Die betekenis van 'n reformatoriese regsbeskouing vir 'n wysgerige besinning oor die grondslae van die burgerlike prosesreg

Abstract

The significance of a philosophical reflection from a reformed tradition for the underlying legal principles of the civil procedure. At present a special comitee of the South African Legal Commission is inquiring into the reform of civil procedure - in particular into the relative complexity, inaccessibility and the high costs of the procedure. In this dissertation, these matters, as well as the place of civil procedure in the legal system, legal representation, and judicial involvement (all of which are underlaid by transcendental legal principles) are approached theoretically from a reformed tradition. A transcendental-empirical method is used, to present an exploratory systematic view of civil procedure, in which the transcendental-empirical nature of civil procedure is emphasized. This furthers the insight that the division of formal and substantive law, and the classification of civil procedure as formal law, are untenable - because it closes the door on the understanding of the legal principles underlying civil procedure. The procedural freedom and procedural equality of the parties are the constitutive typical legal principles of civil procedure. General regulative legal principles that correlate with these are audi alteram partem and (judicial) passivity. Had the civil procedure been in optimal accordance with these legal principles, it would have displayed elements of both the accusatorical and the inquisitorial procedural systems of civil litigation. A study of the culture-historical development of the civil procedure, reflects the need for an accessible, cost-efficient and legal economical procedure. In this, judicial officials should be passively involved, and should demand the parties to answer to missing evidence and/or vaguenesses. In order to optimise the affordability and the accessibility of legal procedure, attention must be given to legal economy as well as the high costs of procedure. Legal economy demands swift, simplified, streamlined and effective disposal of disputes and/or law issues inter partes. It can be promoted in actions, by qualifying the control of the parties over civil procedure (as it is at present). This can be done by creating procedures for verdicts without the obligatory (written) pleadings, and, secondly, by creating mechanisms to promote judicial involvement in cases before the commencement of the trial. Because pleadings are time-consuming and create opportunities for parties to gain tactical advantages, mechanisms must be considered to promote the demarcation of disputes and issues in actions, by means of a shorter procedure. This can be done by creating a procedure similar as the procedure of motion. This option is being considered by the South African Law Commission, and it is supported by the author of this dissertation . Legal economy must be distinguished from the affordability of the procedure. Focal points, by which to evaluate, and suggestions which might promote the affordability of civil procedure, are discussed.