Sample/practice exam 2019, questions and answers PDF

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CIV Questions - 2019CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or1CIVIL PROCEDURE QUESTIONS: By comparison to High Courts, explain the reason for magistrate’s courts being described as “creatures of statute”. (7) Magistrates’ courts...

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CLS cc CIV Questions - 2019

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CIVIL PROCEDURE QUESTIONS: 1. By comparison to High Courts, explain the reason for magistrate’s courts being described as “creatures of statute”. (7) Magistrates’ courts are termed “creatures of statute”. This means not only that they have been created by statute, but also that they can only do what some statute permits them to do. Because the magistrates’ courts may exercise only statutory jurisdiction, the common-law principles which you applied when determining jurisdiction in the high courts, are not relevant when determining jurisdiction in magistrates’ courts. Example: A good example is the principle of forum domicilii: the high court of which a defendant is an incola may exercise jurisdiction in respect of money claims. The Magistrates’ Courts Act contains a similar provision in section 28(1) (a), which provides that the magistrate’s court where a defendant resides, carries on business or is employed has jurisdiction. A person is an incola where he is domiciled or resident; a person can be domiciled at a completely different place to that where he works or is employed, and so you could find that completely different courts have jurisdiction depending on whether you have referred to common law or what is often incorrectly viewed as its statutory equivalent. 2. Explain the inherent jurisdiction of superior courts.

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The courts jurisdiction is derived from common law. When it is said that a court exercises “inherent jurisdiction”, this simply means that its jurisdiction is derived from common law and not from statute (although statute, in certain cases, may limit or increase this jurisdiction). One of the implications of a superior court exercising its inherent jurisdiction is that it has discretion in regard to its own procedure. In other words, a court may condone any procedural mistakes or determine any point of procedure. The Constitution confirms the continued existence of this common-law power of superior courts. Section 173 states: The Constitutional Court, the Supreme Court of Appeal and the High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice. 3. State any six aspects of process and procedure in terms of which the Rules Board is competent to make, amend or repeal rules in terms of section 6 of the Rules Board for Courts of Law Act 107 of 1985. (6) In terms of Section 6(1) of the Rules Board of courts of law act, the rules board have the power to regulate and amend the following rules: 1. The procedures of litigation 2. Regulate the form and the content of pleadings and processes 3. Regulate the practice of service of processes (the summons) 4. Regulates the procedures and practices of execution of pleadings and processes 5. Regulates the appointment and duties of the sheriff 6. Appointment of commissioners to take evidence where the witness cannot appear in court CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright.

CLS cc CIV Questions - 2019

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7. The appointment and admission of sworn translators 8. The manner or recording or noting evidence and proceedings 9. The appointment of assessors in proceedings in lower courts 4. Koos purchases a fruit farm situated in Durban from Piet. Piet lives in Johannesburg. Despite continuous demands from Koos, Piet refuses to take steps to have the property registered in Koos’ name. With reference to these facts, answer the following questions. (a) Discuss whether Koos may institute the application for registration of the property in the Johannesburg High Court or in the Durban High Court. (6) The Durban hc - this is due to the fact that the case concerns immovable property and the registration thereof into Koos’ name – thus forum rei sitae is applicable and this gives Durban exclusive J. JHB wont have J due to the forum rei sitae principle. (b) Giving reasons, state whether your answer to (a) would differ if Koos institutes an action for damages on the grounds of breach of contract. (2) Yes my answer will change as the action now is a claim sounding in $ and that one may use ratione domicilii of the def and sue in jhb.

5. State the provisions of section 2(1) of the Divorce Act of 1979 in regard to the requirements for the exercise of divorce jurisdiction. (6) An independent domicile for married woman is now conferred under section 1(1) of the Act, in the following terms: Every person who is of or over the age of 18 years, and every person under the age of 18 years who by law has the status of a major…shall be competent to acquire a domicile of choice, regardless of such person’s sex or marital status. The Domicile Act not only amended the concept of domicile in the context of divorce jurisdiction, but also introduced new grounds for the exercise of divorce jurisdiction. The Domicile Act amended the Divorce Act by establishing both domicile and residence as separate grounds for the exercise of divorce jurisdiction. The current legislative position is that the domicile or ordinary residence of either spouse within the area of a particular high court is enough to confer jurisdiction on that court. The effect of this amendment is that the word “domicile” when used in the context of divorce jurisdiction, must be interpreted in accordance with the definition contained in section 1(1) of the Domicile Act and not in accordance with its common-law definition 6. State three matters set out in section 167(4) of the Constitution of the RSA in respect of which the Constitutional Court has exclusive jurisdiction. (6) Disputes between organs of state at national or provincial level concerning their constitutional status, powers or function; the constitutionality of parliamentary or provincial bills; whether or not parliament or the President has failed to comply with a constitutional duty

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7. Johan is a watch dealer who lives in Bloemfontein. Johan sells a valuable Rolex to Pat, a jeweller, for a purchase price of R300 000. Pat lives in Pretoria, but conducts his business from an office in Cape Town. The contract is signed in Johannesburg but the Rolex must be personally delivered to Pat’s Cape Town office and the purchase price will be paid on delivery. After taking delivery of the Rolex, Pat refuses to pay the purchase price. Answer the following questions, in each instance giving brief reasons for your answer. (a) Johan wishes to sue Pat for an amount of R300 000, being the purchase price of the Rolex. Explain whether the Johannesburg High Court and the Cape Town High Court will be competent to exercise jurisdiction. (4) (b) Explain whether or not summons may be issued out of either of the High Courts identified in (a) above during a period when Pat is in Durban for business purposes. (3) (c) The original facts remain the same, except that, Pat, the purchaser, is a peregrinus of the Republic and his only asset in SA is his business in Cape Town. Explain whether the Johannesburg High Court and the Bloemfontein High Court will be competent to exercise jurisdiction. (8) (d) The original facts remain the same. However, Johan decides to sue Pat for the return of the Rolex, which is stored in Pat’s safe in Cape Town, Explain why both the Cape Town High Court and the Pretoria High Court may exercise jurisdiction. (5) (a) Both the Johannesburg HC and the Cape Town HC may hear the matter on the basis that they are vested with jurisdiction ratione contractu. (b) Summons may be issued by any court vested with jurisdiction and the defendant’s whereabouts are irrelevant in this regard. His whereabouts are relevant for purposes of service but as section 26(1) provides that processes runs throughout the country, service may be effected on the defendant anywhere in the country. (c) As Pat is a foreign peregrine, arrest of his person or attachment of his property will always be necessary before a court may exercise jurisdiction. Section 19(1) (c) provides that attachment may take place anywhere in SA, so his assets in CT may be attached to found or confirm jurisdiction. The Bloemfontein High Court may exercise jurisdiction provided attachment ad fundandam jurisdictionem is possible because John the plaintiff is an incola of that court. The Johannesburg HC may exercise jurisdiction provided attachment ad confirmandam jurisdictionem takes place, as this will strengthen the partial jurisdiction it has because the cause arose in its jurisdiction. (d) This is now an action concerning property, not a claim sounding in money. The place where the property is situated always has jurisdiction ratione rei sitae. So the Cape Town HC has jurisdiction because the diamond is stored in a bank vault there. As the property is moveable, this jurisdiction is not necessarily exclusive and the place where the defendant is domiciled may also be able to exercise jurisdiction, it is for this reason that the Pretoria HC may possibly also exercise jurisdiction. CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright.

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8. Tammy wishes to obtain a divorce from her husband Liam. The parties were married in Durban. They then lived in Pretoria until two years ago, when Liam left Tammy for another woman, Kim. Immediately afterwards, Liam moved permanently to Bloemfontein to live there with Kim. Answer the following questions, in each instance giving brief reasons for your answer: (a)

Explain why both Liam and Tammy can institute a divorce action in the Bloemfontein HC. (6)

A court may exercise divorce jurisdiction if both or either of the parties are domiciled in its area of jurisdiction on the date on which the action is instituted. Alternatively, a court may also exercise jurisdiction if both or either of the parties are ordinarily resident in its area of jurisdiction on the date on which the action is instituted, and have/has been ordinarily resident in the Republic for a period of not less than one year immediately prior to the institution of the action. Liam moved to Bloem and if he has the intention to be domiciled there, Bloem can hear their divorce based on s2(1)(a) = domicile. (b)

Explain the concept “domicile” in the context of divorce jurisdiction. (7) Every person who is of or over the age of 18 years, and every person under the age of 18 years who by law has the status of a major…shall be competent to acquire a domicile of choice, regardless of such person’s sex or marital status.The Domicile Act not only amended the concept of domicile in the context of divorce jurisdiction, but also introduced new grounds for the exercise of divorce jurisdiction. The Domicile Act amended the Divorce Act by establishing both domicile and residence as separate grounds for the exercise of divorce jurisdiction. The current legislative position is that the domicile or ordinary residence of either spouse within the area of a particular high court is enough to confer jurisdiction on that court. The effect of this amendment is that the word “domicile” when used in the context of divorce jurisdiction, must be interpreted in accordance with the definition contained in section 1(1) of the Domicile Act and not in accordance with its common-law definition (c)

Tammy wishes to have her marriage declared void as she has discovered that Liam was already married to Kim when he purported to marry her. Which court/courts will have jurisdiction to hear this action? (4)

An action for the declaration of nullity of a void marriage does not alter the status of the parties, because, in reality it is merely of a declaratory nature. In such a case no valid marriage in fact existed and the parties are only seeking legal confirmation of this fact before, for instance, marrying other persons. In accordance with our common law, as interpreted by our courts, the following courts have jurisdiction: The forum loci celebrationis (the court of the place where the marriage was entered into) – Durban. The court where the plaintiff or the defendant is domiciled at the time nullity proceedings is instituted – Bloem for Liam or Pretoria for Tammy.

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(d) After having the marriage declared void, Tammy and Liam need to determine ownership of the house that they bought together in Pretoria. Which court/courts must they approach for this purpose? (3) The general common-law principle is that the forum rei sitae (court in whose area the property is situated) has jurisdiction to hear claims relating to such property. The court in whose territorial area the immovable thing is situated has exclusive jurisdiction in actions: ξ To determine the title of immovable property ξ For the transfer of immovable property ξ For the partition of immovable property ξ Where a real right is in dispute ξ Where possession of immovable property is claimed ξ Where rescission of a contract for the transfer of immovable property is claimed. It does not matter whether the defendant is an incola or a peregrinus. Thus, in Pretoria.

9. Give a detailed explanation of the term “jurisdiction”.

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Two requirements must be met, first a court must have the authority to adjudicate or determine matters that come before it. Second, it must have the authority to enforce its judgements. These requirements are confirmed in the Ewing McDonald decision. A court will not exercise jurisdiction until both requirements are met. The first necessitates some or other jurisdictional connecting factor between the court and the parties or the cause of action. The second requirement flows from the doctrine of effectiveness. 10. Name any three matters set out in section 167(4) of the Constitution of the RSA in respect of which the Constitutional Court has exclusive jurisdiction. (6) i)

disputes between organs of state at national or provincial level concerning their constitutional status, ii) powers or function; iii)the constitutionality of parliamentary or provincial bills; iv) whether or not parliament or the President has failed to comply with a constitutional duty

11. Discuss briefly the domicile of a married woman for the purposes of divorce jurisdiction. (6) Common law provided that a woman adopted the domicile of her husband on marriage and retained it for the duration of the marriage. In other words, on marriage, she lost her domicile of choice. Section 3 of the Domicile Act abolished this principle and granted an independent domicile to married women. This amendment also resulted in new grounds for the exercise of jurisdiction: domicile and residence are now independent grounds; in fact, the domicile or residence of either spouse in the jurisdictional area of the court is enough to vest that court with divorce jurisdiction.

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12. Explain the significance of the decisions in Briscoe v Marais for the doctrine of submission. (4) In the Briscoe decision, the court held that, irrespective of whether the plaintiff was an incola, parties could not submit to the court’s jurisdiction unless the cause of action arose within the court’s jurisdictional area. The earlier Veneta decision had stated obiter that, although courts exercised jurisdiction if the plaintiff is an incola and the defendant a peregrinus of the republic, provided that arrest or attachment to found jurisdiction could be effected, this was not a traditional ground for the exercise of jurisdiction but merely a development to help incolae to litigate at home. The current position, post-Briscoe, is that a peregrinus defendant cannot avoid arrest or attachment to found jurisdiction by submitting to the jurisdiction of the court. 13. Explain the term “ratione rei gestae”.

(6)

Under common law, a court will be vested with jurisdiction in respect of monetary claims in the following instances: 1) If the contract which is the subject of the litigation, was concluded, was to be performed or was breached within the court’s area of jurisdiction, any of these grounds will be sufficient to vest a court with jurisdiction – ratione contractus 2) If the delict on which the claim is based was committed within a court’s area of jurisdiction, a court is vested with jurisdiction ratione delicti commissii. Collectively, termed ratione rei gestae. 14. Name any three matters set out in section 167(4) of the Constitution of the RSA in respect of which the Constitutional Court has exclusive jurisdiction. (6) * Disputes between organs of state at national or provincial level concerning their constitutional status, powers or function; * the constitutionality of parliamentary or provincial bills; * whether or not parliament or the President has failed to comply with a constitutional duty. 15. Discuss briefly the domicile of an incola defendant within the area of the court as a ground for the exercise of jurisdiction in regard to claims sounding in money. (8) This ground of jurisdiction is known as ratione domicilii, and is based on the maxim actor sequitur forum rei. A court has jurisdiction over a defendant who is an incola of its area at the time when the action is instituted. It is irrelevant whether the plaintiff is an incola or a peregrinus, or where the cause of action arose. The rule states that a defendant must be domiciled or resident within the court’s area of jurisdiction at the time the action is instituted. Pollak states that the action is instituted when the summons is issued and served. This view was confirmed in (Mills) 16. Explain the significance of section 1(1) of the Domicile Act of 1992 in regard to the exercise of divorce jurisdiction. (4)

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In terms of common law, a woman, upon entering into marriage, automatically adopted and followed the domicile of her husband. She therefore lost the domicile which she had prior to her marriage, and also forfeited her competence to acquire a domicile of choice during the subsistence of the marriage. The wife’s domicile of dependence was abolished by the provisions of the Domicile Act. An independent domicile for married woman is now conferred under section 1(1) of the Act, in the following terms: Every person who is of or over the age of 18 years, and every person under the age of 18 years who by law has the status of a major…shall be competent to acquire a domicile of choice, regardless of such person’s sex or marital status. The Domicile Act not only amended the concept of domicile in the context of divorce jurisdiction, but also introduced new grounds for the exercise of divorce jurisdiction. The Domicile Act amended the Divorce Act by establishing both domicile and residence as separate grounds for the exercise of divorce jurisdiction. The current legislative position is that the domicile or ordinary residence of either spouse within the area of a particular high court is enough to confer jurisdiction on that court. The effect of this amendment is that the word “domicile” when used in the context of divorce jurisdiction, must be interpreted in accordance with the defini...