Updating legal textbooks is no simple task. It involves meticulous research, constant monitoring of legislative changes, and a commitment to accuracy. In our recent interview with Mervyn Dendy and Cheryl Loots, we delved into the extensive process behind the creation of the sixth edition of Herbstein and Van Winsen. They shared how they ensure the text reflects the latest legal developments, integrates comprehensive case law analysis, and incorporates new commentary on complex topics in civil procedure. Join us as we explore their journey in producing this indispensable resource for legal practitioners and how they aim to keep it up-to-date with evolving South African law.

Juta: What were some of the biggest challenges you faced in bringing Herbstein and Van Winsen up to date, considering the over 12 years of legal developments in South African law?

MD & CL: The updating of legal textbooks occurs in accordance with the same process whether a new edition is prepared two years, six years or twelve years after the previous edition. The authors consider whether existing references in the work continue to reflect the law, and those references have to be removed and the text amended appropriately if the law has changed. Contemporary legislation (including, in the case of works on civil procedure, rules of court) has to be consulted and the authors have to ensure that the work reflects legislation as it currently stands. In addition, all four series of South African law reports (namely, the South African Law Reports and the South African Criminal Law Reports published by Juta, as well as the All South African Law Reports and Butterworths Constitutional Law Reports published by LexisNexis) have to be consulted in order to ensure that all relevant reported decisions are dealt with in the text, and earlier case law has to be removed if it no longer reflects the law as a result of later decisions. Unreported cases which are referred to in reported decisions are also taken into account.

In the case of Herbstein and Van Winsen, the Editor has rechecked (and, in chapters that as yet remain to be published, will recheck) every reference against original sources, both for accuracy and for relevance. This has involved, and will continue to involve, the checking of literally thousands of references. Provisions of current legislation such as the Superior Courts Act 10 of 2013 and the Legal Practice Act 28 of 2014 are incorporated into the text where relevant, the text is updated to reflect the rules of court as they presently stand, and all four series of South African law reports mentioned above are consulted so as to ensure that all relevant cases published in any of them are canvassed and referred to in the text. In addition, gaps in coverage in the fifth edition of Herbstein and Van Winsen (which was published in 2009) are being filled with detailed expositions that are newly written from scratch, for example on such topics as class actions, recusal of judges and, in a forthcoming chapter, practice in the Constitutional Court of South Africa, which has not been dealt with in earlier editions.

Juta: With the sixth edition being released over time, how do you ensure that each volume and update not only reflects the current legal position but also adds substantial value to both legal theory and everyday practice?

MD & CL: The sixth edition of Herbstein and Van Winsen is being published progressively, over a period of time. The work will eventually comprise 53 chapters, of which the first 37 had been published by early 2024. It is expected that another three chapters will be published during the first half of 2025. With each new update, all changes to legislation (including rules of court and, where relevant, practice directives) as well as all cases reported since the cut-off date for the previous update are incorporated into the text. The Editor, who is taking responsibility for all updating of existing chapters, examines all new legislation of relevance which has been promulgated since the cut-off date of the previous update as well as the four series of South African law reports published since the previous cut-off date and incorporates into the text references to all new legal developments which are of relevance. The text adds substantial value to legal theory and to everyday practice by incorporating critical commentary on cases which the authors consider to be incorrectly decided, on matters where different Divisions of the High Court arrive at different conclusions on a legal issue and on matters on which the law is undecided or unclear. The sixth edition of Herbstein and Van Winsen is the first edition of the work to include, alongside an exposition of the law as it currently stands, extensive commentary by the authors where such commentary is considered necessary or useful.

Juta: The inclusion of new developments, such as the Superior Courts Act and the Legal Practice Act, reflects significant changes in civil procedure. How do these new laws impact the daily workings of the courts, and what practical advice do you offer to practitioners?

MD & CL:The Superior Courts Act and the Legal Practice Act have brought about changes in the manner in which the superior courts and the legal profession, respectively, are structured. What were previously different High Courts are now Divisions of a single High Court of South Africa, and the former distinction between provincial and local divisions of the High Court has been abolished. Accordingly, all Divisions of the High Court which were previously local divisions now have the same powers as those Divisions which were previously provincial divisions, in particular in relation to the power to hear appeals and reviews. The daily workings of the superior courts continue in much the same way as before, save that appropriately qualified attorneys may acquire a right of appearance before the superior courts (a feature which was first introduced by the now-repealed Right of Appearance in Courts Act 62 of 1995) and, following the enactment of the Legal Practice Act, ‘trust account advocates’ may accept briefs directly from members of the public without the intercession of an instructing attorney. The authors advise members of the practising legal profession to ensure that they keep up to date with changes in the law (particularly changes in the rules of court and new practice directives in the Divisions in which they practise) and to consult the sixth edition of Herbstein and Van Winsen, which incorporates critical analysis and a level of detail not found in any other work on civil procedure.

Juta:  The detailed review of all references in the previous edition must have been a monumental task. How did you approach the process of ensuring that all citations and references were accurate and relevant, and what strategies did you use to maintain precision throughout?

MD & CL: The Editor has rechecked (and, in remaining chapters that have yet to be published, will recheck) every reference in Herbstein and Van Winsen against original sources. This is a monumental task, but is necessary in order to ensure accuracy of citation. In addition, where cases are reported in more than one South African law report (and this occurs frequently), every citation is included in the sixth edition of Herbstein and Van Winsen, including page numbers and marginal letters in relation to every citation. This means that references to all relevant cases reported prior to 1947 in reports of the different Divisions of the Supreme Court of South Africa (as it then was), reported in the now-defunct Prentice Hall Weekly Legal Service (published up to 1995), reported in the South African Law Reports since 1947, reported in the South African Criminal Law Reports since 1990, reported in the All South African Law Reports (where they exist in print and not merely electronic form) since 1996 and reported in the Butterworths Constitutional Law Reports since 1994 are incorporated into the text of the sixth edition of Herbstein and Van Winsen. The comprehensive inclusion of parallel citations of the same cases in different law reports is a feature not found in any other work on civil procedure. When each new update is prepared, all changes and additions to the text are checked against all these original sources so as to ensure that all new material is accurately cited and that all parallel citations of cases reported in more than one series of South African law reports are included.

Juta: Herbstein and Van Winsen is a staple for legal practitioners in South Africa. In your view, how does this sixth edition continue to serve as an indispensable resource, and what can readers look forward to as future updates are released?

MD & CL: The sixth edition of Herbstein and Van Winsen is an indispensable resource for all legal practitioners because it incorporates not only references to all relevant legislation and all relevant reported cases in all four series of South African law reports, but also critical discussion and commentary upon new legal developments, upon controversial issues which form the subject of conflicting decisions in different Divisions of the High Court and upon undecided questions of law that are relevant to civil procedure in the superior courts. As future updates are released, readers can look forward to the full range of issues affecting practice in the superior courts being comprehensively dealt with, including (in the first half of 2025) a much more comprehensive chapter on legal costs than has previously been included in the work and a reworked exposition of the topic of execution in the light of section 26(3) of the Constitution of the Republic of South Africa, 1996, and (in due course) a detailed chapter on practice in the Constitutional Court of South Africa. All future service issues will include updates to all existing chapters, and regular updates to all chapters will continue to be published on an ongoing basis after the entire work is complete.

Get your copy of Herbstein and Van Winsen - The Civil Practice of the Superior Courts of South Africa here: https://bit.ly/47AScfv