Herbstein and Van Winsen – The Civil Practice of the Superior Courts of South Africa
By Mervyn Dendy and Cheryl Loots
Cape Town: Juta
(2022) 6th Edition
Price: Print/loose-leaf update/electronic R 3 641
In this book feature Q&A we spoke to Mervyn Dendy about the sixth edition of Herbstein and Van Winsen – The Civil Practice of the Superior Courts of South Africa published by Juta, about what readers can expect and what are the key items that the sixth edition has.
Kgomotso Ramotsho (KR): Briefly tell us about some of the new updates and features in the sixth edition.
Mervyn Dendy (MD): The sixth edition of Herbstein and Van Winsen – The Civil Practice of the Superior Courts of South Africa is the first edition of this leading work on civil procedure to be published electronically and as a loose-leaf work. This means that, unlike in the case of the first five editions (all of which were published as bound volumes), the chapters of the sixth edition will be regularly updated so as to reflect all relevant changes to the law up to the cut-off date for each service issue. The completed work will comprise 53 chapters, of which 37 have already been published, with a further six chapters planned for publication during 2025, and the entire work expected to be completed during 2027.
Special features of this edition are –
The inclusion by the Constitution of the Republic of South Africa, 1996 under the umbrella of the superior courts of the Constitutional Court, as the highest court of appeal, and the Supreme Court of Appeal, in an altered position and with a special focus on development of the common law, gave rise to the need to add dedicated chapters on procedure in those courts. The first chapter describes the history of the superior courts from the days of the earliest Cape Courts and explains the considerable restructuring and renaming of the Divisions of the High Court (previously the Supreme Court), which has taken place since 1994.
KR: What are some of the notable differences that readers will see compared to the fifth edition?
MD: Differences between the sixth edition and the fifth edition include the new features outlined above, as well as the inclusion of detailed discussions of topics that were not incorporated into the fifth edition, such as class actions and the legal principles governing the recusal of judges and judicial officers. The authors of the sixth edition are endeavouring to ensure that it covers the entire range of topics and issues that are relevant to civil practice in the High Court, the Supreme Court of Appeal and the Constitutional Court, with no gaps in coverage.
A valuable new feature of the sixth edition is that, for the first time in any South African legal textbook, parallel citations of all reported cases referred to in the work are included. This means that where a judgment has been reported in more than one South African law report, the citation of the judgment in every report which features that judgment is given, provided only that the report is available in print format. This means that all citations of relevant judgments in the South African Law Reports since 1947, the All South African Law Reports since 1996, the South African Criminal Law Reports since 1990 and the Butterworths Constitutional Law Reports since 1994 are included. Where, as is usually the case, a specific remark or passage in a judgment is referred to, the sixth edition gives page references (including marginal letters) in every print copy of each law report in which that judgment is reported, as well as paragraph numbers where the judgment is divided into numbered paragraphs. Here is an example, taken from chapter 2 of the sixth edition, of a citation of a case which was (unusually) reported in all four current series of South African law reports:
‘S v Western Areas Ltd & others 2005 (5) SA 214 (SCA), 2005 (1) SACR 441 (reported sub nom Western Areas Ltd & others v S in [2005] 3 All SA 541 and 2005 (12) BCLR 1269) para 35 at 228A–B (SA), 454g (SACR), 550c–d (All SA), 1278C (BCLR)’.
The abbreviation signifying the name of the court in which the matter was decided (‘(SCA)’ in this example) is not (unnecessarily) repeated at the end of the second and subsequent citations. The parallel citations render the sixth edition of Herbstein and Van Winsen useful to readers who do not have all four series of law reports available to them.
Also, where more than one judgment has been delivered in a case heard by a court comprised of two or more judges, the sixth edition gives the name of the judge who delivered the judgment to which reference is being made. Here is an example, also drawn from chapter 2 of the sixth edition:
‘My Vote Counts NPC v Speaker of the National Assembly & others 2016 (1) SA 132 (CC), 2015 (12) BCLR 1407 para 133 at 184C–E (SA), 1450E–F (BCLR) (per Khampepe J)’.
KR: What led to the decision to include a comprehensive chapter on practice in the Constitutional Court?
MD: It was obvious to the authors of the sixth edition that, in order to cover civil procedure in the superior courts comprehensively, a new chapter on practice in the Constitutional Court is needed. The fourth and fifth editions covered practice in what is now the High Court and to some extent the work of the Supreme Court of Appeal, which hears only appeals. Although there is limited coverage, on a fairly superficial level, of Constitutional Court practice in other works, no up to date comprehensive exegesis of the principles governing civil procedure in the Constitutional Court currently exists, despite there having been judgments in well over a thousand reported cases that have been heard in the Constitutional Court since its inception. It is intended, in the chapter on Constitutional Court practice, to provide comprehensive coverage of all reported decisions of the Constitutional Court that contain a discussion of issues relevant to procedure in civil cases in that court.
KR: What prompted you to determine that the time was right for the sixth edition, and how did recent legal developments influence this decision?
MD: The Supreme Court Act 59 of 1959 was still in force at the time when the fifth edition of Herbstein and Van Winsen was published in 2009. The fifth edition reflected the law as it stood in mid-2008. Since then, the Supreme Court Act has been repealed and replaced by the Superior Courts Act 10 of 2013, which came into force in August 2013 and which fundamentally restructured and renamed what is now the High Court of South Africa, inter alia abolishing the erstwhile distinction between provincial and local divisions. This crucial legal development, as well as extensive changes to the Uniform Rules of Court (including, for example, new rules dealing with the joinder of provincial or national executive authorities and service on the Rules Board for Courts of Law, judicial case management, the referral of particular matters for investigation by a referee, mediation as a dispute-resolution mechanism, and execution against residential immovable property, as well as the abolition of the former uniform rule 9 (providing for arrest tamquam suspectus de fuga)), made it clear to the authors that the time for a new edition had arrived, as the fifth edition was well out of date in the light of those new legal developments.
KR: You mentioned that you had concluded that four sets of the reports must be combed and scrutinized for relevance to the subject matter of Herbstein and Van Winsen and that all such judgments must receive a mention in the work wherever they are reported. How will this approach enhance accessibility and accuracy for legal practitioners and judges when researching relevant case law?
MD: When legal practitioners and judicial officers research relevant case law, they will be able to rely on the sixth edition of Herbstein and Van Winsen as a comprehensive source of reference which covers cases of relevance reported in any of the four current sets of South African law reports. Earlier cases referred to in sets of law reports that are no longer current (such as the Prentice Hall Weekly Legal Service that ceased publication at the end of 1995, and the various sets of law reports each of which included decisions, up to the end of 1946, of a specific division of what was then the Supreme Court of South Africa) are, of course, also covered in the sixth edition of Herbstein and Van Winsen where they continue to reflect the law as it currently stands. The coverage of all four series of current South African law reports will alert readers of the sixth edition to the existence of reported judgments that they might otherwise overlook, without themselves having to comb through all the various series of law reports which are currently available.
To ensure accuracy, the Editor of the sixth edition (who is one of the two co-authors) has rechecked for accuracy every reference in the sixth edition, whether to legislation, rules of court, practice directives, reported judgments, unreported judgments, legal textbooks, case notes and articles in legal journals or the old authorities, against the original sources. Any errors in citation which may have existed in the fifth edition have been rectified, and all new material has likewise been checked in an endeavour to render the references in the sixth edition free of error. Expressions such ‘& others’, ‘& another’, ‘NO’ and ‘NNO’ forming part of case names have been restored throughout.
KR: What are some of the significant recent legal developments in civil procedure that the sixth edition addresses?
MD: The sixth edition addresses (or will in forthcoming chapters address) all legal developments since the cut-off date for the fifth edition (in mid-2008) that are relevant to civil practice in the superior courts. These developments include the changes brought about by the Constitution of the Republic of South Africa, 1996 in relation to the jurisdiction of the Constitutional Court (in particular, the expansion of the jurisdiction of that court to include non-constitutional matters which raise an arguable point of law of general public importance that ought to be considered by the court), the extensive changes brought about by the Superior Courts Act 10 of 2013, the development of the law relating to class actions, the proper approach of the High Court to exceptions to novel claims involving the development of the common law, the development of the doctrine of issue estoppel and the rule against collateral challenge (both of which are offshoots of the res judicata defence), execution against residential immovable property and evictions in the light of the protection afforded by s 26(3) of the Constitution, judicial case management, and mediation as a dispute-resolution mechanism in litigious disputes of a civil nature. In addition, those provisions of the National Credit Act 34 of 2005 which impact on civil procedure in matters dealing with credit agreements regulated by the Act have been carefully considered by the co-authors of the sixth edition and incorporated into the discussion of the procedures to be followed in litigating claims arising out of such agreements.
KR: In your view, what makes the sixth edition essential for legal practitioners and judges, and how will it assist them in their daily practice?
MD: The sixth edition of Herbstein and Van Winsen is essential for legal practitioners, including judges and indeed magistrates (owing to the similarity which now exists between the Uniform Rules of Court and the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts), and will assist them in their daily practice, because the sixth edition provides comprehensive coverage not only of relevant legislation and rules of court but also of case law reported in all four current series of South African law reports, in addition to critical commentary on controversial topics and issues on which the law is uncertain or the subject of controversy (for example, the question whether default judgments in matters regulated by the National Credit Act 34 of 2005 may be granted by the registrar of the court, or whether they must be granted by the court itself). In addition, the sixth edition provides references to academic writing in the leading South African legal journals and to discussions appearing in other treatises on civil procedure where those may usefully be consulted. The extensive range of topics covered and sources referred to in the sixth edition of Herbstein and Van Winsen, together with the parallel citations of cases reported in more than one series of law reports, as well as the very detailed subject indexing of topics covered in the sixth edition, will enable practitioners to find quickly and without difficulty where any relevant topic is dealt with in the sixth edition, and will enable practitioners and judicial officers to locate the material they seek in the primary sources of reference, such as legislation, law reports and academic legal writing.
KR: With the sixth edition being such a mammoth project, how did you approach the challenge of revising and expanding such a comprehensive work on civil procedure?
MD: The sixth edition is a mammoth work, which is expected to expand Herbstein and Van Winsen from a length of almost 2 000 pages in the fifth edition to some 5 000 pages in the sixth edition. It is anticipated that, once all 53 chapters of the sixth edition have been published by 2027, the work will consist of five binders, of which four will contain the text and the final binder will contain (as it already does) a table of legislation, a table of rules of court and practice directives, a table of cases, a bibliography and a subject index. In order to complete the work, the co-authors have since 2021 been publishing consecutive new chapters of the work in batches. The Original Service consisted of the first 23 chapters, together with the various tables, bibliography and index to them in the index volume. Service 1, which appeared in 2023, consisted of chapters 24 to 32 and updates to the first 23 chapters, together with additions to the various parts of the index volume. Service 2, which appeared in 2024, consisted of chapters 33 to 37 and updates to the first 32 chapters, together with additions to all parts of the index volume. This pattern of publication will continue until the work, consisting of 53 chapters and references to all of them in the index volume, is complete. It is planned to publish two service issues a year from 2025 onwards, with publication of the entire work expected to be completed by mid-2027. Service 3 will be published during the first half of 2025, and will consist of chapters 38 (on judgments and orders), 39 (on costs) and 40 (on execution), together with updates to the existing 37 chapters and relevant additions to the index volume.
The revision and expansion of material needed for such a comprehensive work entails, in the first place, checking all existing material in the fifth edition for accuracy of citation and to ensure that it continues to reflect the law, and consultation of all relevant primary sources (Parliamentary and provincial legislation, rules of court, practice directives, law reports published since the cut-off date of the previous service issue, new legal treatises and journals, and updates to other loose-leaf legal treatises) so as to ensure that all relevant material which has appeared since mid-2008 is referred to in the sixth edition and, indeed, to ensure that any relevant material which was published prior to mid-2008 is comprehensively dealt with in the sixth edition.
When complete, the sixth edition of Herbstein and Van Winsen will provide a comprehensive and wide-ranging source of reference to the legislation, rules of court and common-law rules and principles regulating all aspects of civil procedure in the High Court, the Supreme Court of Appeal and the Constitutional Court, and will be the pre-eminent South African treatise on this important area of legal practice.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2024 (Nov) DR 58.
