CIV 3701 Supp Exam - questions and answers for 2021. PDF

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QUESTION 1(a) The pleadings consist of written statements made by and delivered between the parties, setting out the material facts on which the parties (i. the plaintiff, who initiates the action, and the defendant, who defends the action) rely in support of their claim or defense, as the case may ...

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QUESTION 1 (a) The pleadings consist of written statements made by and delivered between the parties, setting out the material facts on which the parties (i.e. the plaintiff, who initiates the action, and the defendant, who defends the action) rely in support of their claim or defense, as the case may be. Only the material facts are set out in the pleadings. This means that the main allegations on which the claim is based are set out by the plaintiff, and the defendant sets out the main allegations on which the defense is based. The object of pleadings is to enable the parties to come to court fully prepared to meet the case of the opponent, and to enable the court to isolate the issues that have to be adjudicated upon. The parties are bound by the pleadings unless duly amended. There is a difference between a pleading and a process. Although ‘‘process’’is not defined in the Act, the phrase ‘‘process of the court’’ was interpreted in Dorfmanv Deputy Sheriff, Witwatersrand 1908 TS at 703 to mean ‘‘something which ‘proceeds ‘from the court that is some step in legal proceedings which can only be taken with the aid of the court or of one of its officers’’. Included in this concept are, inter alia, subpoenas, notices, and the like.

(b) It arises when: (i) the respondent denies material allegations made on the applicant’s behalf and produces positive evidence to the contrary (ii) the respondent admits the allegations contained in the applicant’s affidavit, but alleges other facts which the applicant disputes (iii) the respondent concedes that he/she has no knowledge of the main facts stated by the applicant, but may deny them, putting the applicant to the proof thereof, while giving evidence to show that the applicant (and his/her deponents) are biased and untruthful or unreliable and that certain facts upon which the applicant relies on to prove the main facts, are untrue.

(c). The concept “whole cause of action” has been described in Abrahamse as the entire set of facts which gives rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of Action. Compared to the requirements at common law, as applied for the purposes of jurisdiction in the High Court, the term "cause of action" is given a restricted meaning in regard to the exercise of jurisdiction by a magistrate's court. In the High Court, either the conclusion of a contract or its performance or its breach would be regarded as a sufficient cause of action for the exercise of jurisdiction. In the magistrate's court, the whole cause of action must have arisen within the district (or regional division) concerned, for example, the conclusion and breach of a contract (d). Section 50(1) of the Magistrates' Court Act allows for a defendant to request a transfer of a case from a magistrate’s court to a high court having jurisdiction. There is no statutory equivalent for the plaintiff. A plaintiff chooses the forum in which to litigate and therefore he or she must bear the consequences of doing so. A plaintiff who has instituted an action in the magistrate’s court is free to change his or her mind and abandon the action in the lower court, and commence proceedings in a High Court, with resulting cost implications

QUESTION 2 (a). In the case of an application for summary judgment, one is dealing with a situation in which the defendant does oppose the matter, but there is a suspicion that the only reason for the defendant’s opposition is to delay the matter. The rules provide a mechanism whereby a plaintiff who finds himself in this situation may attempt to shortcut the usual procedures and obtain judgment without having to go to trial. it allows the court to grant a final order in a defended action without the parties going to trial. The

purpose of the procedure is to prevent the defendant from delaying the proceedings when he has no real defence to the plaintiff’s claim (i) The doctrine of effectiveness is the most important general principle underlying the jurisdiction of the High Court in the majority of cases. The basic idea behind this doctrine is that you should not waste a court’s time by bringing a particular matter before it if it is clear from the outset that the court’s judgment will not be effective The grounds of jurisdiction, of the high court are ratione domicilii, ratione rei gestae and ratione rei sitae. In terms of ratione domicilii T is still domiciled in Lesotho. The idea behind the ratione rei gestae is that a court will have jurisdiction to hear a particular matter if the critical events relating to that matter took place within its area since the two have been staying in Lesotho for the course of their marriage. From the above it can be concluded that the doctrine of effectiveness cannot be assured in this case hence the high court cannot have jurisdiction (ii). Section 13(1) of the Foreign States Immunities Act 87 of 1981 (FSIA) regulates the service of process on foreign states. The relevant process of court or document to be served, together with a sworn translation thereof into an official language of the defendant state, should thus be delivered to the Chief Directorate: Consular Services of DIRCO, where after the documents will be dispatched by diplomatic bag to the relevant South African diplomatic mission in the defendant state concerned. Once received at the mission, the process documents will be delivered at and served on the Ministry of Foreign Affairs of the defendant state under cover of a diplomatic note or note verbal. In order to prove that service of process has been affected, the mission will dispatch a return of service to the Chief Directorate: Consular Services at DIRCO’s Head Office, which will subsequently be made available to the relevant attorney. (b). B may apply for a prohibitory interdict; this is an order to stop or prevent someone from doing something. Before an interdict can be granted, some requirements must be met: 

The applicant must prove that he has a clear legal right, such as the right to a good name and dignity.

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The applicant must prove that he/she will suffer irreparable harm if the interdict is not granted. On top of that, the court considers a balance potential prejudice to the applicant if the interdict is refused against the respondent’s potential prejudice if it is granted.

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The applicant must also prove that no other remedy is available to him/her.

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B must prove urgency

(ii). The Audi alteram partem principle requires that notice of litigation be given to everyone whose rights are affected by any order in the legal proceedings or who has an interest in any such order. Therefore, in an ordinary application procedure, notice will be given to the other person or to a person whose rights/interest will be affected by the order of the court. Such person or persons receives notice of the application in that it is “served” on him/her after it has been issued. In this case the court will hear A side of the story (iii). 

A Prima Facie Right arising from a contract, codified law or the Common Law. It is to be noted that an interest is not enough to seek the relief of an Interdict

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Summons

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Proof that there is a reasonable probability of irreparable harm being caused to the Applicant should the Interdict not be granted.

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Proof of no Alternative remedy available to the Applicant

(c). This enables a litigant to avoid instituting multiple actions in respect of the same matter and it enables a third party's liability (if any) to be determined by a court while the liability of the other party is determined. Any party that is plaintiff or a defendant to an action may employ this procedure. However, such procedure may be resorted to only in the following circumstances, namely where a party claims that: * he or she is entitled to a contribution or indemnity from the third party in respect of any payment which he or she may be ordered to make or a question or matter in dispute in the action is substantially the same as that which arose, or will arise, between him or her and the third party, and should be decided not only between the parties to the action the plaintiff and the defendant , but also between one or more of them and the

third party. The effect of the third-party notice is that, after service on the third party, such party becomes a party to the action

QUESTION 3. 3a(i) The North Gauteng High Court will have jurisdiction because both X and Z are Incola or residents of the Gauteng province where the North Gauteng High court has jurisdiction. (ii) X will employ combined summons which will notify Z to go and defend himself in court on a particular date. This combined summons also notifies the defendant (Z) of the basis of the case and the relief sought. b. Ad confirmandam jurisdictionem is where the cause of action arose within the SA, but defendant is foreign peregrinus and attachment has taken place in SA. An order for attachment is obtained after having lodged an application on notice of motion requesting the attachment of the defendant’s property-this application is done before the principle claim and is a separate action to that of the main action. Attachment to found jurisdiction is permissible where:  Defendant is a peregrinus of the whole Republic.  Attachment of the defendant’s property has taken place.  The plaintiff is an incola of the court concerned. c. It follows that, in the case of an attachment ad fundandam jurisdictionem of assets of a peregrinus defendant, the attachment, being the sole ground upon which the court can exercise jurisdiction, cannot be replaced by a consent to jurisdiction as such consent in itself cannot confer jurisdiction on the court. The requirements are as follows:

d. According to section 21 of the SCA, once the court has made its decision, you have a limited time in which to appeal. if the judge sets no time limit, within 21 days of the decision you want to appeal against. Court staff cannot give legal advice, for example whether you should appeal or whether your appeal will be successful. QUESTION 4 (a). No, nor does it necessarily mean that no other court (for example a court for another district or regional division) can hear the matter. It is important to realize that section 28 contains various grounds for jurisdiction, and that one ground is not more important than another. Each one is an alternative and independent ground. Jurisdiction in terms of section 28(1)(d) is therefore not a prerequisite for jurisdiction in terms of section 28. Jurisdiction in terms of one of the grounds also does not rule out jurisdiction in terms of another ground. In theory and based on a given set of facts, it is therefore quite possible for various courts to have jurisdiction and on different grounds (for instance, one in terms of section 28(1)(a), another in terms of section 28(1)(d) or even section 28(1)(b)). In such an instance, the circumstances of the case (such as costs, convenience, just to mention a few) will dictate in which court the plaintiff, as master of the suit, will choose to institute action.

(b). The difference between the special plea and the exception is as follows: An exception is limited to an attack on the allegations in the pleading as a whole, on the assumption that such allegations are true whilst a special plea assumes the truth of all the allegations in the declaration and does not deal with the merits of the action at all. A special plea differs from an exception in 2 aspects namely: . It alleges fact unconnected with the merits of the action as a result of which the action is either destroyed or postponed (defendant only). . A special plea may only be pleaded to a declaration or particulars of claim, whereas an exception can be brought against any pleading (any party may use.)

(c)(i). The explanation whether any Regional Magistrates’ Court will be competent to exercise jurisdiction is as follows. The monetary jurisdiction limits for the district court and the regional court in terms of section 29 of the Magistrates’ Courts Act 32 of 1944 is R420 000. Section 40 of the Magistrates’ Courts Act of 1944 prohibits the splitting of a “substantive claim” exceeding the jurisdiction limit of a particular court in order to recover the claim if the split claims arise from the same cause of action. As the claim amount is R420 000, it clearly exceeds the quantitative jurisdictional limit of the regional court. Consequently, no regional court is competent to exercise jurisdiction.

(c)(ii). Section 39 of the Magistrates’ Court Act 32 of 1944 provides that a plaintiff may deduct from his or her claim any amount admitted to be due by him or her to the defendant. Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a court (district or regional) has jurisdiction over a person who resides, carries on business or is employed within the court’s area of jurisdiction. Should the plaintiff, B, deduct the admitted amount of R20 000 which is owed to A from the amount claimed, the remaining amount of the claim is R400 000 which falls within the quantitative jurisdictional limit of the regional magistrates’ court. Finally, A lives in Pretoria, and therefore the Pretoria regional court has jurisdiction to hear the matter in terms of section 28(1)(a) as he “resides” in Pretoria. Consequently, the answer differs from (i) as a regional court (Pretoria) now has jurisdiction. Section 38 of the Magistrates’ Courts Act 32 of 1944 is not relevant in this instance, as the given facts specifically refer to an admitted amount owed to the defendant (the grounds for jurisdiction in the magistrates’ courts are containedin the various sections of the Magistrates’ Courts Act 32 of 1944. The common law grounds for jurisdiction are not applicable in the magistrates’ courts, and any reference to these grounds in answers dealing with jurisdiction in the magistrates’ courts is summarily marked as wrong).

QUESTION 5 (a) This is a claim for specific performance. Section 46(2)(c) Magistrates’ Courts Act, 1944 provides that a magistrate’s court may not hear claims for specific performance without an alternative claim for damages. Specific performance is the performance of an act that a person has contractually undertaken to perform. According to the courts’ definition of specific performance, what is referred to is the performance of an act that was contractually undertaken (for instance ad factum praestandum) and does not include ad pecuniam solvendam: this was confirmed in Maisel v Camberleigh Court (Pty) Ltd 1953 4 SA 371 (C). On the given facts, X wants the court to compel Y to finish building as per agreement. Therefore, directing Y to finish building would amount to an order for specific performance, which, without an alternative claim for damages, cannot be heard by a magistrate’s court. Therefore, neither of the courts mentioned will have jurisdiction in the matter.

(b) B may implement Automatic rent interdict. In terms of section 31 of the Magistrates’ Courts Act, when issuing summons for arrear rent in the Magistrates’ Courts, it is possible to include what is called an automatic rent interdict in the summons. In other words, the landlord will include in his summons a notice prohibiting any person (including, obviously, the tenant), from removing from the premises any furniture or other effects, which are subject to the landlord’s hypothec for rent (for instance, which belong to the person/s who owe/s the rent), until the court makes an order as to what is to become of such furniture and other effects. Anyone who has knowledge of this notice is interdicted (for example, legally prohibited) from removing the said furniture or other effects, until the court reaches its decision.

QUESTION 6 (a) Once judgment has been granted (in undefended actions for a liquidated debt it may be granted by the clerk of the court) and the judgment debt is not paid the creditor is entitled to execute against the debtor’s property in satisfaction of the judgment. The process of execution is initiated when the clerk of the court issues a writ of execution, which authorizes the sheriff to attach and sell property of the defendant. In keeping with section 66(1)(a) of the Magistrates’ Court Act, the writ will at first be confined to movables and only once it is shown that they are insufficient will a writ be issued for execution against immovable property. Execution is usually made against movable property belonging to the judgment debtor. If, however, there is insufficient movable property to satisfy the judgment debt, then execution may be made against the immovable property of the judgment debtor.

The magistrate ’s court may also order that judgment be

enforced by immediate execution against the immovable property of the judgment debtor on good cause shown.

(b) Nulla bona`` return is a return of the sheriff of the court reporting that a judgment debtor has no goods, or insufficient goods, with which to satisfy a warrant of execution (Magistrates’ Courts) or writ of execution (High Court) issued against the judgment debtor in an effort to recover the judgment debt (not a return of non-service where the sheriff was unable to serve a process for one or other reason).

(c) The process of execution is whereby compliance with any judgment, decree or sentence is enforced. Execution may be defined as a court process whereby a successful litigant can enforce the court judgment or order grant in his favor. The

process of execution may be used against the person or property of the debtor. Execution against the judgment debtor’s person has been abolished. The magistrate’s court act, which ordered the committal of debtors to prison for failure to satisfy the judgment debt, was declared invalid by the Constitutional court.

(d)(i) The plaintiff should appeal the judgment to the supreme court of appeal because the evidence is inadmissible.

(d)(ii) The procedure in the High Court.

(d)(iii) Two distinctions between appeal and review are as follows: 

An appeal is aimed at the result of the trial, whereas a review is aimed at the method by which the result is obtained. This may prove an unsatisfactory distinction as both forms of proceedings is aimed at reversing the judgment of the court a quo. The very object of review is to show that the proceedings were improperly conducted, and it seeks to have the judgment set aside on these grounds without being concerned with the merits of the case.

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The second distinction is that, in the case of an appeal, the parties are restricted to the record of the proceedings and may not go beyond it, whereas in the case of a review, the parties may, beyond the record.

(e) The discussion of the grounds for reviewing the proceedings of quasi-judicial bodies in terms of common law are as follows. Superior courts have inherent jurisdiction to entertain all causes arising within their area of jurisdiction. If a statutory body (for example, a liquor licensing board) does not conduct its proceedings in fair and reasonable manner, a superior court will have the inherent jurisdiction necessary to correct such shortcomings. This type of review is therefore often termed a ‘review under the common law’. A superior court has jurisdiction to review the proceedings of anybody

or tribunal empowered to perform statutory duties, as well as to review the proceedings of quasi-judicial bodies. A court will not interfere on review with a decision taken by a quasi-judicial tribunal, unless the party requesting review has suffered prejudice. Where it has been proved that a party has suffered prejudice as a result of an irregularity, the onus of disproving prejudice must be discharged by the tribunal that committed the irregularity....