 – R4 000
 =R36 000
 Defendant is ordered to pay R200 000 to Plaintiff 2
 Plaintiff – R250 000
 Defendant – contributory negligence (both parties are at fault)
 Court orders that the Plaintiff was 20% at fault
 Court will order compensation for the Plaintiff by the Defendant in the amount of R250000 (proven
damages) less 20% fault
 Plaintiff = R250 000 – 20%
 20% of R250 000 = R50 000
 R250 000 – R50 000
 =R200 000
 Defendant is ordered to pay R200 000 to Plaintiff
Joint Wrongdoers
 The Court will order that the defendants be held liable, jointly and severally, the one paying the other
to be absolved.
 The apportionment is only effective between the wrongdoers themselves and will have no effect
on the plaintiff
 A joint wrongdoer, if he pays more than his share, can recover such overpaid portion from the co-
defendant
 See Question on 2-16 (Gawie)
Joint Wrongdoers (Co-Defendants)
 Plaintiff – R200 000
 Three Co-Defendant - Court orders that the
 First Defendant – 10% liable
 Second Defendant – 50% liable
 Third Defendant – 40% liable
 First Defendant - 10% - R200 000 x 10% = R20 000
 Second Defendant - 50% - R200 000 x 50% = R100 000
 Third Defendant - 40% - R200 000 x 40% = R80 000
Nuisance Neighbour
 We have been consulted by Mr X who is the owner of the property which adjoins the property
owned by you on the western side. We are instructed that you have recently started operating a
nightclub on the premises.
 Your conducting of this business is not only a contravention of the municipal bylaws and title
conditions as they apply to your property but also constitutes a nuisance which makes it
impossible for our client to enjoy the quiet, undisturbed and beneficial use of his property
 The noise which comes from your property and which is caused by the loud music played
throughout the night as well as by the continuous sound of motor vehicles coming and going is
unbearable and prevents our client and his wife from getting to sleep. This has affected their
health to such an extent that they have both had to receive medical treatment
 The purpose of this letter is to advise you that unless you immediately cease conducting the
nightclub in your property, our client will:
 Report your conduct to the local authority so that they can take action against you;
 Bring an urgent application in the High Court to interdict you and restrain you from operating the
nightclub and from continuing the activities.
 NB: NOTICE OF MOTION / FOUNDING AFFIDAVIT