CIV3701 Exam - 25 February 2022 PDF

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Civil ProcedureCIVFebruary 2022 Supplementary ExaminationbyAlzarra Domenique PatrickStudent Number 43730310Submitted in partial fulfilment of the requirements for the degreeLLBIn theSCHOOL OF LAWUNIVERSITY OF SOUTH AFRICAFirst examiner: Adv. Ndlazi; Ms M MkhabelaSecond examiner: Ms MP MothapoINTRODU...

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Civil Procedure CIV3701 February 2022 Supplementary Examination

by

Alzarra Domenique Patrick Student Number 43730310

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW UNIVERSITY OF SOUTH AFRICA First examiner: Adv. Ndlazi; Ms M Mkhabela Second examiner: Ms MP Mothapo

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INTRODUCTORY STUDIES QUESTION 1 a) Pleading is a written document containing declarations of the parties to an action in which material facts they rely on to support their claims or defense are clearly set out to enable the opponent to plead thereto and which is exchanged between the parties . Process is a series of steps in legal proceedings which can only be taken by the aid of the court or an officer of the court .The concept includes subpoena , notices etc

b) “ Dispute of fact “ arises when , • The respondent denies the material allegations made on the applicants behalf • The respondent admits the allegations but disputes certain facts in the application • The responded states he/she has no knowledge of the main facts states by the applicant , but denies the fact (this turns the onus on the applicant as the common rule states “he who alleges must prove “ ) The applicant must then prove that the defendant is untruthful and unreliable .

c) “ Whole cause of action “ The terms is given a restricted meaning in regard to the exercise of jurisdiction by a magistrates court . In the High Court either the conclusion of a contract , performance or its breach would be sufficient cause of action to exercise jurisdiction . The magistrate court the whole cause of action must have risen within the district concerned or in question . (eg the conclusion, breach and performance ) .

d) Yes , In the event that a party is not satisfied with the outcome of a matter in a lower court Section 83 of the Magistrates court Act 32 of 1944 states that a party

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has the right to appeal . The right of appeal accrues only a party t o a civil suit or proceeding.1

HIGH COURT JURISDICTION AND PROCEDURE QUESTION 2 a) A summary judgement is put in place to protect a plaintiff who has a claim of a particular nature against a defendant with no valid defense. A summary judgement should be not granted lightly Section 129 National Credit Act makes provision for certain requirements to be met before any legal proceedings can be made in court in order to enforce a credit agreement. Rule 32 (1) sets out the type of claims that fall within “liquidated demand “ The rule determines the following: “The Plaintiff may after the Defendant has delivered a plea, apply to the court for summary judgment on each of such claims in the summons as is only: • On a liquid document; • For a liquidated amount in money; • For delivery of the specified movable property; and • For ejectment.” b) (i) There are two main grounds on which South African court may exercise jurisdiction in divorce cases namely on 1 . Residence and 2 . domicile .Section 2 (1 ) of the Divorce Act 70 of 1979 stipulates that the domicile or residence of either spouse is sufficient to confer jurisdiction , even if the other spouse is domiciled or resides outside the Republic of South Africa therefore a spouse who has never resided in South Africa , as a plaintiff may institute divorce proceedings in a particular court in South Africa on the grounds that the other spouse resides or is domiciled within that area . J has resided in Pretoria for 16 months and can

1 Magistrates court Act 32 of 1944 , National Credit Act , Divorce Act 70 of 1979, Divorce Act 70 of 1979

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therefore institute action. On the given facts J may institute action and The High Court in Pretoria will have jurisdiction to hear the matter. (ii ) Due to the fact that T is in Lesotho , Summons will be serviced by way of ordinary service , personal service for matrimonial summonses if preferred .

c) (i) B can lodge and urgent interdict preventing A from publishing the photos on grounds of defamation of character. This will prevent A from doing so in the interim . In terms of POPI this also relates to classified personal data as it is the data subjects personal information. (ii) “audi alteram partem “literally means “ listen to the other side “ The other party will be given an opportunity to state case and be provided with 10 days to issue an intention to defend the interdict stating grounds with an apposing affidavit . (iii) An affidavit stating reasons for the granting pf the interdict and evidence which substantiates for same or the grounds on which the application is based.

d) Rule 13 of the Uniform Rules of Court The third-party procedure enables liability between plaintiff and defendant, and defendant and third party to be determined concurrently, in the same proceeding. There can be no judgment against the third party until the court gives judgment against the defendant as the main proceedings is against the plaintiff and the defendant. The Third-party acts independently.

The procedure may be resorted to only in the following circumstances, namely, 2

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Uniform rules of Court , Protection of Personal Information Act

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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 (i.e. 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 a) (i ) With regards to a claim relating to a delict , a court in whose area of jurisdiction the cause of action arose will have jurisdiction . The place where the delict (attack) was committed will have jurisdiction. (Under common law this falls under the ambit of ratione rei gesae) . Given the facts relating to the question, the cause of action 9attack ) arose in Pretoria therefor the Pretoria High Court will have jurisdiction ratione delicti commissi (ii) A combines summons . b) Requirements for an order for attachment ad confirmandum jurisdictionem : In the instance where a defendant is a Pregrinus of the whole Republic of South Africa and the plaintiff is an incola of the court , A court may exercise jurisdiction if the cause of action has taken place within the courts area of jurisdiction and attachment ad confirmandam jurisdictionem of the defendants property has occurred . (The attachment confirms the imperfect(partial ) jurisdiction of the court ). Section 21(3) of SCA 2013 provides that any Division may issue an order for the attachment of property to confirm jurisdiction however this attachment must be

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where the action of cause arose (provided that the defendant has property to be attached within the courts jurisdictional area )3

Attachment to found jurisdiction is permissible if : •

The defendant is a peregrinus of the whole Republic

•

Attachment of the defendants property has taken place 9within courts area of jurisdiction)

•

The cause of action has arisen in the courts jurisdictional area .

In this instance it is irrelevant if the plaintiff is a incola or peregrine of the court . c) What are the requirements for an order for attachment ad fundandam jurisdictionem: A court will have jurisdiction over a peregrine defendant of the whole Republic, if attachment of the defendants property ad fundandum jurisdictionem has taken place within the courts area and the plaintiff is an incola of the court in question . In this instance, the attachment founds or establishes jurisdiction over the peregrine defendant. (The fact that the cause of actions arose outside the jurisdiction of the court is thus irrelevant) .It is therefore t he attachment itself that vests jurisdiction and not the status of the party .

Attachment to found jurisdiction is permissible if: •

The defendant is a peregrinus of the whole Republic

•

Attachment of the defendants property has taken place (within courts area of jurisdiction ) The plaintiff is an incola

•

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Supreme Court Act

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d) Section 21 SCA (Supreme court Act 59 OF 1959) The purpose of attachment is to provide the court is jurisdiction where it has flawed or imperfect jurisdiction: Section provides that any Division may issue an order for the attachment of property to confirm jurisdiction. This section is subject to Section 28 of SCA (which prevents the attachment of property of a person resident in the Republic to found jurisdiction) and Section 4 of the Admirality Jurisdiction Act 1983 The section only provides for attachment of property ad confirmandum jurisdictionem and does not refer to ad fundandum jurisdictionem (this is governed by common law ) . Location of the property: There is no refence as to where the property must be situated . (Although this is silent , common law prescribes that the property must be situated In the courts area of jurisdiction ) MAGISTRATES’ COURTS JURISDICTION AND PROCEDURE QUESTION 4

a) Section 28(1)(d) of the Magistrate’s Court Act, 32 of 1944, to hear the matter, does it mean that the court cannot hear the matter at all? The section provides that a district magistrates court will be competent to exercise jurisdiction over the person of a defendant if the whole cause of action arose within the district of the court , regardless of where the defendant resides , carries out business or is employed . The action and the court form a connection. If a court does not have jurisdiction in terms of section 28 it does not mean that no other court can hear the matter. Section 28 gives various grounds for jurisdiction and it is possible that no other court may have jurisdiction based on the different grounds.

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The circumstances of the case will depict which court will hear the matter.4

b) Special Plea and The Exception. A special plea is appropriate when it is necessary to place facts before the court to show that there is a defect in the particulars of claim. The defense raised on exception must appear from the pleading itself; the excipient must accept as correct the factual allegations contained in it and may not introduce any fresh matters. c) (I ) The monetary value in terms of jurisdiction for the regional courts in terms of Section 29 of the Magistrates court is currently R200 000.00 and R400 000.00 The claim amount is R420 00.00 which exceeds the monetary value of the jurisdictional limit of the court . The court will therefore not have Jurisdiction to hear the matter. (i) Section 39 of the Magistrates court Act 32 of 1944 provides that a plaintiff may deduct from his /her claim any amount admitted to be due to the defendant . Section 28 states that a court has jurisdiction over a person who resides, is employed or domiciled in its area of jurisdiction. Should B deduct the R20 000.00 from his claim -It would amount to R400 000.00 which falls within the monetary value of the courts jurisdiction. In this instance my answer above would be different as the quantitative value would have changes thus giving the court jurisdiction.

4 Supreme Court Act , Magistrates court Act 32 of 1944, Admirality Jurisdiction Act 1983

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QUESTION 5 a) Although the R400 000.00 falls within the magistrate’s courts jurisdiction in terms of quantitative value. The whole cause of action did not occur in any of the magistrate’s areas of jurisdiction “Whole cause of action “ The terms is given a restricted meaning in regard to the exercise of jurisdiction by a magistrates court . In the High Court either the conclusion of a contract, performance or its breach would be sufficient cause of action to exercise jurisdiction. The magistrate court the whole cause of action must have risen within the district concerned or in question. (eg the conclusion, breach and performance) . The contract was entered into in Pretoria Cause of action arose in Soweto and Y resides in Krugersdorp. In this instance the high court would have jurisdiction on the matter. Preferably the High Court of Pretoria as this is where the contract was concluded.

b) B can issue a simple summons against A for breach of contract as there was a rental agreement in place which A clearly breached by falling to default with payments. This is deemed as a liquidated demand and can comprise of ejectment, transfer, rendering of an account or cancelling of a contract.

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APPEAL, REVIEW AND VARIATION OF JUDGMENT QUESTION 6 a) The execution process is governed by Rule 45(3) which requires that whenever a sheriff is commanded by any process of court to raise a sum of money upon the goods of any person, he must proceed to the dwelling or place of employment of such person and demand satisfaction of the writ, and failing satisfaction, he must demand that so much movable and disposable property be pointed out as he may deem sufficient . According to Rule 46(1) a writ of execution against the immovable property of any judgment debtor must only be issued if: •

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a return has been made of any process issued against the movable property of the judgment debtor from which it appears that the said person has insufficient movable property to satisfy the writ; or such immovable property has been declared to be specially executable by the court.

b) Nulla bona return – This means that the Sheriff made a diligent search but was unable to find any property of the defendant liable to seizure or to make a levy. i.e When the defendant has nothing of value one can attach liability to. c) In general terms, the process of execution entails the attachment and sale by public auction, by the sheriff of the court, of the property of the judgment debtor in order to make up the money owed and thereby satisfy a judgment. The property may be moveable, immovable or incorporeal. The writ of execution commands an officer of the court, usually a sheriff, to take the property of the debtor to satisfy the debt. The execution cannot be issued until after an appropriate court issues a judgment. d) (I ) Review (This relates to the method at which the result was obtained ) namely dismissing evidence as inadmissible . (ii ) Rule 53 states that a motion proceedings must be used . (iii ) Appeal -This is aimed at the result of the trail Review is aimed at the method by which the result was obtained. (Examples) Appeal. guilty sentence. plaintiff disputes the actual outcome. 10

Review. Guilty sentence. Plaintiff disputes at how the court came to its conclusion.

e) Quasi Judicial bodies The court will intervene in the following instances: •

Where the public body or individual exceeds its powers, the court will exercise a restraining influence.

•

If a public body, although confining itself within the scope of its powers , acts mal fide (in bad faith ) or dishonestly or for other reasons had its judgement influenced .

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ACADEMIC DECLRARATION OF HONESTY Declaration: 43730310 (Alzarra Domenique Patrick) 1. I understand what academic dishonesty entails and am aware of UNISA’s policies in this regard. 2. I declare that this assignment is my own, original work. Where I have used someone else’s work I have indicated this by using the prescribed style of referencing. Every contribution to, and quotation in this assignment from the work or works of other people has been referenced according to this style. 3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work. 4. I did not make use of another student’s work and submitted it as my own. NAME: ALZARRA DOMENIQUE PATRICK STUDENT NUMBER:43730310 MODULE CODE: CIV3701 SIGNATURE: AD.PATRICK DATE: 25 February 2022

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