oa Fundamina : A Journal of Legal History - The development of ficta confessio as a principle of pleading in South African civil procedural law
Tracing the historical foundations of the principle of ficta confessio as it occurs in South African civil procedural law is possibly a futile exercise. Based on an Olympian view of civil procedure, the emphasis is on how and why certain rules of modern practice have developed and not on the manner in which the rules are or ought to be applied. The pressure and pragmatism of court practice leave little time for ruminating on the origin and historical development of the rules of pleading, let alone the intrinsic nature of the system within which these rules function. The theory of procedure is distant from the exigencies of practice yet this in itself is not uncommon. There is always tension between science and art, the composer and the musician, the choreographer and the dancer, the inventor and the mechanic, the proceduralist and the practitioner. This article therefore broaches civil procedure in its science-form in contrast to its art-form.
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